United States v. Calvin Matchett ( 2015 )


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  •                 Case: 14-10396        Date Filed: 09/21/2015       Page: 1 of 24
    [PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 14-10396
    ________________________
    D.C. Docket No. 1:13-cr-20630-KMM-1
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    CALVIN MATCHETT,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Southern District of Florida
    _______________________
    (September 21, 2015)
    Before WILLIAM PRYOR, JULIE CARNES, and SILER, ∗ Circuit Judges.
    WILLIAM PRYOR, Circuit Judge:
    ∗
    Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting by
    designation.
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    This appeal presents an issue of first impression for this Court: whether the
    vagueness doctrine of the Due Process Clause of the Fifth Amendment applies to
    the advisory Sentencing Guidelines. Calvin Matchett pleaded guilty to being a
    felon in possession of a firearm, 18 U.S.C. § 922(g)(1), and now challenges both
    the denial of his motion to suppress the firearm and the calculation of his sentence.
    Police Officer Jesse Smith stopped Matchett when he saw Matchett carrying a flat-
    screen television in a residential neighborhood on a weekday morning. After
    speaking with Matchett, Officer Smith frisked him based on his confrontational
    demeanor and the risk that he had a burglary tool that could be used as a weapon.
    When Officer Smith found a loaded handgun in Matchett’s pocket, Matchett
    fought with Officer Smith for over three minutes in an attempt to flee. The district
    court did not err when it denied Matchett’s motion to suppress. It also correctly
    determined that Matchett’s previous convictions for burglary of an unoccupied
    dwelling were crimes of violence and that Matchett’s resistance created a
    substantial risk of death or bodily injury in the course of fleeing from a law
    enforcement officer. We reject Matchett’s argument that the definition of “crime of
    violence” in the Sentencing Guidelines is unconstitutionally vague in light of
    Johnson v. United States, __ U.S. __, 
    135 S. Ct. 2551
    (2015). The vagueness
    doctrine applies only to laws that prohibit conduct and fix punishments, not
    advisory guidelines. We affirm.
    2
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    I. BACKGROUND
    At approximately 9:00 a.m. on Tuesday, April 30, 2013, Police Officer Jesse
    Smith observed Matchett “carrying an unboxed, large flat screen television” down
    a residential street in the Bunche Park area of Miami Gardens, Florida. Officer
    Smith parked his marked police vehicle about twenty feet behind Matchett and
    turned on the blue lights. Officer Smith walked toward Matchett, identified
    himself, and told Matchett that he was not in any trouble. Officer Smith informed
    Matchett that he thought it was “kind of odd” to walk down the sidewalk in the
    morning carrying an unboxed television. After Matchett explained that he was
    carrying the television to a friend’s house around the corner, Officer Smith asked
    Matchett to produce identification in case someone later reported the television as
    stolen.
    Officer Smith testified that when Matchett put down the television, his
    demeanor changed immediately. Matchett “went from non-confrontational [to]
    almost like he was scared.” Matchett’s “eyes got wider,” he was “tense,” and he
    was “looking to his right and looking to his left as if [he was] about to run.”
    Officer Smith had seen “this look hundreds and hundreds of times in [his] career,”
    and he thought Matchett had a reason to run.
    Officer Smith was concerned that Matchett might have had a burglary tool
    such as “a screwdriver, a pry bar, a knife, [or] anything of that nature” that could
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    be used as a weapon and could be concealed in the pockets of his baggy jeans.
    Matchett “patt[ed] the outside of his pockets” pretending to look for identification,
    but did “not dig[] into them to look.” Officer Smith noticed that Matchett “patted
    his right rear pocket, his left front pocket, and his left rear pocket, but never
    touched his right front pocket, which . . . heightened [Officer Smith’s] awareness”
    that Matchett might have a weapon.
    Officer Smith “stepped up” to Matchett, “grabbed him by his waistband,”
    and said, “You’re not under arrest. Don’t move.” Officer Smith patted him down
    and felt a handgun in Matchett’s front right pocket. Officer Smith held onto the
    gun and asked Matchett why he had it. Matchett then “physically pulled away from
    [Officer Smith] and tried to run away.”
    Officer Smith grabbed Matchett with one hand on the waistband and the
    other on the gun and “had to throw him back into [a] fence to keep ahold of him.”
    Officer Smith described the scuffle as “a wrestling match” and noted that Matchett
    “almost slipped away.” The struggle lasted for “[w]ell over three minutes,” and
    several cars and one pedestrian stopped to watch. Officer Smith suffered “lots of
    abrasions and scrapes,” and both of his knees were bloodied. Officer Smith
    eventually pinned Matchett to the ground and held him there until another officer
    arrived. “At the end of the struggle, [the gun] was found . . . about ten feet away
    from [Officer Smith and Matchett] on the sidewalk.” The gun was loaded.
    4
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    After a grand jury indicted Matchett on one count of possession of a firearm
    and ammunition by a convicted felon, 18 U.S.C. § 922(g)(1), he moved to suppress
    the handgun. Matchett argued that Officer Smith illegally stopped and frisked him
    in violation of the Fourth Amendment because Officer Smith lacked reasonable
    suspicion to believe that criminal activity was afoot or that Matchett had a weapon.
    A magistrate judge issued a report and recommendation concluding that Officer
    Smith had reasonable suspicion to stop and frisk Matchett. The magistrate judge
    also found that Matchett’s demeanor, coupled with the likelihood that a burglar
    might have a weapon or tool that could be used as a weapon, gave rise to a
    reasonable suspicion that Matchett was armed and posed a risk to Officer Smith’s
    safety. The district court adopted the magistrate judge’s report and
    recommendation and denied Matchett’s motion to suppress. Matchett then pleaded
    guilty, but he reserved his right to appeal the denial of his motion to suppress.
    The presentence investigation report calculated a base offense level of 24
    with a criminal history category of 4 and a guideline range of 77 to 96 months of
    imprisonment. The calculated range included an enhancement for Matchett’s two
    prior felony convictions for “crime[s] of violence,” United States Sentencing
    Guidelines Manual § 2K2.1(a)(2) (Nov. 2014), and a two-level enhancement for
    “recklessly creat[ing] a substantial risk of death or serious bodily injury to another
    person in the course of fleeing from a law enforcement officer,” U.S.S.G. § 3C1.2.
    5
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    At sentencing, Matchett objected to both of these enhancements. He argued that his
    prior felony convictions for burglary of an unoccupied dwelling, Fla. Stat.
    § 810.02(1)(b), (3)(b), were not “crime[s] of violence.” He also argued that he
    neither attempted to flee nor recklessly endangered anyone.
    The district court ruled that the presentence investigation report correctly
    calculated Matchett’s offense level. It also determined that burglary of an
    unoccupied dwelling is a “crime of violence” under the guidelines. U.S.S.G.
    § 2K2.1(a)(2). The district court found that Matchett “recklessly created a
    substantial risk of death or serious bodily injury to another person in the course of
    fleeing from a law enforcement officer” under section 3C1.2 of the guidelines
    because Matchett had “in fact, caus[ed] injury” to Officer Smith—abrasions,
    scrapes, and bloodied knees—and “pos[ed] a substantial risk of even death or
    serious bodily injury by his continued resistance and his access to a loaded
    firearm.” The district court sentenced Matchett to 96 months of imprisonment.
    II. STANDARDS OF REVIEW
    “The grant or denial of a motion to suppress evidence is reviewed in this
    Court as a mixed question of law and fact. We assess the district court’s findings of
    fact under the clearly erroneous standard and review the application of the law to
    the facts de novo.” United States v. Perkins, 
    348 F.3d 965
    , 969 (11th Cir. 2003)
    (citation omitted). “The facts are construed in favor of the party that prevailed” in
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    the district court. 
    Id. “[W]e may
    affirm the denial of a motion to suppress on any
    ground supported by the record.” United States v. Caraballo, 
    595 F.3d 1214
    , 1222
    (11th Cir. 2010).
    “The district court’s factual findings are reviewed for clear error, and its
    application of those facts to justify a sentencing enhancement is reviewed de
    novo.” United States v. Creel, 
    783 F.3d 1357
    , 1359 (11th Cir. 2015) (quoting
    United States v. Spriggs, 
    666 F.3d 1284
    , 1286 (11th Cir. 2012)) (internal quotation
    marks omitted). We review constitutional challenges to the sentencing guidelines
    de novo. United States v. Pressley, 
    345 F.3d 1205
    , 1209 (11th Cir. 2003). “For a
    factual finding to be clearly erroneous, this [C]ourt, after reviewing all of the
    evidence, must be left with a definite and firm conviction that a mistake has been
    committed.” 
    Creel, 783 F.3d at 1359
    (quoting United States v. Rodriguez-Lopez,
    
    363 F.3d 1134
    , 1137 (11th Cir. 2004)) (alteration in original) (internal quotation
    marks omitted). We may affirm a sentencing enhancement “for any reason
    supported by the record, even if not relied upon by the district court.” United States
    v. Chitwood, 
    676 F.3d 971
    , 975 (11th Cir. 2012) (quoting United States v. Al-
    Arian, 
    514 F.3d 1184
    , 1189 (11th Cir. 2008)) (internal quotation marks omitted).
    III. DISCUSSION
    We divide our discussion into two parts. First, we explain that the district
    court did not err in denying Matchett’s motion to suppress. Next, we explain that
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    advisory guidelines cannot be unconstitutionally vague, and that the district court
    did not err in applying the two sentencing enhancements, U.S.S.G. §§ 2K2.1(a)(2),
    3C1.2.
    A. The District Court Did Not Err in Denying Matchett’s Motion to Suppress.
    Matchett argues that Officer Smith stopped and frisked him in violation of
    the Fourth Amendment, which guarantees “[t]he right of the people to be secure in
    their persons, houses, papers, and effects, against unreasonable searches and
    seizures.” U.S. Const. Amend. IV. We have identified “three broad categories of
    police-citizen encounters for purposes of our Fourth Amendment analysis: (1)
    police-citizen exchanges involving no coercion or detention; (2) brief seizures or
    investigatory detentions; and (3) full-scale arrests.” United States v. Perez, 
    443 F.3d 772
    , 777 (11th Cir. 2006). “[T]he first category of consensual encounters does
    not implicate [F]ourth [A]mendment scrutiny,” but the second category requires
    “reasonable, articulable suspicion that the person has committed or is about to
    commit a crime.” 
    Id. (quoting United
    States v. Espinosa-Guerra, 
    805 F.2d 1502
    ,
    1506 (11th Cir. 1986)) (second and third alterations in original). “Once an officer
    has stopped an individual, he may conduct a pat-down or frisk for weapons if he
    reasonably believes that his safety, or the safety of others, is threatened.” United
    States v. Griffin, 
    696 F.3d 1354
    , 1359 (11th Cir. 2012).
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    We assume without deciding that Officer Smith seized Matchett at the onset
    of the encounter for purposes of the Fourth Amendment. We first address the stop
    and then address the frisk. We hold that Officer Smith had reasonable grounds for
    both and did not violate the Fourth Amendment.
    1. Officer Smith Had Reasonable Suspicion to Stop and Question Matchett.
    To stop Matchett and question him, Officer Smith needed “reasonable
    suspicion supported by articulable facts that criminal activity ‘may be afoot.’”
    United States v. Sokolow, 
    490 U.S. 1
    , 7, 
    109 S. Ct. 1581
    , 1585 (1989) (quoting
    Terry v. Ohio, 
    392 U.S. 1
    , 30, 
    88 S. Ct. 1868
    , 1884 (1968)). To determine whether
    reasonable suspicion exists, we “must look at the totality of the circumstances of
    each case to see whether the detaining officer has a particularized and objective
    basis for suspecting legal wrongdoing.” United States v. Hunter, 
    291 F.3d 1302
    ,
    1306 (11th Cir. 2002) (quoting United States v. Arvizu, 
    534 U.S. 266
    , 273, 
    122 S. Ct. 744
    , 750 (2002)) (internal quotation marks omitted). We view the totality of
    the circumstances in the light of the officer’s special training and experience
    because “behavior, seemingly innocuous to the ordinary citizen, may ‘appear
    suspect to one familiar with [criminal] practices.’” United States v. Smith, 
    201 F.3d 1317
    , 1323 (11th Cir. 2000) (quoting United States v. Glover, 
    957 F.2d 1004
    , 1010
    (2d Cir. 1992)).
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    We agree with the district court that Officer Smith had reasonable suspicion
    to stop Matchett and question him. Officer Smith observed Matchett walking down
    a residential street carrying an unboxed flat-screen television around 9 a.m. on a
    weekday. Officer Smith knew from his experience that residential burglaries often
    occurred during the day while homeowners were at work, that flat-screen
    televisions were commonly stolen during residential burglaries, and that residential
    burglaries were common in Bunche Park. Although Officer Smith did not observe
    any illegal activity, “[a] reasonable suspicion of criminal activity may be formed
    by observing exclusively legal activity.” United States v. Gordon, 
    231 F.3d 750
    ,
    754 (11th Cir. 2000). When conduct is susceptible to both an innocent and a
    suspicious explanation, an “officer[] [can] detain the individual[] to resolve the
    ambiguity.” Illinois v. Wardlow, 
    528 U.S. 119
    , 125, 
    120 S. Ct. 673
    , 677 (2000).
    Based on the totality of the circumstances, Officer Smith had a reasonable,
    articulable suspicion to stop Matchett and question him.
    2. Officer Smith Reasonably Believed that His Safety Was in Danger.
    To frisk Matchett, Officer Smith needed a “reasonabl[e] belie[f] that his
    safety, or the safety of others, [was] threatened.” 
    Griffin, 696 F.3d at 1359
    . This
    objective inquiry is similar to our analysis of reasonable suspicion. That is, we
    “evaluat[e] the totality of the circumstances” instead of “each fact in isolation.” 
    Id. 10 Case:
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    We agree with the district court that when Matchett’s demeanor changed,
    Officer Smith was entitled to frisk him for weapons. After Officer Smith asked
    Matchett to produce his identification, his “muscles . . . tensed,” his “eyes got
    wider,” and he looked “scared.” He was “looking left and right as if he was going
    to flee.” Matchett wore baggy jeans that easily could conceal a weapon. He patted
    the outside of his pockets as if looking for identification but made no attempt to
    search inside of his pockets. Officer Smith noticed that Matchett “never touched
    his right front pocket” when searching for his identification. Officer Smith also
    knew from experience that burglars frequently have tools that can be used as
    weapons such as a “screwdriver, a pry bar, [or] a knife.” “[O]ther circuits have
    held that individuals reasonably suspected of burglary . . . can be frisked for
    weapons under Terry because of the nature of th[e] offense[].” 
    Id. Officer Smith
    was alone during the encounter, which bolstered his reasonable concern for his
    safety. See 
    id. (considering the
    fact that the officer was alone when holding that the
    officer had a reasonable belief that his safety was in danger). Based on the totality
    of the circumstances, Officer Smith had reasonable grounds to frisk Matchett.
    Because Officer Smith did not violate the Fourth Amendment when he stopped and
    frisked Matchett, we affirm the denial of Matchett’s motion to suppress.
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    B. The Sentencing Court Correctly Applied the Sentencing Guidelines.
    Matchett challenges two enhancements of his sentence. He argues that the
    residual clause of the career-offender guideline is unconstitutionally vague and,
    alternatively, that his previous convictions for burglary of an unoccupied dwelling
    are not crimes of violence. He also argues that the district court erred when it
    enhanced his sentence for reckless endangerment during flight. We address each
    enhancement in turn.
    1. The District Court Did Not Err in Classifying Burglary of an Unoccupied
    Dwelling as a Crime of Violence Under the Guidelines.
    A defendant convicted of unlawful possession of a firearm receives an
    enhanced base offense level of 24 if he “committed any part of the instant offense
    subsequent to sustaining at least two felony convictions of either a crime of
    violence or a controlled substance offense.” U.S.S.G. § 2K2.1(a)(2). The definition
    of “crime of violence” includes “any offense under federal or state law, punishable
    by imprisonment for a term exceeding one year, that . . . is burglary of a dwelling,
    arson, or extortion, involves use of explosives, or otherwise involves conduct that
    presents a serious potential risk of physical injury to another.” U.S.S.G. § 4B1.2(a).
    The district court determined that Matchett’s two prior convictions for burglary of
    an unoccupied dwelling, Fla. Stat. § 810.02(1)(b), (3)(b), were “crime[s] of
    violence” because they “involve[d] conduct that presents a serious potential risk of
    physical injury to another,” U.S.S.G. § 4B1.2(a)(2).
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    Matchett argues that the residual clause of section 4B1.2(a)(2), which
    defines as crimes of violence offenses that “otherwise involve[] conduct that
    presents a serious potential risk of physical injury to another,” 
    id., is unconstitutionally
    vague in the light of Johnson and, alternatively, that burglary of
    an unoccupied dwelling does not fall under its terms. We reject both arguments.
    We affirm the imposition of the enhanced base offense level by the district court.
    a. The Vagueness Doctrine Does Not Apply to Advisory Sentencing Guidelines.
    In Johnson, the Supreme Court held that the residual clause of the Armed
    Career Criminal Act is unconstitutionally vague. The Armed Career Criminal Act
    increases sentences for certain offenders who have three previous convictions for
    violent felonies or serious drug offenses. 18 U.S.C. § 924(e)(1). The definition of
    “violent felony” under the Act is nearly identical to the definition of “crime of
    violence” under the guidelines, and both definitions include an identical residual
    clause that encapsulates crimes that “present[] a serious potential risk of physical
    injury to another.” 18 U.S.C. § 924(e)(2)(B); U.S.S.G. § 4B1.2(a)(2). Matchett
    argues, and the government agrees, that because we interpret the residual clause of
    section 4B1.2(a) of the advisory guidelines in the same manner as we interpret the
    residual clause of the Armed Career Criminal Act, see Gilbert v. United States, 
    640 F.3d 1293
    , 1309 n.16 (11th Cir. 2011) (en banc), the residual clause of section
    4B1.2(a) is also unconstitutionally vague. But “[c]onfessions of error . . . do not
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    ‘relieve this Court of the performance of the judicial function.’” Sibron v. New
    York, 
    392 U.S. 40
    , 58, 
    88 S. Ct. 1889
    , 1900 (1968) (quoting Young v. United
    States, 
    315 U.S. 257
    , 258, 
    62 S. Ct. 510
    , 511 (1942)). “[O]ur judgments are
    precedents, and the proper administration of the criminal law cannot be left merely
    to the stipulation of parties.” 
    Id. (quoting Young,
    315 U.S. at 
    259, 62 S. Ct. at 511
    )
    (internal quotation marks omitted). Instead, this Court must decide for itself
    whether the residual clause of section 4B1.2(a)(2) of the Guidelines is
    unconstitutionally vague.
    By its terms, the decision of the Supreme Court in Johnson is limited to
    criminal statutes that define elements of a crime or fix punishments. The Supreme
    Court held that the residual clause of the Armed Career Criminal Act “violate[d]
    the Constitution’s guarantee of due 
    process,” 135 S. Ct. at 2563
    , because it violated
    “[t]he prohibition of vagueness in criminal statutes,” 
    id. at 2556–57.
    It further
    explained that the vagueness doctrine “appl[ies] not only to statutes defining
    elements of crimes, but also to statutes fixing sentences.” Id at 2557. The Armed
    Career Criminal Act defines a crime and fixes a sentence, see 18 U.S.C. § 924(e),
    but the advisory guidelines do neither.
    The Sentencing Guidelines are merely “the starting point and the initial
    benchmark,” Gall v. United States, 
    552 U.S. 38
    , 49, 
    128 S. Ct. 586
    , 596 (2007),
    designed to “assist . . . the sentencing judge” in determining a sentence, United
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    States v. Tichenor, 
    683 F.3d 358
    , 364 (7th Cir. 2012) (quoting United States v.
    Brierton, 
    165 F.3d 1133
    , 1139 (7th Cir. 1999)). In the end, a sentencing judge
    “must make an individualized assessment based on the facts presented” and “may
    not presume that the Guidelines range is reasonable.” 
    Gall, 552 U.S. at 50
    , 128
    S. Ct. at 596–97. “The sentencing judge’s authority to exercise discretion
    distinguishes the Guidelines from criminal statutes in a significant and undeniable
    manner.” 
    Tichenor, 683 F.3d at 365
    .
    The vagueness doctrine, which “rest[s] on [a] lack of notice,” Maynard v.
    Cartwright, 
    486 U.S. 356
    , 361, 
    108 S. Ct. 1853
    , 1857 (1988), does not apply to
    advisory guidelines. The Supreme Court has explained that “[a]ny expectation
    subject to due process protection . . . that a criminal defendant would receive a
    sentence within the presumptively applicable guideline range did not survive [the]
    decision in United States v. Booker.” Irizarry v. United States, 
    553 U.S. 708
    , 713,
    
    128 S. Ct. 2198
    , 2202 (2008). Another circuit has already held that “[s]ince the
    Guidelines are merely advisory, defendants cannot rely on them to communicate
    the sentence that the district court will impose. Defendants’ inability to look to the
    Guidelines for notice underscores why . . . they cannot bring vagueness challenges
    against the Guidelines.” 
    Tichenor, 683 F.3d at 365
    (footnote omitted).
    “Because there is no constitutional right to sentencing guidelines—or, more
    generally, to a less discretionary application of sentences than that permitted prior
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    to the Guidelines—the limitations the Guidelines place on a judge’s discretion
    cannot violate a defendant’s right to due process by reason of being vague.” United
    States v. Wivell, 
    893 F.2d 156
    , 160 (8th Cir. 1990). Before Congress enacted the
    Guidelines, “the Federal Government and the States employed indeterminate-
    sentencing schemes in which judges and executive branch officials (e.g., parole
    board officials) had substantial discretion to determine the actual length of a
    defendant’s sentence.” Apprendi v. New Jersey, 
    530 U.S. 466
    , 549, 
    120 S. Ct. 2348
    , 2394 (2000) (O’Connor, J. dissenting). Outside of the death-penalty context,
    this plenary-discretion regime did not violate the notice requirement of the Due
    Process Clause. See Lockett v. Ohio, 
    438 U.S. 586
    , 602–04, 
    98 S. Ct. 2954
    , 2963–
    65 (1978); see also 
    Wivell, 893 F.2d at 159
    –60. For that reason, advisory
    guidelines that inform a sentencing judge’s discretion also cannot violate the notice
    requirement.
    Matchett argues that because this Court has entertained vagueness
    challenges to the guidelines in the past, we have implicitly held that the guidelines
    are subject to a challenge for vagueness, but we disagree. A “holding is comprised
    both of the result of the case and ‘those portions of the opinion necessary to that
    result by which we are bound.’” Powell v. Thomas, 
    643 F.3d 1300
    , 1305 (11th Cir.
    2011) (quoting United States v. Kaley, 
    579 F.3d 1246
    , 1253 n.10 (11th Cir. 2009)).
    That the guidelines can be void for vagueness is not a necessary condition for
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    rejecting a vagueness challenge on other grounds. For example, in United States v.
    Travis we rejected a challenge to section 4B1.2(a)(2) because Supreme Court and
    Circuit precedent foreclosed an argument that the text of the residual clause was
    unconstitutionally vague. See 
    747 F.3d 1312
    , 1314 n.1 (11th Cir. 2014). Instead of
    deciding whether the guidelines could be void for vagueness, we summarily
    disposed of the vagueness challenge in a footnote as foreclosed by binding
    precedent. See 
    id. But we
    did not decide that advisory sentencing guidelines can be
    unconstitutionally vague.
    We also reject Matchett’s argument that because the Ex Post Facto Clause
    applies to the advisory guidelines, the vagueness doctrine of the Due Process
    Clause must also apply to them. The Supreme Court has articulated different tests
    to determine when these doctrines apply. The Ex Post Facto Clause, among other
    things, governs laws that “present[] a ‘sufficient risk of increasing the measure of
    punishment attached to the covered crimes.’” Peugh v. United States, __ U.S. __,
    
    133 S. Ct. 2072
    , 2082 (2013) (quoting Garner v. Jones, 
    529 U.S. 244
    , 250, 
    120 S. Ct. 1362
    , 1367 (2000)). Because increasing a guideline range carries a sufficient
    risk of a higher sentence, the Ex Post Facto Clause applies to the advisory
    guidelines. 
    Id. at 2084.
    But the Due Process Clause governs laws that define
    offenses and fix punishments. Whether the Ex Post Facto Clause applies to the
    advisory guidelines in no way informs our analysis.
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    We reject Matchett’s policy concern that allowing the residual clause of
    section 4B1.2(a)(2) to stand will upend the sentencing process by forcing courts to
    apply a clause that, according to Johnson, lacks precise meaning. This argument is
    beyond the scope of our review and unpersuasive. Although Johnson abrogated the
    previous decisions of the Supreme Court interpreting the residual clause of the
    Armed Career Criminal Act, sentencing courts interpreting the residual clause of
    the guidelines must still adhere to the reasoning of cases interpreting the nearly
    identical language in the Act. His policy concern is properly addressed to the
    United States Sentencing Commission, which has proposed eliminating the
    residual clause from section 4B1.2(a)(2) “as a matter of policy.” News Release,
    U.S. Sentencing Comm’n, U.S. Sentencing Commission Seeks Comment on
    Revisions to Definition of Crime of Violence 1 (Aug. 7, 2015).
    Holding that advisory guidelines can be void for vagueness, by contrast,
    would upend our sentencing regime. The Sentencing Guidelines are an important
    tool to guide judges’ discretion in sentencing, and many of their provisions could
    be described as vague. For example, the guidelines impose a two-level
    enhancement when certain offenses “involved sophisticated means.” See U.S.S.G.
    § 2B1.1(b)(10). The commentary defines sophisticated means as “especially
    complex or especially intricate offense conduct pertaining to the execution or
    concealment of an offense.” U.S.S.G. § 2B1.1 cmt. n.9. Likewise, the Sentencing
    18
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    Guidelines impose a two-level decrease if the defendant was a “minor participant.”
    U.S.S.G. § 3B1.2(b). A minor participant is one “who is less culpable than most
    other participants, but whose role could not be described as minimal.” U.S.S.G.
    § 3B1.2 cmt. n.5. Holding that advisory guidelines can be unconstitutionally vague
    would invite more, not less, instability.
    No circuit has held in a published opinion that advisory guidelines can be
    unconstitutionally vague. Only the Ninth Circuit has stated, in dicta, that
    Sentencing Guidelines can be void for vagueness, but that decision was issued
    when the guidelines were still mandatory. See United States v. Johnson, 
    130 F.3d 1352
    , 1354 (9th Cir. 1997). The Courts of Appeals for the Fifth, Sixth, Seventh,
    and Eighth Circuits all have held that the Sentencing Guidelines—whether
    mandatory or advisory—cannot be unconstitutionally vague. See United States v.
    Pearson, 
    910 F.2d 221
    , 223 (5th Cir. 1990) (“Due process does not mandate . . .
    notice . . . of where, within the statutory range, the guideline sentence will fall.”);
    United States v. Smith, 
    73 F.3d 1414
    , 1418 (6th Cir. 1996) (“[T]he Sentencing
    Guidelines are not subject to a vagueness challenge.”); 
    Tichenor, 683 F.3d at 365
    (“Our determination that the Guidelines are not susceptible to vagueness
    challenges has only been bolstered as a result of Booker.”); 
    Wivell, 893 F.2d at 160
    (“[T]he limitations the Guidelines place on a judge’s discretion cannot violate a
    defendant’s right to due process by reason of being vague.”). We join them insofar
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    as we reject Matchett’s argument that advisory guidelines can be unconstitutionally
    vague.
    b. The Florida Offense of Burglary of an Unoccupied Dwelling is a Crime of
    Violence Under the Residual Clause of the Career-Offender Guideline.
    Although the definition of a crime of violence specifically includes the crime
    of “burglary of a dwelling,” U.S.S.G. § 4B1.2(a)(2), the Florida offense of burglary
    of an unoccupied dwelling, Fla. Stat. § 810.02(1)(b), (3)(b), does not fall under that
    definition. The Florida offense includes burglary of “the curtilage” of the dwelling.
    Fla. Stat. § 810.011(2). “[T]he inclusion of curtilage takes Florida’s underlying
    offense of burglary outside the [federal] definition of ‘generic burglary’ . . . , which
    requires an unlawful entry into, or remaining in, ‘a building or other structure.’”
    James v. United States, 
    550 U.S. 192
    , 212, 
    127 S. Ct. 1586
    , 1599 (2007) (emphasis
    omitted) (quoting Taylor v. United States, 
    495 U.S. 575
    , 598, 
    110 S. Ct. 2143
    ,
    2158 (1990)), overruled in part by Johnson, 
    135 S. Ct. 2551
    . Here, the government
    presented no evidence that the “charging paper and jury instructions actually
    required the jury to find all the elements of generic burglary in order to convict the
    defendant.” United States v. Matthews, 
    466 F.3d 1271
    , 1275 (11th Cir. 2006)
    (quoting 
    Taylor, 495 U.S. at 602
    , 110 S. Ct. at 2160) (internal quotation marks
    omitted). Matchett’s previous convictions are not burglaries of a dwelling under
    the guidelines.
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    The Florida offense is nevertheless a crime of violence under the residual
    clause of the career-offender guideline because it “involves conduct that presents a
    serious potential risk of physical injury to another.” U.S.S.G. § 4B1.2(a)(2). For a
    previous conviction to be a crime of violence under the residual clause, if “the
    previous conviction required knowing or intentional conduct, it is enough if that
    conviction was for a crime that generally creates as much risk of physical injury as
    one of the enumerated crimes.” 
    Chitwood, 676 F.3d at 979
    . Because burglary of an
    unoccupied dwelling requires intentional conduct, see Fla. Stat. § 810.02(1)(b),
    (3)(b), we must decide only whether that crime “categorically pose[s] a serious
    potential risk of physical injury that is similar in degree to the risks posed by” the
    “closest analog among the enumerated offenses—burglary of a dwelling,”
    
    Chitwood, 676 F.3d at 979
    . And this Court has explained that “the burglar’s
    presence in the curtilage of [a] structure presents a serious potential risk that
    violence will ensue and someone will be injured.” 
    Matthews, 466 F.3d at 1275
    .
    Because a “burglar’s presence in the curtilage of the structure presents a serious
    potential risk that violence will ensue and someone will be injured,” 
    id., the Florida
    offense is a violent felony under the guidelines. See also 
    James, 550 U.S. at 213
    ,
    127 S. Ct. at 1600 (“[W]e do not believe that the inclusion of curtilage so mitigates
    the risk presented by attempted burglary as to take the offense outside the scope of
    [the residual clause of the Armed Career Criminal Act].”).
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    2. The District Court Did Not Err in Enhancing Matchett’s Sentence for Reckless
    Endangerment During Flight.
    Section 3C1.2 of the Sentencing Guidelines imposes a two-level
    enhancement “[i]f the defendant recklessly created a substantial risk of death or
    serious bodily injury to another person in the course of fleeing from a law
    enforcement officer.” U.S.S.G. § 3C1.2. “Reckless” refers to “a situation in which
    the defendant was aware of the risk created by his conduct and the risk was of such
    a nature and degree that to disregard that risk constituted a gross deviation from the
    standard of care that a reasonable person would exercise in such a situation.”
    United States v. Wilson, 
    392 F.3d 1243
    , 1247 (11th Cir. 2004) (quoting U.S.S.G.
    § 2A1.4 cmt. n.1) (internal quotation marks omitted). “In the course of fleeing” or
    “during flight” includes “conduct . . . in the course of resisting arrest.” United
    States v. Dougherty, 
    754 F.3d 1353
    , 1359 (11th Cir. 2014). “[F]light alone is
    insufficient to warrant an enhancement under [section 3C1.2].” 
    Wilson, 392 F.3d at 1247
    . The flight must be accompanied by a “substantial risk of death or serious
    bodily injury to others,” and the defendant must “recklessly create” that risk. 
    Id. Matchett “recklessly
    created a substantial risk of death or serious bodily
    injury to another person,” U.S.S.G. § 3C1.2, when he resisted arrest with a loaded
    handgun in his pocket. Matchett wrestled with Officer Smith for “[w]ell over three
    minutes,” while Officer Smith “held onto the [loaded] revolver” in his pocket.
    Even if Matchett did not reach for the gun—the testimony is unclear—Officer
    22
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    Smith could have unintentionally pulled the trigger during the struggle. See, e.g.,
    United States v. Nava-Sotelo, 
    354 F.3d 1202
    , 1203 (10th Cir. 2003) (“In an attempt
    to disarm [the defendant], [the corrections officer] grabbed for the gun. A struggle
    ensued and the firearm discharged into the ground . . . .”). The handgun also could
    have accidentally discharged when it fell out of Matchett’s pocket. See, e.g., A.
    Uberti and C. v. Leonardo, 
    892 P.2d 1354
    , 1356 (Ariz. 1995) (discussing the
    “many injuries from accidental discharges”); Johnson v. Colt Indus. Operating
    Corp., 
    797 F.2d 1530
    , 1532 (10th Cir. 1986) (discussing “drop-fire[s],” in which a
    “gun is carried with a bullet in the chamber over which the hammer rests,” and “a
    sharp blow to the hammer, such as when the gun is dropped and lands hammer
    first, will cause the gun to discharge”). This scuffle occurred in a residential area,
    where there were “cars and pedestrian traffic.” Struggling with a police officer for
    three minutes in a residential neighborhood while the officer has his hand on a
    loaded handgun in the offender’s pocket is undoubtedly reckless and creates a
    substantial risk of death or serious bodily harm to a third party.
    Although we have not held that resisting arrest while in possession of a
    loaded handgun is sufficiently reckless conduct to warrant an enhancement under
    section 3C1.2 of the guidelines, we have held that conduct that could potentially
    harm a police officer or a third party is sufficiently reckless. See, e.g., 
    Dougherty, 754 F.3d at 1360
    (“[P]oint[ing] a machine pistol at a police officer . . . f[ell] within
    23
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    the purview of [section] 3C1.2,” even though the offender did not fire the pistol.);
    United States v. Washington, 
    434 F.3d 1265
    , 1268 (11th Cir. 2006) (“Driving a car
    at high speed in an area where people are likely to be found constitutes reckless
    disregard for others’ safety,” even though the offender did not collide with
    anyone.). Section 3C1.2 requires only that there was a substantial risk that
    something could have gone wrong and someone could have died or been seriously
    injured.
    On this record, there was a significant chance that the firearm could have
    accidentally discharged. We hold that the district court did not err when it found
    that Matchett’s conduct created the requisite degree of risk to justify the section
    3C1.2 enhancement.
    IV. CONCLUSION
    We AFFIRM the decision of the district court.
    24