               Case: 10-12094       Date Filed: 02/22/2013       Page: 1 of 28




                                                                                  [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                    No. 10-12094
                              ________________________

                      D.C. Docket No. 5:09-cv-00107-WTH-GRJ



MICHAEL TURNER,

               Petitioner - Appellant,

versus

WARDEN COLEMAN FCI (MEDIUM),

               Respondent - Appellee.

                              ________________________

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

                                    (February 22, 2013)

Before WILSON and HILL, Circuit Judges, and HUCK,* District Judge.

WILSON, Circuit Judge:


       * Honorable Paul C. Huck, United States District Judge for the Southern District of
Florida, sitting by designation.
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      Michael Turner, a federal prisoner, appeals the district court’s dismissal of

his 28 U.S.C. § 2241 petition for a writ of habeas corpus, arguing that his § 2241

petition is cognizable under the savings clause of 28 U.S.C. § 2255 because

intervening changes in the law have rendered § 2255 “inadequate or ineffective to

test the legality of his detention.” § 2255(e). Specifically, Turner argues that he

no longer qualifies for an enhanced sentence pursuant to the Armed Career

Criminal Act (ACCA), 18 U.S.C. § 924(e), because under law passed down since

his initial § 2255 motion, the offenses that formed the predicate for the

enhancement no longer qualify as “violent felonies” under the ACCA. Finding no

error in the district court’s classification of Turner’s convictions as violent felonies

under § 924(e), we affirm.

                      I. Background and Procedural History

      In 2004, Turner pleaded guilty, pursuant to a written plea agreement, to

possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)

and 924(e). During his plea colloquy, Turner acknowledged that he had previously

been convicted of: (1) aggravated battery, (2) shooting into a building, (3) battery

on a law enforcement officer, and (4) possession of a firearm by a convicted felon.

Turner repeatedly acknowledged that because he had previously been convicted of

three qualifying violent felonies, he would be subject to a 15-year mandatory

minimum sentence under the ACCA. See 18 U.S.C. § 924(e).

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      In preparation for Turner’s sentencing, the United States Probation Office

prepared a Presentence Investigation Report (PSR), which detailed Turner’s long

criminal history. Of particular relevance to this appeal, the PSR included

descriptions of Turner’s previous convictions for: (1) shooting into an occupied

building and aggravated assault; (2) battery on a law enforcement officer; and (3)

aggravated battery. With regard to the convictions for shooting into an occupied

building and aggravated assault, the PSR explained that in 1981, Turner had fired

two shots at a man standing outside of his home, and that one of the two shots had

entered through the front window of the home. As to the conviction for battery on

a law enforcement officer, the PSR relayed that in 1986, Turner fled from officers

after an apparent drug transaction, resisted their attempt to subdue him, and pushed

one of deputies against a wall, injuring her left hand. Finally, the PSR explained

that Turner’s conviction for aggravated battery stemmed from an incident in which

Turner stabbed a man in the chest in 1996. Turner did not object, either before or

during his sentencing, to the PSR’s factual descriptions of these offenses.

      The PSR initially calculated Turner’s guideline range at 77 to 96 months;

however, because he had three convictions for the violent felonies referenced

above, Turner’s sentence was subject to the ACCA enhancement, which mandated

a minimum sentence of 15 years’ imprisonment. See id. At his sentencing,

Turner’s sole objection was that, because the convictions underlying the ACCA

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enhancement were not set out in the indictment, stipulated to in the plea agreement,

or admitted at the plea colloquy, the application of the ACCA enhancement

violated the teachings of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531

(2004). Nonetheless, at no point during his plea colloquy or his sentencing did

Turner object to the factual assertions set forth in the PSR, including the

descriptions of his various crimes. The district court overruled Turner’s objection,

adopted the factual findings and guideline applications as set forth in the PSR, and

sentenced Turner to 188 months’ imprisonment, at the low end of the ACCA-

enhanced guideline range. Had he not been subject to the ACCA enhancement,

Turner’s maximum sentence would have been 10 years in prison. § 924(a)(2).

      Turner timely appealed, again asserting his Blakely challenge. We affirmed,

and the Supreme Court denied certiorari. See United States v. Turner, 133 F.

App’x 631, 632 (11th Cir.) (per curiam), cert. denied, 546 S. Ct. 921 (2005). On

July 21, 2006, Turner filed a pro se § 2255 motion to vacate, set aside, or correct

his sentence, renewing his Blakely challenge and arguing for the first time that his

guilty plea had been unknowing and involuntary because he was unaware of the

ACCA 15-year minimum sentence to which he would be subject. The district

court denied relief.

      Three years later, in March 2009, Turner filed pro se the § 2241 petition that

forms the heart of the instant dispute. This time, however, Turner abandoned his

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Blakely challenge and argued that, in light of the Supreme Court’s decision in

Begay v. United States, 553 U.S. 137, 128 S. Ct. 1581 (2008), and this court’s

decision in United States v. Archer, 531 F.3d 1347 (11th Cir. 2008), he is “actually

innocent of being a[n] armed career offender” because the offenses underlying his

ACCA enhancement no longer qualify as violent felonies. He also argued for the

first time that the government’s use of information from arrest and booking reports

in ascertaining the extent of his prior criminal convictions was a violation of the

Supreme Court’s decision in Shepard v. United States, 544 U.S. 13, 16, 125 S. Ct.

1254, 1257 (2005) (holding that, in determining whether a past conviction qualifies

as a violent felony under the ACCA, a sentencing court “is generally limited to

examining the statutory definition, charging document, written plea agreement,

transcript of plea colloquy, and any explicit factual finding by the trial judge to

which the defendant assented”). The district court dismissed the § 2241 petition

for lack of jurisdiction, finding that Turner’s petition was not cognizable because

he did not satisfy the savings clause of § 2255(e). The district court also held that

Turner’s Shepard claim was procedurally barred because he had an opportunity to

raise it in his initial § 2255 motion but failed to do so. This appeal followed.

                                    II. Discussion

      Turner wages a two-pronged attack upon the district court’s dismissal of his

§ 2241 petition. He first argues that Begay and other intervening changes in the

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law since the disposition of his initial § 2255 motion have rendered erroneous the

violent felony enhancement he received under the ACCA. He then argues,

pursuant to Shepard, that the sentencing court erroneously relied upon police

reports and arrest affidavits to prove the substance of his prior convictions. We

review de novo the availability of habeas relief under § 2241, Dohrmann v. United

States, 442 F.3d 1279, 1280 (11th Cir. 2006), and “we may affirm for any reason

supported by the record, even if not relied upon by the district court.” United

States v. Al-Arian, 514 F.3d 1184, 1189 (11th Cir. 2008) (per curiam) (internal

quotation marks omitted).

   1. The Intersection of §§ 2255 and 2241

      “Typically, collateral attacks on the validity of a federal sentence must be

brought under § 2255.” Darby v. Hawk-Sawyer, 405 F.3d 942, 944 (11th Cir.

2005) (per curiam). Once a petitioner has filed his initial § 2255 motion, however,

he is barred from making second and successive motions except in two carefully

delineated circumstances, neither of which applies here. See 28 U.S.C. § 2255(h)

(requiring the court of appeals to certify the existence of either newly discovered

evidence or a new rule of retroactively applicable constitutional law before a

petitioner can file a second or successive § 2255 petition). In addition, pursuant to

§ 2255(e), the so-called “savings clause,” a prisoner may file a § 2241 petition if

the § 2255 remedy “is inadequate or ineffective to test the legality of his

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detention.” § 2255(e); see Sawyer v. Holder, 326 F.3d 1363, 1365 (11th Cir.

2003). The burden of demonstrating the inadequacy or ineffectiveness of the

§ 2255 remedy rests squarely on the petitioner. McGhee v. Hanberry, 604 F.2d 9,

10 (5th Cir. 1979) (per curiam). 1

       What, then, must a petitioner demonstrate to open the portal of § 2241

through the § 2255 savings clause? We have previously indicated that the savings

clause of § 2255 may permit a petitioner to bring a claim under § 2241 when:

“1) th[e] claim is based upon a retroactively applicable Supreme Court decision;

2) the holding of that Supreme Court decision establishes the petitioner was

convicted for a nonexistent offense; and, 3) circuit law squarely foreclosed such a

claim at the time it otherwise should have been raised in the petitioner’s trial,

appeal, or first § 2255 motion.” Wofford v. Scott, 177 F.3d 1236, 1244 (11th Cir.

1999). 2 Sitting en banc, however, we recently retreated from the purported three-

factor test enumerated in Wofford, calling it “only dicta,” and explaining that “[t]he

actual holding of the Wofford decision . . . is simply that the savings clause does

not cover sentence claims that could have been raised in earlier proceedings.”

       1
                Pursuant to Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en
banc), all decisions of the former Fifth Circuit announced prior to October 1, 1981, are binding
precedent in this circuit.
       2
               Even if a petitioner succeeds in making Wofford’s three-part showing, he would
then need to demonstrate “actual innocence” of the crime for which he was convicted to
demonstrate an entitlement to relief. 177 F.3d at 1244 n.3; see Bousley v. United States, 523
U.S. 614, 623, 118 S. Ct. 1604, 1611 (1998) (explaining that “‘actual innocence’ means factual
innocence, not mere legal insufficiency”).
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Gilbert v. United States, 640 F.3d 1293, 1319 (11th Cir. 2011) (en banc), cert.

denied, 132 S. Ct. 1001 (2012). We then held that “the savings clause does not

authorize a federal prisoner to bring in a § 2241 petition a claim, which would

otherwise be barred by § 2255(h), that the sentencing guidelines were misapplied

in a way that resulted in a longer sentence not exceeding the statutory maximum.”

Id. at 1323.

      At the same time, our decision in Gilbert explicitly left open the question of

whether the savings clause would permit a prisoner to open the § 2241 portal if he

claimed a “pure Begay error”—that is, an “error[] in the application of the ‘violent

felony’ enhancement, as defined in [the ACCA,] 18 U.S.C. § 924(e)(2)(B),

resulting in a higher statutory minimum and maximum sentence under § 924(e).”

Id. at 1319 n.20 (explaining that such an error “would necessarily have resulted in

the defendant being sentenced to a term of imprisonment that exceeded what

would have been the statutory maximum without the error”). The upshot of

Gilbert, then, is that the last bastion in which a petitioner claiming an error in the

application of the sentencing guidelines can possibly seek refuge through § 2241 is

when his claims involve an intervening change in the law that renders erroneous

the ACCA violent felony enhancement used to enhance his sentence beyond the

statutory maximum.




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       Applying these principles to the facts at hand, we easily dispose of Turner’s

Shepard claim. Shepard was decided before Turner’s initial § 2255 motion in this

case; therefore, he had the opportunity to raise it in his § 2255 motion. Section

2255(e)’s “savings clause does not cover sentence claims that could have been

raised in earlier proceedings.” Id. at 1319.

       That leaves only Turner’s claim that, based on decisions passed down since

his § 2255 motion, the predicate offenses underlying his ACCA enhancement no

longer qualify as violent felonies, and he was therefore “sentenced to a term of

imprisonment that exceeded what would have been the statutory maximum without

the error.” Id. at 1319 n.20. In other words, Turner claims the quintessential “pure

Begay error.” Id.; see Begay, 553 U.S. at 142, 128 S. Ct. at 1584 (holding that

Nevada statute criminalizing driving under the influence is not a violent felony for

purposes of the ACCA).

       To have any chance of success on his claim, Turner would have to show that

he was erroneously classified as an armed career criminal and that, based on the

wrongly imposed ACCA enhancement, he is serving a sentence in excess of the

statutory maximum. Even then, we have expressly refused to say whether such a

showing would be sufficient to open the portal to § 2241.3 Gilbert, 640 F.3d at


       3
               We harbor some doubt as to whether such a showing, even if properly made,
would permit opening the § 2241 portal. After all, the savings clause will only apply if a
petitioner can make a showing of actual innocence, and we have previously suggested that “for
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1323 (“Nor do we decide if the savings clause in § 2255(e) would permit a prisoner

to bring a § 2241 petition claiming that he was sentenced to a term of

imprisonment exceeding the statutory maximum.”). We again sidestep the issue

today. Indeed, we need not dip a toe in that boiling cauldron at this juncture

because, even assuming such an exception exists and that a showing of pure Begay

error would be sufficient to open the § 2241 portal, Turner cannot make such a

showing. Instead, our review of the record reveals that the three predicate offenses

for which Turner was sentenced as an armed career criminal under the ACCA—

battery on a law enforcement officer, aggravated assault/shooting into an occupied

building, and aggravated battery—were indeed violent felonies, and that the

ACCA enhancement was therefore properly imposed.

   2. Violent Felonies Under the ACCA




the actual innocence exception to apply in the noncapital sentencing context, a movant must
show that he is factually innocent of the conduct or underlying crime that serves as the predicate
for the enhanced sentence.” McKay v. United States, 657 F.3d 1190, 1198–99 (11th Cir. 2011)
(emphasis in original) (explaining, and ultimately agreeing with, the position taken by other
circuits), cert. denied, 133 S. Ct. 112 (2012). In other words, to say that a petitioner can be
“actually innocent” of a sentencing enhancement would require a great deal of both verbal and
logical gymnastics. “If guidelines enhancements were crimes, they would have to be charged in
the indictment and proven to the jury beyond a reasonable doubt.” Gilbert, 640 F.3d at 1320.
Such a position “turns on treating sentences as convictions, and an argument that depends on
calling a duck a donkey is not much of an argument.” Id. At the same time, we recognize that
under the plain language of the savings clause, an intervening change in the law resulting in an
erroneously imposed, ACCA-enhanced sentence in excess of the statutory maximum would quite
literally create a circumstance in which the § 2255 remedy was “inadequate or ineffective to test
the legality of [a prisoner’s] detention.” § 2255(e).
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       The ACCA mandates a minimum sentence of 15 years’ imprisonment for

any defendant convicted of being a felon in possession of a firearm and who has

three previous convictions “for a violent felony or a serious drug offense, or both,

committed on occasions different from one another.” § 924(e)(1). A “violent

felony” is defined as:

       [A]ny crime punishable by imprisonment for a term exceeding one
       year . . . that—

              (i) has as an element the use, attempted use, or threatened use of
              physical force against the person of another; or

              (ii) is burglary, arson, or extortion, involves use of explosives,
              or otherwise involves conduct that presents a serious potential
              risk of physical injury to another[.]

§ 924(e)(2)(B).4

       The first step in determining whether a prior conviction qualifies as a violent

felony “is to identify the specific crime at issue, generally using a categorical

approach.” United States v. Pantle, 637 F.3d 1172, 1175 (11th Cir. 2011) (per

curiam) (internal quotation marks omitted), cert. denied, 132 S. Ct. 1091 (2012).

“Under this approach, we ‘look only to the fact of conviction and the statutory

definition of the prior offense, and do not generally consider the particularized

facts disclosed by the record of conviction.’” United States v. Alexander, 609 F.3d

       4
                The definition of “violent felony” under the ACCA is virtually identical to the
definition of “crime of violence” for purposes of the career offender enhancement of § 4B1.1 of
the United States Sentencing Guidelines (USSG), “so that decisions about one apply to the
other.” Gilbert, 640 F.3d at 1309 n.16.
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1250, 1253–54 (11th Cir. 2010) (quoting United States v. James, 550 U.S. 192,

202, 127 S. Ct. 1586, 1594 (2007)). However,

      [w]hen the law under which the defendant has been convicted
      contains statutory phrases that cover several different generic crimes,
      some of which require violent force and some of which do not, the
      ‘modified categorical approach’ . . . permits a court to determine
      which statutory phrase was the basis for the conviction by consulting
      the trial record—including charging documents, plea agreements,
      transcripts of plea colloquies, findings of fact and conclusions of law
      from a bench trial, and jury instructions and verdict forms.

Johnson v. United States, 130 S. Ct. 1265, 1273 (2010); see Shepard, 544 U.S. at

24, 125 S. Ct. at 1262 (explaining “that any sentence under the ACCA [must] rest

on a showing that a prior conviction ‘necessarily’ involved (and a prior plea

necessarily admitted) facts” sufficient to qualify as a violent felony). And where,

as here, the petitioner does not object to the underlying factual assertions contained

in a PSR, they are deemed admitted and may be relied upon in making the violent

felony determination. See United States v. Rosales-Bruno, 676 F.3d 1017, 1020

(11th Cir. 2012); United States v. Beckles, 565 F.3d 832, 843 (11th Cir. 2009)

(explaining that “the district court also may base its factual findings on undisputed

statements found in the PS[R], because they are factual findings to which the

defendant has assented”); United States v. Bennett, 472 F.3d 825, 834 (11th Cir.

2006) (per curiam) (“[T]he district court did not err in relying on the undisputed

facts in Bennett’s PS[R] to determine that his prior convictions were violent

felonies under the ACCA and, therefore, that he was an armed career criminal.”);
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United States v. Wade, 458 F.3d 1273, 1277 (11th Cir. 2006) (“It is the law of this

circuit that a failure to object to allegations of fact in a PS[R] admits those facts for

sentencing purposes.”).

      Once we determine the precise statutory language upon which a previous

conviction was based, we then determine whether the crime at issue constitutes a

crime of violence under § 924(e)(2)(B). See Alexander, 609 F.3d at 1253–54.

Pursuant to § 924(e), any crime punishable by more than a year in prison is a

violent felony if it falls within one of three categories. First, under what is

sometimes referred to as the “elements clause,” a violent felony includes any crime

that “has as an element the use, attempted use, or threatened use of physical force

against the person of another.” § 924(e)(2)(B)(i). In the context of the ACCA,

“the phrase ‘physical force’ means violent force—that is, force capable of causing

physical pain or injury to another person.” Johnson, 130 S. Ct. at 1271 (emphasis

in original). The second category includes the “enumerated crimes” of “burglary,

arson, or extortion,” and those “inolv[ing] [the] use of explosives.”

§ 924(e)(2)(B)(ii). Finally, under what is commonly known as the “residual

clause,” a violent felony includes those crimes that “otherwise involve[] conduct

that presents a serious potential risk of physical injury to another.” Id.

      Several Supreme Court decisions in recent years have added significantly to

the precedent we rely upon in determining whether a given offense qualifies as a

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violent felony. For example, in Begay the Court explained that the presence of the

enumerated offenses—burglary, arson, extortion, and those crimes involving the

use of explosives—before the residual clause implies that the ACCA residual

clause “covers only similar crimes [to those enumerated], rather than every crime

that ‘presents a serious potential risk of physical injury to another.’” 553 U.S. at

142, 128 S. Ct. at 1585 (emphasis in original) (quoting § 924(e)(2)(B)(ii)). The

listed crimes, the Court continued, “all typically involve purposeful, violent, and

aggressive conduct.” Id. at 144–45, 128 S. Ct. at 1586 (internal quotation marks

omitted). The statute’s design therefore requires that, to be similar to the crimes

listed, offenses classified as violent felonies under the residual provision must also

involve “purposeful, violent, and aggressive conduct.” Id.

      Just three years after its decision in Begay, the Court sounded somewhat of a

retreat from its decision in that case. In Sykes v. United States, the Court explained

that “[i]n general, levels of risk divide crimes that qualify as violent felonies [under

the residual provision] from those that do not,” and noted that “[t]he sole decision

. . . in which risk was not the dispositive factor is Begay.” 131 S. Ct. 2267, 2275

(2011) (holding that knowingly and intentionally fleeing in a vehicle from a law

enforcement officer is a crime of violence under the residual clause). Further, the

Court said, Begay’s “purposeful, violent, and aggressive [language] has no precise

textual link to the residual clause” and marks “an addition to the statutory text.”

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Id. (internal quotation marks omitted). Furthermore, “[i]n many cases the

purposeful, violent, and aggressive inquiry will be redundant with the inquiry into

risk, for crimes that fall within the former formulation and those that present

serious potential risks of physical injury to others tend to be one and the same.” Id.

      We recently enunciated our reconciliation of these two seemingly

inconsistent decisions, explaining: “Sykes makes clear that Begay’s ‘purposeful,

violent, and aggressive’ analysis does not apply to offenses that are not strict

liability, negligence, or recklessness crimes.” United States v. Chitwood, 676 F.3d

971, 979 (11th Cir.), cert. denied, 133 S. Ct. 288 (2012). In other words,

“[o]ffenses that are not strict liability, negligence, or recklessness crimes qualify

. . . [under the] residual clause if they categorically pose a serious potential risk of

physical injury that is similar to the risk posed by one of the enumerated crimes.”

Id.

      Applying these principles to the facts at hand, we first note that Turner’s

primary argument—that his conviction for being a felon in possession of a firearm

does not qualify as a violent felony—wholly misconstrues the record in this case

and the offenses for which he was sentenced under the ACCA. The district judge

adopted the findings of fact and guideline calculations of the PSR. The PSR listed

three prior violent felonies as the basis for the ACCA enhancement: (1) Turner’s

1991 conviction for aggravated assault and shooting into an occupied building; (2)

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his 1986 conviction for battery on a law enforcement officer; and (3) his 1996

conviction for aggravated battery. Therefore, Turner’s previous conviction for

being a felon in possession of a firearm did not serve as a predicate offense for

purposes of the ACCA enhancement, and his argument in this regard must fail.

Nonetheless, for the sake of completeness, we proceed to examine each of the

predicate offenses underlying Turner’s ACCA enhancement in turn.

   A. Aggravated Assault and Shooting into an Occupied Building

       Turner’s convictions under Florida law for aggravated assault, Fla. Stat.

§ 784.021, and shooting into an occupied building, Fla. Stat. § 790.19, arose from

the same incident; therefore, if either conviction constitutes a violent felony, it can

serve as one of the three predicate offenses for purposes of the ACCA. See 18

U.S.C. § 924(e)(1) (requiring that the predicate offenses occur on “occasions

different from one another”). In Florida, “[a]n ‘aggravated assault’ is an assault:

(a) With a deadly weapon without intent to kill; or (b) With an intent to commit a

felony.” Fla. Stat. § 784.021. 5 An assault, for its part, is “an intentional, unlawful

threat by word or act to do violence to the person of another, coupled with an

apparent ability to do so, and doing some act which creates a well-founded fear in

such other person that such violence is imminent.” Fla. Stat. § 784.011.

       5
                 Though we technically examine the statute as it existed at the time of the relevant
conviction, for ease of access we cite throughout this opinion to the present statute, unless the
statute or statutes of conviction have been revised in relevant part since the time of Turner’s
conviction for that offense.
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       Turning to the facts at hand, the undisputed facts in the PSR reveal that

Turner was convicted of aggravated assault for going to the victim’s home and

firing a gun twice at the victim as he stood outside his home. Both shots missed,

the second one only narrowly, and the bullet went through the front window of the

home. Nonetheless, the underlying facts of Turner’s conviction are unnecessary to

classify Florida aggravated assault as a violent felony here, because by its

definitional terms, the offense necessarily includes an assault, which is “an

intentional, unlawful threat by word or act to do violence to the person of another,

coupled with an apparent ability to do so.” Id. (emphasis supplied). Therefore, a

conviction under section 784.021 will always include “as an element the . . .

threatened use of physical force against the person of another,” § 924(e)(2)(B)(i),

and Turner’s conviction for aggravated assault thus qualifies as a violent felony for

purposes of the ACCA. 6

       Turner’s conviction for shooting into an occupied building also qualifies as a

violent felony. Florida Statute section 790.19 provides that “[w]hoever, wantonly

or maliciously, shoots at, within, or into, or throws any [deadly] missile . . . at,

       6
                 Even if it did not qualify under the traditional categorical approach, Turner’s
conviction in this case would certainly qualify under the modified categorical approach. The
PSR leaves no doubt that Turner was convicted of an assault carried out with a firearm—a
deadly weapon—and we have held that assault with a deadly weapon is included in “the generic
crime of ‘aggravated assault’ so as to qualify as a ‘crime of violence’” or a violent felony for
purposes of sentencing. See United States v. Palomino Garcia, 606 F.3d 1317, 1331–32 (11th
Cir. 2010); see also United States v. Lockley, 632 F.3d 1238, 1243 n.5 (11th Cir. 2011) (“Though
ACCA’s ‘violent felony’ enhancement and the Guidelines’ career offender enhancement differ
slightly in their wording, we apply the same analysis to both.”).
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within, or in any public or private building, occupied or unoccupied . . . shall be

guilty of a felony.” For purposes of section 790.19, “‘wantonly’ means . . . with

the knowledge that damage is likely to be done to some person,” and

“‘[m]aliciously’ means wrongfully, intentionally, . . . and with the knowledge that

injury or damage will or may be caused to another person or the property of

another person.” State v. Kettell, 980 So. 2d 1061, 1067 (Fla. 2008).

      We think that under the categorical approach, when a person wantonly or

maliciously shoots or throws any deadly missile at any building—occupied or

unoccupied—there is a serious potential risk of physical injury sufficient to bring

such conduct within the ambit of the residual clause. See Alexander, 609 F.3d at

1258–59 (holding that the crime of discharging a firearm from a vehicle within

1000 feet of another person satisfies the residual clause because, in completing the

crime, the offender “performs a deliberate act that poses an obvious risk of injury

or death to innocent third parties”). Even if the offender believes the building to be

unoccupied, the likelihood that an occupant or innocent passerby might be injured

by falling debris—or the bullet itself—is real. Our view is fortified by the striking

similarity between this crime and its closest analog among the enumerated

offenses—that of any crime “involv[ing] the use of explosives.”

§ 924(e)(2)(B)(ii). Both crimes necessarily involve a great risk of violent harm to

the offender, the potential victims, and the community at large, and both evince a

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callousness and indifference to the potential for human suffering that strikes at the

heart of what the ACCA was designed to encapsulate. See Alexander, 609 F.3d at

1257 (“The firing of a weapon poses a risk that a bystander will be injured by a

stray bullet.”). These considerations compel the conclusion that a violation of

Florida Statute section 790.19, as a categorical matter, falls within ACCA’s

definition of a violent felony.

       Even if it did not qualify under the traditional categorical approach,

Turner’s conviction for shooting into an occupied building would still constitute a

violent felony under the modified categorical approach. The PSR reveals that

Turner shot twice at a man and that, upon missing him, the second bullet entered

the front window of the man’s home. Turner’s conviction therefore necessarily

includes the wanton or malicious firing of a gun at an occupied building. The

Supreme Court has opined that the ACCA’s residual clause is intended to ensure

increased penalties apply to those individuals who “show an increased likelihood

that the offender is the kind of person who might deliberately point the gun and

pull the trigger.” Begay, 553 U.S. at 146, 128 S. Ct. at 1587. Our point exactly.

Not only is Turner “the kind of person who might deliberately point the gun and

pull the trigger,” id., he actually did point the gun and pull the trigger in this case.

And though the locus of our inquiry is actually the elements of the offense as it is

committed in “the ordinary case” rather than the underlying facts of a particular

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offense, one can hardly quarrel with the proposition that, where an individual

wantonly or maliciously discharges a weapon at a building, such conduct “presents

a serious potential risk of injury to another.” James, 550 U.S. at 208, 127 S. Ct. at

1597. Needless to say, under the modified categorical approach, this conviction

qualifies as a violent felony. As demonstrated by the foregoing discussion, then,

whether we analyze Turner's conviction for aggravated assault or shooting into an

occupied building is a point without a difference, because under either mode of

analysis, all roads lead to Rome, and the district court’s properly included these

convictions as the first predicate offense for Turner’s ACCA enhancement.

   B. Battery on a Law Enforcement Officer

      In Florida, a person commits a battery if he: “(1) Actually and intentionally

touches or strikes another person against the will of the other; or (2) Intentionally

causes bodily harm to another person.” Fla. Stat. § 784.03(1)(a). Though battery

is ordinarily a misdemeanor, battery against a law-enforcement officer is a felony.

Fla. Stat. § 784.07(2)(b).

       The Supreme Court recently held that Florida’s felony battery offense is not

categorically a crime of violence under the ACCA’s elements clause. See Johnson,

130 S. Ct. at 1274. The Court explained that because the statute could be violated

by: (1) “[a]ctually and intentionally touch[ing]” the victim, (2) “[a]ctually and

intentionally . . . strik[ing]” the victim, or (3) “[i]ntentionally caus[ing] bodily

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harm” to the victim, Fla. Stat. § 784.03(1)(a), it did not necessarily include as an

element the use of “violent force—that is, force capable of causing physical pain or

injury to another person.” Johnson, 130 S. Ct. at 1271 (emphasis in original). The

Court expressly noted that it had no occasion to examine the offense using the

modified categorical approach, because the government had offered nothing but

the fact of conviction in support of the sentence; nor did it have reason to review

the statute under the residual clause, because the government had expressly

disclaimed at sentencing any reliance upon the residual clause. See id. at 1273–74.

      Turner’s conviction for battery on a law enforcement officer in this case

stems from an incident in which he fled from officers after an apparent drug

transaction and ultimately pushed an officer against a wall, injuring her hand.

Under the modified categorical approach, pushing the officer against the wall with

sufficient force to injure her wrist likely constitutes “[a]ctually and intentionally

. . . strik[ing]” the officer and therefore qualifies as a crime of violence under the

elements clause of the ACCA. See id. at 1273 (explaining the modified categorical

approach and noting that “the Government has in the past obtained convictions

under the Armed Career Criminal Act” using the approach (citing United States v.

Robledo-Leyva, 307 F. App’x 859, 862 (5th Cir. 2009) (per curiam) (adopting the

modified categorical approach to hold that Florida battery on a law enforcement

officer is a crime of violence); United States v. Luque-Barahona, 272 F. App’x

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521, 524 (7th Cir. 2008) (affirming district court’s reliance on statement in PSR

that defendant had “pushed the police officer” to find that conviction for Florida

battery on a law enforcement officer was a crime of violence))).

      Furthermore, and even if Turner’s conviction did not qualify under the

elements clause, our result would be the same, because Florida battery on a law

enforcement officer also qualifies as a violent felony under the residual clause. See

Rozier v. United States, 701 F.3d 681, 682 (11th Cir. 2012) (explaining our

previous, unpublished holding “that although [the defendant’s] Florida battery on a

law enforcement officer conviction did not qualify as a crime of violence under the

elements clause of § 4B1.2(a)(1), it did qualify as a crime of violence under the

residual clause”). As we made plain in Rozier, the decision in Johnson addressed

only the elements clause of § 924(e)(2)(B), and Begay does not apply outside the

narrow confines of strict liability, negligence, and recklessness offenses; therefore,

neither opinion impacts our analysis of the Florida battery statute under the

residual clause. See id. at 683, 685 n.5.

      Two of our sister circuits have held that similar offenses involving battery

on a law enforcement officer constitute crimes of violence or violent felonies under

the residual clause. See United States v. Dancy, 640 F.3d 455, 469–70 (1st Cir.),

cert. denied, 132 S. Ct. 564 (2011) (holding that assault and battery on a police

officer is a violent felony under the ACCA because the “crime nearly always poses

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a serious risk of actual or potential physical force and the likelihood of physical

injury” (internal quotation marks omitted)); United States v. Williams, 559 F.3d

1143, 1149 (10th Cir. 2009) (finding that battery on a police officer was a crime of

violence because it “involves an overt act against the police officer—thereby not

only initiating a confrontation, but risking a serious escalation in violence”

(emphasis in original)). We join them and expressly so hold today. In our view,

few crimes present a greater “potential risk of physical injury to another” than

battery on a law enforcement officer, which necessarily involves an unwanted

touching of—and physical confrontation with—an officer of the law. § 924(e); see

Sykes, 131 S. Ct. at 2273 (explaining that burglary, an enumerated violent felony

under the ACCA, “is dangerous because it can end in confrontation leading to

violence”). The charged environment created when a citizen physically confronts

the police is a verifiable powder keg, laden with danger to the officer, the

defendant, and innocent bystanders alike. See Williams, 559 F.3d at 1149. That is

especially so given that “the use of force is an expected, necessary part of a law

enforcement officer’s task of subduing and securing individuals suspected of

committing crimes.” Lee v. Ferraro, 284 F.3d 1188, 1200 (11th Cir. 2002).

Indeed, an officer faced with physical resistance is not only authorized, but is often

duty-bound, to effectuate an arrest of that individual. See Dancy, 640 F.3d at 470

(“While the primary risk of [assault and battery on a police officer] is to the officer

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who is occupied with his or her duties to the public, there is also a great risk to the

defendant whose interference with the police is likely to provoke a response of

decisive force calibrated to end the matter quickly and prevent the assailant from

getting control of the officer or his or her weapon or otherwise injuring the officer

or bystanders.”). Therefore, and because the risk of serious physical injury

attendant to battery on a law enforcement officer renders the crime a potential

hotbed of melee and violence, it easily qualifies as a violent felony under the

ACCA’s residual clause.

      The Supreme Court’s recent decision in Sykes confirms our view in this

regard. In Sykes, the Court held that vehicular flight from a law enforcement

officer was a violent felony under the residual clause, in part because

“[c]onfrontation with police is the expected result of vehicle flight. It places

property and persons at serious risk of injury.” 131 S. Ct. at 2274. In other words,

vehicular flight fell under the residual clause because it could potentially cause a

confrontation with police. See id. It inheres from that reasoning that battery on a

law enforcement officer, which necessarily includes some physical confrontation

with police, is a violent felony under the residual clause. Put another way, if

vehicular fleeing from law enforcement is a violent felony because of its potential

risk of physical confrontation, a crime that a fortiori involves that very

confrontation with police is most assuredly a violent felony, too.

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   C. Aggravated Battery

       Having determined that Turner’s first two convictions qualify as violent

felonies under the ACCA, his final predicate conviction—for aggravated battery—

falls neatly into place. In Florida, a person commits aggravated battery by

committing a battery: (1) that intentionally or knowingly causes great bodily harm,

permanent disability, or disfigurement; (2) while using a deadly weapon; or (3)

upon a victim whom the offender knows to be pregnant. Fla. Stat. § 784.045.

       We need not belabor the point here because Turner’s conviction—which

stemmed from his stabbing a man in the chest—is indubitably a violent felony

under the elements clause. Using the modified categorical approach, and because

the victim of the crime was a male, we can rule out battery upon a pregnant female

as the basis for Turner’s conviction. That leaves only two potential bases for

Turner’s conviction, one of which involves the intentional or knowing causation of

great bodily harm, and the other which involves the use of a deadly weapon.

Either way, the crime “has as an element the use, attempted use, or threatened use

of physical force,” § 924(e)(2)(B)(i), indeed, “violent force—that is, force capable

of causing physical pain or injury to another person.” Johnson, 130 S. Ct. at 1271

(emphasis in original). 7 We can therefore say without compunction that Turner’s



       7
                Doubtless, Florida aggravated battery would also qualify as a violent felony under
the residual clause. See Sykes, 131 S. Ct. at 2273. But because Turner’s conviction for
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conviction for aggravated battery qualifies as a violent felony for purposes of the

ACCA.

       Ultimately, then, all three of the convictions used by the district court as

predicate offenses for Turner’s ACCA enhancement—aggravated assault and

shooting into an occupied building, battery on a law enforcement officer, and

aggravated battery—were properly qualified as violent felonies. We discern no

error—Begay or otherwise—in Turner’s sentence.

                                       III. Conclusion

       In Gilbert, we left open the question whether a petitioner could open the

portal to § 2241 via the savings clause of § 2255 if he could make a showing of

“pure Begay error”—that is, a showing that errors in the application of the

ACCA’s violent felony enhancement “resulted in the defendant being sentenced to

a term of imprisonment that exceeded what would have been the statutory

maximum without the error.” Gilbert, 640 F.3d at 1319 n.20. We again leave that

question unanswered today. Instead, because Turner has failed to show that he was

improperly sentenced under the ACCA in the first instance, we have no occasion to

decide whether, had he made such a showing, it would enable him to bring his

petition under the savings clause. Perhaps the day will come when a petitioner




aggravated battery so obviously qualifies as a violent felony under the elements clause, we need
not dwell on that issue to resolve this case.
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makes a showing of pure Begay error sufficient to render the question left open by

Gilbert ripe for decision. That day, however, is not today.

      AFFIRMED.




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HILL, J., concurring:

      I concur because the law of this circuit requires that I must. I write

separately to endorse the idea expressed in footnote 3 that § 2255 is “literally”

inadequate and ineffective to test the legality of an erroneously imposed ACCA-

enhanced sentence in excess of the statutory maximum, thereby opening the portal

to habeas relief under § 2241. I disassociate myself, however, from the dicta also

expressed in the footnote that guideline enhancements and the guideline sentences

for the underlying crimes – like ducks and donkeys – are not the same things, and,

therefore, should not be treated the same. Tell this to the petitioner who is literally

factually innocent of the sentencing enhancement – that is, he is not, nor has he

ever been, guilty of three prior violent felonies. Tell him that the error in the

enhancement is beyond our power to fix because it is a duck not a donkey.

      Distinguishing between ducks and donkeys is a meaningless exercise when,

behind the curtain, both are the government. It is the government that unlawfully

deprives us of our liberty when it applies an invalid enhancement to a sentence. It

is the government that is forbidden to do so by the Constitution.

      If our government can incarcerate people for time beyond that provided for

by law simply because we call the incarceration a duck instead of a donkey, there

is no constitutional guarantee against deprivation of liberty in this country.




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