United States v. James Donnell Oner , 382 F. App'x 893 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-15045 ELEVENTH CIRCUIT
JUNE 15, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 08-00067-CR-T-17-TBM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES DONNELL ONER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 15, 2010)
Before EDMONDSON, BIRCH and MARTIN, Circuit Judges.
PER CURIAM:
James Donnell Oner pleaded guilty to knowingly possessing a firearm after
having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). The
district court sentenced him to the statutory minimum of fifteen years
imprisonment under the Armed Career Criminal Act (“ACCA”), 18 U.S.C.
§ 924(e), which provides for an enhanced sentence if the offender has three prior
“violent felony” convictions arising from separate occasions. On appeal, Mr. Oner
challenges his sentence, arguing that none of his three prior convictions—namely
two convictions for aggravated fleeing or eluding a police officer in violation of
Fla. Stat. § 316.1935(3)(a) and one conviction for armed robbery in violation of
Fla. Stat. § 812.13(2)(a)1 —constitute a “violent felony” under the ACCA.
I.
We review de novo whether a defendant’s prior convictions qualify as a
“violent felony” within the meaning of the ACCA. United States v. Canty, 570
F.3d 1251, 1254 (11th Cir. 2009).
Under the ACCA, the term “violent felony” is defined in pertinent part as
any felony 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.
1
The statutes have not been amended since Oner’s convictions.
2
18 U.S.C. § 924(e)(2)(B)(i)-(ii). We have noted that this definition is virtually
identical to the definition of a “crime of violence” under the United States
Sentencing Guidelines § 4B1.2(a)(1)-(2). See United States v. Harris, 586 F.3d
1283, 1285 (11th Cir. 2009). Compare U.S.S.G. § 4B1.2(a)(1)-(2), with 18 U.S.C.
§ 924(e)(2)(B)(i)-(ii). For that reason, the same analysis used to determine whether
an offense qualifies as a “violent felony” under the ACCA is also used to
determine whether an offense qualifies as a “crime of violence” under
§ 4B1.2(a)(1)-(2). See Harris, 586 F.3d at 1285–86.
A.
Florida law makes it a second-degree felony for a person to “[d]rive[ ] at
high speed, or in any manner which demonstrates a wanton disregard for the safety
of persons or property” while “willfully flee[ing] or attempt[ing] to elude a law
enforcement officer” in a marked patrol car with its sirens and lights activated.
Fla. Stat. § 316.1935(3)(a). Whether this crime qualifies as a “violent felony”
depends on whether it falls within the ACCA’s so-called “residual clause” in that it
“involves conduct that presents a serious potential risk of physical injury to
another.” See 18 U.S.C. § 924(e)(2)(B)(i)-(ii). As Oner concedes, our precedent
squarely requires us to hold that it does.2
2
Oner tells us that he raised this issue to preserve it for possible appellate review.
3
In United States v. Orisnord, 483 F.3d 1169, 1183 (11th Cir. 2007), we held
that a conviction under § 316.1935(3)(a) qualified as a “crime of violence” because
it fell within the residual clause of § 4B1.2(a)(2). After reviewing the statutory
language of the offense and noting that the touchstone of a “crime of violence” is
the “‘potential risk’ of injury, rather than actual violence or actual injury,” we
reasoned that
[t]he dangerous circumstances surrounding a person’s attempt to
flee from law enforcement coupled with the person’s operation of a
motor vehicle most assuredly presents a “potential risk of physical
injury” to others. And the stress and urgency of the situation will
likely cause the person fleeing to drive recklessly, turning any
pursuit into a high-speed chase with the potential for serious harm
to pedestrians, other drivers, and the pursuing officers. Indeed,
collisions between fleeing vehicles and pedestrians or other
vehicles sharing the road are common. Moreover, by deliberately
disobeying a law enforcement officer, the fleeing motorist
provokes an inevitable, escalated confrontation with the officer
when he is finally apprehended. “Such a confrontation inherently
presents the serious potential risk of physical injury because the
fleeing driver[,] intent on his goal of eluding the officer[,] faces the
decision of whether to dispel the officer’s interference or yield to
it.”
Orisnord, 483 F.3d at 1182–83 (quoting United States v. Martin, 378 F.3d 578, 583
(6th Cir. 2004)) (second and third alterations in original) (citations omitted).
Following our decision in Orisnord, the Supreme Court decided a trilogy of
cases considering whether a prior conviction qualifies as a “violent felony” under
the ACCA’s residual clause. See Chambers v. United States, __ U.S. __, 129 S.
4
Ct. 687 (2009); Begay v. United States, 553 U.S. 137, 128 S. Ct. 1581 (2008);
James v. United States, 550 U.S. 192, 127 S. Ct. 1586 (2007). Those cases
established a categorical approach whereby courts ask whether, based on the
statutory text, the offense of conviction involves purposeful, violent, and
aggressive conduct whose risks for potential injury are similar in degree and kind
to the ACCA’s enumerated offenses of burglary, arson, extortion, and any offense
involving the use of explosives. 18 U.S.C. § 924(e)(2)(B)(ii); United States v.
Harrison, 558 F.3d 1280, 1284–90 (11th Cir. 2009).
In light of those cases, we again considered in United States v. Harris, 586
F.3d 1283, 1286 (11th Cir. 2009), whether § 316.1935(3)(a) qualifies as “crime of
violence” under § 4B1.2(a)(2). We held that it did, reasoning that the statutory
elements of “willfully flees or attempts to elude” a police officer either at a “high
speed” or with “a wanton disregard for the safety of persons or property” required
purposeful conduct and that the risks flowing from such action presented, like the
enumerated crimes, a serious potential risk of physical injury to others. Harris, 586
F.3d at 1288–89.
In light of our analysis and holding in Harris, we hold that convictions under
§ 316.1935(3)(a) qualify as a “violent felony” under the ACCA. The district court
thus did not err with respect to Oner’s two convictions thereunder.
5
B.
Oner’s argument that his conviction for armed robbery under Fla. Stat.
§ 812.131(2)(a) does not qualify as a “violent felony” under the ACCA is likewise
without merit. In United States v. Dowd, 451 F.3d 1244, 1255 (11th Cir. 2006),
we held that an armed robbery under Florida law in 1974 “undeniably” qualified as
a violent felony because 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)(i).
The same conclusion unambiguously follows from the face of Florida’s armed
robbery statute today.3 See Fla. Stat. § 812.13(2)(a). That statute requires the
taking of another’s money or property by “the use of force, violence, assault, or
putting in fear” while carrying a firearm or other deadly weapon. Id.Perhaps realizing the futility of his argument, Oner mentions that he only
raises it in anticipation of a favorable ruling in United States v. Johnson, __ U.S.
__, 130 S. Ct. 1265 (2010), regarding the scope of offenses that qualify as a
“violent felony.” In Johnson, the Court held that a simple battery under Fla. Stat.
§ 784.03(1)(a)(1), (2)—namely the “[a]ctual[ ] and intentional touch[ing] of
another”—did not have as “an element the use … of physical force” because the
physical force contemplated by the ACCA is “violent force.” Johnson, __ U.S. at
3
Florida’s armed robbery statute was amended on October 1, 1987, by redefining the
offense of “robbery.” 1987 Fla. Sess. Law. Serv. 87-317 (West).
6
__, 130 S. Ct. at 1269, 1271. The Court’s holding in no way requires us to revisit
our holding in Dowd.4 The carrying of a firearm or other deadly weapon during a
robbery surely implicates violent force and of the most severe kind.
The district court thus did not err in finding that Oner’s conviction for
Florida armed robbery qualified as a “violent felony” under the ACCA.
AFFIRMED.
4
The holding in Johnson did not implicate the so-called “residual clause” in 18 U.S.C.
§ 924(e)(2)(B)(ii). It is therefore not relevant to our analysis in Part I.A.
7