           Case: 16-17533   Date Filed: 10/18/2017   Page: 1 of 5


                                                       [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-17533
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 1:16-cr-20286-MGC-1



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

versus

JONATHAN ROBERT TARVER,

                                             Defendant - Appellant.

                      ________________________

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

                            (October 18, 2017)

Before MARTIN, JORDAN, and ANDERSON, Circuit Judges.

PER CURIAM:
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       Jonathan Tarver appeals his 180-month sentence, imposed below the

applicable advisory guidelines range, after he pled guilty to two counts of being a

felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e).

Because binding precedent forecloses each of his arguments on appeal, and he has

not shown that the district court imposed an unreasonable sentence, we affirm.

                                              I

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

violent felony under the Armed Career Criminal Act. See United States v. Day,

465 F.3d 1262, 1264 (11th Cir. 2006).

       The ACCA carries a mandatory minimum sentence of 15 years’

imprisonment for a § 922(g) offense when a defendant has been previously

convicted of a violent felony or a serious drug offense on three separate occasions.

See 18 U.S.C. § 924(e)(1). In this case, Mr. Tarver had three ACCA-qualifying

predicate offenses. Although the district court varied slightly below the advisory

guidelines range, it sentenced him to the statutory minimum of 15 years’ (or 180

months’) imprisonment.1

       Mr. Tarver does not challenge his aggravated assault conviction, but

contends that his two Florida aggravated battery convictions are not violent


1
  Based on a total offense level of 31 and a criminal history category of VI, the advisory
guidelines range was 188 to 235 months’ imprisonment. Mr. Tarver’s predicate offenses
included an aggravated assault with a deadly weapon and two convictions for aggravated battery.
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felonies under the ACCA. He admits, however, that his argument is foreclosed by

binding circuit precedent. See Turner v. Warden Coleman FCI, 709 F.3d 1328,

1341 (11th Cir. 2013), abrogated on other grounds by Johnson v. United States,

135 S. Ct. 2551 (2015) (holding that a Florida aggravated battery committed by the

“intentional or knowing causation of great bodily harm . . . [or] . . . the use of a

deadly weapon” qualifies as a violent felony under the elements clause of the

ACCA). See also United States v. Golden, 854 F.3d 1256, 1256–57 (11th Cir.

2017) (recognizing that Turner’s validity has been called into question in light of

more recent Supreme Court cases, but that we do not have the authority to

disregard it under the prior panel precedent rule), cert. pet. filed, No. 17-5050 (U.S.

June 21, 2017). 2

       Mr. Tarver also argues that “the ACCA sentence imposed on him violates

his rights under the Fifth and Sixth Amendments,” see Appellant’s Br. at 17, but

concedes that his argument is foreclosed by Supreme Court precedent, and raises

the issue only to preserve it for further review. See Almendarez-Torres v. United

States, 523 U.S. 224, 226–27 (1998) (holding that, for sentencing purposes, the

government does not need to allege a defendant’s prior conviction or prove the fact

2
 There is no dispute that Mr. Tarver was charged under Fla. Stat. § 784.045(1)(a) for both of the
aggravated battery convictions. Mr. Tarver’s primary argument is that it is unclear whether he
was charged under subsection (1)(a)(1) or subsection (1)(a)(2) of that statute for one of the
convictions. The government correctly points out that this distinction is irrelevant because
Turner determined that both subsections qualify as violent felonies under the elements clause.
See Turner, 709 F.3d at 1341. Mr. Tarver, moreover, has not attempted to show that he may
have been charged under Fla. Stat. § 784.045(1)(b) (battery of a pregnant woman).
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of a prior conviction where that fact “is not an element of the present crime”). See

also United States v. Weeks, 711 F.3d 1255, 1259 (11th Cir. 2013) (explaining that

Almendarez-Torres remains good law and “binding until it is overruled by the

Supreme Court”).

      Because we are bound by the decisions of prior panels until overruled by this

court sitting en banc or by the Supreme Court, see United States v. Steele, 147 F.3d

1316, 1317–18 (11th Cir. 1998) (en banc), and by decisions of the Supreme Court,

we affirm Mr. Tarver’s classification as an armed career criminal.

                                         II

      We review the reasonableness of sentences under a deferential abuse of

discretion standard. See Gall v. United States, 552 U.S. 38, 41 (2007). We first

consider procedural unreasonableness and then determine whether the sentence is

substantively reasonable in light of the circumstances. Id. at 51.

      The party challenging the sentence bears the burden of showing that it is

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

States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). We will vacate a sentence

only 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 by arriving

at a sentence that lies outside the range of reasonable sentences dictated by the

facts of the case.” United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en


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banc) (internal quotation marks and citation omitted). In general, a district court

“shall impose a sentence sufficient, but not greater than necessary to comply with

the purposes” listed in § 3553(a), including “the nature and circumstances of the

offense and the history and characteristics of the defendant . . . the kinds of

sentences available [and] . . . the sentencing range established.” §§ 3553(a)(1),

(a)(3), (a)(4). The § 3553(a) factors, however, do not permit a district court to

impose a sentence below an applicable statutory mandatory minimum. See United

States v. Castaing-Sosa, 530 F.3d 1358, 1362 (11th Cir. 2008).

      Here, Mr. Tarver has not attempted to show that the district court committed

procedural error or that his sentence is substantively unreasonable in light of the

§ 3553(a) factors. Instead, he makes a conclusory statement that because his

“sentence is based on an improper ACCA enhancement[,]” it is both procedurally

and substantively unreasonable. See Appellant’s Br. at 19. In any event, the

district court considered the nature and circumstances of the offense, the testimony

about Mr. Tarver’s characteristics, and varied below the applicable advisory

guidelines range. Given that Mr. Tarver had three ACCA-qualifying offenses, the

district court was not permitted to vary below the mandatory minimum of 180

months’ imprisonment. See Castaing-Sosa, 530 F.3d at 1362.

      AFFIRMED.




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