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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12234
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS ALEXANDER,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 4:20-cr-00010-CDL-MSH-1
____________________
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2 Opinion of the Court 21-12234
Before JILL PRYOR, BRANCH, and BRASHER, Circuit Judges.
PER CURIAM:
Carlos Alexander appeals his 90-month sentence imposed
after he pleaded guilty to being a felon in possession of a firearm.
On appeal, he argues that Georgia aggravated assault is not a crime
of violence under the Sentencing Guidelines, and that the district
court erred in not granting his request for a two-level downward
departure. After review, we affirm the district court’s crime of
violence determination, and we dismiss Alexander’s downward
departure claim for lack of jurisdiction.
I. Background
Alexander entered an open plea of guilty to possession of a
firearm by a convicted felon in violation of
18 U.S.C. §§ 922(g)(1)
and 924(a)(2). The United States Probation Office determined that
Alexander’s base offense level was 24 under U.S.S.G. 2K2.1(a)(2)
because he had two prior crimes of violence as that term is defined
under U.S.S.G. § 4B1.2—namely, a 2000 and a 2011 conviction for
Georgia aggravated assault. Alexander’s resulting guidelines range
was 77 to 96 months’ imprisonment, and the offense carried a
statutory maximum of 10 years’ imprisonment.
Alexander objected to the guidelines calculation. First, he
argued that Georgia aggravated assault does not qualify as a crime
of violence under either the enumerated crimes clause or the
elements clause of § 4B1.2 because it could be committed with a
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21-12234 Opinion of the Court 3
mens rea of recklessness, which rendered the offense overbroad for
purposes of the enumerated crimes clause and categorically
ineligible under the elements clause. Second, he argued that he
was eligible for a two-level departure under U.S.S.G.
§ 5K2.0(a)(2)(B) because he entered a guilty plea during the
COVID-19 pandemic while there was a jury trial moratorium in
effect.1
In response, the government argued, in relevant part, that
Alexander’s challenge to the classification of his prior Georgia
aggravated assault convictions as crimes of violence was foreclosed
by this Court’s decision in United States v. Morales-Alonso,
878
F.3d 1311, 1320 (11th Cir. 2018), which held that Georgia
aggravated assault under O.C.G.A. § 16-5-21(a)(2) qualified as a
crime of violence under the enumerated crimes clause of U.S.S.G.
§ 2L1.2, which is materially identical to the enumerated crimes
clause of § 4B1.2. With regard to the departure under § 5K2.0, the
1
U.S.S.G. § 5K2.0(a)(2)(B) authorizes a sentencing departure for “unidentified
circumstances” and provides that “[a] departure may be warranted in the
exceptional case in which there is present a circumstance that the Commission
has not identified in the guidelines but that nevertheless is relevant to
determining the appropriate sentence.” The government acknowledges in its
brief that, in November 2020, in an effort to avoid a case backlog during the
jury trial moratorium and to incentivize defendants to resolve cases, it
“initiated a COVID-19 plea agreement policy, pursuant to which the United
States would agree to recommend that the district court grant a two-level
downward departure pursuant to U.S.S.G. § 5K2.0(a)(2)(B) on behalf of certain
qualifying defendants who entered into plea agreements.”
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4 Opinion of the Court 21-12234
government asserted that Alexander was not eligible because the
departure policy applied only to defendants who entered a plea
agreement, which Alexander did not, and that the circumstances
surrounding Alexander’s arrest and his criminal history rendered
him ineligible.
At sentencing, Alexander noted that the Supreme Court had
then recently held in Borden v. United States,
141 S. Ct. 1817, 1825,
1834 (2021), that a criminal offense with a mens rea of recklessness
does not qualify as a “violent felony” under the elements clause of
the Armed Career Criminal Act (ACCA), which was identical to the
elements clause of § 4B1.2. Accordingly, he argued that Georgia
aggravated assault was no longer a crime of violence under § 4B1.2.
The district court overruled the objection, explaining that it was
bound by Circuit precedent to conclude that Georgia aggravated
assault is a crime of violence under § 4B1.2’s enumerated crimes
clause and the elements clause.
Next, the district court acknowledged that it had the
discretion to grant or deny the § 5K2.0 departure. However, it
concluded that a departure was not appropriate because Alexander
did not have a plea agreement, he had two prior crime of violence
convictions, and there were aggravating circumstances
surrounding his arrest. The district court asked the government to
confirm with regard to the departure issue that Alexander was
being treated similarly to other defendants with histories of crimes
of violence who did not enter into plea agreements, and the
government confirmed that he was being treated similarly. The
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21-12234 Opinion of the Court 5
district court imposed a within-guidelines sentence of 90 months’
imprisonment to be followed by three years’ supervised release.
Alexander timely appealed.
II. Discussion
A. Whether Georgia aggravated assault qualifies as a crime
of violence under the Guidelines
Alexander argues that Georgia aggravated assault is not a
crime of violence under the Guidelines, §§ 2K2.1(a)(2), 4B1.2. He
acknowledges that we held in Morales-Alonso that Georgia
aggravated assault categorically qualifies as a crime of violence
under the enumerated crimes clause, but he argues that Morales-
Alonso does not control because it did not consider the mens rea
of the offense in addressing whether Georgia aggravated assault
was broader than the federal generic offense of aggravated assault.
We review de novo whether a defendant’s prior conviction
qualifies as a crime of violence under the Sentencing Guidelines.
United States v. Palomino Garcia,
606 F.3d 1317, 1326 (11th Cir.
2010).
The base offense level for an offense involving the unlawful
possession of firearms is 24 if the defendant committed any part of
the offense after sustaining at least two felony convictions for a
“crime of violence.” U.S.S.G. § 2K2.1(a)(2). For purposes of
§ 2K2.1, “crime of violence” is defined in § 4B1.2(a) and its
commentary. Id. cmt. (n.1). Under § 4B1.2(a) a felony offense is a
“crime of violence” if it satisfies either § 4B1.2(a)’s elements clause
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6 Opinion of the Court 21-12234
or its enumerated crimes clause. Id. § 4B1.2(a). Aggravated assault
is listed in the enumerated crimes clause. Id. § 4B1.2(a)(2).
In Morales-Alonso, we held that a conviction for Georgia
aggravated assault was a crime of violence under the commentary
to U.S.S.G. § 2L1.2, which lists “aggravated assault” as an
enumerated crime. 878 F.3d at 1320. Applying our decision in
Palomino Garcia,
606 F.3d at 1332, we explained that generic
aggravated assault has two elements: (1) a “criminal assault” that
(2) is “accompanied by either the intent to cause serious bodily
injury to the victim or the use of a deadly weapon.” Morales-
Alonso, 878 F.3d at 1315 (quotation omitted). We then concluded
that Georgia aggravated assault contained substantially the same
elements, and, therefore, it satisfied the enumerated crimes clause.
Id. at 1320.
Although Morales-Alonso dealt with the enumerated crimes
clause in § 2L1.2 and not § 4B1.2, we must interpret the definition
of “crime of violence” consistently throughout the Guidelines. See
United States v. Lockley,
632 F.3d 1238, 1241 (11th Cir. 2011). And
both §§ 2L1.2 and 4B1.2 define the term “crime of violence” in the
same way by enumerating “aggravated assault” as a covered
offense. Compare U.S.S.G. § 2L1.2, cmt. (n.2), with id.
§ 4B1.2(a)(2). Accordingly, our decision in Morales-Alonso is
controlling here.
In an attempt to overcome Morales-Alonso, Alexander
argues that it is not controlling because we did not consider the
argument that the mens rea element of the Georgia aggravated
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21-12234 Opinion of the Court 7
assault statute is broader than the generic version of aggravated
assault. His argument is unpersuasive. Under the prior-panel-
precedent rule, “a prior panel’s holding is binding on all subsequent
panels unless and until it is overruled or undermined to the point
of abrogation by the Supreme Court or by this court sitting en
banc.” United States v. Archer,
531 F.3d 1347, 1352 (11th Cir. 2008).
The holding of the first panel to address an issue is binding, even if
a later panel concludes that the prior case was wrongly decided.
United States v. Steele,
147 F.3d 1316, 1318 (11th Cir. 1998).
Additionally, “[w]e have held that a prior panel precedent cannot
be circumvented or ignored on the basis of arguments not made to
or considered by the prior panel. . . . In short, we have
categorically rejected an overlooked reason or argument exception
to the prior-panel-precedent rule.” See In re Lambrix,
776 F.3d 789,
794 (11th Cir. 2015) (quotations and internal citations omitted));
Cohen v. Office Depot, Inc.,
204 F.3d 1069, 1076 (11th Cir. 2000)
(“Unless and until the holding of a prior decision is overruled by
the Supreme Court or by the en banc court, that holding is the law
of this Circuit regardless of what might have happened had other
arguments been made to the panel that decided the issue first.”).
Accordingly, Morales-Alonso remains binding and forecloses
Alexander’s argument on appeal. 2
2
Borden did not abrogate Morales-Alonso because Borden addressed the
ACCA’s elements clause, not the enumerated crimes clause of U.S.S.G.
§ 4B1.2. See United States v. Dudley,
5 F.4th 1249, 1265 (11th Cir. 2021), cert.
denied,
142 S. Ct. 1376 (2022) (“To conclude that we are not bound by a prior
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8 Opinion of the Court 21-12234
B. Whether the district court erred in denying the § 5K2.0
departure
Alexander contends that the district court erred in denying
his motion for a downward departure based on a lack of a plea
agreement and that he was treated dissimilarly because there were
other cases in which the district court granted the departure for
defendants who had not entered into plea agreements—although
he acknowledges that in those case the defendants had a different
criminal history score. The government asserts that we lack
jurisdiction to review this claim.
We have jurisdiction to review a district court’s refusal to
grant a downward departure under § 5K2.0 only if the court
incorrectly believed that it lacked the authority to do so. United
States v. Hansen,
262 F.3d 1217, 1255 (11th Cir. 2004). Here, the
record demonstrates that the district court understood that it had
the authority to grant the departure, but that it declined to exercise
that authority. Accordingly, we cannot review the denial of
holding in light of a Supreme Court case, we must find that the case is ‘clearly
on point’ and that it ‘actually abrogate[s] or directly conflict[s] with, as
opposed to merely weaken[s], the holding of the prior panel.’” (quoting United
States v. Kaley,
579 F.3d 1246, 1255 (11th Cir. 2009))).
Further, because Alexander’s prior convictions qualify as crimes of
violence under the enumerated offenses clause, we need not address whether
§ 4B1.2’s elements clause provides an additional basis for the enhancement.
See Morales-Alonso, 878 F.3d at 1314 n.4.
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21-12234 Opinion of the Court 9
Alexander’s request for a downward departure, and we dismiss this
portion of his appeal. 3 Id.
AFFIRMED IN PART AND DISMISSED IN PART.
3
Moreover, even if we had jurisdiction, Alexander would not be entitled to
relief because we have held that disparities in sentences is an “improper
ground for departure” under § 5K2.0. United States v. Chotas,
968 F.2d 1193,
1197–98 (11th Cir. 1992).
