United States v. Derwin Fritts

Case: 15-15699 Date Filed: 11/08/2016 Page: 1 of 13
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-15699
Non-Argument Calendar
________________________
D.C. Docket No. 8:15-cr-00144-MSS-TBM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DERWIN DARRYL FRITTS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(November 8, 2016)
Before HULL, MARCUS and FAY, Circuit Judges.
HULL, Circuit Judge:
Case: 15-15699 Date Filed: 11/08/2016 Page: 2 of 13
After pleading guilty, Derwin Fritts appeals his total 180-month sentence for
three counts of being a felon in possession of a firearm, in violation of 18 U.S.C.
§ 922(g). The district court sentenced Fritts as an armed career criminal under the
Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), based on Fritts’s prior
convictions for: (1) aggravated assault and aggravated battery, in violation of
Florida Statutes §§ 784.021, 784.045; (2) robbery with a firearm, in violation of
Florida Statutes § 812.13, and (3) sale of cocaine, in violation of Florida Statutes
§ 893.13.
On appeal, Fritts argues that the district court erred in concluding that his
1989 armed robbery conviction qualifies as a “violent felony” under the elements
clause of the ACCA. 1 After review, we affirm.
I. THE ACCA
Under the ACCA, a defendant convicted of violating 18 U.S.C. § 922(g) is
subject to a mandatory minimum sentence of 15 years (180 months) if he has three
prior convictions for a “violent felony” or “serious drug offense.” 18 U.S.C.
§ 924(e)(1). A “violent felony” is any offense 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
1
On appeal, Fritts does not challenge either of the other two qualifying predicate
convictions, and we do not address them further.
2
Case: 15-15699 Date Filed: 11/08/2016 Page: 3 of 13
(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 referred to as the
“elements clause,” while the second prong contains the “enumerated crimes”
clause and, finally, what is commonly called the “residual clause.” United States
v. Owens, 672 F.3d 966, 968 (11th Cir. 2012). Fritts’s appeal concerns only the
elements clause, as robbery is not an enumerated crime, and the Supreme Court
struck down the ACCA’s residual clause as unconstitutionally vague in Johnson v.
United States, 576 U.S. ___, ___, 135 S. Ct. 2551, 2557-58, 2563 (2015). Thus,
we address whether a 1989 conviction for armed robbery with a firearm under
Florida law “has as an element the use, attempted use, or threatened use of physical
force against the person of another” within the meaning of the ACCA.
II. FLORIDA ROBBERY STATUTE
Fritts committed his armed robbery offense in July 1988 and was convicted
in June 1989. At the time of Fritts’s offense, Florida’s robbery statute set forth the
elements of robbery and robbery with a firearm or other deadly weapon as follows:
(1) “Robbery” means the taking of money or other property which
may be the subject of a larceny from the person or custody of another
when in the course of the taking there is the use of force, violence,
assault, or putting in fear.
(2)(a) If in the course of committing the robbery the offender carried a
firearm or other deadly weapon, then the robbery is a felony of the
first degree, punishable by imprisonment for a term of years not
3
Case: 15-15699 Date Filed: 11/08/2016 Page: 4 of 13
exceeding life imprisonment or as provided in s. 775.082, s. 775.083,
or s. 775.084.
Fla. Stat. § 812.13(1), (2)(a) (1987) (emphasis added). The requirement that the
defendant, in the course of the taking, use “force, violence, assault, or putting in
fear” has been an element in Florida’s robbery statute since at least the 1970s. See
United States v. Seabrooks, ___ F.3d ___, 2016 WL 6090860, at *10 (11th Cir.
Oct. 19, 2016).2
III. DOWD AND ITS PROGENY
In 2006, this Court held in United States v. Dowd that a 1974 Florida
conviction for armed robbery was “undeniably a conviction for a violent felony”
under the ACCA’s elements clause. 451 F.3d 1244, 1255 (11th Cir. 2006). This
Court reached this conclusion “without difficulty” and cited only the ACCA’s
elements clause. Id.In several recent cases, this Court has followed Dowd to conclude that other
Florida robbery convictions in 1980, 1986, and 1995 qualified as ACCA predicate
2
As we noted in Seabrooks, in 1992, the robbery statute in § 812.13(1) was amended to
add this language: “with intent to either permanently or temporarily deprive the person or the
owner of the money or other property.” See Seabrooks, ___ F.3d at ____, 2016 WL 6090860, at
*10 n.6; 1992 Fla. Laws 155, § 1. But, the language of “the use of force, violence, assault, or
putting in fear,” remained the same. After 1992, the robbery statute reads:
(1) “Robbery” means the taking of money or other property which may be
the subject of larceny from the person or custody of another, with intent to either
permanently or temporarily deprive the person or the owner of the money or other
property, when in the course of the taking there is the use of force, violence,
assault, or putting in fear.
Fla. Stat. § 812.13(1)(1993).
4
Case: 15-15699 Date Filed: 11/08/2016 Page: 5 of 13
convictions under the elements clause. See In re Hires, 825 F.3d 1297 (11th Cir.
2016) (rejecting the claim that Descamps v. United States, 570 U.S. __, 133 S. Ct.
2276 (2013), undermined our precedent in Dowd and holding that the defendant’s
1995 Florida robbery conviction qualified as a violent felony under the ACCA’s
elements clause, which includes “any felony that ‘has as an element the use,
attempted use, or threatened use of physical force’”); In re Thomas, 823 F.3d 1345,
1349 (11th Cir. 2016) (citing Dowd and holding that the defendant’s 1980 and
1986 Florida “convictions for armed robbery qualify as ACCA predicates under
the elements clause”); In re Moore, 830 F.3d 1268, 1271 (11th Cir. 2016)
(concluding that the defendant’s two Florida robbery-with-a-firearm convictions
and his armed robbery conviction “qualify as violent felonies under our binding
precedent” in Dowd and Thomas). Under Dowd and its progeny alone, we must
conclude that a Florida armed robbery conviction, such as Fritts’s, qualifies as a
violent felony under the ACCA’s elements clause.3
IV. LOCKLEY
Our Dowd precedent and our conclusion here are also supported by our
decisions holding that a Florida robbery conviction under § 812.13(1), even
without a firearm, qualifies as a “crime of violence” under the elements clause in
3
We acknowledge that this opinion uses the discussion in Sections IIIB, C, and F of
Seabrooks. See Seabrooks, ___ F.3d at ___, 2016 WL 6090860, at *10, 13. Given that these
sections were a single judge concurrence, we now use that same analysis as the panel opinion
here.
5
Case: 15-15699 Date Filed: 11/08/2016 Page: 6 of 13
the career offender guideline in U.S.S.G. § 4B1.2(a), which has the same elements
clause as the ACCA. United States v. Lockley, 632 F.3d 1238, 1245 (11th Cir.
2011); In re Robinson, 822 F.3d 1196, 1197 (11th Cir. 2016) (citing Lockley and
concluding that the defendant’s 1991 armed robbery offense has “as an element the
use, attempted use, or threatened use of physical force against the person of
another”).4 We review Lockley’s analysis about the elements in the Florida
robbery statute because it underscores why Dowd and its progeny were correctly
decided.
Applying the pure categorical approach in Lockley, this Court examined the
elements of a robbery offense under Florida law, starting with “the taking of
money or other property.” See § 812.13(1); Lockley, 632 F.3d at 1240 (“We . . .
disregard the facts of the underlying conviction and look only to the elements of
Lockley’s prior conviction.”). Applying Florida law about the elements, the
Lockley Court found (1) that the taking must be by use of force, violence, assault,
or putting the victim in fear, and (2) that “the fear contemplated by the statute is
the fear of death or great bodily harm,” stating:
4
Because the relevant parts of the definition of “violent felony” under the ACCA and
“crime of violence” under the sentencing guidelines are identical, this Court often considers
cases interpreting the language in the sentencing guidelines as authority in cases interpreting the
language in the ACCA. See U.S.S.G. § 4B1.2(a) (providing a crime of violence includes an
offense that “has as an element the use, attempted use, or threatened use of physical force against
the person of another”); see also United States v. Alexander, 609 F.3d 1250, 1253 (11th Cir.
2010); United States v. Rainey, 362 F.3d 733, 735 (11th Cir. 2004).
6
Case: 15-15699 Date Filed: 11/08/2016 Page: 7 of 13
The taking referred to “must be by the use of force or violence or by
assault so as to overcome the resistance of the victim, or by putting
him in fear so that the victim does not resist.” Fla. Std. Jury Instr.
(Crim.) 15.1. The property taken need not be taken from the actual
person of the victim, but must be sufficiently under his control “so
that it cannot be taken without the use of force, violence, or
intimidation directed against the victim.” Id. Assault, in turn, is
defined 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).
And, “[t]he fear contemplated by the statute is the fear of death or
great bodily harm.” Magnotti v. State, 842 So. 2d 963, 965 (Fla. 4th
Dist. Ct. App. 2003) (internal quotation marks omitted).
632 F.3d at 1242 (footnote omitted).
The Lockley Court then concluded that the “commission of robbery in
violation of Fla Stat. § 812.13(1) necessarily requires that the defendant”:
(1) commit a taking of money or other property from another person
or in the custody of another person (2) with the intent to permanently
or temporarily deprive the person of the money or property or any
benefit thereof (3) using force, violence, or an intentional threat of
imminent force or violence against another coupled with an apparent
ability to use that force or violence, or by causing the person to fear
death or great bodily harm (4) where the money or property has value.
Id. at 1242-43 (emphasis added).5 Applying the categorical approach, the Lockley
Court analyzed the least culpable of the acts in § 812.12(1), which was “putting in
fear.” The Lockley Court stressed that (1) “‘putting in fear,’ per Florida law,
5
The Lockley Court also determined: “These elements hew almost exactly to the generic
definition of robbery.” Id. at 1243. As to generic robbery, Lockley states that the generic
definition is “the taking of property from another person or from the immediate presence of
another person by force or intimidation.” Lockley, 632 F.3d at 1244 (quotation marks omitted).
Under the generic approach, intimidation is the fear of bodily harm. Id.7
Case: 15-15699 Date Filed: 11/08/2016 Page: 8 of 13
involves an act causing the victim to fear death or great bodily harm,” (2) “[w]e
can conceive of no means by which a defendant could cause such fear absent a
threat to the victim’s person,” and (3) “[t]he bare elements of § 812.13(1) . . .
satisfy the elements . . . clause[] of U.S.S.G. § 4B1.2(a).” Id. at 1244-45 (citation
and footnote omitted).
Later on, the Lockley Court repeated that (1) “robbery under that statute
requires either the use of force, violence, a threat of imminent force or violence
coupled with apparent ability, or some act that puts the victim in fear of death or
great bodily harm,” (2) “[a]ll but the latter option specifically require the use or
threatened use of physical force against the person of another,” (3) “we find it
inconceivable that any act which causes the victim to fear death or great bodily
harm would not involve the use or threatened use of physical force,” and (4)
“[s]ection 812.13(1) accordingly has, as an element, the ‘use, attempted use, or
threatened use of physical force against the person of another.’ U.S.S.G.
§ 4B1.2(a)(1).” Id. (emphasis added). In Lockley this Court thus held that Florida
robbery is categorically a crime of violence under the elements of even the least
culpable of these acts criminalized by Florida Statutes § 812.13(1).6
6
Lockley’s conviction was for “attempted robbery” in violation of Florida Statutes
§ 812.13(1) and § 777.04(1). The Lockley Court said that “because the commentary explicitly
states that the attempt to commit a ‘crime of violence’ is itself a ‘crime of violence,’ Lockley’s
attempted robbery conviction categorically qualifies under the elements clause as a predicate for
the career offender enhancement.” 632 F.3d at 1245. Since Fritts’s conviction was not for
attempt but for armed robbery, we need not review further Lockley’s discussion of attempt.
8
Case: 15-15699 Date Filed: 11/08/2016 Page: 9 of 13
As an alternate and independent ground, we hold here that under Lockley
alone a Florida armed robbery conviction under § 812.13(a) categorically qualifies
as a violent felony under the ACCA’s elements clause.
V. FRITTS’S ARMED ROBBERY CONVICTION
Both Dowd and Lockley thus control the outcome of this case and require us
to conclude that Fritts’s armed robbery conviction qualifies as a violent felony
under the ACCA’s elements clause. In an effort to circumvent our binding
precedent, Fritts argues that Dowd was abrogated by Curtis Johnson v. United
States, 559 U.S. 133, 130 S. Ct. 1265 (2010). But, Fritts’s argument ignores the
fact that Lockley was decided after and cited Curtis Johnson. Thus, Lockley binds
us here. Under this Court’s prior panel precedent rule, there is never an exception
carved out for overlooked or misinterpreted Supreme Court precedent. See Smith
v. GTE Corp., 236 F.3d 1292, 1303 (11th Cir. 2001) (“[W]e categorically reject
any exception to the prior panel precedent rule based upon a perceived defect in
the prior panel’s reasoning or analysis as it relates to the law in existence at the
time.”).
In any event, we conclude that nothing in Curtis Johnson, a simple battery
case, undermines our binding precedent in Dowd or Lockley about robbery and
armed robbery crimes. In Curtis Johnson, the Supreme Court considered whether
the Florida offense of simple battery by “touching” another person had as an
9
Case: 15-15699 Date Filed: 11/08/2016 Page: 10 of 13
element the use of physical force. 559 U.S. at 135, 130 S. Ct. at 1268. The
Supreme Court noted that a conviction for simple battery “ordinarily is a first-
degree misdemeanor . . . but is a third-degree felony for a defendant who (like
Johnson) has been convicted of battery (even simple battery) before.” Id. at 136,
130 S. Ct. at 1269. Thus, Curtis Johnson’s simple battery conviction was for only
touching, conduct that was a misdemeanor but for his prior conviction.
Furthermore, Curtis Johnson did not involve (1) an act that put the victim “in fear
of death or great bodily harm,” which Lockley held that “putting in fear” under
Florida robbery law requires, or (2) the “attempted” or “threatened use of physical
force,” which is also included in the elements clause. See Lockley, 632 F.3d at
1244; see also Leocal v. Ashcroft, 543 U.S. 1, 8-9, 125 S. Ct. 377, 382 (2004)
(discussing negligence and cautioning that “[w]e do not deal here with an
attempted or threatened use of force”). Fritts cannot use Curtis Johnson to
circumvent Dowd or Lockley.
Fritts also argues that before the Florida Supreme Court’s 1997 decision in
Robinson v. State, 692 So. 2d 883, 886 (Fla. 1997), only the slightest force was
sufficient to convict a defendant of Florida robbery. In fact, in Robinson the
Florida Supreme Court made clear that the § 812.13 robbery statute has never
included a theft or taking by mere snatching because snatching is theft only and
does not involve the degree of physical force needed to sustain a robbery
10
Case: 15-15699 Date Filed: 11/08/2016 Page: 11 of 13
conviction under § 812.13(1). 7 Robinson v. State, 692 So. 2d 883, 886 (Fla.
1997); McCloud v. State, 335 So. 2d 257, 258-59 (Fla. 1976); Montsdoca v. State,
93 So. 157, 159 (Fla. 1922).
In 1997, the Florida Supreme Court in Robinson pointed to its own 1976
decision in McCloud and stressed that robbery requires “more than the force
necessary to remove the property” and in fact requires both “resistance by the
victim” and “physical force by the offender” that overcomes that resistance,
stating:
In accord with our decision in McCloud, we find 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. Rather, there must be resistance by the
victim that is overcome by the physical force of the offender.
7
In 1999, Florida enacted a wholly separate statute, § 812.131, which proscribes sudden
snatching. See 1999 Fla. Laws 175. Florida’s sudden snatching statute requires only a taking
and no physical force:
(1) “Robbery by sudden snatching” means the taking of money or other property
from the victim’s person, with intent to permanently or temporarily deprive the
victim or the owner of the money or other property, when, in the course of the
taking, the victim was or became aware of the taking. In order to satisfy this
definition, it is not necessary to show that:
(a) The offender used any amount of force beyond that effort necessary to obtain
possession of the money or other property; or
(b) There was any resistance by the victim to the offender or that there was injury
to the victim’s person.
Fla. Stat. § 812.131 (1999) (emphasis added). As explained herein, the Florida courts for
years held that the robbery statute in § 812.13 required resistance by the victim and
physical force by the offender, and did not cover mere sudden snatching. This new
sudden snatching statute was apparently needed because § 812.13 (robbery) did not cover
sudden snatching where there was no resistance by the victim and no physical force to
overcome it.
11
Case: 15-15699 Date Filed: 11/08/2016 Page: 12 of 13
Id. In Robinson, the Florida Supreme Court reaffirmed that “[t]he snatching or
grabbing of property without such resistance by the victim amounts to theft rather
than robbery.” Id. at 887. The Robinson court further stated that “Florida courts
have consistently recognized that in snatching situations, the element of force as
defined herein distinguishes the offenses of theft and robbery.” Id. In other words,
Robinson reaffirmed that merely snatching property—without resistance by the
victim and use of physical force to overcome the victim’s resistance—did not
constitute a robbery under § 812.13(1).
When the Florida Supreme Court in Robinson interprets the robbery statute,
it tells us what that statute always meant. Rivers v. Roadway Express, Inc., 511
U.S. 298, 312-13 (1994) (“A judicial construction of a statute is an authoritative
statement of what the statute meant before as well as after the decision of the case
giving rise to that construction.”); id. at 313 n.12 (“[W]hen this Court construes a
statute, it is explaining its understanding of what the statute has meant
continuously since the date when it became law.”). This is patently true here
because Robinson said its holding was “[i]n accord with [its] decision in
McCloud” in 1976. See Robinson, 692 So. 2d at 886.
Indeed, since 1922, the Florida Supreme Court has held that “the force that
is required to make the offense a robbery is such force as is actually sufficient to
overcome the victim’s resistance.” Montsdoca, 93 So. at 159. Notably, the Florida
12
Case: 15-15699 Date Filed: 11/08/2016 Page: 13 of 13
Supreme Court instructed: “There 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 sum, based on our precedent in Dowd and Lockley, and in light of the
Florida Supreme Court’s decisions in Robinson, McCloud, and Montsdoca, we
conclude that Fritts’s Florida armed robbery conviction under § 812.13
categorically qualifies as a “violent felony” under the ACCA’s elements clause.
VI. CONCLUSION
For all of these reasons, we must affirm Fritts’s total 180-month sentence.
AFFIRMED.
13