United States v. Desmond Shotwell , 708 F. App'x 989 ( 2017 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-15935
Non-Argument Calendar
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D.C. Docket No. 1:16-cr-20094-RNS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DESMOND SHOTWELL,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(September 13, 2017)
Before ROSENBAUM, JILL PRYOR, and DUBINA, Circuit Judges.
PER CURIAM:
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Appellant Desmond Shotwell appeals his 180-month sentence, imposed after
pleading guilty to one count of possession of a firearm and ammunition by a
convicted felon, pursuant to 18 U.S.C. §§ 922(g)(1) and 924(e). He argues that the
district court erred by sentencing him as an armed career criminal based on three
Florida robbery convictions. Specifically, Shotwell contends that the Florida
robbery conviction does not qualify under the Armed Career Criminal Act’s
(“ACCA”) elements clause because violent force is not required to commit robbery
when it can be committed with minimal force. Thus, he argues that because
Florida’s robbery statute requires less than the Supreme Court’s definition of
violent force, the statute is broader than the generic offense.
We review de novo the district court’s conclusion that a particular offense
constitutes a “violent felony” under 18 U.S.C. § 924(e). United States v.
Wilkerson, 286 F.3d 1324, 1325 (11th Cir. 2002).
Under the ACCA, any person who violates 18 U.S.C. § 922(g), and has 3
previous convictions for a violent felony or a serious drug offense, is subject to a
mandatory minimum sentence of 15 years’ imprisonment. 18 U.S.C. § 924(e)(1).
The ACCA defines the term “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; or
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(ii) is burglary, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential risk
of physical injury to another.
18 U.S.C. § 924(e)(2)(B). The first prong of this definition is sometimes referred
to as the “elements clause,” while the second prong contains the “enumerated
crimes” and, finally, what is commonly called the “residual clause.” United States
v. Owens, 672 F.3d 966, 968 (11th Cir. 2012).
In Johnson, the Supreme Court held that the residual clause of the ACCA is
unconstitutionally vague because it creates uncertainty about how to evaluate the
risks posed by a crime and how much risk it takes to qualify as a violent felony.
Johnson v. United States, 135 S. Ct. 2551, 2557-58, 2563 (2015). The Supreme
Court clarified that, in holding that the residual clause is void, it did not call into
question the application of the elements clause and the enumerated crimes of the
ACCA’s definition of a violent felony. Id. at 2563.
In 1922, the Florida Supreme Court stated that the distinction between
robbery and larceny was the addition to mere taking, of a contemporaneous or
precedent force, violence, or of an inducement of fear for one’s physical safety.
Montsdoca v. State, 93 So. 157, 159 (1922). It stated that “[t]here can be no
robbery without violence, and there can be no larceny with it. It is violence that
makes robbery an offense of greater atrocity than larceny.” Id. In 1976, the
Florida Supreme Court determined that any degree of force would suffice to
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convert larceny into a robbery. McCloud v. State, 335 So. 2d 257, 258-59 (Fla.
1976). It stated that “[w]here no force [wa]s exerted upon the victim’s person, as
in the case of a pickpocket, only a larceny [wa]s committed.” Id. at 259. It
determined that because evidence at trial indicated that McCloud had gained
possession of his victim’s purse not by stealth, but by exerting physical force to
extract it from her grasp, the evidence was adequate to support a verdict of
robbery. Id. The Florida Supreme Court called the incident a “purse-snatching
episode.” Id. at 259 n.5. Subsequently, a Florida appellate court upheld a Florida
robbery conviction in 1986, stating that the facts of this case, “unlike picking a
pocket or snatching a purse without any force or violence, show sufficient force, be
it ever so little, to support robbery.” Santiago v. State, 497 So. 2d 975, 976 (Fla.
Dist. Ct. App. 1986) (citing McCloud, 335 So. 2d at 259).
Our court stated that prior to 1997, Florida’s intermediate appellate courts
were divided as to whether a sudden snatching amounted to robbery under Fla.
Stat. Ann. § 812.13. See United States v. Welch, 683 F.3d 1304, 1311 & n.29 (11th
Cir. 2012) (citing cases from Florida’s First, Second, Third, and Fifth Districts).
In 1997, the Florida Supreme Court held that mere snatching of property did not
amount to robbery under § 812.13 unless the perpetrator employed force greater
than that necessary simply to remove the property from the person. Robinson v.
State, 692 So. 2d 883, 886 (Fla. 1997). The Florida Supreme Court stated that
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“[i]n accord with our decision in McCloud,” we determined that “in order for the
snatching of property from another to amount to robbery, the perpetrator must
employ more than the force necessary to remove the property from the person.”
Id. The Robinson court explained that the Florida robbery statute required
“resistance by the victim that is overcome by the physical force of the offender.”
Id.In Lockley, our court addressed whether a 2001 Florida attempted-robbery
conviction qualified as a crime of violence under the elements clause of the career-
offender provision of the Sentencing Guidelines. United States v. Lockley, 632
F.3d 1238, 1240 (11th Cir. 2011); see also United States v. Alexander, 609 F.3d
1250, 1253 (11th Cir. 2010) (providing that “[c]onsidering whether a crime is a
violent felony under the ACCA is similar to considering whether a conviction
qualifies as a crime of violence under U.S.S.G. § 4B1.2(a) because the definitions
for both terms are virtually identical”) (quoting United States v. Taylor, 489 F.3d
1112, 1113 (11th Cir. 2007)). We determined that Lockley’s 2001 Florida
attempted-robbery conviction categorically constituted a crime of violence under
the elements clause of the career-offender guideline. Lockley, 632 F.3d at 1240,
1244-45. See also United States v. Dowd, 451 F.3d 1244, 1255 (11th Cir. 2006)
(holding “without difficulty” that a 1974 conviction for Florida armed robbery was
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“undeniably a conviction for a violent felony” under the ACCA’s elements clause)
(emphasis added).
Post-Johnson, our court relied on Lockley to determine that a 1997 Florida
robbery conviction constituted a violent felony under the ACCA. See United
States v. Seabrooks, 839 F.3d 1326, 1338-41 (11th Cir. 2016); id. at 1346(Baldock, J. concurring); id. at 1346, 1350-51 (Martin, J. concurring). Although
all three judges on the panel agreed on the ultimate result with respect to
Seabrooks’s 1997 armed robbery conviction, their reasoning differed, and they
disagreed about the continuing validity of Dowd and whether Lockley’s holding
applied to pre-1997 Florida robbery convictions. Id. at 1338‒41. The narrowest
ground on which the members of the panel in Seabrooks agreed was that, under
Lockley, post-Robinson, Florida armed robbery convictions categorically qualify as
violent felonies under the ACCA’s elements clause. See id. at 1340; id. at 1346(Baldock, J., concurring); id. at 1352 (Martin, J., concurring).
However, in Fritts, this court clarified that, under Dowd alone, a pre-
Robinson Florida armed robbery conviction qualifies as an ACCA violent felony
under the elements clause. United States v. Fritts, 841 F.3d 937, 940 (11th Cir.
2016). We further determined that Lockley, Robinson, and other Florida Supreme
Court law supported the qualification of Florida armed robbery as a violent felony.
Id. at 940-44. In response to Fritts’s argument that before the Florida Supreme
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Court’s 1997 decision in Robinson, only the slightest force was sufficient to
convict a defendant of Florida robbery, we pointed out that the Robinson court had
made clear that the § 812.13 robbery statute had never included a theft or taking by
mere snatching because snatching was theft only and did not involve the degree of
physical force needed to sustain a robbery conviction under § 812.13(1). Id. at
942-43. We then cited Robinson, McCloud, and Montsdoca in support of that
proposition. Id. at 943. We have reiterated that a defendant’s prior convictions
for armed robbery qualified as ACCA predicates under the elements clause. See
United States v. Burke, ___ F.3d ___, 2017 WL 3044623 *4 (11th Cir. July 19,
2017) (citing Fritts); In re Thomas, 823 F.3d 1345, 1349 (11th Cir. 2016) (citing
Dowd); In re Moore, 830 F.3d 1268, 1271 (11th Cir. 2016) (citing Dowd and
Thomas).
Thus, pursuant to our precedents, a Florida armed robbery conviction
qualifies as an ACCA violent felony under the elements clause. Hence, following
our precedents, we conclude that the district court did not err by sentencing
Shotwell as an armed career criminal based on his three Florida robbery
convictions. Florida’s robbery statute has always required violence beyond mere
snatching, and, therefore, has as an element the use, attempted use, or threatened
use of physical force against the person of another and qualifies as a violent felony
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under the elements clause of the ACCA. Accordingly, we affirm Shotwell’s 180-
month sentence.
AFFIRMED.
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