          Case: 17-10059   Date Filed: 08/31/2017   Page: 1 of 11


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-10059
                        Non-Argument Calendar
                      ________________________

              D.C. Docket No. 8:16-cr-00185-SCB-TGW-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

TIMOTHY DALE WASHINGTON, II,

                                                         Defendant-Appellant.

                      ________________________

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

                            (August 31, 2017)

Before TJOFLAT, WILLIAM PRYOR, and ROSENBAUM, Circuit Judges.

PER CURIAM:
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      After pleading guilty, Timothy Dale Washington II appeals his conviction

for being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g) and

924(e), as well as his 180-month sentence of imprisonment.                  His sentence

exceeded the normal 10-year maximum sentence under the statute, see id. §

924(a)(2), because the district court imposed an enhancement under the Armed

Career Criminal Act (“ACCA”), id. § 924(e)(1). Under the ACCA, a defendant

convicted under 18 U.S.C. § 922(g) is subject to a mandatory minimum sentence

of 15 years of imprisonment if he has three prior convictions for a “violent felony”

or “serious drug offense” that are “committed on occasions different from one

another.”   Id. § 924(e)(1).       On appeal, Washington challenges the ACCA

enhancement on several grounds and also argues that § 922(g)(1) exceeds

Congress’s constitutional authority both on its face and as applied in this case.

After careful review, we affirm.

                               I. ACCA Enhancement

      Washington offers three challenges to his ACCA-enhanced sentence. First,

he contends that the district court improperly relied on state-court charging

documents to determine that his prior offenses were committed on different

occasions for purposes of the ACCA enhancement. Second, and relatedly, he

argues that the court’s factual finding that his offenses occurred on different

occasions violated his rights under the Fifth and Sixth Amendments. Finally, he


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asserts that the three prior crimes on which his ACCA enhancement was based

were not qualifying predicate convictions.

       We ordinarily review de novo whether a conviction is a “violent felony” or a

“serious drug offense” under the ACCA. United States v. Braun, 801 F.3d 1301,

1303 (11th Cir. 2015); United States v. Robinson, 853 F.3d 1292, 1294 (11th Cir.

2009). Likewise, we review de novo properly preserved constitutional challenges

to a sentence, as well as whether crimes were committed on different occasions

within the meaning of the ACCA. United States v. Weeks, 711 F.3d 1255, 1259,

1261 (11th Cir. 2013). 1

A.     Different-Occasions Inquiry

       Washington’s first two arguments relate to the district court’s use of

Shepard-approved documents 2 to determine whether he committed the ACCA-

predicate crimes on different occasions. He argues that recent Supreme Court

decisions make clear that courts may not rely on “non-elemental” facts, such as the

date a crime was committed, in Shepard-approved documents. He also asserts that

       1
         Some of Washington’s challenges were raised for the first time on appeal and therefore
are subject to review for plain error only. See Weeks, 711 F.3d at 1261. We need not delineate
which arguments were preserved and which were forfeited, however, because Washington has
not shown that he is entitled to relief on any of his claims even under de novo review.
       2
         In Shepard v. United States, 544 U.S. 13, 16, 26 (2005), the Supreme held that, in
determining the character of a prior conviction under the ACCA, the sentencing court “is
generally limited to examining the statutory definition [of the offense of the prior conviction],
charging document, written plea agreement, transcript of plea colloquy, and any explicit factual
finding by the trial judge to which the defendant assented.” The term “Shepard-approved
documents,” as used in this opinion, refers to this limited category of evidence.
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his sentence violates the Fifth and Sixth Amendments because the fact that his

prior offenses were committed on different occasions was not charged in the

indictment and proven beyond a reasonable doubt.

      Here, the district court did not err in relying on Shepard-approved

documents to determine whether Washington committed the prior crimes on

different occasions. We have held that district courts may determine whether

predicate offenses were committed on different occasions for purposes of the

ACCA “so long as they limit themselves to Shepard-approved documents.”

Weeks, 711 F.3d at 1259; see United States v. Overstreet, 713 F.3d 627, 635 (11th

Cir. 2013). Washington does not assert that the district court went beyond these

materials in making its sentencing determinations. And he has abandoned any

argument that the offenses were not, as a factual matter, committed on different

occasions by failing to raise the issue on appeal. See United States v. Ardley, 242

F.3d 989, 990 (11th Cir. 2001) (issues “not timely raised in the briefs are

abandoned”).

      Our prior precedent is likewise clear that a sentencing court does not violate

the Fifth and Sixth Amendment by judicially determining that a defendant’s prior

convictions were committed on different occasions for ACCA purposes. Weeks,

711 F.3d at 1259–60. In Almendarez-Torres v. United States, 523 U.S. 224, 226–

67 (1998), the Supreme Court held that a defendant’s prior convictions need not be


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alleged in the indictment or proven beyond a reasonable doubt in order for a

sentencing court to use those convictions for purposes of enhancing a sentence.

See Weeks, 711 F.3d at 1259. We have consistently held that Almendarez-Torres

remains good law, and we have explained that it permits district courts to

determine not only the mere fact of a prior conviction but also “the factual nature

of those convictions, including whether they were committed on different

occasions.” Id.; see Overstreet, 713 F.3d at 635. Accordingly, the district court

did not err in using Shepard-approved documents to determine that Washington’s

prior crimes were committed on different occasions.

      Washington contends that the Supreme Court’s decisions in Mathis v. United

States, 136 S. Ct. 2243 (2016), and Descamps v. United States, 133 S. Ct. 2276

(2013), prohibit a sentencing court’s reliance on dates and other non-elemental

facts in Shepard-approved materials.         He asserts that these decisions have

abrogated our prior holdings on the different-occasions issue. We disagree.

      Under this Court’s prior precedent rule, “a prior panel’s holding binding on

all subsequent panels unless and until it is overruled or undermined to the point of

abrogation by the Supreme Court or this court sitting en banc.” United States v.

Archer, 531 F.3d 1347, 1352 (11th Cir. 2008). To conclude that we are not bound

by a prior holding in light of a Supreme Court case, we must find that the case is

“clearly on point” and that it “actually abrogate[s] or directly conflict[s] with, as


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opposed to merely weaken[s], the holding of the prior panel.” United States v.

Kaley, 579 F.3d 1246, 1255 (11th Cir. 2009).

      Neither Descamps nor Mathis is “clearly on point” and “actually abrogate[s]

or directly conflict[s] with, as opposed to merely weaken[s],” our holdings in

Weeks and Overstreet. See id. Descamps dealt with whether a sentencing court

may use the modified categorical approach to ascertain whether a conviction is a

qualifying offense under the ACCA when the statute under which the defendant

was convicted has a single, indivisible set of elements. 133 S. Ct. at 2283–93.

Mathis dealt with whether a sentencing court may apply the modified categorical

approach if a statute of conviction lists alternatives that are “means” of committing

the crime, rather than “elements.” 136 S. Ct. at 2256–58. Neither case addresses

the different-occasions inquiry, which does not concern the elements of the state

offenses at issue. Thus, Descamps and Mathis do not abrogate our prior precedent

on the different-occasions issue for purposes of the ACCA.

      In sum, the district court did not err by considering Shepard-approved

documents to determine that Washington’s predicate offenses occurred on different

occasions for purposes of the ACCA.

B.    Predicate Convictions

      Washington also asserts that the ACCA enhancement was improper because

the three predicate convictions relied upon by the district court do not qualify as


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violent felonies or serious drug offenses. The three predicate convictions included

the following:    (1) delivery of cocaine under Fla. Stat. § 893.13(1)(a); (2)

obstructing or opposing an officer with violence under Fla. Stat. § 843.01; and (3)

aggravated battery under Fla. Stat. § 784.045. Though Washington acknowledges

that most of his arguments are foreclosed by prior precedent, he seeks to preserve

these claims for further review.

      First, we have held that a conviction under Fla. Stat. § 893.13(1) qualifies as

a “serious drug offense” even though the statute does not require the state to prove

that the defendant knew of the illicit nature of the substance. See United States v.

Smith, 775 F.3d 1262, 1264-65 (11th Cir. 2014). Smith remains good law. See

United States v. Pridgeon, 853 F.3d 1192, 1198 (11th Cir. 2017), petition for cert.

filed, No. 17-5135 (July 13, 2017).

      Second, we have held that a conviction for resisting an officer with violence

under Fla. Stat. § 843.01 qualifies as a violent felony under the ACCA. United

States v. Hill, 799 F.3d 1318, 1322-23 (11th Cir. 2015). To the extent Washington

argues that Hill is not binding because it conflicts with Descamps and Moncrieffe

v. Holder, 133 S. Ct. 1678 (2013), those decisions predated Hill, and “there is no

“exception to the prior panel precedent rule based upon a perceived defect in the

prior panel’s reasoning or analysis as it relates back to the law in existence at that

time.” Smith v. GTE Corp., 236 F.3d 1292, 1303 (11th Cir. 2001).


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      Washington’s final predicate conviction was for aggravated battery under

Fla. Stat. § 785.045. “[A] person commits aggravated battery by committing a

battery: (1) that intentionally or knowingly causes great bodily harm, permanent

disability, or disfigurement; (2) while using a deadly weapon; or (3) upon a victim

whom the offender knows to be pregnant.” Turner v. Warden, 709 F.3d 1328,

1341–42 (11th Cir. 2013), abrogated on other grounds by Johnson v. United

States, 135 S. Ct. 2551 (2015); see Fla. Stat. § 784.045. Thus, the statute is

“divisible” in that it can be committed through alternative elements, so the district

court was permitted to use Shepard-approved documents to determine under which

version of the statutory elements Washington was convicted. See Descamps, 133

S. Ct. at 2283–85.

      In Turner, we held that a conviction under § 785.045 qualifies as a violent

felony under the “elements clause” of the ACCA when the offense involves the

first two alternatives—either the intentional or knowing causation of great bodily

harm or the use of a deadly weapon in committing a battery. Turner, 709 F.3d at

1341. Washington does not challenge the district court’s implicit finding that the

Shepard-approved materials established that his offense did not involve battery on

a pregnant woman. So the crime must have involved either the intentional or

knowing causation of great bodily harm or the use of a deadly weapon. “Either

way,” according to Turner, “the crime has as an element the use, attempted use, or


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threatened use of physical force . . . .” Id. (internal quotation marks omitted).

Under Turner, therefore, Washington’s aggravated-battery conviction qualifies as a

violent felony.

      Washington argues that Turner was wrongly decided, but we have recently

affirmed Turner as good law to the extent its analysis rests on the “elements

clause” of the ACCA, notwithstanding intervening decisions like Descamps,

Moncrieffe, 133 S. Ct. 1678, and Mathis, 136 S. Ct. 2243. See United States v.

Golden, 854 F.3d 1256, 1256-57 (11th Cir. 2017), petition for cert. filed, No. 17-

5050 (June 30, 2017) (concluding that Turner’s elements-clause-based holding

with respect to another Florida offense, aggravated assault, was binding).

Accordingly, the district court did not err in determining that Washington’s

conviction for aggravated battery, like his convictions for delivery of cocaine and

resisting with violence, qualified as predicate convictions for purposes of the

ACCA.

      In sum, because Washington had three prior convictions for a “violent

felony” or “serious drug offense” that were “committed on occasions different

from one another,” the district court properly applied the ACCA enhancement.

                          II. Section 922(g) Conviction

      Washington’s claim that § 922(g) exceeds Congress’s power under the

Commerce Clause, both facially and as applied to his conduct, is foreclosed by


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binding circuit precedent, as he acknowledges.           Section 922(g)(1) makes it

unlawful for a convicted felon to “ship or transport in interstate commerce, or

possess in or affecting commerce, any firearm or ammunition; or to receive any

firearm or ammunition which has been shipped or transported in interstate or

foreign commerce.” 18 U.S.C. § 922(g)(1).

      “We have repeatedly held that Section 922(g)(1) is not a facially

unconstitutional exercise of Congress’s power under the Commerce Clause

because it contains an express jurisdictional requirement.”         United States v.

Jordan, 635 F.3d 1181, 1189 (11th Cir. 2011); United States v. Scott, 263 F.3d

1270, 1273–74 (11th Cir. 2001); United States v. McAllister, 77 F.3d 387, 390

(11th Cir. 1996). To meet that jurisdictional requirement, the firearm in question

must have a “nexus” to interstate commerce. Jordan, 635 F.3d at 1189. The

required nexus to interstate commerce is met when “the firearm possessed traveled

in interstate commerce.” Scott, 263 F.3d at 1274.

      Washington’s § 922(g) conviction is constitutionally valid.          His facial

challenge is foreclosed by binding precedent. And his as-applied challenge fails

because the facts to which admitted in pleading guilty establish that the firearm he

possessed had “traveled interstate commerce,” even if Washington’s possession of

that firearm was purely intrastate. See id.

      Accordingly, we affirm Washington’s § 922(g) conviction and sentence.


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AFFIRMED.




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