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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13249
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LARRY LYNN GARY,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 2:20-cr-00124-JLB-MRM-1
____________________
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2 Opinion of the Court 21-13249
Before WILSON, LUCK, and HULL, Circuit Judges.
PER CURIAM:
Larry Lynn Gary appeals his 180-month sentence for being
a felon in possession of a firearm and ammunition, in violation of
18 U.S.C. §§ 922(g)(1) and 924(e). On appeal, Gary argues that his
sentence was erroneously enhanced because his prior conviction
for aggravated assault under Florida law does not qualify as a
violent felony under the Armed Career Criminal Act (“ACCA”),
18
U.S.C. § 924(e). After careful review of the record, we affirm
Gary’s 180-month sentence.
I. BACKGROUND
A. Offense Conduct
On August 6, 2020, law enforcement officers conducted a
traffic stop on a Buick sedan because a search of the motor vehicle
database records revealed that the Buick’s license plate was
expired. Defendant Gary was the front passenger in that Buick
sedan.
Officers asked the driver and Gary to exit the vehicle so that
a canine officer could perform a free air sniff of the vehicle. Gary
removed a small, single-strap, blue satchel from around his neck
and chest and placed the satchel on the rear floorboard behind the
center console.
Gary then exited the vehicle and fled the area on foot,
initiating a foot pursuit. While fleeing, Gary dropped a cellphone
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21-13249 Opinion of the Court 3
and a cigarette pack. A canine officer assisted in the chase and
located Gary, who was hiding in bushes.
Officers searched the area and seized the cigarette pack
which contained a small blue plastic baggie containing 0.5 grams of
MDMA. During a search of Gary’s satchel, officers seized (1) a
firearm loaded with ammunition, (2) a clear plastic baggie
containing 6.4 grams of fentanyl, (3) a red baggie containing 1.1
grams of MDMA, and (4) a small digital scale.
B. Indictment and Guilty Plea
In October 2020, a federal grand jury indicted Gary for
unlawful possession of a firearm and ammunition by a convicted
felon, in violation of
18 U.S.C. §§ 922(g)(1) and 924(e). In May
2021, Gary pleaded guilty.
C. Presentence Investigation Report (“PSR”)
Gary’s PSR assigned him a base offense level of 24 pursuant
to U.S.S.G. § 2K2.1(a)(2). The PSR added four levels under
U.S.S.G. § 2K2.1(b)(6)(B) for Gary’s possession of “a firearm and
ammunition while facilitating, or potentially facilitating, further
felonies of Trafficking Fentanyl (4 grams or more) and Possession
of MDMA/Controlled Substance.” Gary’s adjusted offense level
was 28.
The PSR increased Gary’s offense level from 28 to 33 under
U.S.S.G. § 4B1.4(b)(3)(B) because it concluded that Gary qualified
as an armed career criminal under the ACCA and U.S.S.G.
§ 4B1.4(a). Relevant for our purposes, one of the necessary
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predicate offenses for the ACCA enhancement and the § 4B1.4
offense-level increase was a 2016 Florida conviction for aggravated
assault with intent to commit a felony.
Finally, the PSR reduced Gary’s offense level by three under
U.S.S.G. § 3E1.1(a) and (b) for acceptance of responsibility. This
yielded a total offense level of 30.
With a total offense level of 30 and a criminal history
category of IV, Gary’s advisory guidelines range was 135 to 168
months’ imprisonment. The mandatory minimum sentence for a
defendant classified as an armed career criminal under the ACCA
is 15 years’ imprisonment. See
18 U.S.C. § 924(e)(1). Accordingly,
the PSR recommended an advisory guidelines term of 180 months’
imprisonment.
D. Sentencing and Appeal
Before and at sentencing, Gary argued that he was not an
armed career criminal under the ACCA and objected to the
application of the § 4B1.4 offense-level increase. The district court
overruled those objections, adopted the calculations in the PSR,
and sentenced Gary to 180 months’ imprisonment, followed by
three years of supervised release. Gary timely appealed.
II. DISCUSSION
In this direct appeal, Gary does not challenge his guilty plea
or his conviction. Rather, Gary challenges his sentence and the
district court’s determination that he qualified as an armed career
criminal under the ACCA.
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Gary argues that his sentence was erroneously enhanced
because his prior conviction for aggravated assault under Florida
law does not qualify as a violent felony under the ACCA. We
review de novo whether a defendant’s prior conviction qualifies as
a crime of violence for purposes of the ACCA. United States v.
Deshazior,
882 F.3d 1352, 1354 (11th Cir. 2018).
The ACCA requires a 15-year minimum prison sentence for
a defendant who possesses a firearm, in violation of
18 U.S.C.
§ 922(g), and has three or more prior convictions for a violent
felony or a serious drug offense.
18 U.S.C. § 924(e)(1). The
ACCA’s elements clause in
18 U.S.C. § 924(e)(2)(B)(i) defines a
“violent felony” as any crime punishable by more than one year in
prison that “has as an element the use, attempted use, or
threatened use of physical force” against another person.
Id.
§ 924(e)(2)(B)(i). A defendant subject to the ACCA’s enhanced
sentence is likewise deemed an armed career criminal under the
Sentencing Guidelines. See U.S.S.G. § 4B1.4(a).
To determine whether a defendant’s prior conviction
qualifies as a violent felony for purposes of an ACCA enhancement,
courts employ a “categorical approach,” in which they look “only
to the statutory definitions of the prior offenses” rather than the
underlying facts of the prior conviction. Shular v. United States, 589
U.S. ----,
140 S. Ct. 779, 783 (2020) (quotation marks omitted). If
the least serious conduct criminalized by the statute does not
necessarily involve “the use, attempted use, or threatened use of
physical force,” then the statute of conviction does not
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categorically match the federal standard and does not qualify as an
ACCA predicate offense. Borden v. United States, 593 U.S. ----,
141 S.
Ct. 1817, 1822 (2021).
In
Fla. Stat. § 784.011(1), Florida defines a simple “assault” as
an “intentional, unlawful threat by word or act to do violence to
the person of another, coupled with an apparent ability to do so,
and doing some act which creates a well-founded fear in such other
person that such violence is imminent.”
Fla. Stat. § 784.011(1). In
turn, Florida defines an “aggravated assault” as “an assault” that is
committed either:
(a) [w]ith a deadly weapon without intent to kill; or
(b) [w]ith the intent to commit a felony.
Id. § 784.021(1). So the first element of an aggravated assault under
§ 784.021(1) is an “assault,” which is defined in § 784.011(1).
In Borden v. United States, the Supreme Court held that a
criminal offense that requires only a mens rea of recklessness
cannot qualify as a “violent felony” under the ACCA. 593 U.S. at -
---, 141 S. Ct. at 1829–30 & n.6 (plurality opinion); 593 U.S. at ----,
141 S. Ct. at 1835 (Thomas, J., concurring).
In light of Borden, this Court certified questions to the
Florida Supreme Court in defendant Somers’s pending appeal to
this Court where Somers was previously convicted of aggravated
assault under § 784.021(1). See Somers v. United States,
15 F.4th 1049,
1051, 1056 (11th Cir. 2021) (“Somers I”). This Court certified
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questions regarding the mens rea required for a Florida simple
assault offense under § 784.011(1). See id. at 1056.
The Florida Supreme Court held that, based on the plain
language of Florida’s assault statute—§ 784.011(1)—an “assault”
offense under Florida law requires a mens rea of at least knowing
conduct and “an intentional threat to do violence to another
person.” See Somers v. United States,
355 So. 3d 887, 891–93 (Fla.
2022) (“Somers II”). In other words, assault under § 784.011(1)
demands the intent to direct a threat at another person and
therefore cannot be violated by a reckless act. Id.
Thereafter, this Court addressed whether defendant
Somers’s Florida conviction for aggravated assault with a deadly
weapon under § 784.021(1)(a) qualifies as a violent felony under the
elements clause of the ACCA. See Somers v. United States,
66 F.4th
890, 892 (11th Cir. 2023) (“Somers III”). With the benefit of the
Florida Supreme Court’s answer to the mens rea required for a
simple assault offense, this Court held that an aggravated assault
conviction under § 784.021(1) “cannot be committed with a mens
rea of recklessness,” “requires knowing conduct,” and “therefore
qualifies as a ‘violent felony’ under the ACCA.” See id. at 893–94.
In conclusion, this Court held “that aggravated assault under
Florida law categorically qualifies as a ‘violent felony’ under the
ACCA’s elements clause.” Id. at 896.
Gary argues that the Florida Supreme Court’s decision in
Somers II does not resolve the issue in his case because that court
addressed only simple assault under § 784.011(1), not aggravated
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assault under § 784.021(1)—which is the crime that enhanced his
sentence.
Gary ignores that the first element of an aggravated assault
crime under § 784.021(1) is an “assault,” as defined by § 784.011(1).
Indeed, in Somers II, the Florida Supreme Court reasoned that
simple assault always requires the intentional threat to do violence
and therefore cannot be accomplished via a reckless act. 355 So. 3d
at 891; see also Somers III, 66 F.4th at 896 (“The Florida Supreme
Court has told us unambiguously that assault under Florida law
requires a mens rea of at least knowing conduct; it cannot be
committed recklessly.”).
Under Florida law, as shown above, the definition of an
aggravated assault crime incorporates the definition of simple
assault. See
Fla. Stat. § 784.021(1) (defining aggravated assault as
“an assault” either “(a) [w]ith a deadly weapon without intent to
kill; or (b) [w]ith an intent to commit a felony” (emphasis added)).
So it does not matter which condition—either with a deadly
weapon under § 784.021(1)(a) or intent to commit a felony under
§ 784.021(1)(b)—transforms a simple assault into an aggravated
assault because the mens rea for the underlying simple assault is
sufficient to meet Borden’s requirement that the crime be
committed with intent. See Somers III, 66 F.4th at 894–96.
In sum, Gary’s aggravated assault conviction under
Fla. Stat.
§ 784.021(1)(b) categorically qualifies as a violent felony under the
ACCA because, as our precedent in Somers III confirmed, Florida’s
aggravated assault statute requires an intentional threat to use
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violence against another person, regardless of whether it is
committed under § 784.021(1)(a) or (b). See id. at 892, 894, 896.
Therefore, Gary has the requisite three predicate offenses under
the ACCA, and the district court did not err in sentencing him as
an armed career criminal. We thus affirm Gary’s 180-month
sentence.
AFFIRMED.
