             Case: 15-13360    Date Filed: 07/08/2016   Page: 1 of 8


                                                           [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 15-13360
                            Non-Argument Calendar
                          ________________________

                     D.C. Docket No. 9:15-cr-80013-KAM-1



UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                     versus

PRESNER TELUSME,

                                                            Defendant-Appellant.

                          ________________________

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

                                  (July 8, 2016)

Before HULL, WILLIAM PRYOR and ROSENBAUM, Circuit Judges.

PER CURIAM:

      Presner Telusme is a federal prisoner serving a 180-month sentence for

possession of a firearm by a convicted felon. On appeal, Telusme challenges his
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designation as an armed career criminal under the Armed Career Criminal Act

(“ACCA”), 18 U.S.C. § 924(e), claiming that he does not have the three requisite

qualifying predicate convictions. After a careful review of the record and the

parties’ briefs, we affirm Telusme’s sentence.

                                I. BACKGROUND

      In 2015, a federal grand jury indicted Telusme for possession of a firearm

and ammunition by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and

924(e). Telusme pled guilty to possessing the firearm that year and a probation

officer prepared a presentence investigation report (“PSI”). The PSI assigned

Telusme a base offense level of 24 under U.S.S.G. § 2K2.1(a)(2) and gave him a 2-

level increase under U.S.S.G. § 2K2.1(b)(4)(A) because the firearm involved in the

offense was stolen. The PSI further reported that Telusme qualified as an armed

career criminal because he had these three predicate felony convictions under

Florida law: (1) one conviction for resisting an officer with violence, in violation

of Fla. Stat. § 843.01; and (2) two convictions for sale of cocaine, in violation of

Fla. Stat. § 893.13(1)(a).

      According to the PSI, Telusme’s conviction for resisting an officer with

violence occurred during a traffic stop. An officer pulled Telusme over and, as the

officer approached the vehicle, Telusme put the car in reverse and attempted to run

over the officer. Afterward, Telusme tried to ram the patrol car and flee from the


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scene. Telsume eventually abandoned his car when it spun out, and he continued

fleeing on foot. When the officer caught up to him, Telusme swung his fists and

kicked at the officer. Telusme did not object to these facts in the PSI.

       Due to Telusme’s designation as an armed career criminal, his offense level

increased to 33, pursuant to U.S.S.G. § 4B1.4. With a 3-point reduction for

acceptance of responsibility, his total offense level was 30. Telusme had 19 prior

convictions, resulting in 20 criminal history points and a criminal history category

of VI. Taking this together, his advisory guidelines range was 180 to 210 months’

imprisonment.

       Telusme did object to the PSI based on a claim that he did not have enough

qualifying prior convictions to support an ACCA enhancement. 1 Telusme argued

that resisting an officer with violence did not qualify as a “violent felony” under

the elements clause in the ACCA because the crime did not contain a “heightened

or particularized intent” element with respect to the use of force. Telusme

recognized that his argument was foreclosed by United States v. Romo-Villalobos,

674 F.3d 1246 (11th Cir. 2012), but stated that he wished to preserve it for future

review.


       1
        The PSI also stated that Telusme had two convictions for fleeing or attempting to elude
under Fla. Stat. § 316.1935(2), which could serve as ACCA-predicate offenses. Both times,
Telusme was driving on a suspended license and fled when officers conducted a traffic stop.
However, by the time of sentencing, the U.S. Supreme Court had invalidated the residual clause,
and the government conceded that the Florida crime of fleeing or attempting to elude was no
longer a violent felony. See Johnson v. United States, 576 U.S. ___, 135 S. Ct. 2551 (2015).
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      At the sentencing hearing, Telusme added that the Florida statute

criminalizing resisting an officer with violence did not require sufficient “violent

force” to qualify as an ACCA-predicate offense. Telusme also claimed that Romo-

Villalobos was wrongly decided and abrogated by recent Supreme Court

precedent.

      As to his two Florida sale of cocaine convictions, Telusme contended in his

objections to the PSI that sale of cocaine was not an ACCA “serious drug offense”

because Florida’s drug statute, Fla. Stat. § 893.13, did not contain a mens rea

element as to the illicit nature of the substance sold. Telusme recognized,

however, that his mens rea argument was foreclosed by United States v. Smith,

775 F.3d 1262 (11th Cir. 2014), and stated that he was raising the claim to preserve

it for further review.

      The district court overruled Telusme’s objections and sentenced him to 180

months, which was the low end of his advisory guidelines range. Telusme now

appeals his sentence.

                                 II. DISCUSSION

      Normally, a defendant convicted of being a felon in possession of a firearm

faces a 120-month maximum sentence. 18 U.S.C. § 924(a)(2). However, under

the ACCA, when the defendant has 3 prior convictions “for a violent felony or a

serious drug offense,” he faces an enhanced statutory penalty of 180 months to life.


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Id. § 924(e)(1). Whether a defendant’s prior convictions are ACCA-predicate

offenses is a question this Court reviews de novo. See United States v. Robinson,

583 F.3d 1292, 1294 (11th Cir. 2009).

A.    Sale of Cocaine

      The ACCA defines a “serious drug offense” as, inter alia, “an offense under

State law, involving manufacturing, distributing, or possessing with intent to

manufacture or distribute, a controlled substance . . . for which a maximum term of

imprisonment of ten years or more is prescribed by law.” 18 U.S.C.

§ 924(e)(2)(A)(ii). Under Florida law, it is a crime to “sell, manufacture, or

deliver, or possess with intent to sell, manufacture, or deliver, a controlled

substance.” Fla. Stat. § 893.13(1)(a).

      In Smith, this Court held that a violation of Fla. Stat. § 893.13(1) is a

“serious drug offense” under § 924(e)(2)(A)(ii) of the ACCA. 775 F.3d at 1268.

This Court pointed out that “[n]o element of mens rea with respect to the illicit

nature of the controlled substance is expressed or implied by” the ACCA’s

definition of “serious drug offense.” Id. at 1267. The Smith Court determined that

the ACCA’s definition was not ambiguous and, therefore, the rule of lenity did not

require it to imply a mens rea element. Id. As such, this Court has already rejected

Telusme’s arguments against using his sale of cocaine convictions as ACCA-

predicate offenses.


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       Telusme asks us not to follow Smith, though, because he believes that the

Smith Court did not consider, or properly consider, the implications of Begay v.

United States, 553 U.S. 137, 128 S. Ct. 1581 (2008), in reaching its holding. Of

course, Smith was decided in 2014, well after Begay, and is binding circuit law.

See In re Lambrix, 776 F.3d 789, 794 (11th Cir. 2015) (stating that this Court has

“categorically rejected an overlooked reason or argument exception to the prior-

panel-precedent rule”).

       We also reject Telusme’s argument that two other post-Smith Supreme

Court cases, Elonis2 and McFadden,3 have abrogated Smith. Those cases did not

involve the ACCA at all, much less the definition of a “serious drug offense” under

the ACCA.

       In sum, we conclude that the district court did not err by using Telusme’s

two Florida sale of cocaine convictions to increase his statutory maximum penalty

under the ACCA. 4




       2
        Elonis v. United States, 575 U.S. ___, 135 S. Ct. 2001 (2015) (holding that 18 U.S.C.
§ 875(c), which criminalizes the transmission of threatening communications in interstate
commerce, requires the government to prove that the defendant was aware of the threatening
nature of the communication).
       3
        McFadden v. United States, 576 U.S. ___, 135 S. Ct. 2298 (2015) (holding that the
Controlled Substance Analogue Enforcement Act of 1986 requires the government to prove that
the defendant knew that he was dealing with a controlled substance).
       4
        The parties contest which standard of review applies to Telusme’s Smith claims, with
the government arguing that Telusme invited any error. We do not resolve this issue because,
even applying de novo review as we do above, Telusme’s arguments fail.
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B.    Resisting an Officer with Violence

      Under the ACCA’s elements clause, a “violent felony” is “any crime

punishable by imprisonment for a term exceeding one year . . . [that] has 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) (emphasis added). Under Florida

law, “[w]hoever knowingly and willfully resists, obstructs, or opposes any

officer . . . in the execution of legal process or in the lawful execution of any legal

duty, by offering or doing violence to the person of such officer . . . is guilty of a

felony of the third degree.” Fla. Stat. § 843.01 (emphasis added).

      In United States v. Hill, this Court concluded that the Florida crime of

resisting an officer with violence, in violation of § 843.01, is a “violent felony”

under the ACCA’s elements clause. 799 F.3d 1318, 1322-23 (11th Cir. 2015)

(relying on Romo-Villalobos, 674 F.3d at 1251, which held that resisting an officer

with violence is a “crime of violence” under the analogous elements clause in the

Sentencing Guidelines). The Hill Court observed that Florida’s courts have held

that violence is an essential element of the crime. Id. at 1322.

      Telusme argues that Moncrieffe v. Holder, 596 U.S. ___, 133 S. Ct. 1678

(2013), Descamps v. United States, 570 U.S. ___, 133 S. Ct. 2276 (2013), and

Leocal v. Ashcroft, 543 U.S. 1, 125 S. Ct. 377 (2004), establish that resisting an

officer with violence does not qualify as an ACCA-predicate offense, but all three


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cases were decided before Hill, a 2015 case directly on point, and none of the cases

involved the Florida statute here. See In re Lambrix, 776 F.3d at 794.

      Moreover, the crux of Telusme’s argument is that Moncrieffe and Descamps

require this Court to consider a Florida state case, State v. Green, 400 So. 2d 1322

(Fla. Dist. Ct. App. 1981), in evaluating the degree of violence required for a

conviction under Fla. Stat. § 843.01. Telusme argues that Green allows a § 843.01

conviction based on the de minimis force of wiggling and struggling. However, as

Telusme admits, the Romo-Villalobos Court already considered Green and rejected

this argument. See Romo-Villalobos, 674 F.3d at 1249 (noting that, in Green, a

Florida appellate court reversed the trial court’s order of dismissal when the

defendant moved pretrial to dismiss the § 843.01 charge on the ground that he

merely wiggled and struggled, but concluding that—given the posture of Green

and the appellate court’s need to construe all evidence in the state’s favor at the

dismissal stage—Green did not establish that de minimis force was sufficient to

establish a violation of § 843.01). Under our precedent, resisting an officer with

violence under § 843.01 is an ACCA “violent felony,” and the district court

correctly sentenced Telusme as an armed career criminal.

                                III. CONCLUSION

      For all of the foregoing reasons, we affirm Telusme’s 180-month sentence.

      AFFIRMED.


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