                                                                  [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                       ELEVENTH CIRCUIT
                                                                       FEBRUARY 15, 2012
                                            No. 10-15947
                                      ________________________             JOHN LEY
                                                                            CLERK

                            D.C. Docket No. 4:10-cr-00010-RH-WCS-1


UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                          Plaintiff - Appellee,

                                                versus

RICARDO DELEON COLON,

llllllllllllllllllllllllllllllllllllllll                       Defendant - Appellant.
                                      ________________________

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

                                           (February 15, 2012)

Before CARNES and HULL, Circuit Judges, and ROTHSTEIN,* District Judge.

PER CURIAM:


         *
         Honorable Barbara Jacobs Rothstein, United States District Judge for the Western
District of Washington, sitting by designation.
       Richard DeLeon Colon appeals the sentence that was imposed on him after

he pleaded guilty to and was convicted of violating 18 U.S.C. § 922(g)(1). His

sole contention is that he was erroneously sentenced under the Armed Career

Criminal Act (ACCA), 18 U.S.C. § 924(e)(1), because the district court erred in

concluding that two of the three convictions that it relied on to find that the Act

applied to him were violent felonies within the meaning of § 924(e)(2)(B)(ii)’s

residual clause.1 Those two convictions that he questions are his 2003 Indiana

conviction for aggravated battery on a law enforcement officer engaged in the

execution of his official duty, resulting in bodily injury, Ind. Code § 35-42-2-

1(a)(2)(A); and his 2003 Indiana conviction for aggravated battery of a person less

than fourteen years of age, resulting in bodily injury, Ind. Code § 35-42-2-

1(a)(2)(B).

       To determine whether those two Indiana convictions qualified as “violent

felonies” for ACCA purposes, the district court applied the modified categorical

approach. See, e.g., Johnson v. United States, 130 S.Ct. 1265, 1273 (2010). In

finding that the crimes did involve violence the court relied on the charging


       1
          The third conviction used to apply the ACCA to Colon was his 1995 Florida conviction
for resisting an officer with violence in violation of Fla. Stat. § 843.01. While he contends that a
conviction under that statute does not qualify as a violent felony, he acknowledges that our
precedent forecloses that contention. See United States v. Nix, 628 F.3d 1341, 1342 (11th Cir.
2010).

                                                 2
documents behind Colon’s two convictions, which may properly be consulted in

applying the modified categorical approach. See Shepard v. United States, 544

U.S. 13, 16, 125 S.Ct. 1254, 1257 (2005). Colon did not argue to the district

court that the modified categorical approach was inapplicable under these

circumstances, but only that under that approach his two Indiana convictions did

not qualify as violent felonies. He was wrong about that, as the district court

concluded. The charging documents showed that violence was involved in each of

his Indiana crimes, and neither the Johnson decision nor the decision in Begay v.

United States, 553 U.S. 137, 128 S.Ct. 1581 (2008), forecloses a finding that the

convictions were for violent felonies.

      In his opening brief in this Court, Colon argued the same position that he

had taken in the district court, which is that under the modified categorical

approach his two Indiana convictions were not violent felonies for ACCA

purposes. In his reply brief, however, for the first time Colon contended that the

district court had erred in applying the modified categorical approach at all. He

argued that approach should be applied only when the statute of conviction

contains alternative means, some violent and some non-violent, by which it may

be violated. The Indiana statute that Colon was convicted of violating did not

contain alternative means but only one means: “touch[ing].” Ind. Code § 35-42-2-

                                          3
1(a)(2)(A)–(B) (“A person who knowingly or intentionally touches another person

in a rude, insolent, or angry manner commits battery . . . a Class D felony if it

results in bodily injury to: (A) a law enforcement officer . . . [or] (B) a person less

than fourteen (14) years of age . . . .”).

       We have never squarely held whether the modified categorical approach for

determining whether a prior conviction is a violent crime for ACCA residual

clause purposes applies where the statute of conviction employs a single term that

covers both violent and non-violent conduct. And we do not decide that issue here

for two reasons. First, the issue was not raised in the district court, and because

there is no binding precedent in Colon’s favor there was no plain error. See

United States v. Chau, 426 F.3d 1318, 1322 (11th Cir. 2005); United States v.

Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003). Second, we do not decide

issues raised for the first time in a reply brief. See United States v. Levy, 379 F.3d

1241, 1244 (11th Cir. 2004); United States v. Dicter, 198 F.3d 1284, 1289 (11th

Cir. 1999).

       AFFIRMED.




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