United States v. Shane Mariano

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-10694
Non-Argument Calendar
________________________
D.C. Docket No. 1:14-cr-20406-BB-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SHANE MARIANO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(January 25, 2016)
Before TJOFLAT, WILSON and JILL PRYOR, Circuit Judges.
PER CURIAM:
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Shane Mariano appeals his conviction and resulting sentence for being a
felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Mariano
asserts his conviction should be vacated because: the district court erroneously
admitted eyewitness testimony and DNA evidence at his trial; the district court
erred by refusing to instruct the jury on cross-racial identification; and there was
insufficient evidence to support his conviction. Mariano also challenges his
sentence, asserting the district court: erroneously sentenced him pursuant to 18
U.S.C. § 924(e)(1) of the Armed Career Criminal Act (ACCA); improperly
calculated his base offense level under the Sentencing Guidelines; and imposed an
unreasonable sentence on him. We hold that the district court did not commit any
reversible trial error. However, we conclude that the court erred in sentencing
Mariano pursuant to § 924(e)(1). Accordingly, we affirm Mariano’s conviction,
but vacate his sentence and remand for resentencing.
I. BACKGROUND
A. Trial
In 2014, Mariano was indicted on one count of being a felon in possession of
a firearm, in violation of § 922(g)(1). At his trial, the prosecution argued that
Mariano threatened a cab driver with a silver pistol on January 17, 2014. In
support thereof, the prosecution proffered, inter alia, testimony from the cab
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driver, testimony from one of the police officers who apprehended Mariano, and
DNA evidence related to the silver pistol.
1. Summary of the Cab Driver’s Testimony
At approximately 1:00 a.m. on January 17, someone driving a white Ford
Mustang began honking at the cab driver while he was dropping off a customer.
After the cab driver received his fare from the customer and drove to the nearest
intersection, the white Mustang pulled up next to him and the Mustang’s driver
began cursing at him. The cab driver ignored the white Mustang and continued
driving. But, at a red light, the white Mustang pulled up to him again. The
Mustang’s driver exited the Mustang, walked to the cab, and began banging on the
cab’s window. While banging on the window, the Mustang’s driver threatened to
shoot the cab driver. The Mustang’s driver then returned to the Mustang and
retrieved a silver pistol, which he pointed at the cab driver. After the light turned
green, the cab driver drove away and proceeded to search for police officers.
The cab driver found police officers at a local restaurant and informed them
about his altercation with the Mustang’s driver. The cab driver told the officers
that the Mustang was white and had a Florida license plate. He also reported to the
officers that the Mustang had an Italian flag near the dashboard. The cab driver
described the Mustang’s driver as Caucasian with short hair and a clean shaven
face. In addition, he stated that the Mustang’s driver was wearing a gray sweater.
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The officers then told the cab driver to stay nearby until they located the Mustang.
Shortly thereafter, the officers directed the cab driver to a gas station. The officers
had an individual handcuffed at the gas station. The white Mustang was also at the
gas station. The officers asked the cab driver if the handcuffed individual was the
Mustang’s driver, and the cab driver responded affirmatively. 1 The individual was
Mariano. 2
2. Summary of Apprehending Police Officer’s Testimony
Shortly after receiving the cab driver’s description of the Mustang and its
driver, the police officer found a white Mustang at a gas station and saw an
individual fitting the description provided by the cab driver leaving the gas station.
The officer requested assistance and for the cab driver to come to the gas station.
After the cab driver identified Mariano as the individual who had threatened him
with a silver pistol, the officer searched Mariano’s person. The officer found car
keys for a Ford Mustang in Mariano’s pockets. The keys matched the white
Mustang parked at the gas station. The officer and another officer then searched
the Mustang and found a silver pistol. The Mustang also had an Italian flag
hanging from the rearview mirror near the dashboard.
1
This identification procedure is known as a “show-up.”
2
Relevant to Mariano’s claim that the district court erred by refusing to offer a jury
instruction on cross-racial identification, the cab driver is of Egyptian ethnicity. Prior to trial,
Mariano proposed a jury instruction regarding the inaccuracies of cross-racial identification. The
court declined to provide the instruction, finding that the Eleventh Circuit’s pattern jury
instruction on identification was sufficient.
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3. DNA Evidence Related to the Silver Pistol
At trial, the prosecution proffered an expert witness to testify about DNA
evidence obtained from the silver pistol. The evidence was derived from testing
done by the police department’s crime lab. The results of the testing were
inconclusive—the pistol had a mixture of DNAs on it. However, according to the
expert witness, Mariano’s DNA could not be excluded as a possible “contributor”
to the mixture.3
B. Sentencing
The district court determined Mariano has a base offense level of 24 under §
2K2.1 of the Guidelines. But, the court enhanced Mariano’s sentence pursuant to §
924(e)(1), finding Mariano qualifies for the enhancement because of his prior
convictions for third degree burglary under New York Penal Law § 140.20, second
degree assault under New York Penal Law § 120.05(02), and resisting an officer
with violence under Florida Statutes § 843.01. Ultimately, the court sentenced
Mariano to 18 years’ imprisonment.
3
Mariano presented one witness during his defense. The witness testified that she and
two other individuals were in Mariano’s car during the altercation with the cab driver.
According to the witness, Mariano did not have a silver pistol in his possession at that time.
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II. DISCUSSION
A. Challenges to Conviction
Mariano challenges his conviction on a number of grounds. He asserts the
district court committed trial error by admitting the cab driver’s testimony, not
excluding the DNA evidence related to the silver pistol, and refusing to provide a
jury instruction on cross-racial identification. According to Mariano, these various
errors, individually and cumulatively, require us to vacate his sentence. Mariano
also contends his conviction must be vacated due to insufficient evidence. We
address each argument in turn.
1. The District Court Did Not Err by Admitting the Cab Driver’s
Testimony.
Mariano asserts the cab driver’s testimony was derived from an
unconstitutional, unduly suggestive out-of-court identification—the show-up at the
gas station.4 As such, he claims the district court erred in allowing the testimony.
Typically, the constitutionality of an out-of-court identification is reviewed
de novo. See United States v. Elliot, 732 F.3d 1307, 1309 (11th Cir. 2013) (per
curiam). However, we review constitutional objections not raised before the
district court, such as Mariano’s challenge to the cab driver’s identification, for
plain error. See United States v. Moriarty, 429 F.3d 1012, 1018 (11th Cir. 2005)
(per curiam). Under plain error review, the party raising the challenge bears the
4
Notably, Mariano never challenged the testimony during trial.
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burden of establishing that (1) there is an error; (2) the error is plain; (3) the error
affects the substantial rights of the defendant; and (4) “the error seriously affects
the fairness, integrity or public reputation of judicial proceedings.” Id. at 1019(internal quotation marks omitted).
The constitutionality of an out-of-court identification is reviewed under a
two-part test. See Cikora v. Dugger, 840 F.2d 893, 895 (11th Cir. 1988). We must
first “determine whether the original identification procedure was unduly
suggestive.” Id. If unduly suggestive, we “must then consider whether, under the
totality of the circumstances, the identification was nonetheless reliable.” Id. The
factors to be considered in determining whether the identification was reliable
include: (1) opportunity to view the defendant at the time of the crime; (2) degree
of attention; (3) accuracy of the description; (4) level of certainty; and (5) length of
time between the crime and the identification. 5 Neil v. Biggers, 409 U.S. 188,
199–200, 93 S. Ct. 375, 382 (1972).
Assuming arguendo that the show-up at the gas station was unduly
suggestive, the district court did not err in admitting the cab driver’s testimony
because Mariano has not shown that the cab driver’s testimony was plainly
unreliable. Each of the Biggers factors suggests the cab driver’s identification was
reliable. First, the cab driver had a reasonable opportunity to view Mariano during
5
These factors are known as the “Biggers factors.”
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their altercation: Mariano banged on the cab driver’s window and, subsequently,
Mariano pointed the silver pistol at the cab driver from a relatively short distance.
Second, the cab driver “was not a casual or passing observer,” rather he directly
engaged with Mariano and was the subject of Mariano’s threats. See Manson v.
Brathwaite, 432 U.S. 98, 115, 97 S. Ct. 2243, 2253 (1977). Third, the cab driver’s
description accurately portrayed Mariano’s physical characteristics and clothing.
Relatedly, the cab driver provided an accurate description of Mariano’s car.
Fourth, the cab driver never expressed or otherwise indicated that he was uncertain
about his identification of Mariano. Finally, the cab driver gave his description of
Mariano to police “within minutes” of the altercation. See id. at 115–16, 96 S. Ct.
at 2253.
In response to this evidence, Mariano asserts the cab driver gave varying
descriptions of the Mustang’s driver to police on the night of the altercation and,
therefore, the cab driver’s identification was unreliable. Specifically, Mariano
alleges the cab driver first described the Mustang’s driver as having a shaved head
then later stated the Mustang’s driver had short dark hair. But, this claim is belied
by the cab driver’s testimony at trial. The cab driver testified that he described the
Mustang’s driver as “clean shaven,” not as having a shaved head. Based on this
testimony and the above evidence, we cannot conclude that the cab driver’s
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identification was obviously unreliable. Therefore, we find no plain error. See
Moriarty, 429 F.3d at 1018.
2. The District Court Did Not Err by Admitting the DNA Testimony.
Mariano next argues the district court erroneously admitted the DNA
evidence related to the silver pistol, claiming the evidence did not assist the trier of
fact and was both unfairly prejudicial and confusing.
We review the admissibility of expert testimony for abuse of discretion—a
standard so deferential that we will not reverse “unless the ruling is manifestly
erroneous.” United States v. Frazier, 387 F.3d 1244, 1258 (11th Cir. 2004) (en
banc) (internal quotation marks omitted). Moreover, we will only reverse an
erroneous admission of expert testimony if the error was not harmless. See United
States v. Bradley, 644 F.3d 1213, 1270 (11th Cir. 2011). “An error is harmless
unless there is a reasonable likelihood that it affected the defendant’s substantial
rights.” Id. (internal quotation marks omitted).
The admissibility of expert testimony turns on whether: (1) “the expert is
qualified to testify competently regarding the matters he intends to address”; (2)
the expert’s methodology is reliable, and (3) “the testimony assists the trier of
fact.” Frazier, 387 F.3d at 1260. Although testimony meeting these criteria is
generally admissible, it may be excluded under Federal Rule of Evidence 403 if its
probative value is substantially outweighed by its potential to confuse or mislead
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the jury. Id. at 1263. At the same time, “Rule 403 is an extraordinary remedy
which should be used only sparingly”—the balance in making a Rule 403
determination “should be struck in favor of admissibility.” United States v.
Terzado-Madruga, 897 F.2d 1099, 1117 (11th Cir. 1990) (internal quotation marks
omitted).
Here, the district court did not abuse its discretion in admitting the DNA
evidence. Mariano does not contest the DNA expert’s competency or the
reliability of the expert’s methodology; he only argues that the district court should
have excluded the expert’s testimony because it did not assist the trier of fact and it
implicated Rule 403. However, these arguments are unavailing.
Under the “assists the trier of fact” admissiblity requirement, relevant
“expert testimony is admissible if it concerns matters that are beyond the
understanding of the average lay person.” Frazier, 387 F.3d at 1261–62. The
DNA expert testified that Mariano was a possible contributor to the mixture of
DNA found on the silver pistol. Providing further guidance to the fact finder, the
expert also testified to the probability of Mariano’s DNA actually contributing to
the mixture. This evidence was relevant and “concern[ed] matters that are beyond
the understanding of the average lay person,” as it was scientific evidence that
made it “more or less probable” that Mariano possessed the silver pistol. See id. at
1262; Fed. R. Evid. 401. Therefore, the district court did not abuse its discretion
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with respect to the “assists the trier of fact” requirement when it admitted the
evidence.
Mariano has also failed to show that the district court abused its discretion
by not invoking Rule 403 to exclude the expert’s testimony. “It is only unfair
prejudice [or confusion], substantially outweighing probative value, which permits
exclusion of relevant matter under Rule 403.” Terzado-Madruga, 897 F.2d at 1119(internal quotation marks omitted). Mariano asserts the expert’s testimony was
“prejudicial and confusing” because the DNA evidence was inconclusive and the
evidence revealed “a scientifically certain DNA match to a different person on the”
magazine of the silver pistol. However, any prejudice or confusion resulting from
these facts does not substantially outweigh the probative value of the expert’s
testimony. Indeed, we are unconvinced that this evidence is prejudicial or
confusing at all, and Mariano cites no precedent from this court suggesting
otherwise. Moreover, even assuming the DNA evidence was prejudicial or
confusing, there is no “reasonable likelihood” that the district court’s admission of
the evidence “affected [Mariano’s] substantial rights.” See Bradley, 644 F.3d at
1270.
3. The District Court Did Not Err in Refusing to Provide a Jury
Instruction on Cross-Racial Identification.
Mariano also claims the district court erred in refusing to provide a jury
instruction on cross-racial identification. He asserts the instruction was required
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because he and the cab driver are of different ethnicities and there is a significant
risk of inaccurate identification amongst individuals of different ethnicities.
We review a district court’s refusal to give a requested jury instruction for
abuse of discretion. United States v. King, 751 F.3d 1268, 1275 (11th Cir. 2014)
(per curiam). A “defendant is entitled to have the jury instructed regarding his
theory of defense separate and apart from instructions given on the elements of the
charged offense if there has been some evidence adduced at trial relevant to that
defense.” Id. (internal quotation marks omitted). “We view the evidence in the
light most favorable to the defendant in determining whether there was a proper
evidentiary foundation for the instruction.” Id.Here, “no evidence was adduced at trial related to” the ability of a witness to
make a cross-racial identification. See id. Mariano “did not present any evidence
regarding the effect of race on the ability of a witness to make an accurate
identification, nor did he cross-examine” the relevant witness—the cab driver—“to
determine whether [the cab driver] had difficulty making cross-racial
identifications.” See id. at 1275–76. “Accordingly, [Mariano] failed to adduce a
sufficient evidentiary basis for the requested instruction, and the district court did
not abuse its discretion in declining to give it.” See id. at 1275.6
6
Given Mariano has not shown any trial errors, his argument regarding cumulative error
is without merit. See United States v. Taylor, 417 F.3d 1176, 1182 (11th Cir. 2005) (per curiam).
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4. Sufficient Evidence Supported Mariano’s Conviction.
Finally, Mariano contends his conviction was not supported by sufficient
evidence. We review de novo the sufficiency of the evidence to support a
conviction. United States v. Calhoon, 97 F.3d 518, 523 (11th Cir. 1996). In doing
so, we “view[] the evidence in the light most favorable to the government, with all
reasonable inferences and credibility choices made in the government’s favor.”
United States v. Keller, 916 F.2d 628, 632 (11th Cir. 1990). In order to uphold the
conviction, we “need only find that a reasonable factfinder could conclude that the
evidence establishes the defendant’s guilt beyond a reasonable doubt.” Id.To obtain a conviction for felon in possession of a firearm under §
922(g)(1), “the government must prove . . . three elements: (1) that the defendant
was a convicted felon, (2) that the defendant was in knowing possession of a
firearm, and (3) that the firearm was in or affecting interstate commerce.” United
States v. Deleveaux, 205 F.3d 1292, 1296–97 (11th Cir. 2000). At trial, Mariano
stipulated to the first and third elements. Thus, the only issue before us is whether
the evidence was sufficient to show Mariano knowingly possessed a firearm. The
record includes the following evidence relevant to this inquiry: (1) eyewitness
testimony that Mariano had actual possession of a silver pistol; (2) testimony from
police and the same eyewitness that this pistol was found in Mariano’s car; and (3)
testimony from a friend of Mariano’s that, contrary to the eyewitness’s testimony,
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Mariano did not have possession of any firearms when he came into contact with
the eyewitness. Taking such evidence in the light most favorable to the
prosecution, there was sufficient evidence to support a finding that Mariano
knowingly possessed a firearm. Therefore, we uphold Mariano’s conviction.
B. Challenges to Sentence
Mariano asserts the district court erred by sentencing him pursuant to §
924(e)(1) and determining that his base offense level under § 2K2.1 of the
Guidelines is 24. In addition, he asserts his sentence is both procedurally and
substantively unreasonable. We again address each argument in turn.
1. The District Court Erred in Sentencing Mariano Pursuant to §
924(e)(1).
Under the ACCA, “a person who violates 18 U.S.C. § 922(g) and has three
previous convictions for a violent felony or a serious drug offense is subject to
additional fines and a fifteen-year minimum sentence (and has an enhanced
guidelines sentence under U.S.S.G. § 4B1.4).” United States v. Petite, 703 F.3d
1290, 1293 (11th Cir. 2013) (internal quotation marks omitted); see also 18 U.S.C.
§ 924(e)(1). The district court found Mariano has three prior convictions for
violent felonies: third degree burglary under New York Penal Law § 140.20,
second degree assault under New York Penal Law § 120.05(02), and resisting an
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officer with violence under Florida Statute § 843.01. 7 Based on this finding, the
court sentenced Mariano pursuant to § 924(e)(1). Mariano argues that the district
court erred in determining he has three prior convictions for violent felonies. We
agree. We hold that Mariano’s conviction for third degree burglary under New
York Penal Law § 140.20 does not qualify as a violent felony and, therefore,
Mariano has, at most, two violent felonies under the ACCA. 8
We review de novo whether a prior conviction is a violent felony under the
ACCA. See Petite, 703 F.3d at 1292. Prior to the Supreme Court’s ruling in
Johnson, there were three ways a felony could be classified as a violent felony: the
“elements clause,” the “enumerated clause,” and the residual clause. The elements
clause provides that a crime punishable by more than one year constitutes a violent
felony if it “has as an element the use, attempted use, or threatened use of physical
force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i). The enumerated
clause includes a felony if it “is burglary, arson, or extortion, [or] involves the use
of explosives.” Id. § 924 (e)(2)(B)(ii). Finally, the residual clause includes any
felony that “otherwise involves conduct that presents a serious potential risk of
physical injury to another.” Id. As noted above, the Supreme Court struck down
7
The district court relied on the “residual clause” of the ACCA in finding that Mariano’s
burglary conviction qualifies as a violent felony. After the court sentenced Mariano, the
Supreme Court held that the residual clause is unconstitutional. Johnson v. United States, 576
U.S. __, __, 135 S. Ct. 2551, 2557 (2015). We discuss Johnson further below.
8
We do not address whether Mariano’s other two previous convictions constitute violent
felonies—such an inquiry is irrelevant to our finding that the district court erred in sentencing
Mariano under the ACCA.
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the residual clause as unconstitutionally vague in Johnson. 135 S. Ct. at 2557.
Therefore, an offense now only constitutes a violent felony if it meets the criteria
included in the elements or enumerated clause. See id. at 2563.
To determine whether the elements or enumerated clause applies to
Mariano’s burglary conviction, we first look to the statute Mariano was convicted
under—New York Penal Law § 140.20. Under § 140.20, a person commits third
degree burglary when “he knowingly enters or remains unlawfully in a building
with the intent to commit a crime therein.” N.Y. Penal Law § 140.20. New York’s
definition of “building” includes “any structure, vehicle or watercraft used for
overnight lodging of persons, or used by persons for carrying on business therein,
or used as an elementary or secondary school, or an inclosed motor truck, or an
inclosed motor truck trailer.” N.Y. Penal Law § 140.00. As is apparent, third
degree burglary in New York does not have “as an element the use, attempted use,
or threatened use of physical force against the person of another.” See 18 U.S.C. §
924(e)(2)(B)(i) (elements clause). Accordingly, we focus our analysis on whether
this conviction falls under the enumerated clause.
The enumerated clause only includes burglary convictions for “generic”
burglary. See Descamps v. United States, 570 U.S. __, __, 133 S. Ct. 2276, 2281
(2013). Generic burglary is defined as “unlawful or unprivileged entry into, or
remaining in, a building or structure, with intent to commit a crime.” Id. at 2283
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(internal quotation marks omitted). There are two approaches for determining
whether a burglary conviction meets this requirement: the “categorical approach”
and the “modified categorical approach.” See id. at 2281.
Under the categorical approach, we “compare the elements of the statute
forming the basis of the defendant’s conviction with the elements of the generic
crime.” Id. (internal quotation marks omitted). “The prior conviction qualifies as
an ACCA predicate only if the statute’s elements are the same as, or narrower than,
those of the generic offense.” Id. Mariano’s burglary conviction does not qualify
as a violent felony under this approach. The conviction is “non-generic [under the
categorical approach] because its definition of ‘building,’ which includes things
such as vehicles and watercraft, is broader than the scope of generic burglary’s
‘building or structure’ element.” See United States v. Howard, 742 F.3d 1334,
1343 (11th Cir. 2014). Therefore, we turn to the modified categorical approach.
Under the modified categorical approach, we may look beyond the statutory
elements of the prior conviction and consider a “limited class of documents, such
as indictments and jury instructions,” to determine whether the conviction was for
a generic offense. See Descamps, 133 S. Ct. at 2281. This approach only applies
if the statute in question is “divisible,” meaning that it “sets out one or more
elements of the offense in the alternative.” See id. at 2281, 2283. Here, even
assuming New York Penal Law § 140.20 is divisible, the parties agree that there
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are no documents or uncontested Presentence Investigation Report facts that
provide the details of Mariano’s burglary conviction. Thus, we cannot find that the
conviction was for a generic offense.
Given Mariano’s conviction is not generic under the categorical or modified
categorical approach, the enumerated clause does not apply to the conviction, and
therefore, the conviction is not a violent felony. As a result, Mariano has, at most,
two prior § 924(e)(1) qualifying convictions, and he was incorrectly sentenced
under § 924(e)(1). Moreover, relief is warranted, as this error was not harmless.
Mariano was convicted under § 922(g)(1), which ordinarily has a statutory
maximum sentence of 10 years. See 18 U.S.C. § 924(a)(2). But, due to the district
court’s finding that he has three prior convictions for violent felonies, the court
sentenced him to 18 years’ imprisonment. To remedy this error, we vacate
Mariano’s sentence and remand for resentencing without the ACCA enhancement.
2. The District Court Did Not Err in Calculating Mariano’s Base
Offense Level.
Mariano next argues the district court erroneously determined that his base
level offense under § 2K2.1 of the Guidelines is 24.9 A defendant receives a base
offense level of 24 if his offense was committed after sustaining at least two prior
felony convictions for a “crime of violence.” U.S.S.G. § 2K2.1(a)(2). Mariano
9
Because of the district court’s ACCA determination, this base offense level was
superseded by the ACCA’s higher base level. Given our holding that Mariano is not subject to
the ACCA’s enhancement, his base level under U.S.S.G. § 2K2.1 is relevant.
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asserts that he does not have at least two prior convictions for crimes of violence.
However, as explained below, his convictions for resisting arrest with violence
under Florida Statutes § 843.01 and second degree assault under New York Penal
Law § 120.05(02) are crimes of violence. As such, the district court properly
determined he has a base offense level of 24 under § 2K2.1 of the Guidelines.
A federal or state offense that is “punishable by imprisonment for a term
exceeding one year” and “has as an element the use, attempted use, or threatened
use of physical force against the person of another” is a crime of violence under the
Guidelines. U.S.S.G. § 4B1.2(a). We have previously held that a conviction for
resisting arrest with violence under Florida Statutes § 843.01 is a crime of violence
under this provision of the Guidelines. See United States v. Romo-Villalobos, 674
F.3d 1246, 1249 (11th Cir. 2012) (per curiam). The provision also encompasses
Mariano’s second degree assault conviction under New York Penal Law §
120.05(02). Section 120.05(02) states: “a person is guilty of assault in the second
degree when . . . [w]ith intent to cause physical injury to another person, he causes
such injury to such person or to a third person by means of a deadly weapon or a
dangerous instrument.” Clearly, this offense “has as an element the use . . . of
physical force against the person of another.” See U.S.S.G. § 4B1.2(a). Thus,
Mariano has at least two prior convictions for crimes of violence.
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3. Mariano’s Reasonableness Challenges are Moot.
In light of our finding that Mariano’s sentence must be vacated because the
district court erroneously sentenced Mariano pursuant to § 924(e)(1), his
reasonableness challenges are moot.
III. CONCLUSION
Upon review of the record and consideration of the parties’ briefs, we affirm
Mariano’s conviction, but vacate his sentence and remand for resentencing,
without the ACCA enhancement. In resentencing Mariano, the district court shall
perform a fresh review of the 18 U.S.C. § 3553(a) factors. See United States v.
Estrada, 777 F.3d 1318, 1323 (11th Cir. 2015) (per curiam) (ordering that, on
remand for resentencing, “the district court shall consider all appropriate 18 U.S.C.
§ 3553(a) factors in determining a reasonable sentence”).
AFFIRMED IN PART, VACATED AND REMANDED IN PART.
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