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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-13229
Non-Argument Calendar
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D.C. Docket No. 1:16-cr-20956-MGC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHRISTOPHER STACY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(May 8, 2019)
Before MARTIN, NEWSOM, and ANDERSON, Circuit Judges.
PER CURIAM:
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Christopher Stacy appeals his 180-month sentence imposed after pleading
guilty to possession of a firearm and ammunition by a previously convicted felon,
in violation of 18 U.S.C. § 922(g)(1). On appeal, he argues that because Florida
robbery and Florida attempted carjacking are not categorically violent felonies, and
should not have been used as predicate offenses for purposes of the Armed Career
Criminal Act (“ACCA”), he does not have the requisite number of predicate
offenses for the armed career criminal designation to apply. The government
responds, however, that Stacy’s argument against attempted carjacking should be
reviewed for plain error because he presents a different legal theory on appeal
regarding attempt that was not preserved before the district court.
We review de novo whether a particular conviction qualifies as a violent
felony under the ACCA. United States v. Seabrooks,
839 F.3d 1326, 1338 (11th
Cir. 2016). Federal law determines the meaning of the ACCA, while we are bound
by the Florida Supreme Court’s interpretation of its state law offenses. Curtis
Johnson v. United States,
559 U.S. 133, 138 (2010) (“Curtis Johnson”). We apply
the same analysis for both ACCA violent felonies and crime of violence under the
Sentencing Guidelines. United States v. Lockley,
632 F.3d 1238, 1243 n.5 (11th
Cir. 2011).
We review for plain error issues which the defendant failed to preserve for
appeal. United States v. Ramirez-Flores,
743 F.3d 816, 821 (11th Cir. 2014). “To
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preserve an issue for appeal, one must raise an objection that is sufficient to apprise
the trial court and the opposing party of the particular grounds upon which
appellate relief will later be sought.” United States v. Straub,
508 F.3d 1003, 1011
(11th Cir. 2007) (internal quotations omitted).
Where, as here, a defendant is convicted of violating 18 U.S.C. § 922(g), the
ACCA imposes a heightened mandatory minimum prison sentence if he has three
prior convictions for either violent felonies or serious drug offenses. 18 U.S.C.
§ 924(e)(1)(B). The ACCA defines a “violent felony” as any crime punishable by
a term of imprisonment exceeding one year that:
(i) has as an element the use, attempted use, or threatened use of
physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential risk
of physical injury to another.
Id. § 924(e)(2)(B) (emphasis added). The first prong of this definition is often
referred to as the “elements” clause, while the second prong contains the
“enumerated crimes” clause followed by what is often referred to as the “residual
clause.” United States v. Owens,
672 F.3d 966, 968 (11th Cir. 2012). Robbery and
carjacking are not listed as enumerated crimes, so neither can satisfy that prong. In
Samuel Johnson v. United States,
135 S. Ct. 2551 (2015), the Supreme Court held
that the residual clause was unconstitutionally
vague. 135 S. Ct. at 2257–58
(“Samuel Johnson”).
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In Curtis Johnson, the Supreme Court defined the physical force required for
a “violent felony” to mean “violent force—that is, force capable of causing
physical pain or injury to another person.” Curtis
Johnson, 559 U.S. at 140. Our
test for determining whether an offense calls for the use of physical force under
Curtis Johnson looks to “whether the statute calls for violent force that is capable
of causing physical pain or injury to another.” United States v. Vail-Bailon,
868
F.3d 1293, 1302 (11th Cir. 2017) (en banc).
Whether a prior conviction is a predicate offense under the ACCA’s
elements clause is determined by applying the categorical approach. Taylor v.
United States,
495 U.S. 575, 600 (1990). The categorical approach requires courts
to assess whether the elements, rather than the individual facts, of the statute of
conviction in its ordinary case contains the same elements as the federal generic
offense, or is defined even more narrowly than the federal generic. Descamps v.
United States,
570 U.S. 254, 261 (2013); see Samuel
Johnson, 135 S. Ct. at 2582
(adding language to assess the statute of conviction “in the ordinary case”). Under
the categorical approach, we examine the statute of conviction to determine
whether that conviction necessarily “ha[d] 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); Moncrieffe v. Holder,
569 U.S. 184, 190 (2013). Whether a
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person actually used, attempted to use, or threatened to use physical force is
irrelevant.
Id.
We will address each statute of conviction in turn.
(i) Florida Robbery Conviction
In Fritts, we held that a Florida conviction for robbery is a violent felony
under the elements clause of the ACCA. United States v. Fritts,
841 F.3d 937,
942-44 (11th Cir. 2016); see § 812.13, Fla.Stat. (2017). We have held that all
Florida robbery convictions under § 812.13, even without a firearm, qualify as a
crime of violence.
Lockley, 632 F.3d at 1245; see
Fritts, 841 F.3d at 940–42
(reaffirming Lockley post-Samuel Johnson,
135 S. Ct. 2551).
Our binding circuit precedent thus forecloses Stacy’s argument. See
Fritts,
841 F.3d at 942. Fritts involved the ACCA and the term “violent felony,” while
Lockley involved the career offender provisions of the Guidelines, U.S.S.G. §§
4B1.1 and 4B1.2, and the term “crime of violence.” The cases held that Florida
robbery under Fla. Stat. § 812.13 qualifies, under the elements clause and the
categorical approach, as a “violent felony” (in
Fritts, 841 F.3d at 942-44), and as
a “crime of violence” (in
Lockley, 632 F.3d at 1244-45). We apply the same
analysis in both situations.
Lockley, 632 F.3d at 1243 n.5. Florida robbery, in
violation of Fla. Stat. § 812.13, is categorically a violent felony under the
ACCA’s elements clause and may serve as a predicate crime of violence offense.
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Accordingly, we affirm the district court’s use of Stacy’s two prior Florida
robbery convictions as predicate offenses under the ACCA.
(ii) Florida Attempted Carjacking Offense
Florida carjacking is defined as:
the taking of a motor vehicle which may be the subject of larceny
from the person or custody of another, with intent to either
permanently or temporarily deprive the person or the owner of the
motor vehicle, when in the course of the taking there is the use of
force, violence, assault, or putting in fear.
§ 812.133, Fla.Stat. (2017) (emphasis added). The Florida Supreme Court has
determined that “the carjacking statute mirrors the language of the robbery
statute:” both have the same elements except that carjacking is narrower, with a
specific subject of the robbery, a car. See Cruller v. State,
808 So. 2d 201, 204
(Fla. 2002) (assessing whether a charge for both robbery and carjacking violated
double jeopardy).
Attempt under Florida law is defined as “a person who attempts to commit
an offense prohibited by law and in such attempt does any act toward the
commission of such offense, but fails in the perpetration or is intercepted or
prevented in the execution thereof.” § 777.04(1), Fla. Stat.
We have adopted the Model Penal Code (“MPC”) definition of attempt as
the federal generic definition for purposes of the categorical rule. See
Lockley, 632
F.3d at 1244 n.6. The MPC definition of attempt requires “an act or omission
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constituting a substantial step in a course of conduct planned to culminate in his
commission of the crime.”
Id. (quoting MODEL PENAL CODE § 5.01(1)) (internal
quotations omitted). We held in Lockley that Florida’s attempt statute is a
categorical match to generic attempt because Florida attempt requires an overt act,
instead of mere preparation.
Id.
In Lockley, we held that attempted robbery was categorically a crime of
violence under the “elements” clause of § 4B1.2.
Lockley, 632 F.3d at 1245; see
also
Fritts, 841 F.3d at 942 (reaffirming Lockley post-Samuel Johnson).
Regarding its attempt, we noted that Florida robbery required “the use of force,
violence, a threat of imminent force or violence coupled with apparent ability, or
some act that puts the victim in fear of death or great bodily harm,” and then
elaborated, that “we find it inconceivable that any act which causes the victim to
fear death or great bodily harm would not involve the use or threatened use of
physical force.”
Lockley, 632 F.3d at 1245; see
Cruller, 808 So. 2d at 204
(equating the elements of Florida robbery and carjacking).
We agree with the government that Stacy did not properly preserve for
appeal the particular challenge he raises on appeal with respect to his prior Florida
conviction for attempted carjacking. Thus, we review for plain error. As Stacy
concedes, whether Florida attempted carjacking is a violent felony is an open
question in this Circuit. Therefore, because there is no binding case law, there can
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be no plain error.
Straub, 508 F.3d at 1011. Moreover, there is a very strong
argument that Florida attempted carjacking involves the required physical force
and is categorically a violent felony. Florida’s interpretation that carjacking is a
narrower subset of robbery, with the same force elements, leads to the
determination that our assessment of Florida carjacking should follow our earlier
categorical assessments of Florida robbery as a violent felony. See
Fritts, 841 F.3d
at 942;
Cruller, 808 So. 2d at 204. Florida robbery is a categorical match to the
federal generic definition and, therefore, carjacking is a categorical match too
because it is defined even more narrowly by the state supreme court than the
federal generic offense.
Descamps, 133 S. Ct. at 2283;
Cruller, 808 So. 2d at 204.
We have also already found attempt in Florida to be a categorical match with
generic attempt.
Lockley, 632 F.3d at 1244 n.6. Taking these two principles
together, because Florida attempt is a categorical match to the federal generic, and
Florida carjacking follows our cases regarding Florida robbery under the ACCA, it
is probable that—when this Court is faced with the issue on de novo review— we
will probably hold that attempted Florida carjacking is categorically a violent
crime under the ACCA. Accordingly, it was not plain error for the district court to
use Stacy’s prior Florida attempted carjacking conviction as a predicate offense
under the ACCA.
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In sum, the district court correctly found that Stacy’s two prior convictions
of Florida robbery were violent felonies, and it was not plain error for the district
court to hold that the Florida attempted carjacking conviction was a violent felony,
and to designate Stacy an armed career offender. Accordingly, we affirm.
AFFIRMED.
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