                                                                       [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT           FILED
                             ________________________ U.S. COURT OF APPEALS
                                                                      ELEVENTH CIRCUIT
                                     No. 09-11071                      OCTOBER 24, 2011
                                 Non-Argument Calendar                    JOHN LEY
                                                                            CLERK
                               ________________________

                     D. C. Docket No. 08-00088-CR-FTM-29-DNF

UNITED STATES OF AMERICA,

                                                                           Plaintiff-Appellee,

                                            versus

GURMERCINDO BELTRAN,

                                                                       Defendant-Appellant.

                               ________________________

                      Appeal from the United States District Court
                          for the Middle District of Florida
                           _________________________
                                  (October 24, 2011)

                   ON REMAND FROM THE UNITED STATES
                           SUPREME COURT


Before DUBINA, Chief Judge, and EDMONDSON, Circuit Judge.*

       *
         Judge Birch was a panel member of the original Opinion. Since then, Judge Birch
retired from the bench and is no longer a member of the court. Pursuant to 11th Cir. R. 34-2, the
remaining two judges may proceed by quorum.
PER CURIAM:

      In United States v. Beltran, 367 F. App’x 984 (11th Cir. 2010), we affirmed

Appellant Gurmercindo Beltran’s enhanced sentence as a career offender pursuant

to U.S. Sentencing Guidelines Manual § 4b1.1 following his conviction for

possession with intent to distribute cocaine and crack cocaine under 21 U.S.C. §

841(a)(1), (b)(1)(C). The United States Supreme Court vacated our judgment,

Beltran v. United States, ___ U.S. ___ , 131 S. Ct. 899 (2011), and remanded the

case to us for further consideration in light of its decision in Johnson v. United

States, 559 U.S. ___ , 130 S. Ct. 1265 (2010). Having considered the parties’

briefs in the initial appeal and the record, we remand this case to the district court

for further consideration of Beltran’s sentence in light of Johnson.

      In Johnson, the Supreme Court considered whether the defendant’s prior

Florida battery conviction was a “violent felony” under the Armed Career

Criminal Act (“ACCA”) 18 U.S.C. § 924(e)(2)(B)(i), one with an element of “use,

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

The Johnson Court determined that in order for a crime to be a violent felony, it

must involve “violent force,” further defined by the Court as “force capable of

causing physical pain or injury to another.” Johnson, 559 U.S. at ___, 130 S. Ct.

at 1271.

                                           2
      Under U.S. Sentencing Guidelines Manual § 4b1.1, a defendant qualifies as

a career offender if he has “at least two prior felony convictions of either a crime

of violence or a controlled substance offense.” A crime of violence is defined as it

is in the ACCA, 18 U.S.C. § 924(e)(2)(B)(i), the provision at issue in Johnson.

Thus, in addition to certain enumerated offenses not relevant here, a “crime of

violence” for purposes of § 4B1.1 is “any other offense under federal, state, or

local law that has as an element the use, attempted use, or threatened use of

physical force against the person of another.”

       To decide whether a prior conviction constitutes a crime of violence, the

sentencing court ordinarily employs a “categorical approach.” Taylor v. United

States, 495 U.S. 575, 600 (1990). Under this approach, the court may “look only

to the fact of conviction and the statutory definition of the prior offense.” Taylor,

495 U.S. at 602. In a limited class of cases, however, where the definition of the

underlying crime encompasses both violent and non-violent conduct, a sentencing

court may look beyond the statutory definition. Johnson, 559 U.S. at ___, 130 S.

Ct. at 1273. In such cases, “the modified categorical approach . . . permits a court

to determine which statutory phrase was the basis for the conviction by consulting

the trial record—including charging documents, plea agreements, [and] transcripts

of plea colloquies[.]” Id. (internal quotation marks omitted).

                                          3
       In this case, the district court relied on Beltran’s felony conviction under

Fla. Stat. § 843.01 as one of the predicate offenses for the career offender

enhancement under § 4B1.1(a).1 At the time of Beltran’s conviction, Fla. Stat. §

843.01 made it a felony offense 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 (2002). The

district court exclusively employed the categorical approach in reaching its

conclusion and did not consider if Beltran’s conviction under Fla. Stat. § 843.01

qualified as a violent felony under the modified-categorical approach discussed in

Johnson.2 Thus, we vacate Beltran’s enhanced sentence and remand this case for

the district court to consider the enhancement anew in light of Johnson v. United

States, 559 U.S. ___ , 130 S. Ct. 1265 (2010).

       VACATED and REMANDED.




       1
           Beltran does not dispute that he has one qualifying prior felony conviction.
       2
        The government alluded to potentially useful information regarding the nature of
Beltran’s Florida offense, but the record on appeal is not complete enough for us to determine
whether the modified-categorical approach may be applied to find Fla. Stat. § 843.01 is a violent
felony. See Sentencing Transcript, statements by government’s counsel, R. 85 at 17 (“The
crimes, the acts that Mr. Beltran committed, were crimes of violence. We believe that, quite
possibly, [defense counsel] may even be right categorically, but there is no dispute as to what Mr.
Beltran did, and they were violent acts.”).

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