         Case: 15-15624   Date Filed: 01/24/2017   Page: 1 of 10


                                                                    [PUBLISH]



          IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 15-15624
                       Non-Argument Calendar
                     ________________________

                D.C. Docket No. 9:15-cr-80087-RLR-1



UNITED STATES OF AMERICA,

                                            Plaintiff - Appellee,

versus

WARREN TRAVIS GOLDEN,

                                            Defendant - Appellant.

                     ________________________

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

                          (January 24, 2017)
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Before JORDAN and JILL PRYOR, Circuit Judges, and PROCTOR, * District
Judge.

PER CURIAM:

       The issue in this appeal is whether a Florida conviction for aggravated

assault, see Fla. Stat. § 784.021, constitutes a “crime of violence” under U.S.S.G.

§ 2K2.1(a)(2) cmt. n.1 (incorporating the definition of “crime of violence” from

U.S.S.G. § 4B1.2). Mr. Golden contends that it does not, but his argument is

foreclosed by our precedent. See Turner v. Warden Coleman FCI, 709 F.3d 1328,

1337–38 & n.6 (11th Cir. 2013). Although Turner addressed the “elements” clause

of the ACCA, 18 U.S.C. § 924(e)(2)(B)(i), that clause is identical to the elements

clause of § 4B1.2(a)(1). See United States v. Fritts, 841 F.3d 937, 940 (11th Cir.

2016). As a result, Turner is binding.

       Mr. Golden argues that Turner did not correctly apply United States v.

Palomino Garcia, 606 F.3d 1317 (11th Cir. 2010). And some members of our

court have questioned the continuing validity of Turner in light of cases like

Descamps v. United States, 133 S. Ct. 2276 (2013). See In re Hunt, 835 F.3d

1277, 1288 (11th Cir. 2016) (Jill Pryor, J., concurring, joined by Wilson and

Rosenbaum, JJ.). But even if Turner is flawed, that does not give us, as a later

panel, the authority to disregard it. See Smith v. GTE Corp., 236 F.3d 1292, 1303


       *
        The Honorable R. David Proctor, United States District Judge for the Northern District
of Alabama, sitting by designation.
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(11th Cir. 2001) (“[W]e categorically reject any exception to the prior panel

precedent rule based upon a perceived defect in the prior panel’s reasoning or

analysis as it relates to the law in existence at that time.”).

      AFFIRMED.




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JILL PRYOR, Circuit Judge, concurring in result:

         I concur in the majority opinion because I agree that as a panel we remain

bound to follow Turner v. Warden Coleman FCI (Medium), 709 F.3d 1328 (11th

Cir. 2013), which dictates that we uphold Mr. Golden’s sentence enhancement

based on his prior Florida conviction for aggravated assault. I write separately to

urge that the Court rehear this case en banc to revisit Turner. Below, I explain

why Turner’s holding was in tension with prior binding precedent and why, in

light of intervening Supreme Court decisions, Turner should be overruled.

    I.      Turner’s Analysis Was Inconsistent with Then-Binding Circuit
            Precedent.

         In Turner, this Court held that a conviction under Florida’s aggravated

assault statute qualifies categorically as a violent felony under the Armed Career

Criminal Act (“ACCA”) because the offense “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); Turner, 709 F.3d at 1341. 1 Turner’s analysis categorizing

Florida aggravated assault as a violent felony under ACCA’s so-called “elements

clause” was as follows:



1
  As the majority opinion recognizes, Turner binds us even though it concerned the definition of
“violent felony” under ACCA, § 924(e), and Mr. Golden’s appeal concerns the definition of
“crime of violence” under the Sentencing Guidelines, U.S.S.G. § 4B1.2(a)(1) (amended 2016).
See United States v. Oliver, 20 F.3d 415, 418 (11th Cir. 1994) (“Precisely the same analytical
framework applied by the courts in ascertaining the scope of a ‘crime of violence’ logically
obtains with respect to the question of what kind of conduct comprises a ‘violent felony.’”).
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       [T]he underlying facts of Turner’s conviction are unnecessary to
       classify Florida aggravated assault as a violent felony here, because
       by its definitional terms, the offense necessarily includes an assault,
       which is “an intentional, unlawful threat by word or act to do violence
       to the person of another, coupled with an apparent ability to do so.”
       [Fla. Stat. § 784.011] (emphasis supplied). Therefore, a conviction
       under section 784.021 will always include “as an element the . . .
       threatened use of physical force against the person of another,” and
       Turner’s conviction for aggravated assault thus qualifies as a violent
       felony . . . .

709 F.3d at 1338 (citation omitted).2 Turner was right to apply a categorical

approach—that is, looking only to the statutory elements of the offense, without

reference to the facts of the defendant’s actual crime—in determining whether

Florida’s aggravated assault statute satisfies the elements clause. See Moncrieffe v.

Holder, 133 S. Ct. 1678, 1684 (2013). For the offense to satisfy the definition of

“violent felony” under the elements clause, “the least of the acts criminalized”

must have as an element the actual, attempted, or threatened use of physical force

against another person. Id. (alteration and internal quotation marks omitted).

       Turner reached the wrong conclusion, however, because it failed to consider

the least of the acts Florida criminalizes in its aggravated assault statute. In

Turner, the court assumed based on the wording of the Florida statute that the

offense of aggravated assault necessarily involves an intentional act—a mens rea

2
  Under Florida law, simple assault is elevated to aggravated assault if it is committed (1) “[w]ith
a deadly weapon without intent to kill” or (2) “[w]ith an intent to commit a felony.” Fla. Stat.
§ 784.021. Florida’s simple assault statute contains the operative intent element that Turner
analyzed. See id. § 784.011. The intent element is the same for both simple and aggravated
assault.
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the elements clause requires.3 See United States v. Palomino Garcia, 606 F.3d

1317, 1334-36 (11th Cir. 2010) (emphasizing that “use of physical force” in the

elements clause can only be satisfied by intentional conduct). In making this

assumption without consulting Florida caselaw, Turner overlooked our earlier

holding that, “in determining whether a conviction . . . is a ‘crime of violence’ for

sentencing enhancement purposes, we are bound by Florida courts’ determination

and construction of the substantive elements of that state offense.” United States v.

Rosales-Bruno, 676 F.3d 1017, 1021 (11th Cir. 2012).

       If in Turner we had looked to Florida caselaw, we would have found that the

State may secure a conviction under the aggravated assault statute by offering

proof of less than intentional conduct, including recklessness. See, e.g., Kelly v.

State, 552 So. 2d 206, 208 (Fla. Dist. Ct. App. 1989) (“Where . . . there is no proof

of intentional assault on the victim, that proof may be supplied by proof of conduct

equivalent to culpable negligence . . . or by proof of willful and reckless disregard

for the safety of others.”); LaValley v. State, 633 So. 2d 1126, 1127 (Fla. Dist. Ct.

App. 1994). 4 And under our own binding precedent, “a conviction predicated on a

mens rea of recklessness does not satisfy the ‘use of physical force’ requirement”

of the elements clause. Palomino Garcia, 606 F.3d at 1336.
3
  This assumption was understandable: neither party in Turner made the argument I advance
here, and the law in this area was far less developed than it is today. See infra Part II.
4
  We generally defer to the holdings of a state’s intermediate courts when no state supreme court
precedent exists. See Molinos Valle Del Cibao, C. por A. v. Lama, 633 F.3d 1330, 1348 (11th
Cir. 2011), cited with approval in Rosales-Bruno, 676 F.3d at 1021.
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          Turner’s holding that Florida aggravated assault categorically qualifies as a

violent felony under the elements clause was in conflict with Rosales-Bruno,

Palomino Garcia, and Florida law. We as a panel cannot remedy this conflict. See

United States v. Steele, 147 F.3d 1316, 1317-18 (11th Cir. 1998) (en banc) (“Under

our prior precedent rule, a panel cannot overrule a prior one’s holding even though

convinced it is wrong.”). But the en banc Court can, and in my view this case

presents us with a good opportunity to do so,5 particularly since a trio of recent

Supreme Court decisions, taken together, make clear that Turner rests on an

unsound analytical framework.

    II.      Intervening Supreme Court Precedent Confirms that Turner’s
             Analysis Cannot Be Correct.

          Just months after Turner was decided, the Supreme Court decided the first of

three cases that in combination illustrate the problem with our prior panel

decision’s analysis. Specifically, these three cases—Moncrieffe v. Holder,

Descamps v. United States, and Mathis v. United States—confirm that we were

right in Rosales-Bruno to consider state court decisions interpreting the elements of

a state’s criminal statute and mistaken in Turner to overlook this critical analytical

step.

5
  The government has not asked us to sidestep the elements clause question by resolving this case
on an alternative ground such as whether Mr. Golden’s aggravated assault conviction qualifies as
a crime of violence because it “involves conduct that presents a serious potential risk of physical
injury to another,” the so-called “residual clause” of guidelines’ definition of “crime of
violence.” U.S.S.G. § 4B1.2(a)(2); see Appellee’s Br. at 14.
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      The first of these three cases arose in a context distinct but nonetheless

analogous to Turner and Mr. Golden’s case. In Moncrieffe v. Holder, the Supreme

Court considered whether a Georgia conviction for “the social sharing of a small

amount of marijuana” was equivalent to the generic federal offense of illicit drug

trafficking and therefore an “aggravated felony” under the Immigration and

Nationality Act. 133 S. Ct. at 1682. The Court concluded that it was not. Just as

we relied on decisions of Florida’s appellate courts in Rosales-Bruno, the Supreme

Court in Moncrieffe consulted Georgia caselaw construing the crime of possession

with intent to distribute marijuana to determine that the least of the acts the state

law criminalized was not encompassed by the generic illicit drug trafficking

offense. Id. at 1684-86.

      Not long after Moncrieffe, the Supreme Court clarified that federal courts

construing state criminal statutes for purposes of deciding whether the state

criminal offense constituted a violent felony under ACCA must “focus on the

elements, rather than the facts, of a crime.” Descamps v. United States, 133 S. Ct.

2276, 2285 (2013). In Descamps, the Court expressly left unanswered “the

question whether, in determining a crime’s elements, a sentencing court should

take account not only of the relevant statute’s text, but of judicial rulings

interpreting it.” Id. at 2291. Our Court, noting that “[t]he Descamps decision did

nothing to undermine the holding of our Rosales–Bruno decision,” continued to


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rely on state judicial rulings interpreting state criminal statutes when deciding

whether those crimes constituted violent felonies. United States v. Howard, 742

F.3d 1334, 1346 n.5 (11th Cir. 2014); see United States v. Lockett, 810 F.3d 1262,

1270 (11th Cir. 2016) (“What elements South Carolina prosecutors are required to

prove for a burglary conviction is a question of South Carolina law. And so we

look to the state’s courts to answer this question.” (citing Howard, 742 F.3d at

1346)).

      This year, the Supreme Court decided Mathis v. United States, which

demonstrates that Rosales-Bruno was rightly decided and should be followed in

cases like Mr. Golden’s. 136 S. Ct. 2243 (2016). In Mathis, the Supreme Court

answered the question left open in Descamps, instructing federal courts seeking to

determine a state crime’s elements to follow any “state court decision” that

“definitively answers that question.” Id. at 2256. Mathis is not clearly on point

with Turner and Mr. Golden’s case because it considered a different definition of

violent felony—the one found in the “enumerated crimes” rather than the

“elements” clause. See United States v. Archer, 531 F.3d 1347, 1352 (11th Cir.

2008) (noting that an intervening Supreme Court decision must be “clearly on

point” to abrogate a prior panel decision of this Court (internal quotation marks

omitted)). But Mathis nonetheless reaffirmed the principle we set out in Rosales-




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Bruno: we look to authoritative state court decisions to decide whether the least of

the acts a state statute criminalizes constitutes a crime of violence.

      In affirming the validity of our Rosales-Bruno holding, Mathis shows us that

Turner’s analysis was incorrect. Had Turner looked to the elements of aggravated

assault under Florida law as interpreted by Florida courts, it would have been clear

that the offense cannot qualify as a violent felony under the elements clause

because a conviction can be obtained where the defendant merely was reckless. In

the wake of the Supreme Court’s decision in Johnson v. United States, 135 S. Ct.

2551 (2015), district courts throughout the circuit are undertaking resentencing

proceedings where they are tasked with deciding anew whether a defendant’s prior

convictions were for crimes of violence justifying an enhanced sentence. Circuit

law should not compel district courts to continue applying Turner now that the

Supreme Court has revealed the error of Turner’s approach. Although I am bound

to concur in the judgment in this case, I believe we as a full court should use it as

an opportunity to overrule Turner and square our precedent with our own earlier

precedents, Florida law, and the Supreme Court’s recent decisions.




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