USCA11 Case: 22-11934 Document: 28-1 Date Filed: 08/08/2023 Page: 1 of 3
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11934
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARTHUR LASHERYL MORGAN,
a.k.a. Tarrance Pace,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:21-cr-20542-CMA-1
USCA11 Case: 22-11934 Document: 28-1 Date Filed: 08/08/2023 Page: 2 of 3
2 Opinion of the Court 22-11934
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Before ROSENBAUM, JILL PRYOR, and BLACK, Circuit Judges.
PER CURIAM:
Arthur Morgan appeals his 42-month sentence for posses-
sion of ammunition as a convicted felon, asserting the district court
improperly calculated his base offense level based on a determina-
tion that his prior Florida conviction for aggravated assault with a
firearm was a crime of violence. The Government responds by
moving for summary affirmance, contending this Court has held
that Florida aggravated assault is a crime of violence.
After review, 1 we grant the Government’s motion for sum-
mary affirmance because it has met its burden of showing its posi-
tion is clearly correct as a matter of law. See Groendyke Transp., Inc.
v. Davis,
406 F.2d 1158, 1162 (5th Cir. 1969) 2 (explaining summary
disposition is appropriate where “the position of one of the parties
is clearly right as a matter of law so that there can be no substantial
question as to the outcome of the case, or where, as is more fre-
quently the case, the appeal is frivolous”). We recently held that
Florida aggravated assault cannot be committed recklessly and thus
1 We review de novo whether a defendant’s prior conviction qualifies as a crime
of violence under the Guidelines. United States v. Palomino Garcia,
606 F.3d
1317, 1326 (11th Cir. 2010).
2 In Bonner v. City of Prichard,
661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit
handed down prior to close of business on September 30, 1981.
USCA11 Case: 22-11934 Document: 28-1 Date Filed: 08/08/2023 Page: 3 of 3
22-11934 Opinion of the Court 3
qualifies as a violent felony under the elements clause of the ACCA.
Somers v. United States,
66 F.4th 890, 894-96 (11th Cir. 2023) (holding
Florida aggravated assault categorically qualifies as a violent felony
under the ACCA’s elements clause because aggravated assault re-
quires a mens rea of at least knowledge and not recklessness). Be-
cause the elements clause in the ACCA’s definition of violent fel-
ony is virtually identical to the elements clause in the definition of
a crime of violence in the Guidelines, we also rely on Somers for the
proposition that Florida aggravated assault is a crime of violence
under the elements clause in U.S.S.G. § 4B1.2(a). See United States
v. Ochoa,
941 F.3d 1074, 1107 (11th Cir. 2019) (stating because the
elements clauses in the definitions of “crime of violence” in § 4B1.2
and “violent felony” in the ACCA are “virtually identical,” we look
to decisions applying the ACCA for guidance in considering
whether an offense qualifies as a crime of violence under the
Guidelines, and vice versa).
Accordingly, because the Government’s position is clearly
correct as a matter of law, we GRANT the Government’s motion
for summary affirmance. Groendyke Transp., Inc., 406 F.2d at 1162.
AFFIRMED.
