           Case: 14-15463   Date Filed: 01/10/2019   Page: 1 of 22


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-15463
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 1:14-cr-00030-JRH-BKE-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                 versus

JOHNNY LEE WEAVER,

                                                         Defendant-Appellant.

                       ________________________

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

                            (January 10, 2019)

Before ROSENBAUM, JILL PRYOR and HULL, Circuit Judges.

PER CURIAM:
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      A jury convicted defendant Johnny Lee Weaver of several offenses arising

out of a robbery of a Family Dollar store. At sentencing, the district court found

that he was a career offender under the Sentencing Guidelines and sentenced him

to 360 months’ imprisonment. On appeal, Weaver raises several challenges to his

conviction and sentence.

      Weaver’s challenges include whether: (1) the district court violated his due

process rights by admitting into evidence out-of-court and in-court identification

testimony by eyewitness Denise Murray; (2) the prosecutor made an improper

comment meant to inflame the jury by asking the jury to “[t]ell Johnny Weaver

that this community will not tolerate him terrorizing its citizens”; (3) the district

court abused its discretion by giving a jury instruction concerning flight; (4) he

could be convicted for using, carrying, and brandishing a firearm during a crime of

violence under 18 U.S.C. § 924 when the underlying offense was Hobbs Act

robbery; and (5) his prior Florida convictions for strong-arm robbery and

aggravated battery qualify as predicate offenses for purposes of the career offender

enhancement in § 4B1.1 of the Sentencing Guidelines. After careful review, and

for the reasons below, we affirm.




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                         I.    FACTUAL BACKGROUND

A.    The Robbery

      Weaver, along with Jaron Wallace and Saintwain Roberts, robbed a Family

Dollar store in Augusta, Georgia. Two of the men robbed the store, with a third

driving a getaway car. Driving away from the laundromat next door, Denise

Murray and her son, Kendrick Murray, saw the robbers exit the Family Dollar.

One of the men wore a camouflage jacket, pants, and hat. Denise Murray testified

that the man in camouflage looked at her twice, “like he was trying to figure out

why we was trailing beside them as they ran.”

      Two police officers arrived at the scene shortly after the robbery. Kendrick

Murray described to the police the robbers’ black car and the direction in which it

was heading. The police chased the car, reaching speeds in excess of 100 miles per

hour. When the car pulled into a convenience store parking lot, three men jumped

out of the car and fled on foot. The police arrested two of the men—Roberts and

Wallace—but not the third.

      The police discovered that the car contained items stolen from the Family

Dollar, a handgun, and a camouflage jacket and hat. The car, the handgun, and the

camouflage clothing belonged to a friend with whom Weaver was staying. The

police also found Weaver’s fingerprint on the car’s front passenger window.




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      The police prepared two photo lineups to aid in eyewitness identification of

the robbers. Lineup one consisted of one page with six small photographs of

African-American men, five non-suspects plus co-defendant Wallace. This lineup

was not introduced at trial to prevent confusion. Lineup two contained six separate

pages, each of which displayed one eight by ten inch color photograph of an

African-American man. This lineup included a photograph of Weaver and five

pictures of non-suspects.

      Later in the afternoon, the police met the witnesses at the Family Dollar in

hopes of identifying the robbers. Investigator David Powell stayed with the

witnesses to ensure that they did not influence one another while Investigator Tim

Rzasa showed individual witnesses both photo lineups. Rzasa explained that

witnesses should indicate if they recognized anyone in the photos, but that they

should feel no pressure to pick one. Denise and Kendrick Murray identified

Weaver out of the second lineup. The other two robbers, Roberts and Wallace,

also viewed the second lineup and subsequently identified Weaver as the third

robber.

      For his role in the offense, a federal grand jury indicted Weaver for, among

other crimes: (1) conspiracy to rob a commercial business, in violation of

18 U.S.C. § 1951; (2) conspiracy to use firearms during a violent crime, in

violation of 18 U.S.C. § 924(o); (3) robbery of a commercial business, in violation


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of 18 U.S.C. § 1951; and (4) using, carrying, and brandishing a firearm during a

crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). Weaver pled not

guilty.

B.    The Trial

      Before the trial began, Weaver filed a motion in limine asking the district

court to preclude the government from eliciting testimony about the second photo

lineup, admitting the photo lineup into evidence, and attempting any in-court

identification of Weaver. The district court denied the motion.

      At trial, the government introduced evidence of the second out-of-court

lineup and related testimony. Denise Murray identified Weaver in court as the

man wearing camouflage who had run out of the Family Dollar store. During

closing argument, the prosecution said, “Tell Johnny Weaver that this community

will not tolerate him terrorizing its citizens.” Weaver’s counsel objected to the

statement. Before jury deliberations began, the district court gave the following

instruction on flight:

      If you believe that the defendant fled from the law enforcement officer,
      then you may consider this conduct, along with all the other evidence,
      in deciding whether the government has proved beyond a reasonable
      doubt that he committed the crime charged. This conduct may indicate
      that he thought he was guilty and was trying to avoid punishment. On
      the other hand, sometimes an innocent person may flee to avoid being
      arrested or for some other reason.

      The jury found Weaver guilty on all counts.


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C.    The Sentencing

      Before Weaver’s sentencing, the probation office issued a presentence

investigation report (“PSR”). The PSR explained that Weaver was subject to

enhancement as a career offender because he had three prior crimes of violence or

serious drug offense convictions. Weaver objected to the enhancement. At the

sentencing hearing, the probation officer identified Weaver’s Florida convictions

for aggravated battery in 1998, armed robbery in 1999, and strong-arm robbery in

2011 as qualifying offenses for the career offender enhancement. The district court

overruled Weaver’s objection, finding that his prior convictions were sufficient to

trigger the career offender enhancement. After applying the enhancement, the

district court found that Weaver’s guidelines range was 360 months to life

imprisonment and ultimately sentenced him to a total of 360 months’

imprisonment.

      Weaver appealed his conviction. While his appeal was pending, the

Supreme Court decided Johnson v. United States, 135 S. Ct. 2551, 2557 (2015),

holding that the residual clause in the Armed Career Criminal Act (“ACCA”),

18 U.S.C. § 924(e)(2)(B)(ii), was unconstitutionally vague. We ordered the parties

to submit supplemental briefing to address Johnson. In his initial supplemental

brief, Weaver argued that he was entitled to be resentenced because in light of




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Johnson the residual clause in the Sentencing Guidelines’ career offender

enhancement was void for vagueness.

      After the Supreme Court held in Beckles v. United States that the

Guidelines’ residual clause in the career offender enhancement was not void for

vagueness, 137 S. Ct. 886, 892 (2017), Weaver submitted a supplemental reply

brief. Regarding the career offender enhancement, he asserted that remand was

required so that the district court could apply the modified categorical approach to

determine whether his prior convictions in Florida for strong-arm robbery and

aggravated battery qualified as predicate offenses. He also challenged his § 924(c)

conviction, arguing that his Hobbs Act robbery conviction did not qualify as a

crime of violence under the statute’s elements clause and also that § 924(c)’s

residual clause was unconstitutionally vague.

                             II.     LEGAL ANALYSIS

A.    The District Court Properly Admitted Eye Witness Testimony
      Identifying Weaver.

      We begin by considering Weaver’s claim that his due process rights were

violated when the district court admitted Denise Murray’s eye witness

identification of Weaver. Weaver challenges the admissibility of her

identifications that were made both outside of court and in court. We conclude

that the district court did not clearly err in admitting the out-of-court or in-court

identifications of Weaver.
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      When considering whether an eye-witness identification procedure violates

due process, we examine whether the identification procedure unduly influenced

the witness to select Weaver. We will set aside a conviction “based on eyewitness

identification at trial following a pretrial identification by photograph . . . only if

the photographic identification procedure was so impermissibly suggestive as to

give rise to a very substantial likelihood of irreparable misidentification.”

Simmons v. United States, 390 U.S. 377, 384 (1968). We review for clear error a

district court’s finding that an identification procedure was not unduly suggestive.

United States v. Diaz, 248 F.3d 1065, 1103 (11th Cir. 2001). But we review de

novo the district court’s ultimate conclusion regarding a violation of due process.

See United States v. Whatley, 719 F.3d 1206, 1213 (11th Cir. 2013) (applying de

novo review to constitutional questions).

      1.     Out-of-Court Identification

      We use a two-step process to assess the constitutionality of a trial court’s

decision to admit an out-of-court identification. See Diaz, 248 F.3d at 1102. We

first ask whether the original identification procedure was unduly suggestive. Id.

If it was, we then consider whether the identification was reliable under the totality

of the circumstances. Id. “When determining whether a photo array is unduly

suggestive, we consider the size of the array, the manner of its presentation, and




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the details of the photographs in the array.” United States v. Perkins, 787 F.3d

1329, 1344 (11th Cir. 2015). 1

        We conclude that the photo array presented to Denise Murray was not

unduly suggestive. It contained six photos, all headshots of African-American men

in blue prison jumpsuits. Although there were minor differences between

Weaver’s picture and the pictures of the other men in the array, the district court

found that Weaver’s photograph was not so different as to “stick out.” Each of the

men in the array had closely cropped hair and similar skin tones. Although

Weaver claims that he was shorter and older, with lighter skin tone, and weighed

less than the other men in the photos, a reasonable viewer could not discern a

significant difference in height, weight, age, or complexion from the headshots.

Moreover, there were no distinguishing features, marks, or tattoos visible in

Weaver’s picture to make him stand out from the other men’s photos.


       1
           The government argues that Weaver abandoned any argument regarding the admission
of testimony about Denise Murray’s pretrial identification by failing to sufficiently develop his
“contentions and the reasons for them.” See Fed. R. App. P. 28(a)(8)(A) (“The appellant’s brief
must contain . . . the argument, which must contain: (A) appellant’s contentions and the reasons
for them, with citations to the authorities and parts of the record on which the appellant relies
. . . .”). Weaver arguably abandoned this issue because on appeal he fails to challenge explicitly
the district court’s determination that the pretrial identification procedure was not unduly
suggestive. The section of Weaver’s brief concerning the identification includes contentions
regarding Denise Murray’s reliability and potential confusion over which lineups she saw. These
paragraphs set forth defense counsel’s objections at trial without elaboration. “We have rejected
the practice of incorporating by reference arguments made to the district courts.” United States
v. Kapordelis, 569 F.3d 1291, 1312 (11th Circ. 2009) (internal quotation marks omitted). But we
need not definitively decide whether Weaver waived the issue because even assuming that he
preserved it, the district court committed no clear error in admitting the identifications.

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Additionally, the district court found no evidence “that the officers administering

the line-up made suggestions or put pressure on the eye-witnesses to choose a

particular photograph.” The district court did not clearly err in finding that the

photo array was not unduly suggestive, and thus we need not consider whether the

identification was reliable. See Diaz, 248 F.3d at 1102 (“If we conclude that it was

suggestive, we then must consider whether, under the totality of the circumstances,

the identification was nonetheless reliable.”).

      2.     In-Court Identification

      The district court also did not clearly err in allowing Denise Murray’s in-

court identification. “An in-court identification, even if preceded by a suggestive

out-of-court identification procedure, is nevertheless admissible if the in-court

identification has an independent source.” United States v. Cannington, 729 F.2d

702, 711 (11th Cir. 1984). The factors used to determine whether an in-court

identification had a reliable, independent source are: “the witness’s opportunity to

observe the defendant at the time of the offense, the witness’s degree of attention,

the degree of certainty shown at the confrontation, and the length of time between

the crime and the confrontation.” Id. Denise Murray watched Weaver run from

the Family Dollar immediately after the robbery. She accurately described what

Weaver was wearing during the robbery. She never hesitated in stating that

Weaver was the individual she saw. And she identified Weaver as the man who


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had robbed the Family Dollar very soon after the robbery occurred. Denise

Murray’s in-court identification meets the independent source test. As a result, the

district court did not clearly err in admitting it.

B.     No Prosecutorial Misconduct Occurred During Closing Argument.

       Weaver argues that a comment made by the government during closing

argument, to “[t]ell Johnny Weaver that this community will not tolerate him

terrorizing its citizens,” inflamed the jury. In considering whether a comment by

the government during closing argument rises to the level of prosecutorial

misconduct, we apply de novo review. United States v. Sosa, 777 F.3d 1279,

1294 (11th Cir. 2015). The government’s statement to the jury during closing

argument did not amount to prosecutorial misconduct.

       To establish prosecutorial misconduct, “(1) the remarks must be improper,

and (2) the remarks must prejudicially affect the substantial rights of the

defendant.” United States v. Wilson, 149 F.3d 1298, 1301 (11th Cir. 1998)

(internal quotation marks omitted). Improper statements may be rectified by a

curative instruction. United States v. Lopez, 590 F.3d 1238, 1256 (11th Cir. 2009).

       First, the statement made by the prosecutor in Weaver’s case was not

improper. A prosecutor is “forbidden to make improper suggestions, insinuations

and assertions calculated to mislead the jury and may not appeal to the jury’s

passion or prejudice.” United States v. Rodriguez, 765 F.2d 1546, 1560 (11th Cir.


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1985) (internal quotation marks omitted). “Appeals to the jury to act as the

conscience of the community, unless designed to inflame the jury, are not per se

impermissible.” United States v. Kopituk, 690 F.2d 1289, 1342-43 (11th Cir.

1982).

      In Kopituk, we determined that the following statement during closing

argument was not improper:

      (Y)ou ladies and gentlemen, representing the citizens of this
      community and the citizens of Southeastern United States by your
      verdict telling them that enough is enough. We ask you by your verdict,
      ladies and gentlemen, to help clean up Dodge Island. We ask you by
      your verdict to help rid the ports of Jacksonville, Savannah and
      Charleston of people who by participating, directly and indirectly, in
      racketeering activity are corrupting our nation’s ports, who by misusing
      and utilizing their position of fiduciary responsibility on behalf of
      unions and on behalf of different companies are influencing and
      controlling and affecting the lives of people and everyone that works in
      these different cities.

Id. at 1342 (alteration in original). Specifically, we stated that the foregoing “did

not constitute a direct suggestion that the jury had a personal stake in the outcome

of the case” and thus approached, but did not breach, “the line demarcating

permissible oratorical flourish from impermissible comment calculated to incite the

jury against the accused.” Id. Moreover, even assuming that the statement was

improper, we concluded that it was not so offensive as to prejudice the defendant’s

substantial rights. Id. at 1343.




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         The statement made in Weaver’s case was less severe than the statement

made in Kopituk. If a comment asking a jury to rid the ports of corruption and

racketeering was not designed to inflame the jury, the prosecutor’s statement here

certainly was not. Id. at 1342.

         Second, even if the prosecutor’s statement was improper, it did not prejudice

Weaver’s substantial rights. “A defendant’s substantial rights are prejudicially

affected when a reasonable probability arises that, but for the remarks, the outcome

of the trial would have been different.” Wilson, 149 F.3d at 1301 (internal

quotation marks omitted). Four factors guide our determination as to whether a

prosecutor’s conduct had a reasonable probability of changing the outcome of a

trial:

         (1) the degree to which the challenged remarks have a tendency to
         mislead the jury and to prejudice the accused; (2) whether they are
         isolated or extensive; (3) whether they were deliberately or accidentally
         placed before the jury; and (4) the strength of the competent proof to
         establish the guilt of the accused.

Lopez, 590 F.3d at 1256. We consider whether a defendant’s substantial rights

were prejudiced “in the context of the entire trial and in light of any curative

instruction.” Wilson, 149 F.3d at 1301 (internal quotation marks omitted).

         Under the four-part test set out in Lopez, the statement in Weaver’s trial

cannot be said to have prejudicially affected Weaver’s substantive rights. The

statement had little tendency to mislead the jury or prejudice Weaver. The


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statement was isolated and minimal—only one sentence in 19 pages of closing

argument. We cannot tell from this record whether the statement was deliberately

or accidentally placed before the jury. But given the overwhelming evidence

against Weaver, the outcome of his trial would not have been different but for the

single statement made in closing argument.

      Furthermore, the district court cured any prejudice by issuing curative

instructions. Before closing argument, the district court told the jury that “what the

lawyers say in the final argument—in fact, what the lawyers say in any

argument—are not to be considered as evidence whatsoever, or, in addition, it’s

not to be considered instructions on the law.” Additionally, in its jury instructions

the district court informed the jury that its decision must be based on the evidence

presented at trial and again indicated that what the lawyers said was not evidence

and not binding. We presume that the jury followed these instructions. See United

States v. Shenberg, 89 F.3d 1461, 1472 (11th Cir. 1996).

C.    The District Court Did Not Abuse Its Discretion in Instructing the Jury.

      Turning to whether the district court erred by giving a jury instruction

concerning flight, we review jury instructions for an abuse of discretion. United

States v. Williams, 541 F.3d 1087, 1089 (11th Cir. 2008). Here, the district court

did not abuse its discretion when it gave an instruction on flight.




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       An erroneous jury instruction constitutes grounds for reversal only if a

reasonable likelihood exists that the error affected the defendant’s substantial

rights. Id. “Evidence of flight is admissible to demonstrate consciousness of guilt

and thereby guilt.” Id. (internal quotation marks omitted). If sufficient evidence is

presented so that the jury could reasonably conclude that the defendant fled to

avoid the charged crime, the district court does not abuse its discretion by giving a

flight instruction. Id.

       The district court did not abuse its discretion because there was sufficient

evidence from which the jury reasonably could conclude that Weaver fled to avoid

the charged crimes. The evidence showed that, immediately after the robbery,

Weaver made multiple attempts to flee from law enforcement officers.

Accordingly, the district court did not abuse its discretion by giving the flight

instruction to the jury. 2

D.     Binding Precedent Dictates that Weaver’s Hobbs Act Robbery Offense
       Qualifies as a Crime of Violence for Purposes of § 924(c).

       Weaver challenges his conviction under 18 U.S.C. § 924(c) for brandishing

a firearm during a crime of violence, arguing that Hobbs Act robbery does not

constitute a crime of violence for purposes of § 924(c). After the Supreme Court


       2
          Weaver also argues that he was denied a fundamentally fair trial due to the cumulative
errors in admitting the eyewitness identification testimony, the prosecutor’s closing argument,
and the jury instructions. Because there were no individual errors, no cumulative error exists.
United States v. Waldon, 363 F.3d 1103, 1110 (11th Cir. 2004).

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decided Johnson, we ordered the parties to submit supplemental briefing. In his

initial supplemental brief, Weaver did not challenge his § 924(c) conviction.

Weaver challenged this conviction for the first time in his supplemental reply brief.

Assuming for purposes of this appeal that Weaver properly preserved this issue,

binding precedent dictates that we treat Hobbs Act robbery as a crime of violence

for purposes of § 924(c).

      Under § 924(c), there are two ways that a predicate offense can qualify as a

crime of violence. The statute specifies that a crime of violence is an offense that

is a felony and

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

      (B)    that by its nature, involves a substantial risk that physical force
             against the person or property of another may be used in the
             course of committing the offense.

18 U.S.C. § 924(c)(3). Subsection (A) is commonly called the “elements clause”

and subsection (B) the “residual clause.” Ovalles v. United States, 905 F.3d 1231,

1238 (11th Cir. 2018) (en banc). Weaver maintains that Hobbs Act robbery does

not meet the definition of a crime of violence under the elements clause and that

the residual clause in § 924(c)(3)(B) is unconstitutionally vague.

      Weaver’s argument that Hobbs Act robbery does not meet the definition of a

crime of violence under the elements clause is foreclosed by binding precedent.

See United States v. St. Hubert, 909 F.3d 335, 346 (11th Cir. 2018). In St. Hubert,
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this Court held that “Hobbs Act robbery is a crime of violence under

§ 924(c)(3)(A)’s [elements] clause.” Id. We remain bound by our prior panel

decision “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. Sneed,

600 F.3d 1326, 1332 (11th Cir. 2010).

      Weaver also argues that his Hobbs Act robbery cannot qualify under the

residual clause in § 924(c)(3)(B) because that clause is unconstitutionally vague.

But this Court in Ovalles rejected a void-for-vagueness challenge to

§ 924(c)(3)(B). 905 F.3d at 1252. Because Ovalles forecloses Weaver’s

vagueness challenge to the residual clause, his challenges to his conviction under

§ 924(c) fail.

E.    The District Court Did Not Err in Applying a Career Offender
      Enhancement.

      Weaver also argues that the district court erred in applying the career

offender enhancement. See U.S.S.G. § 4B1.1(b) (2014). This argument, too, is

foreclosed by precedent.

      The career offender enhancement increases a defendant’s offense level and

criminal history category for purposes of calculating his sentencing range under the

Sentencing Guidelines. See id. The enhancement applies when a defendant

commits a felony “that is either a crime of violence or a controlled substance

offense” and “has at least two prior felony convictions of either a crime of violence
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or a controlled substance offense.” Id. § 4B1.1(a). The guidelines in effect at the

time of Weaver’s sentencing defined a crime of violence to include any offense

under federal or state law, punishable by a term of imprisonment exceeding one

year that (1) “has an element the use, attempted use, or threatened use of physical

force against the person of another,” (2) is one of a list of enumerated offenses, or

(3) “otherwise involves conduct that presented a serious potential risk of physical

injury to another.” Id. § 4B1.2(a); see U.S.S.G. § 4B1.1 cmt. n.1 (incorporating

the definition of “crime of violence” from U.S.S.G. § 4B1.2).

      To determine whether a prior conviction qualifies as a crime of violence, we

generally apply a “categorical approach,” looking no further than the statute of

conviction. United States v. Estrella, 758 F.3d 1239, 1244 (11th Cir. 2014). When

a statute is divisible, meaning that it sets out multiple, alternative elements, we

may apply a “modified” categorical approach to determine which alternative

version of the elements the defendant was convicted of. Mathis v. United States,

136 S. Ct. 2243, 2249 (2016); Descamps v. United States, 570 U.S. 254, 263-64

(2013). Under the modified categorical approach, we may look beyond the statute

of conviction to a limited class of documents from the record of conviction to

determine which version of the elements the defendant was convicted of. See

Mathis, 136 S. Ct. at 2249.




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      Weaver asserted in supplemental briefing that the district court erred in

applying the career offender enhancement because the residual clause in the career

offender guideline was void for vagueness. But after Weaver submitted his

supplemental brief, the Supreme Court held in Beckles that the Sentencing

Guidelines are not subject to a vagueness challenge under the Due Process Clause

and, accordingly, that § 4B1.2(a) is not void for vagueness. 137 S. Ct. at 895. As

Weaver concedes, Beckles forecloses his vagueness challenge.

      Weaver advanced a second reason for challenging the district court’s

application of the career offender enhancement, claiming that he is entitled to be

resentenced so that the district court may apply the modified categorical approach

to determine whether his prior convictions for aggravated battery and strong-arm

robbery qualify as crimes of violence. But our precedent dictates that each of these

crimes categorically qualifies as a crime of violence under the elements clause of

the career offender guideline.

      Weaver first contends that his conviction for Florida aggravated battery may

not qualify as a crime of violence. In Florida, “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 Coleman FCI (Medium), 709 F.3d 1328, 1341 (11th Cir. 2013) (citing Fla.


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Stat. § 785.045), abrogated on other grounds by Johnson, 135 S. Ct. 2551.

Because the aggravated battery statute is divisible, meaning it sets forth alternative

crimes with different elements, we use the modified categorical approach to

determine which of these alternative crimes Weaver was convicted of, and based

on that crime’s elements, whether his conviction for aggravated battery qualifies as

a predicate felony under the elements clause. Id.

       Weaver claims that it is unclear whether he was charged with and convicted

of committing a battery that intentionally or knowingly causes great bodily harm,

permanent disability, or disfigurement under § 784.045(1)(a)(1) or while using a

deadly weapon under § 784.045(1)(a)(2). Notably, he advances no argument that

he was prosecuted for committing a battery upon a pregnant woman under Fla.

Stat. § 784.045(1)(b). But it is irrelevant whether Weaver committed a battery that

intentionally or knowingly causes great bodily harm, permanent disability, or

disfigurement under § 784.045(1)(a)(1) or while using a deadly weapon under

§ 784.045(1)(a)(2) because we recognized in Turner that both subsections qualify

as violent felonies under the elements clause. 3 Turner thus compels us to conclude

that Weaver’s aggravated battery conviction qualifies as a crime of violence and

can serve as a predicate for the purposes of the career offender enhancement. See


       3
          “Although Turner addressed the ‘elements’ clause of the ACCA, that clause is identical
to the elements clause of § 4B1.2(a)(1).” United States v. Golden, 854 F.3d 1256, 1256-57 (11th
Cir. 2017) (citation omitted). As such, Turner is binding.

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United States v. Golden, 854 F.3d 1256, 1256-57 (11th Cir. 2017) (reaffirming the

validity of Turner’s holding as to aggravated battery).

      Next, Weaver contends that his conviction for strong-arm robbery does not

qualify as a crime of violence. He argues that a Florida strong-arm robbery

conviction does not qualify as a crime of violence. We have repeatedly held that

strong-arm robbery under Florida law qualifies a violent felony under ACCA’s

elements clause. United States v. Fritts, 841 F.3d 937, 941-42 (11th Cir. 2016);

United States v. Lockley, 632 F.3d 1238, 1245 (11th Cir. 2011). We acknowledge

that in Stokeling v. United States, 138 S. Ct. 1438 (2018), the Supreme Court is

presently considering the question of whether Florida robbery qualifies as a violent

felony under the elements clause. But even if the Supreme Court decides in

Stoekling that this offense does not qualify under the elements clause, our

precedent still dictates that the offense qualifies as a crime of violence under the

career offender’s residual clause. See Lockley, 632 F.3d at 1245. This precedent

thus compels us to conclude that strong-arm robbery qualifies as a crime of

violence and can serve as a predicate for purposes of the career offender

enhancement.




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              Case: 14-15463      Date Filed: 01/10/2019     Page: 22 of 22


                                  III.   CONCLUSION

       For the reasons set forth above, we affirm the judgment of the district court. 4

       AFFIRMED.




       4
       Also pending before the Court is the government’s Motion to Strike Weaver’s
Supplemental Reply Brief. That motion is DENIED as moot.

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