            Case: 13-13809   Date Filed: 01/07/2016   Page: 1 of 8


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-13809
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 8:11-cr-00530-VMC-TBM-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee.

                               versus

DANIEL ARROYO,
a.k.a. King Tweet,

                                                          Defendant-Appellant.

                       ________________________

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

                             (January 7, 2016)

Before HULL, MARCUS and WILLIAM PRYOR, Circuit Judges.

                   ON REMAND FROM THE
             SUPREME COURT OF THE UNITED STATES
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PER CURIAM:

      In United States v. Arroyo, 562 F. App’x 889 (11th Cir. 2015), we affirmed

Daniel Arroyo’s sentence to 15 years of imprisonment under the Armed Career

Criminal Act for possessing a firearm and ammunition as a felon. See 18 U.S.C.

§§ 922(g)(1), 924(e). The Supreme Court vacated our judgment and remanded the

case to us for further consideration in the light of Johnson v. United States, 576

U.S. ____, 135 S. Ct. 2551 (2015), which held that the residual clause of the Act

was unconstitutionally vague. Id. at 2563. We asked the parties to file

supplemental letter briefs addressing how Johnson affects Arroyo’s case. Arroyo

argues, and the government concedes, that Arroyo’s sentence was erroneously

enhanced using his prior convictions for battery on a law enforcement officer, Fla.

Stat. §§ 784.03(1)(a), 784.07(2), and for discharge of a firearm from a vehicle, id.

§ 790.15, because they no longer qualify as violent felonies under the residual

clause of the Act. We vacate our judgment that affirmed Arroyo’s sentence as an

armed career criminal and remand for resentencing.

                          I. PROCEDURAL HISTORY

      Arroyo pleaded guilty, without the benefit of a plea agreement, to possessing

a firearm and ammunition as a felon, after having been convicted of three crimes in

Florida courts that were punishable by more than one year of imprisonment. 18

U.S.C. §§ 2, 922(g)(1), 924(e). Arroyo’s presentence investigation report classified


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him as an armed career criminal based on his prior conviction for the robbery of

Randall Aybar, Fla. Stat. § 812.13(1), (2)(A), and the three prior convictions listed

in his indictment for the attempted murder and aggravated battery of Pedro Colon,

id. §§ 784.05, 782.04, 777.04, 784.045; battery of a law enforcement officer, id.

§§ 784.03(1)(a), 784.07(2); and discharging a firearm from an occupied vehicle, id.

§ 790.15.

      Arroyo’s classification as an armed career criminal increased his sentencing

range. Arroyo had a base offense level of 24, United States Sentencing Guidelines

Manual § 2K2.1(a)(2) (Nov. 2012), that was increased by two points for his use or

possession a firearm or ammunition in connection with another felony offense, id.

§ 2K2.1(b)(4)(A), and a criminal history category of V based on a criminal history

score of 10, which included two points for a misdemeanor conviction for loitering.

Arroyo’s presentence report raised his base offense level from 26 to 33 under the

armed career criminal guideline, id. § 4B1.4, and reduced that level by three points

for his acceptance of responsibility, id. § 3E1.1(a), (b), which resulted in a

sentencing range between 151 and 188 months of imprisonment. But Arroyo had a

statutory minimum sentence of 15 years under the Act, 18 U.S.C. § 924(e), which

made his sentencing range between 180 and 188 months of imprisonment,

U.S.S.G. § 5G1.1(b).




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      The district court disposed of Arroyo’s two objections to the use of his prior

convictions as predicate offenses under the Act and sentenced Arroyo to 188

months of imprisonment. First, the district court rejected Arroyo’s argument that

his prior convictions for battery of a law enforcement officer and discharging a

firearm were not “violent felonies.” Second, the district court agreed with Arroyo

that his convictions for robbery and for attempted murder constituted a

simultaneous offense because “there [was] no information within the Shepard-

approved documents establishing time or location” to show “there’s a gap in time

and place between the two . . . crimes.” The district court made its ruling after

holding two evidentiary hearings on the issue, and reviewing a packet of

documents consisting of the charging documents, docket sheets, judgments, plea

forms, and bills of particular for Arroyo’s robbery and attempted murder offense.

      Arroyo appealed and challenged the calculation of his sentence on three

grounds, two of which we rejected and one of which we found meritorious.

Arroyo, 562 F. App’x 889. First, we concluded that Arroyo’s challenges to his

prior convictions for battery of a law enforcement officer and discharging a firearm

were foreclosed by our decisions in Turner v. Warden Coleman FCI (Medium),

709 F.3d 1328, 1338–39 (11th Cir. 2013), and United States v. Alexander, 609

F.3d 1250, 1258–59 (11th Cir. 2010), that the offenses qualified as violent felonies

under the residual clause of the Act. Arroyo, 562 F. App’x at 890. Second, we


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concluded that Arroyo’s argument that the residual clause of the Act was void for

vagueness was foreclosed by our decision in United States v. Weeks, 711 F.3d

1255, 1262 (11th Cir. 2013). Arroyo, 562 F. App’x at 890. But, based on the

concession of the government that the district court plainly erred by adding two

points to Arroyo’s criminal history for the offense of loitering, we vacated

Arroyo’s sentence and remanded with instructions for the district court to

“resentence him at the correct criminal history level of IV and the corresponding

advisory guideline range of 180 months.” Id. at 890–91.

      Arroyo filed a petition for a writ of certiorari. While Arroyo’s petition was

pending, the Supreme Court held in Johnson, 135 S. Ct. at 2563, that the residual

clause was unconstitutionally vague. Later, the Court granted Arroyo’s petition,

vacated our judgment, and remanded his case for reconsideration.

                                 II. DISCUSSION

      The parties agree that Arroyo is entitled to a new sentencing hearing at

which he is sentenced using a reduced criminal history category of IV, but they

disagree about what other sentencing decisions the district court may make. Arroyo

requests that we “remand for resentencing without the ACCA and for recalculation

of the sentencing guidelines under [sections] 2K2.1 and 4A1.1(e)” and argues that,

“[b]ecause the discharging-a-firearm and [battery of a law enforcement officer]

offenses are not violent felonies, they are also not crimes of violence under the


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guidelines.” The government argues for a “full resentencing” during which the

district court reassesses whether to enhance Arroyo’s sentence under the Act.

Alternatively, the government argues that the district court should be allowed to

determine “whether any of [Arroyo’s] previous crimes are ‘crimes of violence’

under [section] 4B1.2(a) for purposes of assigning a new base-offense level under

2K2.1”; “whether [Arroyo’s] criminal history category . . . [of] IV . . .

underrepresents his true history”; what would constitute a reasonable sentence

“under 18 U.S.C. 3553(a)”; and whether to impose a variance.

      We reject the argument of the government that Arroyo can be sentenced as

an armed career criminal. Arroyo’s prior conviction for battery of a law

enforcement officer does not qualify as a violent felony. In Johnson v. United

States, 559 U.S. 133, 141-42, 130 S. Ct. 1265, 1272 (2010), the Supreme Court

held that a conviction in a Florida court of battery of an officer does not qualify as

“violent offense” under the elements clause of the Act. The recent decision of the

Court in Johnson, 135 S. Ct. at 2563, “forecloses . . . the argument . . .that [a] prior

Florida felony conviction[] for battery on a law enforcement officer . . . [is a]

violent felon[y] under the ACCA’s residual clause,” United States v. Hill, 799 F.3d

1318, 1322 & n.1 (11th Cir. 2015). And we will not disturb the finding of the

district court that Arroyo’s convictions for robbery and attempted murder were not

“committed on occasions different from one another.” See 18 U.S.C. § 924(e)(1).


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The government was given a full and fair opportunity, over the course of two

evidentiary hearings, to submit evidence and arguments in support of its position

that Arroyo’s convictions for robbery and attempted murder were distinct offenses,

and the government did not appeal the finding that the offenses were temporally

indistinguishable. See United States v. Canty, 570 F.3d 1251, 1257 (11th Cir.

2009) (A “remand for further findings is inappropriate when the issue was before

the court and the parties had an opportunity to introduce relevant evidence.”);

United States v. Alred, 144 F.3d 1405, 1422 (11th Cir. 1998). Because the

government has to produce three prior felony convictions to enhance Arroyo’s

sentence under the Act, see 18 U.S.C. § 924(e), we need not address whether his

prior conviction for discharging a firearm constitutes a violent felony. To sentence

a defendant as an armed career criminal, the government must prove that three

prior felony convictions qualify as “violent felonies.” Id. The district court

sentenced Arroyo under the Act based on his prior convictions in Florida courts for

robbery/attempted murder, battery of a law enforcement officer, and discharging a

firearm from an occupied vehicle. In the wake of Johnson, the government cannot

prove that Arroyo’s prior conviction for battery of a law enforcement officer is a

“violent felony.” Arroyo cannot be sentenced as an armed career criminal.

      On remand, the district court must determine an appropriate sentencing

range for Arroyo under the Sentencing Guidelines. “[W]hen a criminal sentence is


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vacated, it becomes void in its entirety; the sentence—including any

enhancements—has “been wholly nullified and the slate wiped clean.” United

States v. Stinson, 97 F.3d 466, 469 (11th Cir. 1996). The upshot is that, “when a

sentence is vacated and the case is remanded for resentencing, the district court is

free to reconstruct the sentence utilizing any of the sentence components.” Id.

                                III. CONCLUSION

      We VACATE our judgment affirming Arroyo’s sentence under the Armed

Career Criminal Act, and we REMAND for resentencing.




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