           Case: 17-13229   Date Filed: 05/08/2019   Page: 1 of 9


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-13229
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 1:16-cr-20956-MGC-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

CHRISTOPHER STACY,

                                                         Defendant-Appellant.

                      ________________________

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

                              (May 8, 2019)

Before MARTIN, NEWSOM, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Christopher Stacy appeals his 180-month sentence imposed after pleading

guilty to possession of a firearm and ammunition by a previously convicted felon,

in violation of 18 U.S.C. § 922(g)(1). On appeal, he argues that because Florida

robbery and Florida attempted carjacking are not categorically violent felonies, and

should not have been used as predicate offenses for purposes of the Armed Career

Criminal Act (“ACCA”), he does not have the requisite number of predicate

offenses for the armed career criminal designation to apply. The government

responds, however, that Stacy’s argument against attempted carjacking should be

reviewed for plain error because he presents a different legal theory on appeal

regarding attempt that was not preserved before the district court.

      We review de novo whether a particular conviction qualifies as a violent

felony under the ACCA. United States v. Seabrooks, 839 F.3d 1326, 1338 (11th

Cir. 2016). Federal law determines the meaning of the ACCA, while we are bound

by the Florida Supreme Court’s interpretation of its state law offenses. Curtis

Johnson v. United States, 559 U.S. 133, 138 (2010) (“Curtis Johnson”). We apply

the same analysis for both ACCA violent felonies and crime of violence under the

Sentencing Guidelines. United States v. Lockley, 632 F.3d 1238, 1243 n.5 (11th

Cir. 2011).

      We review for plain error issues which the defendant failed to preserve for

appeal. United States v. Ramirez-Flores, 743 F.3d 816, 821 (11th Cir. 2014). “To


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preserve an issue for appeal, one must raise an objection that is sufficient to apprise

the trial court and the opposing party of the particular grounds upon which

appellate relief will later be sought.” United States v. Straub, 508 F.3d 1003, 1011

(11th Cir. 2007) (internal quotations omitted).

      Where, as here, a defendant is convicted of violating 18 U.S.C. § 922(g), the

ACCA imposes a heightened mandatory minimum prison sentence if he has three

prior convictions for either violent felonies or serious drug offenses. 18 U.S.C.

§ 924(e)(1)(B). The ACCA defines a “violent felony” as any crime punishable by

a term of imprisonment 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.

Id. § 924(e)(2)(B) (emphasis added). The first prong of this definition is often

referred to as the “elements” clause, while the second prong contains the

“enumerated crimes” clause followed by what is often referred to as the “residual

clause.” United States v. Owens, 672 F.3d 966, 968 (11th Cir. 2012). Robbery and

carjacking are not listed as enumerated crimes, so neither can satisfy that prong. In

Samuel Johnson v. United States, 135 S. Ct. 2551 (2015), the Supreme Court held

that the residual clause was unconstitutionally vague. 135 S. Ct. at 2257–58

(“Samuel Johnson”).
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      In Curtis Johnson, the Supreme Court defined the physical force required for

a “violent felony” to mean “violent force—that is, force capable of causing

physical pain or injury to another person.” Curtis Johnson, 559 U.S. at 140. Our

test for determining whether an offense calls for the use of physical force under

Curtis Johnson looks to “whether the statute calls for violent force that is capable

of causing physical pain or injury to another.” United States v. Vail-Bailon, 868

F.3d 1293, 1302 (11th Cir. 2017) (en banc).

      Whether a prior conviction is a predicate offense under the ACCA’s

elements clause is determined by applying the categorical approach. Taylor v.

United States, 495 U.S. 575, 600 (1990). The categorical approach requires courts

to assess whether the elements, rather than the individual facts, of the statute of

conviction in its ordinary case contains the same elements as the federal generic

offense, or is defined even more narrowly than the federal generic. Descamps v.

United States, 570 U.S. 254, 261 (2013); see Samuel Johnson, 135 S. Ct. at 2582

(adding language to assess the statute of conviction “in the ordinary case”). Under

the categorical approach, we examine the statute of conviction to determine

whether that conviction necessarily “ha[d] as an element the use, attempted use, or

threatened use of physical force against the person of another.” 18 U.S.C.

§ 924(e)(2)(B)(i); Moncrieffe v. Holder, 569 U.S. 184, 190 (2013). Whether a




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person actually used, attempted to use, or threatened to use physical force is

irrelevant. Id.

      We will address each statute of conviction in turn.

(i) Florida Robbery Conviction

      In Fritts, we held that a Florida conviction for robbery is a violent felony

under the elements clause of the ACCA. United States v. Fritts, 841 F.3d 937,

942-44 (11th Cir. 2016); see § 812.13, Fla.Stat. (2017). We have held that all

Florida robbery convictions under § 812.13, even without a firearm, qualify as a

crime of violence. Lockley, 632 F.3d at 1245; see Fritts, 841 F.3d at 940–42

(reaffirming Lockley post-Samuel Johnson, 135 S. Ct. 2551).

      Our binding circuit precedent thus forecloses Stacy’s argument. See Fritts,

841 F.3d at 942. Fritts involved the ACCA and the term “violent felony,” while

Lockley involved the career offender provisions of the Guidelines, U.S.S.G. §§

4B1.1 and 4B1.2, and the term “crime of violence.” The cases held that Florida

robbery under Fla. Stat. § 812.13 qualifies, under the elements clause and the

categorical approach, as a “violent felony” (in Fritts, 841 F.3d at 942-44), and as

a “crime of violence” (in Lockley, 632 F.3d at 1244-45). We apply the same

analysis in both situations. Lockley, 632 F.3d at 1243 n.5. Florida robbery, in

violation of Fla. Stat. § 812.13, is categorically a violent felony under the

ACCA’s elements clause and may serve as a predicate crime of violence offense.


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Accordingly, we affirm the district court’s use of Stacy’s two prior Florida

robbery convictions as predicate offenses under the ACCA.

(ii) Florida Attempted Carjacking Offense

      Florida carjacking is defined as:

      the taking of a motor vehicle which may be the subject of larceny
      from the person or custody of another, with intent to either
      permanently or temporarily deprive the person or the owner of the
      motor vehicle, when in the course of the taking there is the use of
      force, violence, assault, or putting in fear.

§ 812.133, Fla.Stat. (2017) (emphasis added). The Florida Supreme Court has

determined that “the carjacking statute mirrors the language of the robbery

statute:” both have the same elements except that carjacking is narrower, with a

specific subject of the robbery, a car. See Cruller v. State, 808 So. 2d 201, 204

(Fla. 2002) (assessing whether a charge for both robbery and carjacking violated

double jeopardy).

      Attempt under Florida law is defined as “a person who attempts to commit

an offense prohibited by law and in such attempt does any act toward the

commission of such offense, but fails in the perpetration or is intercepted or

prevented in the execution thereof.” § 777.04(1), Fla. Stat.

      We have adopted the Model Penal Code (“MPC”) definition of attempt as

the federal generic definition for purposes of the categorical rule. See Lockley, 632

F.3d at 1244 n.6. The MPC definition of attempt requires “an act or omission


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constituting a substantial step in a course of conduct planned to culminate in his

commission of the crime.” Id. (quoting MODEL PENAL CODE § 5.01(1)) (internal

quotations omitted). We held in Lockley that Florida’s attempt statute is a

categorical match to generic attempt because Florida attempt requires an overt act,

instead of mere preparation. Id.

      In Lockley, we held that attempted robbery was categorically a crime of

violence under the “elements” clause of § 4B1.2. Lockley, 632 F.3d at 1245; see

also Fritts, 841 F.3d at 942 (reaffirming Lockley post-Samuel Johnson).

Regarding its attempt, we noted that Florida robbery required “the use of force,

violence, a threat of imminent force or violence coupled with apparent ability, or

some act that puts the victim in fear of death or great bodily harm,” and then

elaborated, that “we find it inconceivable that any act which causes the victim to

fear death or great bodily harm would not involve the use or threatened use of

physical force.” Lockley, 632 F.3d at 1245; see Cruller, 808 So. 2d at 204

(equating the elements of Florida robbery and carjacking).

      We agree with the government that Stacy did not properly preserve for

appeal the particular challenge he raises on appeal with respect to his prior Florida

conviction for attempted carjacking. Thus, we review for plain error. As Stacy

concedes, whether Florida attempted carjacking is a violent felony is an open

question in this Circuit. Therefore, because there is no binding case law, there can


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be no plain error. Straub, 508 F.3d at 1011. Moreover, there is a very strong

argument that Florida attempted carjacking involves the required physical force

and is categorically a violent felony. Florida’s interpretation that carjacking is a

narrower subset of robbery, with the same force elements, leads to the

determination that our assessment of Florida carjacking should follow our earlier

categorical assessments of Florida robbery as a violent felony. See Fritts, 841 F.3d

at 942; Cruller, 808 So. 2d at 204. Florida robbery is a categorical match to the

federal generic definition and, therefore, carjacking is a categorical match too

because it is defined even more narrowly by the state supreme court than the

federal generic offense. Descamps, 133 S. Ct. at 2283; Cruller, 808 So. 2d at 204.

We have also already found attempt in Florida to be a categorical match with

generic attempt. Lockley, 632 F.3d at 1244 n.6. Taking these two principles

together, because Florida attempt is a categorical match to the federal generic, and

Florida carjacking follows our cases regarding Florida robbery under the ACCA, it

is probable that—when this Court is faced with the issue on de novo review— we

will probably hold that attempted Florida carjacking is categorically a violent

crime under the ACCA. Accordingly, it was not plain error for the district court to

use Stacy’s prior Florida attempted carjacking conviction as a predicate offense

under the ACCA.




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      In sum, the district court correctly found that Stacy’s two prior convictions

of Florida robbery were violent felonies, and it was not plain error for the district

court to hold that the Florida attempted carjacking conviction was a violent felony,

and to designate Stacy an armed career offender. Accordingly, we affirm.

      AFFIRMED.




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