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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-14868
Non-Argument Calendar
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D.C. Docket No. 8:18-cr-00118-SCB-SPF-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CARL GOLDEN,
Defendant - Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(August 26, 2019)
Before TJOFLAT, JORDAN, and NEWSOM, Circuit Judges.
PER CURIAM:
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Carl Golden appeals his 180-month enhanced sentence under the Armed
Career Criminal Act (ACCA) for being a felon in possession of a firearm in
violation of 18 U.S.C. §§ 922(g)(1) and 924(e). While he recognizes that his
arguments are foreclosed by our precedent, Golden nevertheless asserts (1) that his
prior convictions for robbery under Florida Statute § 812.13 and aggravated assault
under Florida Statute § 784.021 don’t constitute “violent felonies” under the
ACCA, and (2) that his convictions for delivery and sale of controlled substances
under Florida Statute § 893.13 don’t constitute “serious drug offenses” under the
ACCA. After careful review, we affirm.
I
As to his “violent felony” convictions, Golden contends (1) that the Florida
robbery statute at the time of his conviction—which was prior to the Florida
Supreme Court’s decision in Robinson v. State,
692 So. 2d 883, 886 (Fla. 1997)
(holding that robbery required resistance and overpowering of a victim)—doesn’t
meet the minimal amount of force required to constitute a “violent felony” under
the ACCA, and (2) that the Florida aggravated-assault statute allows for a lesser
mens rea—i.e., recklessness—than is required under the ACCA.
We review de novo whether a prior conviction is a violent felony under the
ACCA. United States v. Seabrooks,
839 F.3d 1326, 1338 (11th Cir. 2016).
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Unfortunately for Golden, both of his “violent felony” arguments are
directly foreclosed by our precedent. We have held that a pre-Robinson felony
conviction for robbery under Florida Statute § 812.13(1) constitutes a “violent
felony” under the ACCA’s elements clause. United States v. Fritts,
841 F.3d 937,
941 (11th Cir. 2016). As the Fritts Court explained, rather than announcing a new
rule of law, Robinson simply stated what the statute “always meant”—i.e., that the
Florida robbery statute never included a theft by mere snatching, but rather had
always required the use of force.
Id. at 942–43. The Supreme Court’s decision in
Stokeling v. United States—which considered pre- and post-Robinson periods
together in concluding that Florida robbery qualifies as a “violent felony”—
supports this conclusion.
139 S. Ct. 544, 550–55 (2019).
We have also held that an aggravated assault conviction under Florida
Statute § 784.021 constitutes a “violent felony” under the ACCA’s elements
clause. Turner v. Warden Coleman FCI (Medium),
709 F.3d 1328, 1337–39 (11th
Cir. 2013). Moreover, we have specifically rejected the argument that Florida’s
aggravated assault statute fails as a predicate offense under the ACCA because it
could be accomplished with a mens rea of recklessness. United States v.
Deshazior,
882 F.3d 1352, 1355 (11th Cir. 2018), cert. denied,
139 S. Ct. 1255
(2019) (citing
Turner, 709 F.3d at 1337–38).
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So in short, the district court correctly followed our precedent in
concluding that Golden’s Florida robbery and aggravated-assault convictions
constitute “violent felonies” under the ACCA.
Fritts, 841 F.3d at 944;
Turner, 709 F.3d at 1341.
II
As to his convictions for delivery and sale of a controlled substance under
Florida Statute § 893.13, Golden asserts that they don’t constitute “serious drug
offenses” under the ACCA because (1) these offenses were presumably committed
through mere purchase, and (2) they lack the necessary renumeration element to
qualify under the ACCA.
Although we generally review de novo the question whether a prior
conviction is a predicate offense under the ACCA,
Seabrooks, 839 F.3d
at 1338, we review objections or arguments not raised in the district court
for plain error. United States v. Weeks,
711 F.3d 1255, 1261 (11th Cir.
2013) (per curiam). To prevail under the plainerror standard, an appellant
must show, among other things, that an error occurred and that the error was
plain. United States v. Ramirez-Flores,
743 F.3d 816, 822 (11th Cir. 2014).
If a statute fails to specifically resolve an issue, there can be no plain error
without precedent from the Supreme Court or this Court directly resolving it.
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United States v. Lejarde-Rada,
319 F.3d 1288, 1291 (11th Cir. 2003) (per
curiam).
Again, Golden’s arguments are squarely foreclosed by our precedent. We
have held that violations of Florida Statute § 893.13(1) constitute “serious
drug offenses” under the ACCA, even in the absence of a mens rea
requirement. United States v. Smith,
775 F.3d 1262, 1268 (11th Cir. 2014).
Furthermore, Golden’s remuneration argument isn’t supported by a
plain reading of the statutory language. Although the Supreme Court held in
Moncrieffe v. Holder,
569 U.S. 184, 193–94 (2013), that a conviction under
a Georgia statute prohibiting possession of marijuana with intent to
distribute—and that doesn’t require remuneration—isn’t necessarily an
“aggravated felony” under the Immigration and Nationality Act (INA), the
ACCA’s definition of “serious drug offense” differs from the INA’s
definition of “aggravated felony” in that the ACCA requires only “an
offense under State law,” punishable by at least 10 years in prison, involving
the “manufacturing, distributing, or possessing with intent to manufacture or
distribute, a controlled substance.” 18 U.S.C. § 924(e)(2)(A)(ii). Florida’s
delivery-of-cocaine statute, under which Golden was convicted, satisfies this
definition as a state offense punishable by up to 15 years that prohibits the
sale, manufacture, delivery, or possession with intent to sell, manufacture, or
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deliver cocaine. See Fla. Stat. §§ 893.03, 893.13(1)(a) (2019). And in any
event, even if Golden could prove that the district court’s decision was in
error, he couldn’t demonstrate plain error because there is no binding
precedent from this Court contradicting the district court’s conclusion. See
Ramirez-Flores, 743 F.3d at 822;
Lejarde-Rada, 319 F.3d at 1291.
* * *
For the foregoing reasons, Golden’s sentence is affirmed.
AFFIRMED.
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