United States v. James Frederick

Case: 16-15269 Date Filed: 09/11/2018 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-15269
Non-Argument Calendar
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D.C. Docket No. 9:16-cr-80014-DMM-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMES FREDERICK,
Defendant - Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(September 11, 2018)
Before MARCUS, ROSENBAUM and JILL PRYOR, Circuit Judges.
PER CURIAM:
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James Frederick appeals his 51-month sentence, imposed after he pled guilty
to possession of a firearm as a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1). In calculating Frederick’s Sentencing Guidelines range, the district
court determined that he qualified for a base offense level of 20 pursuant to
U.S.S.G. § 2K2.1(a)(4)(A) because he had a prior conviction for a “crime of
violence.” On appeal, Frederick argues that the district court erred in determining
that his prior Florida conviction for felony battery qualifies as a “crime of
violence.”
We review de novo whether a prior conviction qualifies as a crime of
violence under the Sentencing Guidelines. United States v. Estrada, 777 F.3d
1318, 1321 (11th Cir. 2015). The Guidelines provide for a base offense level of 20
for a defendant convicted of unlawfully possessing a firearm if the defendant
committed that offense after sustaining a felony conviction of either a crime of
violence or a controlled substance offense. U.S.S.G. § 2K2.1(a)(4)(A). As
relevant here, the Guidelines define “crime of violence” as any offense punishable
by imprisonment for a term exceeding a year, that “has as an element the use,
attempted use, or threatened use of physical force against the person of another.”
Id. § 4B1.2(a)(1). We often refer to this definition as the “elements clause.”
Frederick argues that his felony battery conviction does not satisfy the elements
clause. Under binding precedent, we must conclude otherwise.
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Under Florida law, a person commits a felony battery when he “[a]ctually
and intentionally touches or strikes another person against the will of the other”
and “[c]auses great bodily harm, permanent disability, or permanent
disfigurement.” Fla. Stat. § 784.041(1). When Fredrick filed his initial appellate
brief, he sought relief under United States v. Vail-Bailon, in which a panel of our
Court had held that a conviction under this statute does not categorically qualify as
a crime of violence under the Guidelines. See 838 F.3d 1091 (11th Cir. 2016).
Thereafter, however, the Vail-Bailon panel decision was vacated and reheard en
banc. On rehearing, this Court held that a conviction under Florida’s felony
battery statute categorically qualifies under the Guidelines’ elements clause. 1 See
United States v. Vail-Bailon, 868 F.3d 1293, 1303-04 (11th Cir. 2017) (en banc),
cert. denied, 138 S. Ct. 2620 (2018).
The en banc court’s decision in Vail-Bailon squarely forecloses Frederick’s
argument that his conviction does not satisfy the elements clause. We are bound to
follow this decision unless and until it is overruled or undermined to the point of
abrogation by this Court sitting en banc or by the Supreme Court; thus, we
acknowledge that Frederick has preserved this challenge for any further review
available to him but do not address it further. See United States v. Brown, 342
F.3d 1245, 1246 (11th Cir. 2003). We affirm his sentence.
1
At issue in Vail-Bailon was the elements clause of the “crime of violence” definition in
U.S.S.G. § 2L1.2. That definition, though, is identical to the one in U.S.S.G. § 4B1.2(a).
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AFFIRMED.
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