              Case: 15-14896     Date Filed: 03/10/2017    Page: 1 of 7


                                                               [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 15-14896
                             Non-Argument Calendar
                           ________________________

                      D.C. Docket No. 1:13-cr-20405-WJZ-1



UNITED STATES OF AMERICA,

                                                                   Plaintiff-Appellee,

                                       versus

JOSEPH SYMINGTON,

                                                                Defendant-Appellant.

                           ________________________

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

                                  (March 10, 2017)

Before MARTIN, ANDERSON, and DUBINA, Circuit Judges.

PER CURIAM:

      This is the second time we have considered an appeal of this case. In the

first appeal, we held that the district court abused its discretion in denying Joseph
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Symington’s motion to withdraw his guilty plea. We vacated Symington’s

conviction and sentence and remanded the case to the district court with directions

that Symington be permitted to withdraw his guilty plea. United States v.

Symington, 781 F.3d 1308, 1314 (11th Cir. 2015). Symington now appeals his

subsequent 105-month sentence, imposed at the high end of the advisory guideline

range, after he pled guilty to one count of possession of a firearm by a convicted

felon, in violation of 18 U.S.C. § 922(g). Symington argues that the district court

erred in setting his base offense level pursuant to U.S.S.G. § 2K2.1(a)(2) because

his prior convictions for the Florida offense of fleeing and eluding no longer

qualify as a violent felony under the Armed Career Criminal Act (“ACCA”).

Symington also argues that his 105-month sentence was substantively

unreasonable in light of the 18 U.S.C. § 3553(a) factors.

         A. Crime of Violence

      We review de novo whether a prior conviction qualifies as a crime of

violence under the sentencing guidelines. United States v. Romo-Villalobos, 674

F.3d 1246, 1247 (11th Cir. 2012). Section 2K2.1(a)(2) of the Sentencing

Guidelines sets a higher base offense level for the offense of being a felon in

possession of a firearm if the defendant has sustained at least two prior felony

convictions for crimes of violence. U.S.S.G. § 2K2.1(a)(2). The career offender

guidelines define a “crime of violence” as any felony that (1) “has as an element


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the use, attempted use, or threatened use of physical force” (the elements clause);

(2) “is burglary of a dwelling, arson, or extortion, involves use of explosives” (the

enumerated offenses clause); or (3) “otherwise involves conduct that presents a

serious potential risk of physical injury to another” (the residual clause). Id.

§ 4B1.2(a)(1)–(2). Under our precedent, the Florida offense of fleeing and eluding

qualifies as a crime of violence under the residual clause of the career offender

guidelines. E.g., United States v. Orisnord, 483 F.3d 1169, 1183 (11th Cir. 2007).

      The Armed Career Criminal Act (“ACCA”) provides enhanced penalties

when certain offenses are committed by defendants who have previous convictions

for “violent felonies.” 18 U.S.C. § 924(e)(1). The ACCA definition for violent

felony is almost identical to the definition of “crime of violence,” including its

residual clause. See id. § 924(e)(2)(B)(i)–(ii). Accordingly, “determining whether

a crime constitutes a ‘violent felony’ under the ACCA involves an inquiry

strikingly similar to that in determining whether a conviction is a ‘crime of

violence’ under U.S.S.G. § 4B1.1(a).” United States v. Harris, 586 F.3d 1283,

1285 (11th Cir. 2009). Generally, “decisions about one apply to the other.”

Gilbert v. United States, 640 F.3d 1293, 1309 n.16 (11th Cir. 2011) (en banc). In

the instant case, however, Symington raises a challenge to his sentence based on

the Supreme Court’s decision in Johnson, which is inapplicable to the residual

clause of the career offender guidelines.


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      In Johnson v. United States, the Supreme Court invalidated the residual

clause of the ACCA as unconstitutionally vague. Johnson v. United States, 576

U.S. ___, ___, 135 S. Ct. 2551, 2562–63 (2015). Johnson’s invalidation of the

residual clause removed several offenses, including the Florida offense of fleeing

and eluding, from qualifying as an ACCA predicate offense. See United States v.

Adams, 815 F.3d 1291, 1292–93 (11th Cir. 2016) (per curiam). Johnson, however,

only applies to a “statute defining elements of crimes . . . [and] fixing sentences.”

Johnson, 576 U.S. at ___, 135 S. Ct. at 2556–57. As the advisory sentencing

guidelines do neither, the vagueness doctrine is inapplicable to the career offender

guidelines residual clause under U.S.S.G. § 4B1.2(a)(2). United States v. Matchett,

802 F.3d 1185, 1194–96 (11th Cir. 2015).

      After reviewing the record, we conclude that the district court did not err in

setting Symington’s base offense level pursuant to U.S.S.G. § 2K2.1 because,

under our binding precedent, the Florida offense of fleeing and eluding qualifies as

a crime of violence under the residual clause of the career offender guideline.

Orisnord, 483 F.3d at 1183. As advisory guidelines are not subject to vagueness

challenges, our conclusion in Adams that the Florida offense of fleeing and eluding

is no longer an ACCA-qualifying offense under Johnson does not affect our

conclusion that fleeing and eluding remains a of crime of violence under the career

offender guideline. See Matchett, 802 F.3d at 1194–96.


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      We also note that on January 27, 2016, the U.S. Sentencing Commission

submitted a proposed amendment to the career offender guideline that removes the

residual clause and replaces it with specific enumerated offenses. See Notice of

Submission to Congress of Amendment to the Sentencing Guidelines Effective

August 1, 2016, 81 Fed. Reg. 4741 (Jan. 27, 2016). Amendments to the

Sentencing Guidelines that are clarifying, as opposed to substantive, are applicable

retroactively and “should be considered on appeal regardless of the date of

sentencing.” United States v. Jerchower, 631 F.3d 1181, 1185 (11th Cir. 2011)

(internal quotation marks omitted). However, we do not consider proposed

amendments until they become effective, as they are still subject to Congressional

modification or disapproval. See 28 U.S.C. § 994(p). Accordingly, we need not

determine whether the proposed amendment is retroactive because the proposed

amendment has yet to become effective.

         B. Substantive Unreasonableness

      We review “all sentences—whether inside, just outside, or significantly

outside the Guidelines range—under a deferential abuse-of-discretion standard.”

Gall v. United States, 552 U.S. 38, 41, 128 S. Ct. 586, 591 (2007). The party

challenging the sentence bears the burden to show it is unreasonable in light of the

record and the § 3553(a) factors. United States v. Tome, 611 F.3d 1371, 1378

(11th Cir. 2010) (internal quotation marks omitted). And “[a]lthough we do not


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automatically presume that a sentence within the guidelines range is reasonable,

we ‘ordinarily . . . expect a sentence within the Guidelines range to be

reasonable.’” United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008) (alteration

in original) (quoting United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005)).

We consider “whether a sentence is substantively unreasonable under the totality

of the circumstances and in light of the 18 U.S.C. § 3553(a) factors.” United States

v. Johnson, 803 F.3d 610, 618 (11th Cir. 2015) (citations omitted). A sentence will

be vacated for substantive unreasonableness if “we are left with the definite and

firm conviction that the district court committed a clear error of judgment in

weighing the § 3553(a) factors.” United States v. Irey, 612 F.3d 1160, 1190 (11th

Cir. 2010) (en banc) (internal quotation marks omitted).

      The district court must impose a sentence “sufficient, but not greater than

necessary to comply with the purposes” listed in 18 U.S.C. § 3553(a)(2), including

the need to reflect the seriousness of the offense, promote respect for the law,

provide just punishment for the offense, deter criminal conduct, and protect the

public. 18 U.S.C. § 3553(a)(2). In imposing a particular sentence, the district

court must also consider the nature and circumstances of the offense, the history

and characteristics of the defendant, the kinds of sentences available, the applicable

guideline range, the pertinent policy statements of the Sentencing Commission, the




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need to avoid unwarranted sentencing disparities, and the need to provide

restitution to victims. Id. § 3553(a)(1), (3)–(7).

      We conclude from the record that Symington’s 105-month sentence is

substantively reasonable. Symington had an extensive criminal history, with 15

adult criminal convictions. Symington’s other convictions were for offenses

similar to the predicate offenses of battery and fleeing and eluding including

leaving the scene of a crash involving death after fatally striking a man with his

truck; battery; fleeing and attempting to elude while driving 81-miles-per-hour in a

30-mile-per-hour zone; and possession of a firearm. Symington repeatedly

violated his probation. As the district court noted, such conduct demonstrates

Symington’s unwillingness to cooperate with the law and a pattern of dangerous

conduct.

      Based on the foregoing, we conclude that the district court did not abuse its

discretion and properly considered the § 3553 factors. Accordingly, we affirm

Symington’s sentence.

      AFFIRMED.




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