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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-13317
Non-Argument Calendar
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D.C. Docket No. 0:20-cr-60041-WPD-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DENZEL LAFRANCE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(July 27, 2021)
Before WILSON, ROSENBAUM and MARCUS, Circuit Judges.
PER CURIAM:
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Denzel LaFrance appeals his 46-month sentence following his conviction on
one count of possession of a firearm by a convicted felon under
18 U.S.C. §
922(g)(1). On appeal, he argues that the district court erred in enhancing his
sentence because: (1) his prior conviction for robbery under
Fla. Stat. § 812.13(2)(a)
did not qualify as a “crime of violence” pursuant to U.S.S.G. § 2K2.1(a)(4)(A); or
(2) alternatively, his prior conviction for aggravated assault under
Fla. Stat. §
784.021(1)(a) did not qualify as a “crime of violence” pursuant to U.S.S.G. §
2K2.1(a)(4)(A). After thorough review, we affirm.
We review de novo whether a prior conviction qualifies as a “crime of
violence” under the Sentencing Guidelines. United States v. Lockley,
632 F.3d
1238, 1240 (11th Cir. 2011). Under our prior panel precedent rule, we are bound to
follow a prior panel’s holding unless and until it is overruled or undermined to the
point of abrogation by an opinion of the Supreme Court or of this Court sitting en
banc. United States v. Archer,
531 F.3d 1347, 1352 (11th Cir. 2008).
Section 2K2.1(a)(4)(A) provides for a base offense level of 20 if the defendant
committed the instant offense after “sustaining one felony conviction of either a
crime of violence or a controlled substance offense.” U.S.S.G. § 2K2.1(a)(4)(A).
The term “crime of violence” has the same meaning for purposes of § 2K2.1 as it
does under the career offender guidelines in § 4B1.2(a) and accompanying
commentary. Id. § 2K2.1 cmt. n.1. Thus, a “crime of violence” is “any offense
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under federal or state law, punishable by imprisonment for a term exceeding one
year, that . . . has as an element the use, attempted use, or threatened use of physical
force against the person of another” or is “aggravated assault [or] robbery . . . .” Id.
§ 4B1.2(a).
When determining whether a prior conviction qualifies as a “crime of
violence” for enhancement purposes, we apply the categorical approach. Lockley,
632 F.3d at 1240. Further, when the Sentencing Guidelines specifically designate a
certain offense as a “crime of violence,” we compare the elements of the crime of
conviction to the generic form of the offense.
Id. at 1242.
Florida’s robbery statute defines the offense of robbery as
the taking of money or other property . . . 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). It is a first-degree felony and punishable by life imprisonment
if the offender carried a firearm or other deadly weapon.
Id. § 812.13(2)(a).
In Lockley, we held that a robbery conviction under § 812.13(1) was
“categorically a crime of violence” under § 4B1.2. See
632 F.3d at 1245-46
(quotation omitted). We first explained that a Florida robbery qualified under the
guidelines’ enumerated offenses clause, since “robbery” was listed in the guideline
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commentary1 and the elements of § 812.13(1) mirrored the generic definition of
robbery almost exactly. Id. at 1242-44. We then found that “[t]he bare elements of
§ 812.13(1)” also satisfied the elements clause of § 4B1.2(a), because § 812.13(1)
required either the use of force, violence, a threat of imminent force, or some act that
puts the victim in fear of death or great bodily harm and, therefore, had, “as an
element, the use, attempted use, or threatened use of physical force against the
person of another.” Id. at 1245 (quotation omitted). Since Lockley, we’ve reiterated
many times that a Florida conviction for robbery is a “crime of violence” under our
binding precedent. See, e.g., United States v. Burke,
863 F.3d 1355, 1360 (11th Cir.
2017) (citing Lockley,
632 F.3d at 1246).
In 2019, the Supreme Court affirmed our ruling in Lockley when it held that
Florida robbery under § 812.13 categorically qualified as a violent felony under the
Armed Career Criminal Act’s (“ACCA”) elements clause. See Stokeling v. United
States, __ U.S. __,
139 S. Ct. 544, 549-50 (2019).2 The Supreme Court reasoned
that, because Florida robbery requires “resistance by the victim that is overcome by
1
Robbery was only listed in guideline commentary as an enumerated offense when Lockley was
decided, but the Sentencing Commission later amended U.S.S.G. § 4B1.2(a) to expressly include
it. See U.S.S.G. app. C, amend. 798 (Aug. 2016).
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“Because the [§ 4B1.2(a)] elements clause . . . and the [ACCA] elements clause . . . are
virtually identical, this Court looks to the Supreme Court’s and our own decisions applying the
ACCA . . . in considering whether an offense qualifies as a crime of violence under the
Guidelines, and vice versa.” United States v. Ochoa,
941 F.3d 1074, 1107 (11th Cir. 2019).
We’ve also recognized that U.S.S.G. § 2L1.2’s elements clause definition uses identical
language as well. United States v. Romo-Villalobos,
674 F.3d 1246, 1248 (11th Cir. 2012).
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the physical force of the offender,” the offense contained the necessary element of
“physical force” under the ACCA to qualify it as a violent felony. Id. at 554-55
(quoting Robinson v. State,
692 So. 2d 883, 886 (Fla. 1997)).
Here, as LaFrance acknowledges, his argument that his prior Florida
conviction for robbery does not constitute a crime of violence under §
2K2.1(a)(4)(A) is foreclosed by Lockley. See Burke, 863 F.3d at 1360; see also
Lockley,
632 F.3d at 1242-46. Even though LaFrance claims that Lockley was
wrongly decided, we are bound by our prior decision, see Archer,
531 F.3d at 1352,
and moreover, the Supreme Court later reached the same conclusion, holding that
Florida robbery under § 812.13 categorically qualified as a violent felony under the
ACCA’s elements clause. Stokeling,
139 S. Ct. at 549-50.
In supplemental briefing, LaFrance argues that Lockley was undermined “to
the point of abrogation” by the Supreme Court’s recent decision in Borden v. United
States, __ U.S. __, 141 S Ct. 1817 (2021), which held that a criminal offense with
only a mens rea of recklessness -- “a less culpable mental state than purpose or
knowledge,” id. at 1821-22 (plurality opinion) -- does not qualify as a “violent
felony” under the ACCA’s elements clause. We disagree. For starters, the Supreme
Court’s decision in Borden did not change our case law -- since well before Lockley,
we’ve held that “a conviction predicated on a mens rea of recklessness does not
satisfy the ‘use of physical force’ requirement” of the elements clause. See, e.g.,
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United States v. Palomino Garcia,
606 F.3d 1317, 1336 (11th Cir. 2010). So even if
Lockley had confronted a robbery offense that only required recklessness -- and we
have not located any Florida cases indicating that robbery in violation of
Fla. Stat. §
812.13(1) can be committed by a defendant with a mens rea of recklessness or less
-- under our prior panel precedent rule, there is no exception carved out for
overlooked or misinterpreted binding precedent. See United States v. Fritts,
841
F.3d 937, 942 (11th Cir. 2016) (“[W]e categorically reject any exception to the prior
panel precedent rule based upon a perceived defect in the prior panel’s reasoning or
analysis as it relates to the law in existence at the time.” (quotation omitted)).
Moreover, and equally important, nothing in Lockley stands in tension with
Borden. Borden explained that a crime that can be accomplished with a mens rea of
recklessness cannot qualify under the elements clause because attempting,
threatening, or using force “against . . . the person of another” “demands that the
perpetrator direct his action at, or target, another individual” and “[r]eckless conduct
is not aimed in that prescribed manner.” 141 S. Ct. at 1825 (plurality opinion)
(emphasis added). Our opinion in Lockley found that for a Florida robbery
conviction to be sustained, a defendant must “directly threaten the victim’s bodily
integrity,”
632 F.3d at 1243-44 (emphasis added), just as Borden contemplated as
necessary for violent felonies, 141 S. Ct. at 1825.
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Indeed, the Supreme Court aptly stated in Stokeling that Florida robbery is
“the quintessential ACCA-predicate crime,” affirming our holding that Florida
robbery encompassed the requisite “physical force” qualifying it as a violent felony
under the elements clause.
139 S. Ct. at 551, 555. And in Borden, just two years
later, the Supreme Court cited to Stokeling in its analysis, and never suggested that
Stokeling had been abrogated. 141 S. Ct. at 1822 (plurality opinion).
In short, the district court did not err in enhancing LaFrance’s base offense
level pursuant to § 2K2.1(a)(4)(A) because his prior Florida conviction for robbery
qualified as a crime of violence. Accordingly, we affirm. 3
AFFIRMED.
3
Because we conclude that LaFrance’s prior conviction for Florida robbery qualifies as a crime
of violence, we decline to address his arguments that his prior conviction for Florida aggravated
assault was not a crime of violence, or that Borden affected our binding precedent concerning
Florida aggravated assault. The base offense level enhancement under § 2K2.1(a)(4)(A) only
requires one predicate prior conviction to apply, so his arguments concerning Florida aggravated
assault are “not necessary to the decision of this case.” Meek v. Metro. Dade Cnty.,
908 F.2d
1540, 1549 (11th Cir. 1990).
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