Case: 17-13795 Date Filed: 04/15/2019 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-13795
Non-Argument Calendar
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D.C. Docket Nos. 9:16-cv-80559-DMM; 9:14-cr-80227-DMM-11
JAMIE NEIL CAPALBO,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Florida
________________________
(April 15, 2019)
Before ED CARNES, Chief Judge, WILLIAM PRYOR, and FAY, Circuit Judges.
PER CURIAM:
Case: 17-13795 Date Filed: 04/15/2019 Page: 2 of 3
Jamie Capalbo appeals the district court’s denial of his 28 U.S.C. § 2255
motion to vacate his 180-month sentence imposed following his convictions for
conspiracy to distribute cocaine and possession of a firearm by a felon. Capalbo
challenges his sentencing enhancement under the Armed Career Criminal Act,
arguing that the district court erred in concluding that his Florida robbery and
aggravated assault convictions qualify as ACCA predicates under the “elements”
clause.
We review de novo the district court’s conclusion that a particular offense
constitutes a violent felony under the ACCA. United States v. Wilkerson,
286 F.3d
1324, 1325 (11th Cir. 2002). The ACCA stipulates that any crime punishable by a
term of imprisonment exceeding one year that “has as an element the use,
attempted use, or threatened use of physical force against the person of another” is
a violent felony for which a 15-year minimum sentence applies. 18 U.S.C.
§ 924(e)(2)(B)(i). This first prong of the ACCA’s definition of violent felony is
sometimes referred to as the “elements clause.” United States v. Owens,
672 F.3d
966, 968 (11th Cir. 2012).1 The Supreme Court has held that “Florida robbery
qualifies as an ACCA-predicate offense under the elements clause.” Stokeling v.
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The Supreme Court has held that “imposing an increased sentence under the residual
clause of the Armed Career Criminal Act violates the Constitution’s guarantee of due process.”
Johnson v. United States, 576 U.S. ___,
135 S. Ct. 2551, 2563 (2015). But because we analyze
Mills’ prior offenses under only the elements clause of the ACCA, these due process concerns
are not implicated.
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United States, 586 U.S. ___,
139 S. Ct. 544, 555 (2019). We have held that
aggravated assault in violation of section 784.021 of the Florida Statutes
constitutes a violent felony under the ACCA’s elements clause. See Turner v.
Warden Coleman FCI (Medium),
709 F.3d 1328, 1337–38 (11th Cir. 2013),
abrogated on other grounds by
Johnson, 135 S. Ct. at 2563.
As a result, Capalbo’s claims that his Florida robbery and battery offenses
are not violent felonies for ACCA purposes are foreclosed by binding precedent.
See
Stokeling, 139 S. Ct. at 555;
Turner, 709 F.3d at 1337–38. Capalbo argues
that Turner was wrongly decided because it incorrectly applied our earlier decision
in United States v. Palomino Garcia,
606 F.3d 1317 (11th Cir. 2010). But even if
we were convinced that Turner was wrongly decided, we are bound by it because it
has not been abrogated by the Supreme Court or this Court sitting en banc. See
United States v. Steele,
147 F.3d 1316, 1318 (11th Cir. 1998) (en banc).
AFFIRMED.
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