              Case: 18-10030    Date Filed: 10/05/2018   Page: 1 of 7


                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 18-10030
                            Non-Argument Calendar
                          ________________________

                   D.C. Docket No. 8:17-cr-00381-SCB-JSS-1


UNITED STATES OF AMERICA,

                                                               Plaintiff - Appellee,

                                      versus

GERALD PATMON,

                                                            Defendant - Appellant.
                          ________________________

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

                                (October 5, 2018)

Before WILSON, ROSENBAUM, and JULIE CARNES, Circuit Judges.

PER CURIAM:

      Gerald Patmon appeals his sentence of 90 months of imprisonment after

pleading guilty to possession of a firearm by a convicted felon, in violation of 18
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U.S.C. § 922(g)(1). In calculating Patmon’s guideline range, the district court

applied an enhanced base offense level under § 2K2.1(a)(2) of the Sentencing

Guidelines, based on prior convictions for a crime of violence (Georgia aggravated

assault) and a controlled-substance offense (Florida delivery of cannabis). Patmon

argues that his Georgia aggravated-assault conviction does not qualify as a crime

of violence for purposes of this enhancement. He concedes that this argument is

foreclosed by our decision in United States v. Morales-Alonso, 878 F.3d 1311

(11th Cir. 2018), but he believes that Morales-Alonso was wrongly decided and

wishes to preserve the issue for further review.

      We review de novo whether a defendant’s prior conviction qualifies as a

crime of violence under the Sentencing Guidelines. United States v. Palomino

Garcia, 606 F.3d 1317, 1326 (11th Cir. 2010).

      Under § 2K2.1, the guideline covering gun-possession offenses, an enhanced

base offense level of 24 applies if the defendant has at least two prior felony

convictions for either a crime of violence or a controlled-substance offense.

U.S.S.G. § 2K2.1(a)(2). Section 2K2.1 takes its definition of “crime of violence”

from § 4B1.2, id. § 2K2.1, cmt. n.1, which defines the term as an offense that

either (1) “has as an element the use, attempted use, or threatened use of physical

force against the person of another” (the “elements” clause), or (2) is one of several




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listed offenses, including “aggravated assault” (the “enumerated-offenses” clause).

U.S.S.G. § 4B1.2(a).

       When Patmon was convicted of aggravated assault in 2014, Georgia law

defined the crime as an “assault” committed

       (1) With intent to murder, to rape, or to rob;

       (2) With a deadly weapon or with any object, device, or instrument
       which, when used offensively against a person, is likely to or actually
       does result in serious bodily injury;

       (3) With any object, device, or instrument which, when used
       offensively against a person, is likely to or actually does result in
       strangulation; or

       (4) [Against a] person or persons without legal justification by
       discharging a firearm from within a motor vehicle toward a person or
       persons.

O.C.G.A. § 16-15-21(a).1

       We have held that this statute is “divisible”—that is, it defines multiple

crimes by listing elements in the alternative—meaning courts can look to certain

judicial records, known as Shepard documents,2 to determine which of the four

aggravators Patmon committed.                 See Morales-Alonso, 878 F.3d at 1316

       1
          For the sake of consistency, we cite to the current version of the statute, which is
substantively identical to the 2014 version. The difference is that the four aggravators under the
2014 version were found in subsection (b), rather than subsection (a). That marked a change
from the pre-2014 version of the statute, which listed the aggravators under subsection (a). In
2017, the statute was amended to again list the aggravators under subsection (a). For consistency
with the pre-2014 and post-2017 versions of the statute, then, we cite to the aggravators as if they
were listed under subsection (a).
       2
           Shepard v. United States, 544 U.S. 13 (2005).
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(“O.C.G.A. § 16-5-21(a) clearly is divisible as to the aggravator component of the

statute.”). Patmon concedes that he was convicted of aggravated assault with a

deadly or dangerous object under § 16-5-21(a)(2).

      In Patmon’s view, a conviction under § 16-5-21(a)(2) does not qualify as a

crime of violence under either the elements clause or the enumerated-offenses

clause. He asserts that § 16-5-21(a)(2) fails under the elements clause because a

defendant can be convicted without proof of intent to use, threaten, or attempt to

use physical force. Rather, all the state must prove is that the defendant intended

the acts that caused another to reasonably apprehend violent injury. It also fails

under the enumerated-offenses clause, according to Patmon, because both the mens

rea element and the “deadly object” element are broader than the generic version

of aggravated assault.

      As Patmon acknowledges, however, his challenge fails in light of Morales-

Alonso. In that case, we addressed whether Georgia aggravated assault qualified as

a crime of violence under U.S.S.G. § 2L1.2, which, like § 4B1.2, defines the term

in part by listing several offenses, including “aggravated assault.”       Morales-

Alonso, 878 F.3d at 1314–15. Compare U.S.S.G. § 2L1.2, cmt. n.1(B)(iii), with

U.S.S.G. § 4B1.2(a)(2). We explained that “a conviction only constitutes a crime

of violence under the enumerated offenses clause . . . if the elements of the statute




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of conviction are the same as, or narrower than, the generic version of the

enumerated offense.” Morales-Alonso, 878 F.3d at 1315.

        Undertaking that analysis, we first determined that generic aggravated

assault had two elements: (1) a “criminal assault” that (2) is “accompanied by

either ‘the intent to cause serious bodily injury to the victim or the use of a deadly

weapon.’” Id. (quoting Palomino Garcia, 606 F.3d at 1332). We then turned to

Georgia’s aggravated-assault statute, concluding that the “aggravator component”

of § 16-5-21(a) is “divisible.” Id. at 1316. We therefore applied the modified

categorical approach and determined that Morales-Alonso was convicted of

aggravated assault with a deadly object under § 16-5-21(a)(2). Id. at 1316–17.

        We then compared the elements of aggravated assault with a deadly object

under § 16-5-21(a)(2) with generic aggravated assault, holding that subsection

(a)(2) contains substantially the same elements as generic aggravated assault. Id.

at 1317–20.     We found that § 16-5-21(a)(2), like generic aggravated assault,

required proof of an assault accompanied by the use of a deadly weapon. Id. at

1318.    And we rejected Morales-Alonso’s argument that the “deadly object”

element of the Georgia statute was broader than the generic version. Id. at 1319.

We explained that the statute did not plausibly “encompass[] the use of an object

that happens to cause injury in a particular case, regardless of the manner in which

the object is used and even if injury is unlikely.” Id. Concluding that the elements


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of § 16-5-21(a)(2) sufficiently matched the elements of generic aggravated assault,

we held that a conviction under § 16-5-21(a)(2) qualifies as a crime of violence

under the enumerated-offenses clause. Id. at 1320.

      Though Morales-Alonso concerned § 2L1.2 of the Sentencing Guidelines, its

analysis extends to § 4B1.2. This is so because both § 2L1.2 and § 4B1.2 define

“crime of violence” by listing the generic offense of “aggravated assault.” See

United States v. Lockley, 632 F.3d 1238, 1242 (11th Cir. 2011) (“Where . . . the

Guidelines specifically designate a certain offense as a ‘crime of violence,’ we

compare the elements of the crime of conviction to the generic form of the offense

. . . .”). Thus, our determination in Morales-Alonso that Georgia aggravated

assault under § 16-5-21(a)(2) qualifies as a “crime of violence” under § 2L1.2

means that it also qualifies as a “crime of violence” under § 4B1.2. And because it

qualifies as a crime of violence under § 4B1.2, the district court properly relied on

Patmon’s conviction under § 16-5-21(a)(2) to apply the enhanced base offense

level under § 2K2.1(a)(2).

      Patmon argues that Morales-Alonso was wrongly decided, but, as he

acknowledges, we are bound by that decision here. See United States v. Vega-

Castillo, 540 F.3d 1235, 1236 (11th Cir. 2008) (prior panel decisions are binding

unless and until they are overruled by the Supreme Court or this Court en banc).

The fact that Morales-Alonso did not address his argument that the mens rea


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element is overbroad does not change its binding nature. See United States v. Lee,

886 F.3d 1161, 1163 n.3 (11th Cir. 2018) (“It does not matter whether a prior case

was wrongly decided; whether it failed to consider certain critical issues or

arguments; or whether it lacked adequate legal analysis to support its

conclusions.”).

      In sum, Patmon’s Georgia aggravated-assault conviction under O.C.G.A.

§ 16-5-21(a)(2) qualifies as a crime of violence under § 4B1.2’s enumerated-

offenses clause. This conviction, along with his prior conviction for delivery of

cocaine, which he does not dispute is a controlled-substance offense, supported the

district court’s application of the enhanced base offense level under § 2K2.1(a)(2).

Therefore, we need not and do not address whether § 16-5-21(a)(2) qualifies under

the elements clause. We affirm Patmon’s sentence.

      AFFIRMED.




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