United States District Court, S.D. Florida
ORDER ADOPTING REPORT, DENYING CERTIFICATE OF
APPEALABILITY, AND CLOSING CASE
PATRICIA A. SEITZ UNITED STATES DISTRICT JUDGE.
CAUSE is before the Court on the Report and Recommendation
[DE-9] of Magistrate Judge Turnoff, in which he recommends
that Movant's Motion to Correct Sentence Pursuant to 28
U.S.C. § 2255 [DE-1] be denied. The Report and
Recommendation (Report) found that, despite the holding in
Johnson v. United States, 135 S.Ct. 2551(2015),
Movant still has the necessary three predicate offenses to
qualify for a sentence enhancement under the Armed Career
Criminal Act (ACCA). Movant has filed objections. As set
forth below, Movant's objections are overruled because
this Court must follow existing Eleventh Circuit precedent,
which classifies Movant's convictions for attempted armed
robbery and aggravated assault as crimes of violence under
time Movant was sentenced, he had four predicate offenses:
(1) possession with the intent to distribute or sell cocaine;
(2) attempted armed robbery; (3) aggravated assault with a
firearm, and (4) possession with the intent to distribute or
sell cocaine. Movant's objections focus on the attempted
armed robbery conviction and the aggravated assault with a
firearm conviction. The objections argue that neither
conviction qualifies as a crime of violence after Johnson
v. United States, 135 S.Ct. 2551 (2015), which held the
ACCA's residual clause unconstitutionally
vague. The Movant's objections are overruled
for the reasons set forth below.
The Attempted Armed Robbery Conviction
as to the attempted armed robbery conviction, the case law in
the Eleventh Circuit is clear: Florida armed robbery is a
violent felony under the elements clause of the ACCA. See
United States v. Fritts, 841 F.3d 937, 943-44 (11th Cir.
2016); United States v. Dowd, 451 F.3d 1244, 1255
(11th Cir. 2006). Furthermore, the attempt to commit a
violent crime itself constitutes a crime of violence.
United States v. Lockley, 632 F.3d 1238, 1245 (11th
Cir. 2011). Thus, the law in the Eleventh Circuit clearly
holds that Movant's conviction for Florida attempted
armed robbery qualifies as a violent felony under the
elements clause of the ACCA.
objections, Movant relies on a recent decision from the Ninth
Circuit, United States v. Geozos, 870 F.3d 890 (9th
Cir. 2017), which directly contradicts the Eleventh Circuit,
for the proposition that Florida robbery does not qualify as
a violent felony under the ACCA. Unfortunately for Movant,
this Court is bound to follow the Eleventh Circuit.
Consequently, the Geozos decision offers Movant no
relief and Movant's objection is overruled. Accordingly,
Movant's Florida attempted armed robbery conviction is a
violent felony under the ACCA and, therefore, Movant has the
necessary three predicate convictions to support the
sentencing enhancement he received.
The Aggravated Assault Conviction
Movant has three predicate convictions, the Court need not
address whether Movant's aggravated assault conviction
also qualifies as a violent felony under the ACCA. However,
as the Report finds, Movant's aggravated assault
conviction also qualifies as a violent felony under the ACCA.
In reaching this conclusion, the Magistrate Judge relied on
Turner v. Warden, Coleman FCI which held:
by its definitional terms, [aggravated assault] necessarily
includes an assault, which is "an intentional, unlawful
threat by word or act to do violence to the person
of another, coupled with an apparent ability to do so."
[Fla. Stat. § 784.011(1)] (emphasis supplied).
Therefore, a conviction under section 784.021 will always
include "as an element the .. . threatened use of
physical force against the person of another, " §
924(e)(2)(B)(i), and [a] conviction for aggravated assault
thus qualifies as a violent felony for purposes of the ACCA.
709 F.3d 1328, 1338 (11th Cir. 2013), abrogatedon other
grounds by Johnson, 135 S.Ct. 2551.
objects to the conclusion that his aggravated assault
conviction also qualifies as a violent felony. Movant
maintains that the Turner Court failed to consider
Florida courts' construction of the elements of
aggravated assault and, thus, Turner was wrongly
decided. The Eleventh Circuit, however, continues to
recognize Turner as binding precedent. See
United States v. Kelly, 697 Fed.App'x 669, 670 (11th
Cir. 2017); United States v. Golden, 854 F.3d 1256,
1257 (11th Cir. 2017). As stated above, this Court is bound
to follow the Eleventh Circuit. Thus, Movant's aggravated
assault conviction also qualifies as a crime of violence
under the ACCA. Consequently, Movant's objection is
Court Will Not Issue A Certificate of Appealability
Court will deny issuance of a certificate of appealability
for Movant's motion pursuant to Rule 11 of the Rules
Governing Section 2255 Cases. The Court, having established
grounds for entering a "final order adverse to the
applicant" on his first motion, "must issue or deny
a certificate of appealability." In order to obtain a
certificate of appealability, Movant must make "a
substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c)(2). This standard is
satisfied "by demonstrating that jurists of reason could
disagree with the district court's resolution of his
constitutional claims or that jurists could conclude the
issues presented are adequate to deserve encouragement to
proceed further." Jones v. Secretary, 607 F.3d
1346, 1349 (11th Cir. 2010) ...