from the United States District Court for the Southern
District of Florida D.C. Docket No. 1:17-cr-20524-DMM-1
ROSENBAUM, GRANT and HULL, Circuit Judges.
pleading guilty, defendant Fernando Sanchez, Jr., appeals his
sentence for one count of being a convicted felon in
possession of a firearm, in violation of 18 U.S.C. §
922(g)(1). At sentencing, the district court imposed the
mandatory minimum fifteen-year sentence under the Armed
Career Criminal Act ("ACCA"), 18 U.S.C. §
924(e)(1), (e)(2)(B)(i). On appeal, Sanchez argues that: (1)
he did not qualify as an armed career criminal under the ACCA
because he did not have three qualifying prior convictions;
and (2) in any event, the district court plainly erred in
imposing the ACCA's mandatory minimum sentence because he
was convicted of only one § 922(g) count. After review,
19, 2017, Sanchez, a convicted felon, sold a loaded rifle to
a confidential informant working with law enforcement.
Subsequently, on June 28, 2017, Sanchez sold the same
confidential informant two semiautomatic firearms and 278
rounds of ammunition. Audio and video recordings captured
both of these firearm transactions.
jury indicted Sanchez on two counts of possession of a
firearm and ammunition by a convicted felon, in violation of
§ 922(g)(1). Pursuant to a written plea agreement,
Sanchez pled guilty to one firearm count, and the government
dropped the other firearm count.
Presentence Investigation Report
Presentence Investigation Report ("PSI") initially
calculated an adjusted offense level of 22 under U.S.S.G.
§ 2K2.1. The PSI reported that Sanchez had these five
prior convictions: (1) a 1991 New York conviction for
first-degree robbery; (2) 1993 New York convictions for
attempted murder and assault with intent; (3) 2002 federal
convictions for conspiracy to commit armed carjacking, aiding
and abetting attempted armed carjacking, using and carrying a
firearm during and in relation to a crime of violence, and
felon in possession of a firearm; (4) a 2017 Florida
conviction for resisting an officer without violence; and (5)
a 2017 Florida conviction for tampering with physical
increased Sanchez's offense level from 22 to 33, under
U.S.S.G. § 4B1.4(b)(3)(B), because it concluded Sanchez
was an armed career criminal under the ACCA. The PSI
identified Sanchez's first three prior convictions listed
above as the qualifying ACCA predicate felony convictions.
The PSI reduced Sanchez's offense level by 3, pursuant to
U.S.S.G. § 3E1.1(a) and (b), because he accepted
responsibility for his offense, for a total offense level of
calculated a criminal history category of III based on six
criminal history points. The PSI increased Sanchez's
criminal history category to IV, pursuant to U.S.S.G. §
4B1.4(c)(3), due to Sanchez's status as an armed career
criminal. With a total offense level of 30 and a criminal
history category of IV, Sanchez's initial advisory
guidelines range was 135 to 168 months' imprisonment.
However, because the statutory minimum sentence of 15 years
under the ACCA was greater than the high end of the range,
the PSI determined that Sanchez's advisory guidelines
sentence was 180 months. See U.S.S.G. §
5G1.1(b) (providing that when the mandatory minimum sentence
is greater than the advisory guidelines range, it becomes the
objected to the PSI's designation of him as an armed
career criminal under the ACCA and the Sentencing Guidelines.
Relevant to this appeal, Sanchez argued that neither of his
prior New York convictions qualified as violent felonies
because they did not have as an element the use, attempted
use, or threatened use of violent force, as required by
Johnson v. United States, 559 U.S. 133, 130 S.Ct.
1265 (2010) ("Curtis Johnson").
response, the government argued that both of Sanchez's
New York convictions categorically qualified as violent
felonies under the ACCA's elements clause. The government
also submitted certificates of disposition for each
conviction. These documents showed that Sanchez was convicted
of New York first-degree robbery under New York Penal Law
§ 160.15(4) and New York attempted second-degree murder
under New York Penal Law §§ 110 and 125.25(1).
Sanchez has never disputed that he has these two New York
sentencing, the district court stated that Sanchez's
prior convictions were "prototypical violent
crimes" and qualified as ACCA predicates. Overruling
Sanchez's objection, the district court adopted the
PSI's findings and stated that the advisory guidelines
range was 180 months. After hearing from Sanchez and
considering the 18 U.S.C. § 3553(a) sentencing factors,
the district court imposed a 180-month sentence. Afterward,
Sanchez renewed his objection to the district court's
the ACCA, a defendant convicted of an offense under 18 U.S.C.
§ 922(g) is subjected to an increased mandatory minimum
prison sentence if he has three prior felony convictions for
a "violent felony" or a "serious drug
offense." 18 U.S.C. § 924(e)(1). Here, Sanchez
argues that his New York convictions for first-degree robbery
and attempted second-degree murder do not qualify as violent
felonies under the ACCA.
ACCA defines "violent felony," inter alia,
as any offense punishable by a term of imprisonment exceeding
one year that "has as an element the use, attempted use,
or threatened use of physical force against the person of
another." 18 U.S.C. § 924(e)(2)(B)(i).
Sanchez's appeal concerns only this elements
apply the categorical approach to determine whether a prior
conviction qualifies under the ACCA's elements clause.
United States v. Hill, 799 F.3d 1318, 1322 (11th
Cir. 2015). Under the categorical approach, we look only to
the fact of conviction and the statutory definition of the
prior offense. Id. "A crime is categorically a
violent felony under the elements clause if even the least
culpable conduct criminalized by the statute would fall
within the ACCA definition." United States v.
Jones, 906 F.3d 1325, 1328 (11th Cir. 2018), cert.
denied, 139 S.Ct. 1202 (2019) (quotation marks omitted).
Physical Force Requirement of the ACCA's Elements
the Supreme Court has thrice addressed the definition of
"physical force" for purposes of similarly worded
elements clauses. See Curtis Johnson, 559 U.S. at
138-40, 130 S.Ct. at 1270-71 (ACCA's elements clause);
United States v. Castleman, 572 U.S. 157, 168-71,
134 S.Ct. 1405, 1413-15 (2014) (18 U.S.C. §
921(c)(33)(A)(ii)'s elements clause); Stokeling v.
United States, 586 U.S. ___, ___, 139 S.Ct. 544, 550,
552, 553-55 (2019) (ACCA's elements clause). Taken
together, the Supreme Court in these cases has told us that
"physical force" in the elements clause means: (1)
an act that is physical, meaning that it must be
"exerted by and through concrete bodies," not
"intellectual or emotional force" and (2) a
physical act that is directly or indirectly "capable of
causing physical pain and injury." Stokeling,
586 U.S. at ___, 139 S.Ct. at 552; Castleman, 572
U.S. at 163 n.2, 134 S.Ct. at 1410 n.2; Curtis
Johnson, 559 U.S. at 138, 130 S.Ct. at 1270.
"Capable," in turn, means that the force
"potentially" will cause physical pain or injury.
Stokeling, 586 U.S. at ___, 139 S.Ct. at 554. Even
before Stokeling, this was our Court's binding
precedent as to the force element under the ACCA. See
Jones, 906 F.3d at 1328-29 (ACCA); Hylor v. United
States, 896 F.3d 1219, 1222-23 (11th Cir. 2018) (ACCA);
United States v. Deshazior, 882 F.3d 1352, 1357-58
(11th Cir. 2018), cert. denied, 139 S.Ct. 1255
(2019) (ACCA); United States v. Vail-Bailon, 868
F.3d 1293, 1301-02 (11th Cir. 2017) (en banc), cert.
denied, 138 S.Ct. 2620 (2018) (Sentencing Guidelines).
turn to Sanchez's two New York convictions to determine
whether each categorically involved the use, attempted use,