              Case: 16-11577     Date Filed: 04/20/2017   Page: 1 of 6


                                                              [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 16-11577
                             Non-Argument Calendar
                           ________________________

                   D.C. Docket No. 3:15-cr-00005-DHB-BKE-1

UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellant,

                                      versus

KENTA COOK,

                                                               Defendant-Appellee.

                           ________________________

                   Appeal from the United States District Court
                      for the Southern District of Georgia
                         ________________________

                                  (April 20, 2017)

Before MARCUS, JORDAN and ROSENBAUM, Circuit Judges.

PER CURIAM:

      The government appeals Kenta Cook’s 120-month sentence, imposed after

he pled guilty to being a felon in possession of a firearm, in violation of 18 U.S.C.

§ 922(g)(1). On appeal, the government argues that the district court erred by
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failing to impose a minimum sentence of 15 years under 18 U.S.C. § 924(e), the

Armed Career Criminal Act (“ACCA”), because Cook’s prior Georgia conviction

of felony obstruction qualifies as violent felony for purposes of the ACCA. After

careful review, we vacate and remand.

      We review de novo whether a prior conviction qualifies as a violent felony

under the ACCA. United States v. Hill, 799 F.3d 1318, 1321 (11th Cir. 2015). A

district court is not authorized to impose a sentence below an applicable minimum

statutory penalty unless the government filed a substantial assistance motion or the

defendant falls within the safety-valve provision of 18 U.S.C. § 3553(f). United

States v. Castaing-Sosa, 530 F.3d 1358, 1360 (11th Cir. 2008).

      Under the ACCA, “[i]n the case of a person who violates section 922(g) of

this title and has three previous convictions . . . for a violent felony or a serious

drug offense, or both, committed on occasions different from one another, such

person shall be . . . imprisoned not less than fifteen years.” 18 U.S.C. § 924(e)(1).

A “violent felony” includes a felony that “has as an element the use, attempted use,

or threatened use of physical force against the person of another.”            Id. §

924(e)(2)(B)(i); see also United States v. Braun, 801 F.3d 1301, 1307 (11th Cir.

2015) (noting that this definition of “violent felony” is called the “elements

clause”).   Physical force is violent force, meaning “force capable of causing




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physical pain or injury to another person.” Johnson v. United States, 559 U.S. 133,

140 (2010).

      To determine whether a prior conviction was for a violent felony, a court

typically uses a categorical approach and compares the elements of the statute of

conviction with the elements of the generic crime, meaning the offense as it is

commonly understood. Descamps v. United States, 133 S. Ct. 2276, 2281 (2013).

The court examines only the statutory elements of the prior offense and does not

consider the particular facts underlying the defendant’s conviction. Id. at 2283.

An offense categorically qualifies as a violent felony under the ACCA if an

element of the offense is the use, attempted use, or threatened use of physical force

against the person of another. United States v. Wilkerson, 286 F.3d 1324, 1325

(11th Cir. 2002). A court uses a modified categorical approach only if the prior

conviction was for violating a divisible statute that sets out one or more elements

of the offense in the alternative, and one alternative matches an element of the

generic offense but another does not. Descamps, 133 S. Ct. at 2281. “[T]he

modified categorical approach permits sentencing courts to consult a limited class

of documents, such as indictments and jury instructions, to determine which

alternative formed the basis of the defendant’s prior conviction.” Id.

      Under Georgia’s obstruction statute,

      [w]hoever knowingly and willfully resists, obstructs, or opposes any law
      enforcement officer . . . in the lawful discharge of his or her official duties
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      by offering or doing violence to the person of such officer . . . is guilty of a
      felony and shall, upon conviction thereof, be punished by imprisonment for
      not less than one nor more than five years.

O.C.G.A. § 16-10-24(b).      We have held that “the Georgia crime of felony

obstruction of justice categorically meets the ‘use, attempted use, or threatened use

of physical force’ requirement of the elements clause of the ACCA.” United States

v. Brown, 805 F.3d 1325, 1327-28 (11th Cir. 2015) (concluding that the element of

offering or doing violence in O.C.G.A. § 16-10-24(b) “is enough to satisfy the

elements clause of the ACCA”).

      Consistent with our holding in Brown, Cook’s Georgia conviction of felony

obstruction categorically qualifies as a conviction of a violent felony under the

ACCA, and the district court erred in holding otherwise. See id. at 1327. We are

bound by this prior precedent because it has not been overruled by this Court en

banc or the Supreme Court. United States v. Vega–Castillo, 540 F.3d 1235, 1236

(11th Cir. 2008) (quotations omitted) (“Under the prior precedent rule, we are

bound to follow a prior binding precedent unless and until it is overruled by this

court en banc or by the Supreme Court.”). The district court also erred by using

the modified categorical approach and by considering the circumstances

surrounding Cook’s conviction when deciding if it was a conviction of a violent

felony. See Descamps, 133 S. Ct. at 2281-82 (holding that a court may not apply

the modified categorical approach if a crime of conviction categorically qualifies


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as an ACCA predicate offense).         While Cook argues that application of the

categorical approach raises Sixth Amendment concerns, the Supreme Court has

said that the categorical approach avoids Sixth Amendment concerns by “merely

identifying a prior conviction.” Id. at 2288; see also Apprendi v. New Jersey, 530

U.S. 466, 490 (2000) (stating that, “[o]ther than the fact of a prior conviction, any

fact that increases the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury, and proved beyond a reasonable doubt”).

      As for Cook’s reliance on the Supreme Court’s recent decision in Johnson v.

United States, 135 S. Ct. 2551 (2015), it is misplaced. In Johnson, the Court held

that the ACCA’s residual clause -- which defines “violent felony” to include a

felony that “involves conduct that presents a serious potential risk of physical

injury to another” -- is unconstitutionally vague. Id. at 2555-57 (emphasis omitted)

(quotation omitted). The Supreme Court contrasted the ACCA’s elements clause

with the residual clause, stating that, “unlike the part of the definition of a violent

felony that asks whether the crime has as an element the use . . . of physical force,

the residual clause asks whether the crime involves conduct that presents too much

risk of physical injury.” Id. at 2557 (quotations and emphases omitted). The Court

determined that the residual clause is unconstitutional in part because it “leaves

grave uncertainty about how to estimate the risk posed by a crime” by tying “the

judicial assessment of risk to a judicially imagined ‘ordinary case’ of a crime, not


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to real-world facts or statutory elements.” Id. Johnson does not impact Cook’s

classification as an armed career criminal, however, because his obstruction

conviction qualifies as a conviction of a violent felony under the ACCA’s elements

clause. See Brown, 805 F.3d at 1327-28; see also Hill, 799 F.3d at 1322 (noting

that “the Supreme Court expressly limited its holding [in Johnson] to the ACCA’s

residual clause” and left the definition of “violent felony” under the elements

clause undisturbed).

      In short, Cook’s Georgia conviction of felony obstruction categorically

qualifies as a conviction of a violent felony under the ACCA. Cook does not

dispute that he also has two other convictions that are predicate convictions for the

purpose of applying the ACCA. Thus, Cook is an armed career criminal under 18

U.S.C. § 924(e)(1) and is subject to the minimum 15-year penalty. Moreover,

because the government did not file a substantial assistance motion and the

statutory safety-valve provision is not at issue, the district court was not authorized

to impose a sentence below the minimum statutory penalty. See Castaing-Sosa,

530 F.3d at 1360.      Accordingly, we vacate Cook’s sentence and remand for

resentencing consistent with this opinion.

      VACATED AND REMANDED.




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