United States v. Edwin DeShazior , 882 F.3d 1352 ( 2018 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-11737
________________________
D.C. Docket No. 1:15-cr-20970-DMM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDWIN DESHAZIOR,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(February 20, 2018)
Before JORDAN and JILL PRYOR, Circuit Judges, and REEVES, * District Judge.
REEVES, District Judge:
*
The Honorable Danny C. Reeves, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
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Edwin Deshazior appeals his 180 month sentence following his conviction
for being a felon in possession of a firearm. He argues that he should not have
received a fifteen-year mandatory minimum sentence under the Armed Career
Criminal Act (“ACCA”), 18 U.S.C. §§ 924(e)(1) and 924(e)(2)(B), because he did
not have three prior convictions for violent felonies under the act and because his
prior felony convictions were not alleged in his indictment. After careful review,
we affirm.
I.
Miami-Dade police officers found Edwin Deshazior in possession of a Smith
& Wesson Model 10-8 revolver and four .38 caliber rounds of ammunition on
December 6, 2015. He subsequently pleaded guilty to possession of a firearm by a
convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). The
Probation Office prepared a Presentence Investigation Report (“PSI”) which
indicated that Deshazior was subject to a fifteen-year statutory mandatory
minimum sentence under the ACCA based on the following prior felony
convictions under Florida law: (i) a 1989 conviction for sexual battery (Fla. Stat. §
794.011(3) (1989)); (ii) a 1989 conviction for aggravated assault (Fla. Stat. §§
784.011, 784.021 (1989)); (iii) a 1993 conviction for attempted sexual battery (Fla.
Stat. §§ 794.011(3), 777.011 (1991)); (iv) a 1993 conviction for kidnapping (Fla.
Stat. §§ 787.01, 775.087 (1991)); and (v) a 2005 conviction for resisting an officer
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with violence (Fla. Stat. § 843.01 (2005)).
Deshazior objected, arguing that his prior convictions did not constitute
violent felonies under the ACCA. He further contended that his sentence could not
be enhanced based on these prior convictions because they were not alleged in the
indictment. The district court overruled Deshazior’s objections and sentenced him
to serve the statutory mandatory minimum term of 180 months, followed by five
years of supervised release. This appeal followed.
II.
The ACCA requires that a fifteen-year mandatory minimum sentence be
imposed on defendants convicted of felon in possession offenses who also have
three prior convictions for violent felonies and/or serious drug offenses. 18 U.S.C.
§ 924(e)(1). The ACCA defines a “violent felony” as any crime punishable by a
term of imprisonment exceeding one year that:
(i) has as an element the use, attempted use, or threatened use of
physical force against the person of another [(the “elements clause”)];
or
(ii) is burglary, arson, or extortion, involves use of explosives [(the
“enumerated offenses clause”)], or otherwise involves conduct that
presents a serious potential risk of physical injury to another [(the
“residual clause”)][.]
18 U.S.C. § 924(e)(2)(B). Sexual battery, aggravated assault, attempted sexual
battery, kidnapping, and resisting an officer with violence do not appear in the
enumerated offenses clause. And after Johnson v. United States, 135 S. Ct. 2551
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(2015), the residual clause no longer applies. As a result, this case turns on
whether three of Deshazior’s prior felony convictions constitute violent felonies
under the ACCA’s elements clause. 18 U.S.C. § 924(e)(2)(B)(i).
We review de novo whether a defendant’s prior convictions qualify as
violent felonies under the ACCA. United States v. Hill, 799 F.3d 1318, 1321 (11th
Cir. 2015) (citing United States v. Petite, 703 F.3d 1290, 1292 (11th Cir. 2013)).
Constitutional challenges to a defendant’s sentence are also reviewed de novo.
United States v. Weeks, 711 F.3d 1255, 1259 (11th Cir. 2013) (citing United States
v. Paz, 405 F.3d 946, 948 (11th Cir. 2005)).
A. Aggravated Assault
Deshazior’s argument that aggravated assault under Fla. Stat. § 784.021 is
not a violent felony is foreclosed by our prior precedent. In Turner v. Warden
Coleman FCI, 709 F.3d 1328, 1337-38 (11th Cir. 2013), we held that Fla. Stat. §
784.021 qualifies as a violent felony under the ACCA’s elements clause. Turner is
binding in this circuit “unless and until it is overruled or undermined to the point of
abrogation by the Supreme Court or by this [C]ourt sitting en banc.” United States
v. Sneed, 600 F.3d 1326, 1332 (11th Cir. 2010) (citing Smith v. GTE Corp., 236
F.3d 1292, 1300 n.8 (11th Cir. 2001)).
Deshazior argues that Turner is not controlling because it incorrectly applied
United States v. Palomino Garcia, 606 F.3d 1317, 1334-36 (11th Cir. 2010), which
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held that, for purposes of the Sentencing Guidelines, crimes that can be
accomplished with a mens rea of recklessness do not involve the “use of physical
force.” We recently rejected a similar argument, explaining that “even if Turner is
flawed, that does not give us, as a later panel, the authority to disregard it.” United
States v. Golden, 854 F.3d 1256, 1257 (11th Cir. 2017) (holding that a Florida
conviction for aggravated assault is a crime of violence under U.S.S.G. §
2K2.1(a)(2) cmt. n.1); see also In re Hires, 825 F.3d 1297, 1301 (11th Cir. 2016).
Thus, Deshazior’s 1989 conviction for aggravated assault constitutes a violent
felony under the ACCA.
B. Resisting an Officer with Violence
Deshazior’s argument that resisting an officer with violence under Fla. Stat.
§ 843.01 is not a violent felony is also foreclosed by prior precedent. We
previously held that Fla. Stat. § 843.01 qualifies as a violent felony under the
ACCA’s elements clause. See Hill, 799 F.3d at 1322-23; United States v. Romo-
Villalobos, 674 F.3d 1246, 1251 (11th Cir. 2012).
Deshazior contends that these cases were wrongly decided because the least
act criminalized by the statute includes conduct which does not involve the “use of
physical force,” and so the statute is overbroad and cannot be used to enhance a
defendant’s sentence under the ACCA. See Moncrieffe v. Holder, 569 U.S. 184,
191 (2013); Descamps v. United States, 133 S. Ct. 2276, 2290 (2013).
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Specifically, Deshazior argues that resisting an officer with violence can be
accomplished by “wiggling and struggling.” State v. Green, 400 So. 2d 1322,
1323 (Fla. Dist. Ct. App. 1981).
Again, however, we have previously rejected Deshazior’s argument. In
Romo-Villalobos, we reviewed the Florida cases Deshazior has cited, and found
that they did not establish that de minimis force, such as wiggling and struggling,
was sufficient to establish violence under § 843.01. See Romo-Villalobos, 674
F.3d at 1249-50. As we noted with respect to Turner, supra, Romo-Villalobos is
binding in this circuit “unless and until it is overruled or undermined to the point of
abrogation by the Supreme Court or by this Court sitting en banc.” Sneed, 600
F.3d at 1332 (citing Smith, 236 F.3d at 1300 n.8). Accordingly, Deshazior’s 2005
conviction for resisting an officer with violence is a conviction for a violent felony
under the ACCA.
C. Sexual Battery
Deshazior next argues that his 1989 conviction for sexual battery and his
1993 conviction for attempted sexual battery are not convictions for violent
felonies under the ACCA’s elements clause. As a provisional matter, he argues
that the government failed to establish that he was convicted of sexual battery in
1989 because it did not provide the judgment pertaining to that charge. See United
States v. Day, 465 F.3d 1262, 1266 (11th Cir. 2006); United States v. Spell, 44 F.3d
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936, 939-40 (11th Cir. 1995). However, he concedes that the government did
properly establish that he was convicted of attempted sexual battery in 1993, and
that the same ACCA analysis applies to both offenses. As a result, we need not
resolve this issue, and will proceed to examine the sexual battery conviction.
The Florida sexual battery statute, Fla. Stat. § 794.011, sets out a list of
applicable definitions. It defines “sexual battery” as “oral, anal, or vaginal
penetration by, or union with, the sexual organ of another or the anal or vaginal
penetration of another by any other object; however, sexual battery does not
include an act done for a bona fide medical purpose.” Fla. Stat. § 794.011(1)(h).
In United States v. Harris, 608 F.3d 1222, 1226 & n.3 (11th Cir. 2010), we
accepted the government’s concession that this definition, which was incorporated
in the Florida statute for lewd or lascivious battery, does not require as an element
the use, attempted use, or threatened use of physical force, because it can be
accomplished by “union . . . with the sexual organ of another”. Under Florida law,
this means “contact.” Harris does not drive the result here because we only
accepted the government’s concession for purposes of that case, and because the
statute under consideration regarding Deshazior’s conviction also requires that the
sexual battery be accomplished with the use or threatened use of a deadly weapon.
The remaining sections of Fla. Stat. § 794.011 specify that a conviction for
“sexual battery” is a different degree of felony, carrying a different punishment,
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depending on various factors, such as the victim’s age, the victim’s physical and
mental state, and whether the perpetrator threatened, coerced, or drugged the
victim, or used or threatened to use a deadly weapon in the process of committing
the sexual battery. See Fla. Stat. § 794.011(2)-(10).
Florida courts have treated the various sections of § 794.011 as distinct
crimes with different elements, and the Florida Standard Jury Instructions provide
different instructions for the different sections of § 794.011. See Gould v. State,
577 So. 2d 1302 (Fla. 1991); Shaara v. State, 581 So. 2d 1339 (Fla. Dist. Ct. App.
1991); Fla. Std. Jury Instr. 11.1-11.6(a) (1989). Accordingly, § 794.011 essentially
defines “multiple crimes” and is divisible. See Mathis v. United States, 136 S. Ct.
2243, 2249 (2016). Because the statute is divisible, we employ the modified
categorical approach to “determine which statutory phrase was the basis for the
conviction.” Descamps, 133 S. Ct. at 2283-84 (quoting Johnson, 559 U.S. at 144).
Once we have determined under which statutory phrase the defendant was
necessarily convicted, we use the categorical approach to analyze whether that
phrase requires the use, attempted use, or threatened use of physical force as
required by the ACCA’s elements clause, 18 U.S.C. § 924(e)(2)(B)(i). United
States v. Howard, 742 F.3d 1334, 1345 (11th Cir. 2014).
The information for Deshazior’s 1989 sexual battery conviction indicates
that he was charged under Fla. Stat. § 794.011(3) for sexual battery with a deadly
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weapon, to wit: a handgun. The prosecution must prove four elements beyond a
reasonable doubt for an individual to be convicted under this provision: (i) sexual
battery, (ii) upon a person twelve years of age or older, (iii) without that person’s
consent, and (iv) with the use or threatened use of a deadly weapon, or actual
physical force likely to cause serious personal injury. See Fla. Stat. § 794.011(3);
Fla. Std. Jury Instr. 11.2 (1989). Because Deshazior was charged with sexual
battery with a deadly weapon, the use or threatened use of a deadly weapon is an
essential element of the crime of his conviction. See Holloway v. State, 668 So. 2d
627, 628 n.5 (Fla. Dist. Ct. App. 1996); Ellis v. State, 608 So. 2d 514, 515 (Fla.
Dist. Ct. App. 1992); Stradley v. State, 554 So. 2d 1200 (Fla. Dist. Ct. App. 1989).
The issue presented here is whether sexual battery with the use or threatened
use of “a deadly weapon” can be accomplished without “the use, attempted use, or
threatened use of physical force.” 18 U.S.C. § 924(e)(2)(B)(i). If it can, then the
statute is overbroad, and cannot be used to enhance a defendant’s sentence under
the ACCA. See Descamps, 133 S. Ct. at 2290. If it cannot, then the statute
qualifies as a violent felony under the ACCA. The Supreme Court has explained
that “‘physical force’ means violent force—that is, force capable of causing
physical pain or injury to another.” Johnson, 559 U.S. at 140. In deciding whether
an element requires the use of such force, we focus on the least culpable conduct
criminalized by the statute. Moncrieffe, 569 U.S. at 191. However, we resist
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engaging in “florid exercise[s] of legal imagination” which “pose highly
improbable ways” of violating the statute. United States v. Vail-Bailon, 868 F.3d
1293, 1307 (11th Cir. 2017) (en banc).
The jury instructions for sexual battery under Fla. Stat. § 794.011(3) at the
time of Deshazior’s offense provide that “[a] weapon is a ‘deadly weapon’ if it is
used or threatened to be used in a way likely to produce death or great bodily
harm.” Fla. Std. Jury Instr. 11.2 (1987). The jury instructions for aggravated
battery under Fla Stat. § 784.045 similarly provide that “[a] weapon is a ‘deadly
weapon’ if it is used or threatened to be used in a way likely to produce death or
great bodily harm.” Fla. Std. Jury Instr. 8.4 (1989); see also Smith v. State, 969 So.
2d 452, 454-55 (Fla. Dist. Ct. App. 2007). In the aggravated battery context,
Florida courts have held that a “deadly weapon” may include bleach “sloshed” into
a victim’s face, id. at 455, and a large dog given a command to “sic” the victim.
Morris v. State, 722 So. 2d 849, 850-51 (Fla. Dist. Ct. App. 1998)
Deshazior offers two related arguments in support of his position that, for
purposes of the Florida sexual battery statute, the use or threatened use of “a
deadly weapon” does not require the use, attempted use, or threatened use of
“physical force.” First, he argues that a defendant could satisfy this element by
committing a sexual battery with a “deadly weapon” that does not require the
direct application of “physical force,” such as poison, anthrax, or a chemical
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weapon. Second, heeding our warning not to engage in “florid exercise[s] of legal
imagination,” Vail-Bailon, 868 F.3d at 1307, he argues that under existing Florida
law a defendant could satisfy the “deadly weapon” requirement by sloshing bleach
into the victim’s face, or commanding his dog to “sic” the victim. Deshazior
contends that doing so would not involve the use of “violent force—that is, force
capable of causing physical pain or injury to another.” Johnson, 559 U.S. at 140.
We disagree.
When a statute requires the use of force “capable of causing physical pain or
injury to another person,” id., whether that use of force “occurs indirectly, rather
than directly (as with a kick or punch), does not matter.” United States v.
Castleman, 134 S. Ct. 1405, 1415 (2014). Poisoning someone, “sloshing” bleach
in a victim’s face, or saying the word “sic” to a dog may not involve the direct
application of violent force. However, neither does pulling the trigger of a gun.
Id. Instead, in each instance, the actor knowingly employs a device to indirectly
cause physical harm—from a bullet, a dog bite, or a chemical reaction. See id.
The force initiated in each of Deshazior’s examples constitutes “physical
force” under the ACCA because it is “capable of causing physical pain or injury.”
Vail-Bailon, 868 F.3d at 1301. Because it does not matter whether that use of
force occurs indirectly rather than directly, we reject Deshazior’s argument that a
defendant can use or threaten to use “a deadly weapon” under Fla. Stat. §
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794.011(3) without using, attempting to use, or threatening to use “physical force.”
18 U.S.C. § 924(e)(2)(B)(i).
Accordingly, a conviction for sexual battery with a deadly weapon under
Fla. Stat. § 794.011(3) is a conviction for a violent felony under the ACCA’s
elements clause. Deshazior has three qualifying prior felony convictions under the
ACCA. As a result, we need not address whether his prior felony conviction for
kidnapping under Fla. Stat. § 787.01 is also a qualifying violent felony.
D. Prior Convictions Not Alleged in the Indictment
Finally, Deshazior argues that enhancing his sentence based on his prior
convictions was unconstitutional, because his prior convictions were not alleged in
his indictment nor proved to a jury beyond a reasonable doubt. See Apprendi v.
New Jersey, 530 U.S. 466, 489-90 (2000). As we have previously explained,
“Almendarez–Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed.
2d 350 (1998), forecloses [this] argument.” United States v. Sparks, 806 F.3d
1323, 1350 (11th Cir. 2015). The district court could enhance Deshazior’s
sentence based on his prior convictions for violent felonies, even though the prior
convictions were not identified in his indictment.
III.
Under this Court’s prior precedent, Florida convictions for aggravated
assault and resisting an officer with violence are categorically violent felonies
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under the ACCA. Sexual battery with a deadly weapon under Fla. Stat. §
794.011(3) is also a violent felony under the ACCA. Because Deshazior had three
qualifying predicate felony convictions, the district court did not err by enhancing
his sentence under the ACCA. Accordingly, his sentence is AFFIRMED.
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