                                                       [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                     ________________________           FILED
                                               U.S. COURT OF APPEALS
                            No. 11-10753         ELEVENTH CIRCUIT
                                                     FEB 13, 2012
                        Non-Argument Calendar
                      ________________________        JOHN LEY
                                                       CLERK

                 D.C. Docket No. 0:10-cr-60228-WPD-1

UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus



LEON AMUEL DEVO, JR.,

                                                        Defendant-Appellant.


                     __________________________

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

                           (February 13, 2012)

Before BARKETT, HULL and BLACK, Circuit Judges.

PER CURIAM:
         Leon Amuel Devo, Jr. appeals his 180-month sentence after pleading guilty

to being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1)

and 924(e). Devo argues that the district court erred in sentencing him as an armed

career criminal, because his prior felony conviction for resisting an officer with

violence was not a violent felony under the Armed Career Criminal Act (“ACCA”).

This Court reviews de novo whether a prior conviction is a violent felony for

purposes of the ACCA. United States v. McGill, 618 F.3d 1273, 1274-75 (11th Cir.

2010).

      The ACCA imposes a 15-year mandatory minimum sentence on an offender

who has three prior convictions “for a violent felony or a serious drug offense.” 18

U.S.C. § 924(e)(1). Devo does not contest that he had two prior drug convictions

that qualify under the statute. His only argument is that his prior conviction in

Florida for resisting arrest does not qualify as a “violent felony,” and that he

therefore is not subject to the ACCA mandatory minimum.1


         1
        The ACCA defines a “violent felony” as “any crime punishable by imprisonment for a term
exceeding one year” that:

         (i) has as an element the use, attempted use, or threatened use of physical
          force against the person of another; or

         (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise
          involves conduct that presents a serious potential risk of physical injury to
          another.


                                                   2
       Under Florida Statute § 843.01, it is a felony to “knowingly and willfully”

resist, obstruct, or oppose “any officer . . . in the lawful execution of any legal duty,

by offering or doing violence to the person of such officer.” Fla. Stat. § 843.01.

Under this Court’s precedent, a conviction under this statute qualifies as a “violent

felony” for purposes of the ACCA. See United States v. Nix, 628 F.3d 1341 (11th

Cir. 2010), cert. denied, 132 S.Ct. 258 (2011) (adopting the rationale of United

States v. Hayes, 409 F. App’x 277 (11th Cir. 2010) (unpublished), cert. denied 132

S.Ct. 125 (2011)). In Hayes, we “ha[d] no difficulty concluding that one who

commits the crime of resisting arrest by knowingly and willfully offering or doing

violence to an arresting officer has committed a ‘violent felony’ for purposes of

ACCA, and that such a person is properly subject to ACCA’s fifteen-year

mandatory minimum sentence as an ‘armed career criminal.’” Hayes, 409 F. App’x

277 at *6.

      Devo argues that the Nix and Hayes decisions fail to apply the recent

Supreme Court precedent, Begay v. United States, 553 U.S. 137, 128 S. Ct. 1581

(2008). In that case, the Supreme Court held that a conviction under New

Mexico’s driving under the influence (DUI) statute did not qualify as a “violent

felony” for purposes of the ACCA because it was not similar enough in kind to the


Id. § 924(e)(2)(B).

                                            3
enumerated felonies (burglary, arson, extortion and use of explosives). However,

Devo glosses over the central point in Begay: “that DUI does not fall within the

scope of the Act’s clause [because it] nowhere ‘has as an element the use,

attempted use, or threatened use of physical force against the person of another.’”

Begay, 128 S. Ct. at 1584 (citing 18 U. S. C. §924(e)(2)(B)(I)). In contrast, Florida

courts have noted that a conviction under Florida’s resisting arrest statute does

require proof of such conduct or attempted conduct involving threatened or actual

physical force with violence. Walker v. State, 965 So.2d 1281, 1283-84 (Fla. Dist.

Ct. App. 2007).

      Devo also argues that the residual clause in the ACCA is unconstitutionally

vague because an ordinary person would not know what conduct the language

references. He correctly points out that the ACCA’s residual clause reads as

follows: “or otherwise involves conduct that presents a serious potential risk of

physical injury to another.” 18 U.S.C. § 924(e)(2)(B). Because Devo did not raise

this argument in the district court, we review it for plain error. United States v.

Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005). Devo does not cite to any

precedent holding that any specific ACCA provision, much less the entire statute,

is unconstitutionally vague. Moreover, neither we nor the Supreme Court have ever

held that the ACCA, or any of its sections, are unconstitutionally vague.

                                           4
Accordingly, the district court did not plainly err in failing to find that the ACCA’s

residual clause was unconstitutionally vague.

       AFFIRMED.




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