United States v. Samuel Lee Lynch

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 16-12638
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SAMUEL LEE LYNCH,
REO THOMAS NANCE,
Defendants-Appellants.
____________________
Appeals from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:15-cr-00171-SCB-JSS-1
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2 Opinion of the Court 16-12638
____________________
Before WILLIAM PRYOR, Chief Judge, and JILL PRYOR and TJOFLAT,
Circuit Judges.
PER CURIAM:
A jury in the Middle District of Florida convicted Appellants
Samuel Lee Lynch and Reo Thomas Nance of conspiracy to com-
mit Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a); Hobbs
Act robbery, in violation of § 1951(a); discharging or brandishing a
firearm in furtherance of a crime of violence, in violation of 18
U.S.C. § 924(c)(1)(A)(ii)–(iii); and being a felon in possession of a
firearm or ammunition, in violation of 18 U.S.C. § 922(g)(1). The
District Court sentenced Lynch to life in prison and Nance to 624
months in prison.
Lynch and Nance both argue on appeal that their Hobbs Act
robbery convictions are not predicate crimes of violence for pur-
poses of their § 924(c) convictions. Lynch also argues that his pre-
vious Florida felony convictions for aggravated assault with a
deadly weapon and aggravated battery on a law enforcement of-
ficer with a deadly weapon are not predicate offenses for his sen-
tencing enhancements under U.S.S.G. § 4B1.1 and 18 U.S.C.
§§ 924(e) and 3559(c). After careful review, we affirm.
I.
We review de novo whether an offense qualifies as a crime of
violence under § 924(c). Steiner v. United States, 940 F.3d 1282, 1288
(11th Cir. 2019) (per curiam). However, an argument raised for the
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16-12638 Opinion of the Court 3
first time on appeal is reviewed only for plain error. United States v.
Rodriguez, 751 F.3d 1244, 1251 (11th Cir. 2014). Similarly, where a
defendant fails to clearly state the grounds for his objection in the
district court, we review only for plain error. United States v.
Ramirez-Flores, 743 F.3d 816, 821 (11th Cir. 2014). To establish plain
error, a defendant must show “(1) error, (2) that is plain, and (3) that
affects substantial rights.” Rodriguez, 751 F.3d at 1251–52 (quoting
United States v. Moriarty, 429 F.3d 1012, 1019 (11th Cir. 2005)). Plain
error review is discretionary, but “the court of appeals should exer-
cise its discretion to correct the forfeited error if the error seriously
affects the fairness, integrity or public reputation of judicial pro-
ceedings.” Molina-Martinez v. United States, 578 U.S. 189, 195, 136 S.
Ct. 1338, 1343 (2016) (internal quotations and citations omitted).
To satisfy the plain error rule, an asserted error must be clear
from the plain meaning of a statute or constitutional provision, or
from a holding of this Court or the Supreme Court. United States
v. Morales, 987 F.3d 966, 976 (11th Cir.), cert. denied, 142 S. Ct. 500
(2021). Even if an error was not “‘plain’ at the time of sentenc-
ing, . . . it is enough that the error be ‘plain’ at the time of appellate
consideration.” United States v. Rodriguez, 398 F.3d 1291, 1299 (11th
Cir. 2005) (quoting Johnson v. United States, 520 U.S. 461, 468, 117 S.
Ct. 1544, 1549 (1997)).
A plain error affected a defendant’s substantial rights if it was
prejudicial, meaning the error actually made a difference in the de-
fendant’s sentence. Rodriguez, 398 F.3d at 1300. If the appellate
court would have to speculate that the result would have been
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4 Opinion of the Court 16-12638
different, the defendant has not met the burden to show that his
substantial rights have been affected. Id. at 1301.
In this case, neither Lynch nor Nance argued in the District
Court—in their motions for judgment of acquittal or otherwise—
that their convictions for Hobbs Act robbery did not qualify as
crimes of violence under § 924(c). Instead, they maintained
throughout the proceedings below that they were innocent of the
underlying crimes. And while both objected to the entirety of the
relevant offense conduct in their respective presentence investiga-
tion reports (“PSR”), they did so only on the broad grounds that
they were factually innocent on all counts of conviction. Accord-
ingly, Lynch and Nance have not properly preserved this issue for
appeal, and so we review only for plain error.
Section 924(c) prohibits using or carrying a firearm during
and in relation to a crime of violence or possessing a firearm in
furtherance of any such crime. 18 U.S.C. § 924(c)(1). It also pro-
vides increased penalties, including a mandatory consecutive sen-
tence, for those who brandish or discharge a firearm while com-
mitting a crime of violence. Id. § 924(c)(1)(A)(ii)–(iii), (c)(1)(D)(ii).
A “crime of violence” within the meaning of § 924(c) means that
an offense is a felony and
(A) has as an element the use, attempted use, or
threatened use of physical force against the
person or property of another, or
(B) that by its nature, involves a substantial risk
that physical force against the person or
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property of another may be used in the course
of committing the offense.
Id. § 924(c)(3). We refer to § 924(c)(3)(A) as the “elements clause,”
and § 924(c)(3)(B) as the “residual clause.” See, e.g., Thompson v.
United States, 924 F.3d 1153, 1155 (11th Cir. 2019).
Lynch and Nance were convicted under § 924(c) for bran-
dishing a firearm during the commission of a Hobbs Act robbery.
Lynch was also convicted for discharging a firearm during the com-
mission of a Hobbs Act robbery. They maintain that those convic-
tions are invalid because Hobbs Act robbery does not qualify as a
“crime of violence” under § 924(c). In United States v. St. Hubert, we
rejected a similar challenge to a defendant’s § 924(c) conviction and
held that Hobbs Act robbery qualified as a crime of violence under
both the elements clause and the residual clause of § 924(c)(3). 909
F.3d 335, 344–46 (11th Cir. 2018), abrogated in part by United States v.
Davis, 139 S. Ct. 2319, 2336 (2019); see also In re Saint Fleur, 824 F.3d
1337, 1340–41 (11th Cir. 2016) (“Hobbs Act robbery . . . clearly qual-
ifies as a ‘crime of violence’ under the [elements] clause in
§ 924(c)(3)(A).”).
The Supreme Court subsequently held in United States v. Da-
vis that the residual clause of § 924(c) was unconstitutionally vague,
thus abrogating that portion of our holding in St. Hubert. 139 S. Ct.
2319, 2336 (2019). But the remaining St. Hubert holding—that
Hobbs Act robbery qualified as a crime of violence under the ele-
ments clause—remains unaffected, and we are bound by it.
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Because our binding precedent forecloses Lynch and
Nance’s argument that Hobbs Act robbery does not qualify as a
“crime of violence” under § 924(c)’s elements clause, their argu-
ment fails the second prong of plain error review. The District
Court, then, did not plainly err and their § 924(c) convictions are
affirmed.
II.
Turning to Lynch’s second argument, we review a district
court’s application of the Sentencing Guidelines de novo. United
States v. Perez, 943 F.3d 1329, 1332 (11th Cir. 2019) (per curiam). In
particular, we review the legal standard de novo, the district court’s
findings of fact for clear error, and the district court’s application
of the legal standard and Sentencing Guidelines to those facts de
novo. Id. at 1332–33. But if a defendant fails to object to the PSR
and his sentence with the requisite “specificity and clarity” to alert
the government and the district court to the mistake complained
of on appeal, we review only for plain error. Ramirez-Flores, 743
F.3d at 824. As explained above, Lynch objected to the allegations
in the PSR only on the broad ground that he was not guilty of any
of the crimes of which the jury convicted him. And at sentencing,
he reiterated only his “general global denial” to the factual allega-
tions in the indictment and the PSR. As such, Lynch did not
properly preserve his sentencing challenges for appeal, and we re-
view only for plain error.
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Lynch challenges his sentencing enhancements under the
“career offender” enhancement in U.S.S.G. § 4B1.1, 1 the Armed Ca-
reer Criminal Act (the “ACCA”), 18 U.S.C. § 924(e)(1), 2 and the fed-
eral “three strikes” statute, id. § 3559(c)(1)(A)(i). 3 The District
Court found that Lynch was a career offender and an armed career
offender, and additionally that the counts for Hobbs Act robbery,
conspiracy to commit Hobbs Act robbery, and discharging and
brandishing a firearm all carried mandatory minimum life sen-
tences, based on his three previous Florida convictions for aggra-
vated assault with a deadly weapon, aggravated battery on a law
enforcement officer with a deadly weapon, and robbery.
The Court thus sentenced Lynch to (1) concurrent life sen-
tences on the Hobbs Act robbery and conspiracy to commit Hobbs
Act robbery counts, pursuant to § 3559(c)(1)(a)(i); (2) 15 years to
life imprisonment on the felon-in-possession counts, to run concur-
rently with the life sentences, pursuant to § 924(e)(1); and (3) two
1 The § 4B1.1 “career offender” enhancement was based on a jury convicting
Lynch of violations of § 924(c) (Counts Three and Eight).
2 The ACCA enhancement was based on a jury convicting Lynch of violations
of §§ 922(g) and 924(e) (Counts Four and Nine).
3 Prior to trial, the Government submitted a notice that it intended to pursue
enhanced sentences under the three strikes statute, as it was required to do
under 21 U.S.C. § 851(a)(1). The Government identified Lynch’s indictments
for Hobbs Act robbery (Counts Two, Five, and Seven), conspiracy to commit
Hobbs Act robbery (Count One), discharging a firearm in furtherance of a
crime of violence (Count Three), and brandishing a firearm in furtherance of
a crime of violence (Count Eight) as potential “third strikes” that would bring
18 U.S.C. § 3559’s enhanced penalties into play if Lynch were convicted.
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8 Opinion of the Court 16-12638
additional life sentences for brandishing and discharging a firearm
in connection with the Hobbs Act robberies, to run consecutively
to each other and consecutively to the other sentences, pursuant to
§ 924(c)(1)(A)(ii)–(iii) and § 3559(c)(1)(A)(i). We first consider the
District Court’s application of the career offender enhancement
and the ACCA to Lynch’s sentence; we then turn to the Court’s
application of the three strikes statute.
A.
A defendant qualifies as a career offender under U.S.S.G.
§ 4B1.1 if
(1) the defendant was at least eighteen years old at the
time the defendant committed the instant offense of
conviction; (2) the instant offense of conviction is a
felony that is either a crime of violence or a controlled
substance offense; and (3) the defendant has at least
two prior felony convictions of either a crime of vio-
lence or a controlled substance offense.
U.S.S.G. § 4B1.1(a).
Lynch argues that his convictions for aggravated assault
with a deadly weapon and aggravated battery on a law enforce-
ment officer with a deadly weapon do not qualify as crimes of vio-
lence under the Guideline. For purposes of the Guideline, the term
“crime of violence” means any offense under federal or state law,
punishable by imprisonment for more than one year, that
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(1) has as an element the use, attempted use, or
threatened use of physical force against the person of
another, or
(2) is murder, voluntary manslaughter, kidnapping,
aggravated assault, a forcible sex offense, robbery, ar-
son, extortion, or the use or unlawful possession of a
firearm . . . or explosive material.
Id. § 4B1.2(a).
Further, under the ACCA, a defendant convicted of unlaw-
ful possession of a firearm by a convicted felon, in violation of 18
U.S.C. § 922(g), is subject to a mandatory minimum sentence of
fifteen years if he has three prior felony convictions for “a violent
felony or a serious drug offense.” 18 U.S.C. § 924(e)(1).
As with the career offender enhancement, Lynch argues that
his Florida convictions for aggravated assault with a deadly weapon
and aggravated battery on a law enforcement officer with a deadly
weapon do not qualify as violent felonies under the ACCA. 4 The
ACCA defines the term “violent felony” as any crime punishable by
a term of imprisonment exceeding one year that “(i) has as an ele-
ment the use, attempted use, or threatened use of physical force
against the person of another; or (ii) is burglary, arson, or extortion,
[or] involves use of explosives.” Id. § 924(e)(2)(B). In addition, the
Supreme Court recently held that “[o]ffenses with a mens rea of
4 Again, Lynch does not contest that his robbery conviction qualifies as a vio-
lent felony under the ACCA.
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recklessness do not qualify as violent felonies under ACCA.” Bor-
den v. United States, 141 S. Ct. 1817, 1834 (2021).
Because the career offender Guideline’s elements clause in
§ 4B1.2(a)(1) is identical to the ACCA’s elements clause in
§ 924(e)(2)(B)(i), cases decided under the ACCA’s elements clause
are binding for the career offender Guideline’s elements clause, and
vice versa—i.e., what constitutes a “violent felony” under the
ACCA’s elements clause also constitutes a “crime of violence” un-
der the career offender Guideline’s elements clause. United States v.
Golden, 854 F.3d 1256, 1256–57 (11th Cir. 2017) (per curiam).
1.
Lynch’s prior conviction for aggravated assault under Flor-
ida law is a crime of violence under both the career offender en-
hancement and the ACCA. In light of Borden, we recently asked
the Supreme Court of Florida whether Fla. Stat. § 784.011(1)—
Florida’s assault statute—required specific intent. Somers v. United
States, 15 F.4th 1049, 1056 (11th Cir. 2021). The Supreme Court of
Florida responded that “the first element of Florida’s assault stat-
ute, § 784.011(1), required not just the general intent to volitionally
take the action of threatening to do violence, but also that the actor
direct the threat at a target, namely another person.” Somers v.
United States, 355 So. 3d 887, 892–93 (Fla. 2022). Upon receiving the
Supreme Court of Florida’s answer to our question, we held that
“aggravated assault under Florida law categorically qualifies as a
‘violent felony’ under the ACCA’s elements clause.” Somers v.
United States, 66 F.4th 890, 896 (11th Cir. 2023). Our most recent
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decision in Somers, therefore, forecloses Lynch’s argument as to his
aggravated assault conviction.
2.
Turning to Lynch’s conviction for aggravated battery on a
law enforcement officer with a deadly weapon, according to Flor-
ida law, a person commits aggravated battery when, in the com-
mission of a battery, he or she (1) “intentionally or knowingly
causes great bodily harm, permanent disability, or permanent dis-
figurement”; or (2) “uses a deadly weapon.” Fla. Stat.
§ 784.045(1)(a). A person can also commit aggravated battery in
Florida by committing a battery against a person who was “preg-
nant at the time of the offense and the offender knew or should
have known that the victim was pregnant.” Id. at § 784.045(1)(b).
Use of the modified categorical approach is appropriate
when a statute is divisible, as is Fla. Stat. § 784.045. See Descamps v.
United States, 133 S. Ct. 2276, 2281 (2013). A divisible statute is one
that “sets out one or more elements of the offense in the alterna-
tive.” Id. If one of the alternatives qualifies under ACCA, but an-
other does not, “the modified categorical approach permits sen-
tencing courts to consult a limited class of documents . . . to deter-
mine which alternative formed the basis of the defendant’s prior
conviction.” Id. In Lynch’s case, the judgment for his prior aggra-
vated battery conviction shows he was convicted of aggravated
battery on a law enforcement officer with a deadly weapon. This
means Lynch was convicted under § 784.045(1)(a).
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Using the modified categorical approach, we have consist-
ently held that aggravated battery as set out in Fla. Stat.
§ 784.045(1)(a) qualifies as a crime of violence under the ACCA’s
elements clause. Turner v. Warden Coleman FCI (Medium), 709 F.3d
1328, 1341–42 (11th Cir. 2013), abrogated on other grounds by United
States v. Hill, 799 F.3d 1319, 1321 n.1 (11th Cir. 2015); see also United
States v. Vereen, 920 F.3d 1300, 1313–14 (11th Cir. 2019); In re Rogers,
825 F.3d 1335, 1341 (11th Cir. 2016). While we have not specifically
addressed Florida’s aggravated battery statute in light of Borden, we
have previously held that aggravated battery under § 784.045 is a
specific intent crime. United States v. Vail-Bailon, 868 F.3d 1293, 1299
(11th Cir. 2017) (en banc).
Lynch argues that “[b]ecause the least of the criminalized
acts of Aggravated Battery with a Deadly Weapon is an unwanted
touching while carrying a deadly weapon . . . and this does not in-
volve the use of ‘violent force,’” his prior conviction for aggravated
battery cannot serve as a predicate offense under either the career
offender enhancement or the ACCA. But Turner’s holding—that,
using the modified categorical approach, aggravated battery under
Fla. Stat. § 784.045(1)(a) qualifies as a crime of violence under
ACCA’s elements clause—has never been abrogated. As such, we
are bound by it under the prior panel precedent rule “unless and
until it is overruled or undermined to the point of abrogation by
an opinion of the Supreme Court or of this Court sitting en banc.”
United States v. Gillis, 938 F.3d 1181, 1198 (11th Cir. 2019) (per cu-
riam). The prior panel rule applies regardless of whether we be-
lieve “the prior panel’s opinion to be correct, and there is no
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exception to the rule where the prior panel failed to consider argu-
ments raised before a later panel.” Id. The District Court is also
bound by our precedent and could not have erred—plainly or oth-
erwise—in applying it; rather than telling the District Court that
aggravated battery under § 784.045(1)(a) didn’t qualify as a crime
of violence, our precedent told the District Court that it did. And
since aggravated battery qualifies as a violent felony under the
ACCA, it qualifies as a crime of violence under the career offender
enhancement. See Golden, 854 F.3d at 1256–57.
Accordingly, because our binding precedent dictates that
Lynch’s convictions for aggravated assault with a deadly weapon
and aggravated battery on a law enforcement officer with a deadly
weapon qualify as predicate offenses under both the career of-
fender enhancement and the ACCA, Lynch had the requisite num-
ber of predicate offenses for each enhancement. 5 The District
Court did not plainly err in applying either the career offender en-
hancement or the ACCA, and his sentence is affirmed in that re-
spect.
B.
Lynch also argues for the first time on appeal that he incor-
rectly received life sentences under the federal “three strikes” law
5 The convictions that qualify Lynch for both the career offender enhancement
and the ACCA are: (1) aggravated assault with a deadly weapon; (2) aggra-
vated battery of a law enforcement officer with a deadly weapon; and (3) rob-
bery. Only two of those convictions needed to qualify for the career offender
enhancement to apply.
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in 18 U.S.C. § 3559(c)(1). The relevant convictions serving as
“strikes” are Lynch’s previous convictions for robbery (“strike
one”), aggravated battery on a law enforcement officer with a
deadly weapon (“strike two”), and his convictions for Hobbs Act
robbery, conspiracy to commit Hobbs Act robbery, and discharging
and brandishing a firearm in furtherance of a crime of violence
(each a separate “strike three” supporting a separate life sentence).
Lynch only challenges the validity of strikes one and two, not strike
three. That is, Lynch argues that his convictions for robbery and
aggravated battery on a law enforcement officer with a deadly
weapon do not qualify as serious violent felonies under the federal
“three strikes” law in 18 U.S.C. § 3559(c)(1). 6
Under the “three strikes” statute, a defendant receives a
mandatory sentence of life imprisonment if he is convicted of a
serious violent felony after having been previously convicted on
separate occasions of two or more such felonies. Id.§ 3559(c)(1)(A)(i). The statute defines a “serious violent felony” in
two parts. First, it enumerates several offenses that plainly consti-
tute serious violent felonies, one of which is robbery. Id.
6 The Government listed Lynch’s conviction for aggravated assault as a predi-
cate serious violent felony as well. On appeal, Lynch argued that his aggra-
vated assault conviction could not serve as a strike for the same reasons that
his aggravated battery conviction could not serve as a strike. Because the Gov-
ernment conceded that Lynch’s conviction for aggravated assault did not qual-
ify as a serious violent felony under the “three strikes” law, we need not ad-
dress that argument.
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§ 3559(c)(2)(F)(i). Second, it provides that a “serious violent felony”
is also
any other offense punishable by a maximum term of
imprisonment of 10 years or more that has as an ele-
ment the use, attempted use, or threatened use of physical
force against the person of another or that, by its nature,
involves a substantial risk that physical force against
the person of another may be used in the course of
committing the offense.
Id. § 3559(c)(2)(F)(ii) (emphasis added). Like § 924(c) and the career
offender enhancement, the three strikes law can be divided into an
elements clause and a residual clause at § 3559(c)(2)(F)(ii), with an
additional “enumerated offenses” clause at § 3559(c)(2)(F)(i).
1.
Lynch’s Florida robbery conviction qualifies as a serious fel-
ony under the enumerated offenses clause. Lynch nonetheless ar-
gues that his robbery conviction does not qualify as a “serious vio-
lent felony” by operation of the affirmative defense provision in
§ 3559(c)(3)(A). Under that provision, a robbery conviction does
not constitute a “strike,” despite its enumeration as a “serious vio-
lent felony” in § 3559(c)(2)(F)(i), if the defendant can prove by clear
and convincing evidence that “no firearm or other dangerous
weapon was used in the offense and no threat of use of a firearm
or other dangerous weapon was involved in the offense.” Id.
§ 3559(c)(3)(A); United States v. Gray, 260 F.3d 1267, 1278 (11th Cir.
2001). Lynch argues that his robbery conviction should not qualify
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16 Opinion of the Court 16-12638
as a predicate offense under § 3559 because the PSR does not indi-
cate that Lynch used a dangerous weapon or otherwise threatened
to use such a weapon in connection with the robbery.
But Lynch did not raise this argument in either the District
Court or his initial brief on appeal. That argument first appears in
his reply brief, and a legal claim or argument that is not plainly and
prominently raised in an initial brief before this Court is deemed
forfeited. See United States v. Campbell, 26 F.4th 860, 873 (11th Cir.
2022) (en banc). We thus deem Lynch to have forfeited any chal-
lenge to his sentence based on whether his Florida robbery convic-
tion qualifies as a predicate offense under the three strikes law.
2.
Lynch essentially argues that because his conviction for ag-
gravated battery should not qualify under the elements clause in
the career offender Guideline or the ACCA, it also should not qual-
ify under the elements clause in the three strikes law. And, so the
argument goes, since that conviction does not qualify as serious vi-
olent felony under either the enumerated offenses clause or the el-
ements clause in § 3559(c)(2)(F), it could only qualify under the re-
sidual clause, which Lynch argues is unconstitutional in light of
United States v. Johnson, 135 S. Ct. 2551 (2015), and Sessions v. Dimaya,
138 S. Ct. 1204 (2018). 7
7 Florida aggravated battery is a second-degree felony, Fla. Stat. § 784.045(2),
punishable by up to fifteen years in prison, Fla. Stat. § 775.082. It thus satisfies
the ten-year-sentence requirement in § 3559(c)(2)(F)(ii).
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Even assuming, arguendo, that § 3559(c)(2)(F)(ii)’s residual
clause is unconstitutionally vague, we cannot say that the District
Court plainly erred in finding that Lynch’s conviction for aggra-
vated battery on a law enforcement officer with a deadly weapon
qualified as a “serious violent felony” under its elements clause. An
error cannot be “plain” where there is no precedent from the Su-
preme Court or this Court directly resolving the issue. United States
v. Cabezas-Montano, 949 F.3d 567, 590 (11th Cir. 2020). And no deci-
sion of the Supreme Court or this Court holds that aggravated bat-
tery on a law enforcement officer with a deadly weapon under Flor-
ida law does not qualify as a “serious violent felony” for purposes
of the three strikes statute. While it does not outright hold so, our
precedent actually suggests the opposite. Specifically, Turner held
that Florida aggravated battery is a violent felony under an ele-
ments clause nearly identical to that in § 3559(c)(2)(F)(ii).
The District Court did not plainly err in finding that Lynch’s
robbery and aggravated battery convictions qualified as serious vi-
olent felonies under § 3559, or in imposing mandatory life sen-
tences under the three strikes law.
III.
In sum, Hobbs Act robbery qualifies as a predicate crime of
violence for a §924(c) conviction. Lynch’s convictions for aggra-
vated assault and aggravated battery of a law enforcement officer
with a deadly weapon qualify as predicate offenses under the career
offender enhancement and the ACCA, and the District Court did
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18 Opinion of the Court 16-12638
not plainly err in applying the three strikes statute. For those rea-
sons, both Lynch and Nance’s sentences are affirmed.
AFFIRMED.