Jimmy Lee Boston v. United States ( 2019 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-13870
________________________
D.C. Docket Nos. 8:16-cv-01827-SCB-TBM,
8:06-cr-00259-SCB-TBM-1
JIMMY LEE BOSTON,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(September 30, 2019)
Before WILLIAM PRYOR and JILL PRYOR, Circuit Judges, and ROBRENO,*
District Judge.
*
Honorable Eduardo C. Robreno, United States District Judge for the Eastern District of
Pennsylvania, sitting by designation.
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WILLIAM PRYOR, Circuit Judge:
This appeal requires us to decide whether the district court erred when it
denied Jimmy Lee Boston’s second or successive motion to correct his sentence,
28 U.S.C. § 2255(a), (h), under the Armed Career Criminal Act, 18 U.S.C.
§ 924(e). In 2007, Boston was convicted and sentenced under the Act to 262
months of imprisonment. His prior convictions included two for armed robbery
and seven for principal to robbery with a firearm, which, under Florida law, Fla.
Stat. § 777.011, includes aider-and-abettor liability. After the decision in Johnson
v. United States, 135 S. Ct. 2551 (2015), which held that the residual clause of the
Act is void for vagueness, Boston filed a second or successive motion to correct his
sentence. He argued that, after Johnson, none of his seven principal-to-robbery-
with-a-firearm convictions qualified as a third violent-felony conviction under the
Act. The district court denied his motion on the ground that an aider and abettor is
liable under Florida law for all the acts of a principal, so all of Boston’s armed-
robbery convictions, even those where he only aided and abetted an armed
robbery, count as violent felonies the same as if he had committed the armed
robbery himself. Because we agree with the district court, we affirm.
I. BACKGROUND
In 2006, a grand jury indicted Jimmy Lee Boston for possessing a firearm as
a felon, 18 U.S.C. §§ 922(g)(1), 924(e)(1), and possessing a firearm with an
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obliterated serial number, id. §§ 922(k), 924(a)(1)(B). The indictment identified
eleven predicate felony convictions for the felon-in-possession charge, including
two convictions for armed robbery and seven convictions as a principal to robbery
with a firearm. A jury found Boston guilty of both counts of the indictment.
The presentence investigation report listed only six of Boston’s convictions
as a principal to robbery with a firearm instead of seven. The report stated that
Boston was “subject to an enhanced sentence under” the Armed Career Criminal
Act, but it did not specify which of his prior convictions subjected him to the
enhancement. Boston did not object to the report about any of his prior adult
convictions, nor did he object to the enhancement of his sentence under the Act.
The district court imposed a sentence of 262 months of imprisonment. Boston
appealed, and we affirmed. See United States v. Boston, 249 F. App’x 807 (11th
Cir. 2007).
After the Supreme Court held the residual clause of the Armed Career
Criminal Act void for vagueness in Johnson, 135 S. Ct. at 2563, and held that the
new rule announced in Johnson applies retroactively to cases on collateral review,
Welch v. United States, 136 S. Ct. 1257 (2016), Boston received permission from
this Court to file a second or successive motion to correct his sentence, see 28
U.S.C. § 2255(h). In his motion, Boston sought relief on the ground that the
“district court enhanced [his] sentence under the Act’s residual clause, so [he] no
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longer ha[d] three Armed Career Criminal Act qualifying predicate offenses.” His
accompanying memorandum of law argued that his principal-to-robbery
convictions were not violent felonies under the elements clause because a
“principal to robbery” can be convicted without proof that he “commit[ed],
threaten[ed] to commit, or attempt[ed] to commit all elements of the robbery,”
including the element of physical force.
The government made three arguments in response. First, it argued that
Boston had failed to establish that his second-or-successive claim “relie[d] on a
new rule of constitutional law,” id. § 2244(b)(2)(A); see also id. § 2255(h)(2),
because he had not established that his enhanced sentence depended on the residual
clause. Second, it argued that Boston’s argument was procedurally defaulted
because he failed to raise it at sentencing or on direct appeal. Third, the
government contended that Boston’s argument failed on the merits because he had
at least three violent-felony convictions.
The government conceded that Boston’s burglary convictions did not satisfy
the enumerated-offenses clause of the Act, and it admitted that it lacked the records
to determine whether his battery-on-a-law-enforcement-officer conviction satisfies
the Act’s elements clause. See Shepard v. United States, 544 U.S. 13, 16 (2005).
But the government maintained that his two armed-robbery convictions counted,
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and it contended that his several principal-to-robbery-with-a-firearm convictions
put him over the three-conviction threshold.
The government made alternative arguments about Boston’s robbery
convictions. Although the indictment and presentence investigation report stated
that Boston had two convictions for armed robbery and several convictions for
principal to robbery with a firearm, the government argued that the records for
Boston’s convictions, see id. at 16, established that he had not two but four armed-
robbery convictions. The government explained that two of the principal-to-
robbery-with-a-firearm convictions did not depend on the Florida statute making
aiders and abettors punishable as principals, Fla. Stat. § 777.011. The government
pointed out that, for two of Boston’s putative principal-to-robbery-with-a-firearm
convictions, the judgments listed only the robbery statute, id. § 812.13, as the
statute of conviction, and that the charging documents in those cases also made no
reference to aiding-and-abetting liability or the principal-liability statute. The
government acknowledged that each of the two judgments in question described
the crime as “principal to robbery with a firearm” but suggested that the phrase
“could easily be a scrivener[’s] error, and Boston ha[d] failed to make any showing
to the contrary.” In the alternative, the government argued that, even if Boston
were considered to have only two convictions that did not depend on aiding-and-
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abetting liability, any conviction as a principal to robbery with a firearm
categorically qualifies as a violent felony under the elements clause.
The district court denied Boston’s motion. It determined that Boston had not
two but four armed-robbery convictions independent of the principal-liability
statute. And, in any event, the district court ruled that Boston’s principal-to-
robbery-with-a-firearm convictions qualified as violent-felony convictions under
the elements clause. The district court did not address the government’s arguments
that Boston had not established that he was sentenced using the residual clause and
that his claim was procedurally defaulted.
After the district court denied a certificate of appealability, we granted a
certificate for the following two issues:
(1) Whether Boston’s two prior Florida convictions for principal to
armed robbery, in Case No. 89-1594F(A) and Case No. 89-
1165F(A), for which the charging documents and judgments cited
only Fla. Stat. Ann. § 812.13 as the offense of conviction statute,
were convictions for substantive Florida armed robbery, such that
they categorically qualify as violent felonies under the [Act’s]
element[s] clause; and
(2) Whether a Florida conviction for principal to armed robbery, in
violation of Fla. Stat. Ann. § 777.011 and § 812.13, constitutes a
violent felony under the [Act’s] elements clause? See In re Colon,
826 F.3d 1301 (11th Cir. 2016).
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II. STANDARD OF REVIEW
“In a section 2255 proceeding, we review legal conclusions de novo and
factual findings for clear error.” Osley v. United States, 751 F.3d 1214, 1222 (11th
Cir. 2014).
III. DISCUSSION
The Armed Career Criminal Act imposes a fifteen-year mandatory-
minimum sentence on anyone who violates the felon-in-possession statute, 18
U.S.C. § 922(g), with “three previous convictions . . . for a violent felony.” Id.§ 924(e)(1). Under the so-called “elements” clause of the Act, the term “violent
felony” includes any crime punishable by more than one year of imprisonment that
“has as an element the use, attempted use, or threatened use of physical force
against the person of another.” Id. § 924(e)(2)(B)(i). Florida robbery, Fla. Stat.
§ 812.13, categorically qualifies as a violent felony under the elements clause, see
Stokeling v. United States, 139 S. Ct. 544, 554–55 (2019), so Boston has at least
two qualifying armed-robbery convictions. Id.; United States v. Fritts, 841 F.3d
937, 939–40 (11th Cir. 2016). But Boston disputes whether his six Florida
convictions for principal to armed robbery, Fla. Stat. §§ 777.011, 812.13,
constitute violent felonies under the elements clause.
Our precedent In re Colon, 826 F.3d 1301 (11th Cir. 2016), forecloses
Boston’s argument. Colon held that a “conviction for aiding and abetting a Hobbs
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Act robbery,” 18 U.S.C. §§ 2, 1951(a), “qualifies as a ‘crime of violence’ under the
[elements] clause in [section] 924(c)(3)(A).” 826 F.3d at 1305. The definition of
“crime of violence” in section 924(c)(3)(A) mirrors the definition of “violent
felony” in section 924(e)(2)(B)(i), with the only distinction being that the former
additionally covers the use of force against “property,” which is not at issue here.
Compare 18 U.S.C. § 924(c)(3)(A) (requiring the underlying offense to include as
an element, “the use, attempted use, or threatened use of physical force against the
person or property of another”), with id. § 924(e)(2)(B)(i) (requiring the underlying
offense to include as an element, “the use, attempted use, or threatened use of
physical force against the person of another”). We earlier held that Hobbs Act
robbery qualifies as a “crime of violence.” Colon, 826 F.3d at 1305 (citing In re
Saint Fleur, 824 F.3d 1337, 1341 (11th Cir. 2016)). And, under the federal
principal statute, an aider and abettor is punished the same as a principal offender,
18 U.S.C. § 2(a), such that “the acts of the principal become those of the aider and
abettor as a matter of law.” United States v. Williams, 334 F.3d 1228, 1232 (11th
Cir. 2003). So, the reasoning of Colon applies here: “Because an aider and abettor
is responsible for the acts of the principal as a matter of law, an aider and abettor of
a Hobbs Act robbery necessarily commits all the elements of a principal Hobbs Act
robbery,” meaning he “necessarily commits a crime that” satisfies the elements
clause of section 924(c). Colon, 826 F.3d at 1305.
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Like the federal statute in Colon, the Florida statute punishes aiders and
abettors the same as principal offenders. Compare Fla. Stat. § 777.011 (“Whoever
commits any criminal offense against the state . . . or aids, abets, counsels, hires, or
otherwise procures such offense to be committed, and such offense is committed or
is attempted to be committed, is a principal in the first degree and may be charged,
convicted, and punished as such . . . .”), with 18 U.S.C. § 2(a) (“Whoever commits
an offense against the United States or aids, abets, counsels, commands, induces or
procures its commission, is punishable as a principal.”). If the latter reflects the
principle that “an aider and abettor is responsible for the acts of the principal as a
matter of law,” Colon, 816 F.3d at 1305, so does the former. Cf. United States v.
Lange, 862 F.3d 1290, 1295 (11th Cir. 2017) (explaining that the federal and
Florida statutes both require that an aider and abettor “have the intent to aid the
commission of a crime and do some act that contributed to the offense” to be
punished as a principal).
The Supreme Court of Florida has confirmed that the Florida statute
embodies the same principle that we applied to the federal statute in Colon. See
Hall v. State, 403 So. 2d 1321, 1323 (Fla. 1981) (“An aider and abettor is
responsible for all acts committed by his accomplice in furtherance of the criminal
scheme.”). Under the Florida statute, “a person is a principal in the first degree
whether he actually commits the crime or merely aids, abets or procures its
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commission,” so “it is immaterial” which kind of liability the indictment or
information alleges. State v. Roby, 246 So. 2d 566, 571 (Fla. 1971). That is, even
though “[o]ne may be charged” in the charging document “with aiding, abetting, or
procuring the commission of a criminal offense, . . . if the proof establishes that he
actually committed the offense, a verdict finding him guilty as charged will be
sustained.” Id. (quoting Jacobs v. State, 184 So. 2d 711, 714–715 (Fla. 1st Dist. Ct.
App. 1966))). “Conversely, it would follow that if an information . . . charges a
defendant with the commission of a criminal offense, and the proof establishes
only that he was feloniously present, aiding, and abetting in the commission of the
crime, a verdict of guilty as charged should be sustained.” Id. (emphasis omitted)
(quoting Jacobs, 184 So. 2d at 715); see also State v. Dent, 322 So. 2d 543, 544
(Fla. 1975) (relying on Roby to reinstate the defendant’s substantive conviction for
selling cocaine because he “clearly aided and abetted the commission of a criminal
offense” even though the defendant “received no compensation from the seller”);
Stephenson v. State, 371 So. 2d 554, 555 (Fla. 2d Dist. Ct. App. 1979) (“We note
that a charge of substantive crime may be proved by evidence of aiding and
abetting.”).
In other words, one who commits the Florida crime of principal to armed
robbery necessarily commits the Florida crime of armed robbery. Cf. Lopez v.
State, 833 So. 2d 283, 284 (Fla. 5th Dist. Ct. App. 2002) (explaining “that it is
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immaterial whether [a defendant] was expressly charged as a principal, so long as
there was proof he was guilty of one of the acts denounced in the statute” because
“[t]he law of principals allows [a defendant] to be convicted of the main offenses
regardless of whether he personally possessed a firearm”). Under Florida law, one
who “commits[,] . . . aids, abets, counsels, hires, or otherwise procures” an armed
robbery necessarily is a principal to armed robbery. Fla. Stat. § 777.011. Because
principals are identically situated under Florida law, it follows that they are
identically situated under the Armed Career Criminal Act as they have all
committed an offense 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).
Although not discussed by the parties, the Florida statute for principal
liability punishes aiding and abetting an attempted offense, while the federal
statute, on its face, does not. That distinction does not matter where, as here, the
underlying offense, armed robbery, categorically qualifies as a predicate offense
regardless of whether it is attempted or completed. See United States v. Joyner,
882 F.3d 1369, 1379 (11th Cir. 2018), cert. denied, 139 S. Ct. 1256 (2019) (“[W]e
conclude that Florida attempted robbery is categorically a violent felony under the
[Act].”). The logic of Colon still controls—even if one aids and abets a robbery
that is only attempted but not completed, one has still committed the crime of
attempted robbery, which is a violent felony under the Act, id. And because Colon
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forecloses Boston’s argument, we need not consider whether the Shepard
documents for his prior convictions support the same result.
IV. CONCLUSION
We AFFIRM the denial of Boston’s second or successive motion.
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JILL PRYOR, Circuit Judge, concurring in judgment:
Our precedent requires me to concur in the majority’s decision to affirm the
district court’s denial of Jimmy Lee Boston’s 18 U.S.C. § 2255 motion to vacate.
But because I have doubts about whether our precedent is correct, I write
separately, using Mr. Boston’s case as an illustration, to explain my concerns.
Mr. Boston is serving an enhanced sentence imposed under the Armed
Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). Congress passed ACCA to
punish harshly felony offenders caught carrying firearms who previously have
committed at least three violent felonies or serious drug offenses. See id.§ 924(a)(2), (e)(1). These violent felonies must “ha[ve] as an element the use,
attempted use, or threatened use of physical force” against another person. Id.
§ 924(e)(2)(B)(i). When Mr. Boston was caught carrying a firearm, he had two
prior felony convictions in Florida for armed robbery. Physical force is an element
of the crime of robbery in Florida, so those convictions got Mr. Boston close to
qualifying for ACCA’s enhanced punishment.
Mr. Boston’s third predicate offense supporting his ACCA enhancement was
one of several Florida convictions for “principal” to robbery with a firearm—
essentially, aiding and abetting an armed robbery. During most of these crimes,
Mr. Boston served as the getaway driver to codefendants who robbed convenience
stores and pizza restaurants at gunpoint. Under Florida law, a person who aids or
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abets a robbery “is a principal.” See Fla Stat. §§ 777.011, 812.13. But this is a
legal fiction: by the Florida statute’s own terms, an aider or abettor does not even
have to be “actually or constructively present at the commission of [the] offense.”
Id. § 777.011. Does a person who is not even present for the commission of a
robbery necessarily use, attempt to use, or threaten to use physical force against
another during that robbery? No. But this Court has said he does.
In In re Colon, a panel of our Court examined whether aiding and abetting a
Hobbs Act robbery qualified as a crime of violence. 1 826 F.3d 1301, 1305 (11th
Cir. 2016); see Maj. Op. at 8-9 (explaining that federal aiding and abetting law
mirrors Florida law). The Colon panel said yes: “Because an aider and abettor is
responsible for the acts of the principal as a matter of law, an aider and abettor of a
Hobbs Act robbery necessarily commits all the elements of a . . . Hobbs Act
robbery.” Id. “And because the substantive offense of Hobbs Act robbery ‘has as
an element the use, attempted use, or threatened use of physical force . . . ,’ then an
aider and abettor of a Hobbs Act robbery necessarily commits a crime that ‘has as
an element the use, attempted use, or threatened use of physical force . . . .’” Id.1
Colon concerned 18 U.S.C. § 924(c), not ACCA. Section 924(c) criminalizes the use of
a firearm during and in relation to a “crime of violence.” The definition of “crime of violence”
at issue in Colon, though, is substantially the same as the definition of “violent felony” in
ACCA. Compare 18 U.S.C. § 924(c)(1)(A), with 18 U.S.C. § 924(e)(2)(B)(i). So I agree with
the majority that the reasoning of Colon must apply here. See Maj. Op. at 7-8.
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Colon is binding precedent, so I must concur. The problem I see with the
reasoning in Colon is that it takes a legal fiction—that one who aids and abets a
robbery by, say, driving a getaway car, is deemed to have committed the robbery
itself—and transforms it into a reality—that a getaway car driver actually
committed a crime involving the element of force. That transformation isn’t
grounded in ACCA’s text. ACCA uses the term “violent felony,” the ordinary
meaning of which “suggests a category of violent, active crimes.” Johnson v.
United States, 559 U.S. 133, 140 (2010) (emphasis added) (internal quotation
marks omitted). A person who merely aids and abets a crime by definition plays a
less active role in the crime than the principal. And whereas ACCA expressly
includes in its “violent felony” definition offenses that require attempted or
threatened force (in addition to the actual use of force), it does not expressly
include aiding or abetting a person who uses, attempts to use, or threatens to use
force. In short, Congress could have written ACCA to explicitly encompass
offenders who aid or abet violent acts, but it did not. 2 Cf. Cent. Bank of Denver,
2
The Court in Colon followed United States v. Williams in positing that “‘[n]othing in
the language’” of § 924(c) “‘indicates that Congress intended to vitiate ordinary principles of
aiding and abetting liability.’” 826 F.3d at 1305 (quoting United States v. Williams, 334 F.3d
1228, 1233 (11th Cir. 2003) (alteration adopted)). But as the dissent in Colon pointed out, the
defendant in Williams did not aid or abet the “crime of violence”; he aided or abetted the use of
the firearm during that crime. Id. at 1306-07 (Martin, J., dissenting). So the question the Court
answered in Williams was different from the one answered in Colon. See id. And unlike the
defendant in Williams, “Mr. Colon’s aiding and abetting crime could have been based on his aid
of an element of robbery that involved no force.” Id. at 1307.
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N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 176-77 (1994)
(“Congress knew how to impose aiding and abetting liability when it chose to do
so. If . . . Congress intended to impose aiding and abetting liability, we presume it
would have used the words ‘aid’ and ‘abet’ in the statutory text. But it did not.”
(citations omitted)).
A person who aids or abets another in committing armed robbery may use,
attempt to use, or threaten to use physical force, or he may only be a getaway
driver. Transforming that role in a crime into one that necessarily involves the use,
attempted use, or threatened use of physical force contradicts ACCA’s text. 3 And,
for what it’s worth, I believe Colon’s rule does not comport with ACCA’s intent,
written into the text of § 924, to punish more harshly offenders with a history of
violent criminal conduct. See 18 U.S.C. § 924(a)(2), (e)(1). For these reasons, I
believe that Colon was wrongly decided. 4
3
To the extent the statute is ambiguous as to whether aiding or abetting would qualify as
an act having as an element the use, attempted use, or threatened use of physical force against
another person, I would apply “the rule of lenity’s teaching that ambiguities about the breadth of
a criminal statute should be resolved in the defendant’s favor”—here, by excluding from the
scope of ACCA aiding and abetting. United States v. Davis, 139 S. Ct. 2319, 2333 (2019).
4
I acknowledge but do not address the government’s alternative argument for
affirmance—which the majority does not reach—that at least two of Mr. Boston’s convictions
for principal to robbery with a firearm actually are for armed robbery.
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