United States v. Timothy Dale Washington, II

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-10059
Non-Argument Calendar
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D.C. Docket No. 8:16-cr-00185-SCB-TGW-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TIMOTHY DALE WASHINGTON, II,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
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(August 31, 2017)
Before TJOFLAT, WILLIAM PRYOR, and ROSENBAUM, Circuit Judges.
PER CURIAM:
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After pleading guilty, Timothy Dale Washington II appeals his conviction
for being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g) and
924(e), as well as his 180-month sentence of imprisonment. His sentence
exceeded the normal 10-year maximum sentence under the statute, see id. §
924(a)(2), because the district court imposed an enhancement under the Armed
Career Criminal Act (“ACCA”), id. § 924(e)(1). Under the ACCA, a defendant
convicted under 18 U.S.C. § 922(g) is subject to a mandatory minimum sentence
of 15 years of imprisonment if he has three prior convictions for a “violent felony”
or “serious drug offense” that are “committed on occasions different from one
another.” Id. § 924(e)(1). On appeal, Washington challenges the ACCA
enhancement on several grounds and also argues that § 922(g)(1) exceeds
Congress’s constitutional authority both on its face and as applied in this case.
After careful review, we affirm.
I. ACCA Enhancement
Washington offers three challenges to his ACCA-enhanced sentence. First,
he contends that the district court improperly relied on state-court charging
documents to determine that his prior offenses were committed on different
occasions for purposes of the ACCA enhancement. Second, and relatedly, he
argues that the court’s factual finding that his offenses occurred on different
occasions violated his rights under the Fifth and Sixth Amendments. Finally, he
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asserts that the three prior crimes on which his ACCA enhancement was based
were not qualifying predicate convictions.
We ordinarily review de novo whether a conviction is a “violent felony” or a
“serious drug offense” under the ACCA. United States v. Braun, 801 F.3d 1301,
1303 (11th Cir. 2015); United States v. Robinson, 853 F.3d 1292, 1294 (11th Cir.
2009). Likewise, we review de novo properly preserved constitutional challenges
to a sentence, as well as whether crimes were committed on different occasions
within the meaning of the ACCA. United States v. Weeks, 711 F.3d 1255, 1259,
1261 (11th Cir. 2013). 1
A. Different-Occasions Inquiry
Washington’s first two arguments relate to the district court’s use of
Shepard-approved documents 2 to determine whether he committed the ACCA-
predicate crimes on different occasions. He argues that recent Supreme Court
decisions make clear that courts may not rely on “non-elemental” facts, such as the
date a crime was committed, in Shepard-approved documents. He also asserts that
1
Some of Washington’s challenges were raised for the first time on appeal and therefore
are subject to review for plain error only. See Weeks, 711 F.3d at 1261. We need not delineate
which arguments were preserved and which were forfeited, however, because Washington has
not shown that he is entitled to relief on any of his claims even under de novo review.
2
In Shepard v. United States, 544 U.S. 13, 16, 26 (2005), the Supreme held that, in
determining the character of a prior conviction under the ACCA, the sentencing court “is
generally limited to examining the statutory definition [of the offense of the prior conviction],
charging document, written plea agreement, transcript of plea colloquy, and any explicit factual
finding by the trial judge to which the defendant assented.” The term “Shepard-approved
documents,” as used in this opinion, refers to this limited category of evidence.
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his sentence violates the Fifth and Sixth Amendments because the fact that his
prior offenses were committed on different occasions was not charged in the
indictment and proven beyond a reasonable doubt.
Here, the district court did not err in relying on Shepard-approved
documents to determine whether Washington committed the prior crimes on
different occasions. We have held that district courts may determine whether
predicate offenses were committed on different occasions for purposes of the
ACCA “so long as they limit themselves to Shepard-approved documents.”
Weeks, 711 F.3d at 1259; see United States v. Overstreet, 713 F.3d 627, 635 (11th
Cir. 2013). Washington does not assert that the district court went beyond these
materials in making its sentencing determinations. And he has abandoned any
argument that the offenses were not, as a factual matter, committed on different
occasions by failing to raise the issue on appeal. See United States v. Ardley, 242
F.3d 989, 990 (11th Cir. 2001) (issues “not timely raised in the briefs are
abandoned”).
Our prior precedent is likewise clear that a sentencing court does not violate
the Fifth and Sixth Amendment by judicially determining that a defendant’s prior
convictions were committed on different occasions for ACCA purposes. Weeks,
711 F.3d at 1259–60. In Almendarez-Torres v. United States, 523 U.S. 224, 226–
67 (1998), the Supreme Court held that a defendant’s prior convictions need not be
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alleged in the indictment or proven beyond a reasonable doubt in order for a
sentencing court to use those convictions for purposes of enhancing a sentence.
See Weeks, 711 F.3d at 1259. We have consistently held that Almendarez-Torres
remains good law, and we have explained that it permits district courts to
determine not only the mere fact of a prior conviction but also “the factual nature
of those convictions, including whether they were committed on different
occasions.” Id.; see Overstreet, 713 F.3d at 635. Accordingly, the district court
did not err in using Shepard-approved documents to determine that Washington’s
prior crimes were committed on different occasions.
Washington contends that the Supreme Court’s decisions in Mathis v. United
States, 136 S. Ct. 2243 (2016), and Descamps v. United States, 133 S. Ct. 2276
(2013), prohibit a sentencing court’s reliance on dates and other non-elemental
facts in Shepard-approved materials. He asserts that these decisions have
abrogated our prior holdings on the different-occasions issue. We disagree.
Under this Court’s prior precedent rule, “a prior panel’s holding binding on
all subsequent panels unless and until it is overruled or undermined to the point of
abrogation by the Supreme Court or this court sitting en banc.” United States v.
Archer, 531 F.3d 1347, 1352 (11th Cir. 2008). To conclude that we are not bound
by a prior 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
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opposed to merely weaken[s], the holding of the prior panel.” United States v.
Kaley, 579 F.3d 1246, 1255 (11th Cir. 2009).
Neither Descamps nor Mathis is “clearly on point” and “actually abrogate[s]
or directly conflict[s] with, as opposed to merely weaken[s],” our holdings in
Weeks and Overstreet. See id. Descamps dealt with whether a sentencing court
may use the modified categorical approach to ascertain whether a conviction is a
qualifying offense under the ACCA when the statute under which the defendant
was convicted has a single, indivisible set of elements. 133 S. Ct. at 2283–93.
Mathis dealt with whether a sentencing court may apply the modified categorical
approach if a statute of conviction lists alternatives that are “means” of committing
the crime, rather than “elements.” 136 S. Ct. at 2256–58. Neither case addresses
the different-occasions inquiry, which does not concern the elements of the state
offenses at issue. Thus, Descamps and Mathis do not abrogate our prior precedent
on the different-occasions issue for purposes of the ACCA.
In sum, the district court did not err by considering Shepard-approved
documents to determine that Washington’s predicate offenses occurred on different
occasions for purposes of the ACCA.
B. Predicate Convictions
Washington also asserts that the ACCA enhancement was improper because
the three predicate convictions relied upon by the district court do not qualify as
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violent felonies or serious drug offenses. The three predicate convictions included
the following: (1) delivery of cocaine under Fla. Stat. § 893.13(1)(a); (2)
obstructing or opposing an officer with violence under Fla. Stat. § 843.01; and (3)
aggravated battery under Fla. Stat. § 784.045. Though Washington acknowledges
that most of his arguments are foreclosed by prior precedent, he seeks to preserve
these claims for further review.
First, we have held that a conviction under Fla. Stat. § 893.13(1) qualifies as
a “serious drug offense” even though the statute does not require the state to prove
that the defendant knew of the illicit nature of the substance. See United States v.
Smith, 775 F.3d 1262, 1264-65 (11th Cir. 2014). Smith remains good law. See
United States v. Pridgeon, 853 F.3d 1192, 1198 (11th Cir. 2017), petition for cert.
filed, No. 17-5135 (July 13, 2017).
Second, we have held that a conviction for resisting an officer with violence
under Fla. Stat. § 843.01 qualifies as a violent felony under the ACCA. United
States v. Hill, 799 F.3d 1318, 1322-23 (11th Cir. 2015). To the extent Washington
argues that Hill is not binding because it conflicts with Descamps and Moncrieffe
v. Holder, 133 S. Ct. 1678 (2013), those decisions predated Hill, and “there is no
“exception to the prior panel precedent rule based upon a perceived defect in the
prior panel’s reasoning or analysis as it relates back to the law in existence at that
time.” Smith v. GTE Corp., 236 F.3d 1292, 1303 (11th Cir. 2001).
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Washington’s final predicate conviction was for aggravated battery under
Fla. Stat. § 785.045. “[A] person commits aggravated battery by committing a
battery: (1) that intentionally or knowingly causes great bodily harm, permanent
disability, or disfigurement; (2) while using a deadly weapon; or (3) upon a victim
whom the offender knows to be pregnant.” Turner v. Warden, 709 F.3d 1328,
1341–42 (11th Cir. 2013), abrogated on other grounds by Johnson v. United
States, 135 S. Ct. 2551 (2015); see Fla. Stat. § 784.045. Thus, the statute is
“divisible” in that it can be committed through alternative elements, so the district
court was permitted to use Shepard-approved documents to determine under which
version of the statutory elements Washington was convicted. See Descamps, 133
S. Ct. at 2283–85.
In Turner, we held that a conviction under § 785.045 qualifies as a violent
felony under the “elements clause” of the ACCA when the offense involves the
first two alternatives—either the intentional or knowing causation of great bodily
harm or the use of a deadly weapon in committing a battery. Turner, 709 F.3d at
1341. Washington does not challenge the district court’s implicit finding that the
Shepard-approved materials established that his offense did not involve battery on
a pregnant woman. So the crime must have involved either the intentional or
knowing causation of great bodily harm or the use of a deadly weapon. “Either
way,” according to Turner, “the crime has as an element the use, attempted use, or
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threatened use of physical force . . . .” Id. (internal quotation marks omitted).
Under Turner, therefore, Washington’s aggravated-battery conviction qualifies as a
violent felony.
Washington argues that Turner was wrongly decided, but we have recently
affirmed Turner as good law to the extent its analysis rests on the “elements
clause” of the ACCA, notwithstanding intervening decisions like Descamps,
Moncrieffe, 133 S. Ct. 1678, and Mathis, 136 S. Ct. 2243. See United States v.
Golden, 854 F.3d 1256, 1256-57 (11th Cir. 2017), petition for cert. filed, No. 17-
5050 (June 30, 2017) (concluding that Turner’s elements-clause-based holding
with respect to another Florida offense, aggravated assault, was binding).
Accordingly, the district court did not err in determining that Washington’s
conviction for aggravated battery, like his convictions for delivery of cocaine and
resisting with violence, qualified as predicate convictions for purposes of the
ACCA.
In sum, because Washington had three prior convictions for a “violent
felony” or “serious drug offense” that were “committed on occasions different
from one another,” the district court properly applied the ACCA enhancement.
II. Section 922(g) Conviction
Washington’s claim that § 922(g) exceeds Congress’s power under the
Commerce Clause, both facially and as applied to his conduct, is foreclosed by
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binding circuit precedent, as he acknowledges. Section 922(g)(1) makes it
unlawful for a convicted felon to “ship or transport in interstate commerce, or
possess in or affecting commerce, any firearm or ammunition; or to receive any
firearm or ammunition which has been shipped or transported in interstate or
foreign commerce.” 18 U.S.C. § 922(g)(1).
“We have repeatedly held that Section 922(g)(1) is not a facially
unconstitutional exercise of Congress’s power under the Commerce Clause
because it contains an express jurisdictional requirement.” United States v.
Jordan, 635 F.3d 1181, 1189 (11th Cir. 2011); United States v. Scott, 263 F.3d
1270, 1273–74 (11th Cir. 2001); United States v. McAllister, 77 F.3d 387, 390
(11th Cir. 1996). To meet that jurisdictional requirement, the firearm in question
must have a “nexus” to interstate commerce. Jordan, 635 F.3d at 1189. The
required nexus to interstate commerce is met when “the firearm possessed traveled
in interstate commerce.” Scott, 263 F.3d at 1274.
Washington’s § 922(g) conviction is constitutionally valid. His facial
challenge is foreclosed by binding precedent. And his as-applied challenge fails
because the facts to which admitted in pleading guilty establish that the firearm he
possessed had “traveled interstate commerce,” even if Washington’s possession of
that firearm was purely intrastate. See id.
Accordingly, we affirm Washington’s § 922(g) conviction and sentence.
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AFFIRMED.
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