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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-12114
Non-Argument Calendar
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Agency No. A060-009-810
CHAD PARCHMENT-BERRY,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(December 17, 2018)
Before WILSON, NEWSOM, and HULL, Circuit Judges.
PER CURIAM:
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Chad Parchment-Berry, a native of Jamaica, appeals the final order of the
Board of Immigration Appeals upholding the Immigration Judge’s determination
that he was removable under INA § 237(a)(2)(A)(iii),
8 U.S.C.
§ 1227(a)(2)(A)(iii). Specifically, the IJ concluded that Parchment-Berry was
removable for having committed a “crime of violence,” as defined by
18 U.S.C.
§ 16(a), because of his Florida conviction for robbery with a weapon under
Fla.
Stat. § 812.13(1). 1 On appeal, Parchment-Berry argues that his robbery offense is
not a “categorical match” to § 16(a) because it is “overbroad to the federal
definition of a crime of violence.”
Section 16 defines “crime of violence” as “an offense that has as an element
the use, attempted use, or threatened use of physical force against the person or
property of another.”
18 U.S.C. § 16(a). 2 In determining whether a state
conviction is a “crime of violence,” this Court “examine[s] what the state
conviction necessarily involved, not the facts underlying the case” and “must
1
Florida’s robbery statute defines robbery as:
the taking of money or other property 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 money or other property, when in the
course of the taking there is the use of force, violence, assault, or putting in fear.
Fla. Stat. § 812.13(1).
2
The Supreme Court recently held that the “residual clause” of the crime of violence definition
found in
18 U.S.C. § 16(b) is unconstitutionally vague. See Sessions v. Dimaya,
138 S. Ct. 1204,
1216 (2018).
2
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presume that the conviction rested upon [nothing] more than the least of th[e] acts
criminalized.” Moncrieffe v. Holder,
569 U.S. 184, 190–91 (2013) (quotations
omitted).
Parchment-Berry argues that the Florida robbery statute is not a crime of
violence because it does not necessarily involve “the use, attempted use, or
threatened use of physical force.” Specifically, he points to the fact that one can be
convicted for robbery in Florida not just for the “use of force, violence, [or]
assault,” but also for “putting [another] in fear.” The problem with this contention,
however, is what Parchment-Berry calls the “800 pound pink gorilla in the
room”—namely, that we have already held that
Fla. Stat. § 812.13(1) is a “crime of
violence” in the context of the Armed Career Criminal Act,
18 U.S.C. § 924(e) and
the U.S. Sentencing Guidelines, U.S.S.G. § 4B1.2(a)(1). See United States v.
Seabrooks,
839 F.3d 1326, 1341 (11th Cir. 2016); United States v. Lockley,
632
F.3d 1238, 1245 (11th Cir. 2011). Because § 16(a)’s definition of “crime of
violence” is essentially identical to the definitions in § 924(e) and § 4B1.2(a)(1),
we conclude—based on Seabrooks and Lockley—that
Fla. Stat. § 812.13(1) is a
“crime of violence” within the meaning of § 16(a). See Hernandez v. U.S. Att’y.
Gen.,
513 F.3d 1336, 1341 (11th Cir. 2008) (relying on a Guidelines decision to
hold that a Georgia offense is a crime of violence under § 16(a) because the
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“sentencing enhancement defined the term ‘crime of violence’ just as it is defined
in
18 U.S.C. § 16(a)”).
Parchment-Berry argues that these decisions were incorrect. But that
contention cannot carry the day; those decisions “[are] binding on all subsequent
panels unless and until [they are] overruled or undermined to the point of
abrogation by the Supreme Court or by this court sitting en banc.” United States v.
Sneed,
600 F.3d 1326, 1332 (11th Cir. 2010). See also United States v. Lee,
886
F.3d 1161, 1164–65 (11th Cir. 2018) (holding that Seabrooks and Lockley remain
good law). We are thus compelled to conclude that Parchment-Berry’s robbery
conviction qualified as a crime of violence under
18 U.S.C. § 16(a). Accordingly,
the BIA correctly determined that Parchment-Berry was removable based on his
conviction of an aggravated felony.
PETITION DENIED.
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