           Case: 17-13448   Date Filed: 03/19/2018   Page: 1 of 5


                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-13448
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket Nos. 1:16-cv-22372-JLK,
                         1:09-cr-20602-JLK-1


WILLIE WALKER,

                                                          Petitioner-Appellant,

                                  versus

UNITED STATES OF AMERICA,

                                                        Respondent-Appellee.

                      ________________________

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

                            (March 19, 2018)

Before WILLIAM PRYOR, MARTIN and JILL PRYOR, Circuit Judges.

PER CURIAM:
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      Willie Walker appeals the denial of his second motion to vacate his

sentence. 28 U.S.C. § 2255. Walker argued that he lacked sufficient predicate

offenses to be sentenced as an armed career criminal because, in the wake of

Johnson v. United States, 135 S. Ct. 2551 (2015), his convictions in 1982, 1985,

and 1986 for robbery did not qualify as “violent felon[ies],” 18 U.S.C.

§ 924(e)(2)(B). The district court ruled that Walker’s argument was foreclosed by

United States v. Fritts, 841 F.3d 937 (11th Cir. 2016). We affirm.

      The district court correctly denied Walker’s motion to vacate. Fritts controls

this appeal. Walker’s prior convictions in Florida for robbery, Fla. Stat. § 812.13,

qualify categorically as violent felonies under the elements clause of the Armed

Career Criminal Act. See Fritts, 841 F.3d at 939–42 (discussing United States v.

Dowd, 451 F.3d 1244 (11th Cir. 2006), and United States v. Lockley, 632 F.3d

1238 (11th Cir. 2011)); United States v. Seabrooks, 839 F.3d 1326, 1338–45 (11th

Cir. 2016). Fritts “is the law of this Circuit[ and] . . . bind[s] all subsequent panels

unless and until the . . . holding is overruled by the Court sitting en banc or by the

Supreme Court.” Seabrooks, 839 F.3d at 1341 (quoting Smith v. GTE Corp., 236

F.3d 1292, 1300 n.8 (11th Cir. 2001)).

      We AFFIRM the denial of Walker’s second motion to vacate.




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MARTIN, Circuit Judge, joined by JILL PRYOR, Circuit Judge, concurring in
judgment:

      The majority is quite right that our circuit precedent dictates that Mr.

Walker’s previous robbery convictions under Florida Statute § 812.13 qualify as

violent felonies as that term is defined by the elements clause of the Armed Career

Criminal Act (“ACCA”), 18 U.S.C. § 924(e). See United States v. Fritts, 841 F.3d

937, 943–44 (11th Cir. 2016). However, I continue to believe that Fritts was

wrongly decided. In particular, the Fritts panel failed to give proper deference to

McCloud v. State, 335 So. 2d 257 (Fla. 1976), the controlling Florida Supreme

Court case interpreting § 812.13 at the time Mr. Walker was convicted under that

statute. In McCloud, Florida’s highest court held that taking by “[a]ny degree of

force” was sufficient to justify a robbery conviction. Id. at 258–59 (emphasis

added). Under McCloud, a defendant could therefore be convicted of Florida

robbery without using, attempting to use, or threatening to use “violent force,”

Curtis Johnson v. United States, 559 U.S. 133, 140, 130 S. Ct. 1265, 1271 (2010),

or a “substantial degree of force,” United States v. Owens, 672 F.3d 966, 971 (11th

Cir. 2012), as necessary to qualify as a violent felony under ACCA.

      To support Mr. Walker’s ACCA sentence, the government relies in part on

three robberies Mr. Walker was convicted of committing over 30 years ago. All

three convictions—one in 1982, one in 1985, and one in 1986—were controlled by

the Florida Supreme Court’s definition of robbery in McCloud. Because Mr.
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Walker could have been convicted of those crimes for using any degree of force,

not just violent or substantial force, they should not qualify as violent felonies for

purposes of Mr. Walker’s ACCA sentence.

      What must be difficult for Mr. Walker to make sense of is that the District

Court initially got his case right. On October 24, 2016, the District Court issued an

order granting Mr. Walker’s motion to vacate his sentence. In reaching this result,

that court noted that “robbery-by-sudden-snatching, which does not require the use

of force or placing a victim in apprehension of the use of force, was prosecuted

under section 812.13 until as late as 1997.” Because Mr. Walker’s convictions

could have been for robbery-by-sudden-snatching, the District Court concluded

they did not categorically qualify as predicate offenses to support an ACCA

enhancement and vacated Mr. Walker’s sentence. But just two weeks after the

District Court issued its order and before Mr. Walker had been resentenced, a panel

of this Court issued Fritts, which concluded, in spite of McCloud, that “the

§ 812.13 robbery statute has never included a theft or taking by mere snatching.”

841 F.3d at 942. Relying on Fritts, the government filed a motion for

reconsideration, which the District Court granted, reinstating Mr. Walker’s ACCA

sentence.

      The Bureau of Prisons now estimates that Mr. Walker will be released from

prison in 2023. If Mr. Walker’s resentencing had been finalized before Fritts was

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published, or if the Fritts panel had gone the way of the only other circuit to have

considered this issue in a published decision, there is a good chance Mr. Walker

would now be out of prison. But instead, Mr. Walker’s sentence will continue for

another five years. I hope our Court or the Supreme Court recognizes the error in

Fritts in time to grant Mr. Walker some form of relief.




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