                 Case: 12-13689       Date Filed: 06/21/2013      Page: 1 of 7


                                                                       [DO NOT PUBLISH]

                   IN THE UNITED STATES COURT OF APPEALS

                              FOR THE ELEVENTH CIRCUIT
                                ________________________

                                       No. 12-13689
                                 ________________________

      D. C. Docket Nos. 8:10-cv-01973-SCB-MAP; 8:06-cr-00199-SCB-MSS-2

BOBBY GENE KILGORE,

                                                                         Petitioner-Appellant,

                                             versus

UNITED STATES OF AMERICA,

                                                                        Respondent-Appellee.

                                 ________________________

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

                                        (June 21, 2013)

Before MARTIN and ANDERSON, Circuit Judges, and VINSON,* District Judge.

PER CURIAM:



__________________
*Honorable C. Roger Vinson, United States District Judge for the Northern District of Florida,
sitting by designation.
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       Bobby Gene Kilgore appeals the district court=s dismissal of his ' 2255

petition for being untimely. The district court dismissed his motion because neither

this Court nor the Supreme Court had held that Johnson v. United States, 559 U.S.

133, 130 S. Ct. 1265 (2010), applied retroactively, and Kilgore=s petition was only

timely if either had so held. On appeal, the Government agrees with Kilgore that

Johnson should apply retroactively but argues that there are other reasons to affirm.

We address only one of these reasons, and agree with the Government that the

judgment of the district court should be affirmed. 1

                      I.   FACTS AND PROCEDURAL HISTORY

       Kilgore was indicted for distributing, and aiding and abetting in the

distribution of, cocaine base, and he pleaded guilty. The Probation Office classified

Kilgore as a career offender under U.S.S.G. ' 4B1.1 based on his convictions for

battery on a law enforcement officer and possession of cocaine with intent to sell or

deliver. The enhancement raised his base offense level from 30 to 34, although this

was reduced by three for acceptance of responsibility. Kilgore=s applicable

guidelines range was 188-235 months and the court sentenced him to 188 months=


       1
                 @We may affirm the decision of the district court on any ground that finds support
in the record ....@ United States v. Campa, 529 F.3d 980, 998 (11th Cir. 2008).


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imprisonment. Without the four-level career offender enhancement and factoring in

Kilgore=s three-level reduction for acceptance of responsibility, the applicable

advisory guidelines range would have been 130-162 months. His conviction

became final on November 20, 2007.

       Almost three years later, Kilgore filed this ' 2255 petition pro se, alleging that

the district court erroneously classified and sentenced him as a career offender in

light of the intervening Supreme Court decision in Johnson. In Johnson, the Court

held that convictions for battery on a law enforcement officer under Florida law are

not categorically a Aviolent felony@ for purposes of the elements clause of the Armed

Career Criminal Act (AACCA@), 18 U.S.C. ' 924(e). 2 559 U.S. at __, 130 S. Ct. at

1272. The district court denied Kilgore=s motion as untimely, stating that neither

the Supreme Court nor this Court had held that Johnson applied retroactively.

Kilgore filed a motion for reconsideration on April 15, 2011, and the district court

denied it on June 8, 2012. Kilgore appealed and this court granted his Certificate of

Appealability (ACOA@) on the issue of timeliness only.




       2
                When determining whether an offense is a crime of violence under ' 4B1.1, Awe
also rely on cases interpreting the residual clause of the Armed Career Criminal Act [ACCA], 18
U.S.C. ' 924(e), because the ' 4B1.2 definition of >crime of violence= and ACCA=s definition of
>violent felony= are substantially the same.@ United States v. Chitwood, 676 F.3d 971, 975 n.2
(11th Cir. 2012).


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                                       II. DISCUSSION

           The COA in this case asks AWhether the district court erred in finding that

Mr. Kilgore=s 28 U.S.C. ' 2255 motion to vacate was untimely filed?@ Kilgore

urges this Court to hold that Johnson is retroactively applicable on collateral review,

arguing that if it is, his petition was timely. That is, although Kilgore filed his '

2255 petition almost three years after his conviction became final, his petition would

nevertheless be timely if he could qualify for the delayed commencement of the

statute of limitations pursuant to ' 2255(f)(3). 3 Thus, if Johnson is retroactive, and

if Johnson provides the relevant rule governing Kilgore=s status as a career offender,

then Kilgore would have been entitled to relief. On appeal, the Government

concedes that Johnson is retroactive, so we can assume arguendo that it is.

However, contrary to Kilgore=s argument, Johnson does not provide the relevant rule

governing whether or not Kilgore is a career offender.

       3
                Section 2255(f)(3) provides:

                (f) A 1-year period of limitation shall apply to a motion under this
                section. The limitation period shall run from the latest of--
                ...
                (3) the date on which the right asserted was initially recognized by
                the Supreme Court, if that right has been newly recognized by the
                Supreme Court and made retroactively applicable to cases on
                collateral review; . . .

28 U.S.C. ' 2255(f).



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      At his initial sentencing, the district court determined that Kilgore=s battery on

a law enforcement officer was a crime of violence for the purposes of U.S.S.G.

'4B1.1. The Court in Johnson held that battery on a law enforcement officer was

not categorically a crime of violence under the elements clause of the ACCA. The

Court instructed that the type of Aphysical force@ required under the ACCA=s

elements clause is Aviolent forceCthat is, force capable of causing physical pain or

injury to another person.@ Id. at __, 130 S. Ct. at 1271 (holding that simple

batteryCthe actual and intentional touching of anotherCdoes not constitute a

predicate offense because the ACCA requires Aviolent force,@ not merely offensive

contact). However, the Supreme Court in Johnson did not reach the issue of

whether Johnson=s offense was a crime of violence under the modified categorical

approach to the elements clause or under the residual clause.

      A panel of this Court, however, has reached those reserved issues.

     Turner v. Warden Coleman FCI (Medium), 709 F.3d 1328 (11th Cir. 2013).

In Turner, we observed that the Court in Johnson Aexpressly noted that it had no

occasion to examine the offense using the modified categorical approach . . . nor did

it have reason to review the statute under the residual clause.@ Id. at 1339.

Johnson=s sole holdingCthat Florida=s battery on a law enforcement officer is not

categorically a crime of violence under the elements clauseCdid not govern the


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Turner case. Addressing the issues reserved in Johnson, the Turner panel first

applied the modified categorical approach. Examining the undisputed facts in the

PSR, the panel noted that Turner had fled from the officers, resisting arrest, and

pushed one deputy against a wall. The panel held that this qualified as a crime of

violence under the modified categorical approach. Id. at 1340.

      Alternatively, the Turner panel also held that Turner=s battery on a law

enforcement officer qualified as a crime of violence under the residual clause,

because of the risk of physical injury to another when a person commits battery on a

law enforcement officer while resisting arrest.

      We conclude that Turner=s alternate holdingCthat Florida=s offense of battery

on a law enforcement officer is a crime of violence under the residual

clauseCcontrols this case. The undisputed facts as set forth in Kilgore=s PSR state

that Kilgore took flight upon being spotted prowling in a residential area and refused

to identify himself. When he was caught by the officers, he physically resisted

arrest. As we held in Turner: Afew crimes present a greater >potential risk of

physical injury to another= than battery on a law enforcement officer, which

necessarily involves an unwanted touching ofCand physical confrontation withCan

officer of the law.@ Id. (quoting ' 924(e) and citing Sykes v. United States, __ U.S.

__, __, 131 S. Ct. 2267, 2273 (2011)). Our holding in Turner applies with equal


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force in the instant case:

      because the risk of serious physical injury attendant to battery on a law
      enforcement officer renders the crime a potential hotbed of melee and
      violence, it easily qualifies as a violent felony under the ACCA=s
      residual clause.

Id. at 1341.

      As in Turner, the Supreme Court=s holding in Johnson does not provide the

relevant rule governing Kilgore=s status as a career offender. Rather, the relevant

rule governing Kilgore=s status as a career offender is Turner=s alternative holding

with respect to the residual clause. His battery on a law enforcement officer while

physically resisting arrest creates the serious risk of physical injury that Aeasily

qualifies as a violent felony under the . . . residual clause.@ Id.

      On this basis, we affirm the judgment of the district court.

      AFFIRMED. 3




      3
               The pending Motion to Vacate the COA is DENIED.


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