             Case: 16-11396   Date Filed: 02/05/2018   Page: 1 of 6


                                                          [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 16-11396
                          Non-Argument Calendar
                        ________________________

                   D.C. Docket Nos. 2:15-cv-14405-DMM,
                          2:14-cr-14025-DMM-1


ATNAFU RAS MAKONNEN,

                                                            Petitioner-Appellant,

                                    versus

UNITED STATES OF AMERICA,

                                                          Respondent-Appellee.

                        ________________________

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

                              (February 5, 2018)

Before MARCUS, JULIE CARNES and HULL, Circuit Judges.

PER CURIAM:

     Atnafu Makonnen, a federal prisoner serving a 188-month sentence, appeals

from the district court’s denial of his 28 U.S.C. § 2255 motion to vacate his
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sentence. On appeal, Makonnen argues that he was improperly sentenced under

the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), because his prior

Florida convictions for felony battery, attempted robbery with a firearm, and

attempted first-degree murder with a deadly weapon did not qualify as violent

felonies under the ACCA’s elements clause, which meant that he did not have the

requisite number of prior convictions to be sentenced under the Act. However, he

concedes in his reply brief that our precedent forecloses his claims about felony

battery and attempted armed robbery and that he raises these issues to preserve

them for further appellate review. After careful review, we affirm.

      We review de novo whether a prior conviction qualifies as a “violent felony”

under the ACCA. United States v. Green, 873 F.3d 846, 869 (11th Cir. 2017), cert.

docketed, No. 17-7299 (U.S. Jan. 5, 2018).       The scope of our review of an

unsuccessful § 2255 motion is limited to the issues enumerated in the COA.

McKay v. United States, 657 F.3d 1190, 1195 (11th Cir. 2011). Arguments not

raised on appeal are deemed abandoned. Isaacs v. Head, 300 F.3d 1232, 1246

(11th Cir. 2002). Under the prior panel precedent rule, a prior panel’s holding is

binding on all subsequent panels unless and until it is overruled or undermined to

the point of abrogation by the Supreme Court or by this Court sitting en banc.

United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008).




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      Under the ACCA, a defendant faces a 15-year mandatory minimum sentence

if the defendant is convicted of being a felon in possession of a firearm or

ammunition following three prior felony convictions for a “violent felony” or a

“serious drug offense,” or both. 18 U.S.C. § 924(e)(1). The term “serious drug

offense” includes “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). The term “violent felony”

includes “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” (the elements clause); “is burglary, arson, or

extortion, [or] involves use of explosives” (the enumerated crimes clause); or

“otherwise involves conduct that presents a serious potential risk of physical injury

to another” (the residual clause). 18 U.S.C. § 924(e)(2)(B). In Johnson v. United

States, the Supreme Court invalidated the ACCA’s residual clause, holding that it

was unconstitutionally vague. Johnson v. United States, 135 S. Ct. 2551, 2557,

2563 (2015). The Supreme Court clarified, however, that its holding did not call

into question the application of the ACCA’s other clauses. Id. at 2563. It later

held that Johnson announced a new substantive rule that applied retroactively to

cases on collateral review. Welch v. United States, 136 S. Ct. 1257, 1265 (2016).


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       We use the same analysis to decide whether a crime is a “violent felony”

under the ACCA or a “crime of violence” under the Sentencing Guidelines. See

United States v. Lockley, 632 F.3d 1238, 1243 n.5 (11th Cir. 2011) (discussing the

career-offender guidelines). 1 In both instances, we apply a categorical approach,

looking at the statutory definition of the prior offense, rather than at the particular

facts underlying a conviction. United States v. Vail-Bailon, 868 F.3d 1293, 1296

(11th Cir. 2017) (en banc). A prior conviction qualifies as a “violent felony” or a

“crime of violence” only if the minimum conduct criminalized by the statute

necessarily satisfies the violent-felony or crime-of-violence definition. Id. The

phrase “physical force” in the elements clause means “violent force -- that is, force

capable of causing physical pain or injury to another person.” Id. at 1297 (quoting

Curtis Johnson v. United States, 559 U.S. 133, 140 (2010)).

       We’ve held that Florida felony battery categorically qualifies as a crime of

violence under the elements clause of U.S.S.G. § 2L1.2’s crime-of-violence

definition, which is identical to the ACCA’s elements clause. Id. at 1297, 1302,

1308. In addition, we’ve held that Florida armed robbery categorically qualified as

a “violent felony” under the ACCA’s elements clause. Fritts, 841 F.3d at 941–42.

However, because the defendant’s prior conviction was not for attempt, Fritts
1
 Thus, cases addressing the ACCA’s and Guidelines’ elements clauses generally apply in both
contexts. See United States v. Fritts, 841 F.3d 937, 941–42 & n.4 (11th Cir. 2016), cert. denied,
137 S. Ct. 2264 (2017) (holding in the alternative that precedent addressing whether an offense
was a crime of violence under the Guidelines’ elements clause was dispositive in deciding
whether the offense also qualified as a violent felony under the ACCA’s elements clause).
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expressly declined to decide whether attempted armed robbery was a violent

felony. Id. at 941 n.6. Fritts relied on Lockley, which held that Florida attempted

robbery was a crime of violence under the Guidelines’ elements clause. Id. at 940–

42 & n.6; Lockley, 632 F.3d at 1245. In reaching its conclusion, Lockley noted

that the Guidelines’ commentary expressly provided that an attempt to commit a

crime of violence was itself a crime of violence. Fritts, 841 F.3d at 941 n.6;

Lockley, 632 F.3d at 1245. Lockley also noted that Florida’s attempt statute was a

close analogue to the Model Penal Code definition of attempt, requiring an overt

act that clearly signals the commission of the offense instead of mere preparation.

Lockley, 632 F.3d at 1245 n.6.

      Here, the district court did not err in concluding that Makonnen was an

armed career criminal with three prior convictions for a serious drug offense or

violent felony. For starters, Makonnen does not dispute that his prior Florida

conviction for selling cocaine qualifies as a serious drug offense. He therefore

abandons that issue, which, in any event, would be beyond the scope of the COA.

Isaacs, 300 F.3d at 1246; McKay, 657 F.3d at 1195.

      Makonnen further admits that, under our binding precedent, his prior Florida

convictions for felony battery and attempted armed robbery qualify as violent

felonies under the ACCA’s elements clause. Makonnen is correct that we have

squarely held that felony battery is a violent felony. Vail-Bailon, 868 F.3d at 1297,


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1302, 1308; Archer, 531 F.3d at 1352. As for attempted armed robbery, however,

Makonnen incorrectly claims that Fritts deemed it a violent felony; rather, Lockley

is the case concerning attempted armed robbery, and held that it was a crime of

violence under the Guidelines’ elements clause. Lockley, 632 F.3d at 1245. Fritts,

an ACCA case, expressly did not address attempt.           841 F.3d at 941 n.6.

Regardless, in conceding that attempted armed robbery is a violent felony,

Makonnen has abandoned any claim that it is not a violent felony under the ACCA,

nor does he argue that Lockley is not controlling here. Isaacs, 300 F.3d at 1246.

And in any event, the arguments Makonnen makes against treating attempted

armed robbery as a violent felony target the underlying offense -- armed robbery --

rather than the attempt aspect of his conviction. As a result, his actual arguments

concerning attempted armed robbery are foreclosed by Fritts, 841 F.3d at 941–42.

      In short, Makonnen has one prior conviction for a serious drug offense and

at least two prior convictions for violent felonies -- felony battery and attempted

armed robbery -- without resorting to the ACCA’s residual clause. Accordingly,

he has the requisite three ACCA predicate offenses to qualify as an armed career

criminal, 18 U.S.C. § 924(e)(1), and the district court did not err in denying

Makonnen’s § 2255 motion to vacate his sentence.

      AFFIRMED.




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