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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-15285
Non-Argument Calendar
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D.C. Docket No. 9:17-cr-80042-RLR-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DEMETRIUS DEVON FITZGERALD,
a.k.a. Demtemoivs D. Fitzgerald,
a.k.a. Fat Mimi,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(November 28, 2018)
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Before TJOFLAT, NEWSOM, and EDMONSON, Circuit Judges.
PER CURIAM:
Demetrius Fitzgerald appeals his 240-month total sentence for being a felon
in possession of a firearm, possessing with intent to distribute oxycodone,
marijuana, and alprazolam, and possessing multiple firearms in furtherance of a
drug trafficking crime. Fitzgerald argues that the district court erred in treating
him as an armed career criminal and a career offender because his Florida
aggravated battery with a deadly weapon and resisting arrest with violence
convictions were not predicate offenses under the elements clause of the Armed
Career Criminal Act (“ACCA”) and the career-offender guideline.
We review de novo whether a prior conviction qualifies as a violent felony
under the ACCA or a crime of violence under the career-offender guideline.
United States v. Seabrooks,
839 F.3d 1326, 1338 (11th Cir. 2016) (ACCA), cert.
denied,
137 S. Ct. 2265 (2017); United States v. Vail-Bailon,
868 F.3d 1293, 1296
(11th Cir. 2017) (en banc) (career offender), cert. denied,
138 S. Ct. 2620 (2018).
We apply the same analysis for both ACCA violent felonies and crimes of violence
under the sentencing guidelines, as they are “virtually identical.” United States v.
Rainey,
362 F.3d 733, 734 (11th Cir. 2004).
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A defendant who violates
18 U.S.C. § 922(g) and has at least 3 earlier
convictions for violent felonies or serious drug offenses is subject to an enhanced
statutory sentence of 15 years to life imprisonment.
18 U.S.C. § 924(e)(1). To
qualify as a career offender a defendant must have at least two prior felony
convictions for a crime of violence or a controlled substance offense. U.S.S.G. §
4B1.1(a)(3). Under the elements clauses in the ACCA and career-offender
guidelines, an offense is a violent felony or a crime of violence if it “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); U.S.S.G. § 4B1.2(a).
In United States v. Romo-Villalobos, we concluded that a Florida conviction
for resisting arrest with violence constituted a crime of violence under the elements
clause of the career-offender guideline.
674 F.3d 1246, 1249 (11th Cir. 2012). In
United States v. Hill, we reaffirmed our holding in Romo-Villalobos after the
Supreme Court’s decision in Johnson v. United States,
135 S. Ct. 2551 (2015).
799 F.3d 1318, 1322-23 (11th Cir. 2015); see also United States v. Joyner,
882
F.3d 1369, 1378 (11th Cir. 2018), petition for cert. filed, (U.S. May 23, 2018) (No.
17-9128). In Turner v. Warden Coleman FCI, we concluded that a Florida
conviction for aggravated battery with a deadly weapon satisfied the elements
clause of the ACCA.
709 F.3d 1328, 1341 (11th Cir. 2013). We have reaffirmed
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our holding in Turner after Johnson. United States v. Golden,
854 F.3d 1256, 1257
(11th Cir. 2017); In re Hires,
825 F.3d 1297, 1301 (11th Cir. 2016).
Under the prior precedent rule, we are bound by a prior binding precedent
“unless and until it is overruled” by this Court en banc or by the Supreme Court.
United States v. Vega-Castillo,
540 F.3d 1235, 1236 (11th Cir. 2008) (quotation
marks omitted).
Here, the district court properly sentenced Fitzgerald as an armed career
criminal and a career offender because his four total prior Florida convictions for
aggravated battery with a deadly weapon and resisting arrest with violence are
violent felonies and crimes of violence in the light of our prior precedent. See Hill,
799 F.3d at 1322 (resisting arrest with violence); Turner, 709 F.3d at 1341
(aggravated battery with a deadly weapon).
AFFIRMED.
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