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                                                                 [PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 14-12294
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:13-cr-20858-MGC-1

UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee
                                                                Cross Appellant,

                                   versus

TYWAN HILL,

                                                          Defendant-Appellant
                                                              Cross Appellee.

                       ________________________

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

                            (August 26, 2015)

Before HULL, WILSON, and ROSENBAUM, Circuit Judges.

PER CURIAM:
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      Tywan Hill was found guilty of being a convicted felon in possession of a

firearm in violation of 18 U.S.C. § 922(g)(1). Hill appeals his conviction,

contending that the jury instruction for constructive possession should have

included the term “knowingly,” and the district court’s denial of his request to

modify the instructions to reflect such was an abuse of its discretion. The

government cross-appeals the district court’s refusal to enhance Hill’s term of

imprisonment pursuant to the Armed Career Criminal Act (ACCA). It contends

that Hill’s prior convictions for battery on a law enforcement officer, in violation

of Florida Statutes sections 784.03 and 784.07(2)(b), and resisting an officer with

violence, in violation of Florida Statutes section 843.01, constitute violent felonies

under the ACCA, see 18 U.S.C. § 924(e)(1).

        After review of the parties’ briefs and the record on appeal, we conclude

that the district court did not abuse its discretion in denying Hill’s request to

modify the jury instruction for constructive possession, and thus affirm Hill’s

conviction. However, because we conclude that Hill’s prior Florida conviction for

resisting an officer with violence constitutes a violent felony under the ACCA, we

vacate Hill’s sentence and remand to the district court for further proceedings

consistent with this opinion.




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                                           I.

      In contending that the district court abused its discretion in denying his

request to modify the jury instruction, Hill argues that the jury instruction given for

constructive possession, which did not include the term “knowingly,” seriously

impaired his defense. Hill avers that without inclusion of the term “knowingly,”

the jury was permitted to conclude that Hill could have constructive possession of

the firearm without actually knowing that the firearm was in the passenger

compartment of the car he was alleged to have been driving.

      The district court’s refusal to submit a defendant’s requested jury instruction

is reviewed for an abuse of discretion. United States v. Dominguez, 661 F.3d 1051,

1071 (11th Cir. 2011). Under this standard, a court’s decision will not be disturbed

if it falls within a range of possible conclusions that do not constitute a clear error

of judgment. United States v. Lopez, 649 F.3d 1222, 1236 (11th Cir. 2011). We

consider three factors when determining whether the district court’s refusal to give

a requested jury instruction warrants reversal: “(1) whether the requested

instruction is a substantially correct statement of the law; (2) whether the jury

charge given addressed the requested instruction; and (3) whether the failure to

give the requested instruction seriously impaired the defendant’s ability to present

an effective defense.” Dominguez, 661 F.3d at 1071 (internal quotation marks

omitted).


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      In order to be convicted under § 922(g)(1), a defendant must be a convicted

felon that knowingly possesses a firearm that is “in or affecting interstate

commerce.” See 18 U.S.C. § 922(g)(1); see also United States v. Beckles, 565 F.3d

832, 841 (11th Cir. 2009). “Possession of a firearm may be either actual or

constructive.” United States v. Perez, 661 F.3d 568, 576 (11th Cir. 2011) (per

curiam). A defendant is in constructive possession of a firearm when the

defendant does not actually possess the firearm “but instead knowingly has the

power or right, and intention to exercise dominion and control over the firearm.”

Id. Jury instructions that imply knowledge or an awareness of the object possessed

when defining constructive possession, substantially cover the requirement that a

defendant knowingly possess a firearm—the use of such an instruction does not

constitute reversible error. See United States v. Winchester, 916 F.2d 601, 605

(11th Cir. 1990).

      Hill’s proposed jury instruction was an accurate statement of the law, but the

instruction given by the district court adequately covered Hill’s proposed

instruction. See Dominguez, 661 F.3d at 1071. Furthermore, the district court’s

instruction on the elements of the crime stated that it must be proved beyond a

reasonable doubt that Hill knowingly possessed a firearm. Finally, the definition

of constructive possession given to the jury impliedly required that Hill knowingly

possess the firearm. See Winchester, 916 F.2d at 605. Thus, the district court did


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not abuse its discretion in denying Hill’s request to modify the jury instruction to

include the word “knowingly,” and therefore, we affirm Hill’s conviction.

                                         II.

      On cross-appeal, the government argues that the district court erred in

concluding that Hill’s prior felony convictions in Florida for battery on a law

enforcement officer and resisting an officer with violence do not constitute violent

felonies under the ACCA. The government contends that both convictions

constitute violent felonies under the ACCA’s residual clause pursuant to this

Court’s well-established binding precedent.

      We review de novo whether a defendant’s prior convictions qualify as

violent felonies under the ACCA. United States v. Petite, 703 F.3d 1290, 1292

(11th Cir. 2013). The ACCA provides that a defendant who violates 18 U.S.C.

§ 922(g) and has three prior convictions for a violent felony or serious drug offense

is subject to a fifteen-year statutory minimum sentence. See § 924(e)(1). The last

clause of § 924(e)(2)(B)(ii) of the ACCA, commonly referred to as the “residual

clause,” enumerates crimes that present “a serious potential risk of physical injury

to another.” Petite, 703 F.3d at 1293–94 (internal quotation marks omitted).

      The Supreme Court recently held that the residual clause of the ACCA was

unconstitutionally vague. See Johnson v. United States, 576 U.S. __, 135 S. Ct.

2551, 2557–58 (2015). The Supreme Court, however, did “not call into question


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application of the Act to the four enumerated offenses, or the remainder of the

[ACCA’s] definitions of a violent felony.” Id. at __, 135 S. Ct. at 2563. Thus, by

holding in Johnson that the ACCA’s residual clause is unconstitutional, the

Supreme Court necessarily abrogated this Court’s prior binding precedent, which

held that these two Florida felony convictions qualified as predicate offenses under

the residual clause of the ACCA.1 Consequently, Johnson forecloses the

government’s argument on appeal that Hill’s prior Florida felony convictions for

battery on a law enforcement officer and resisting an officer with violence are

violent felonies under the ACCA’s residual clause.

       As previously mentioned, in Johnson the Supreme Court expressly limited

its holding to the ACCA’s residual clause, leaving undisturbed “the remainder of

the [ACCA’s] definitions of a violent felony,” which would include the ACCA’s

definition of a violent felony under its elements clause. Id. Section 924(e)(2)(B)(i)

of the ACCA is often referred to as the “elements clause.” See Petite, 703 F.3d at

1293. Section 924(e)(2)(B)(i) defines a violent felony as a crime that is punishable


       1
          We acknowledge that we have previously held that battery on a law enforcement
officer, in violation of Florida Statutes sections 784.03 and 784.07(2)(b), and resisting an officer
with violence, in violation of Florida Statutes section 843.01, qualified as violent felonies under
the ACCA’s residual clause. See, e.g., Turner v. Warden Coleman FCI (Medium), 709 F.3d
1328, 1340 (11th Cir. 2013) (Florida battery on a law enforcement officer conviction qualifies as
a violent felony under the ACCA’s residual clause.); United States v. Nix, 628 F.3d 1341, 1342
(11th Cir. 2010) (per curiam) (Resisting an officer with violence under Florida law is a violent
felony under the ACCA’s residual clause.). But, we are no longer bound by this precedent after
Johnson. See, e.g., United States v. Vega-Castillo, 540 F.3d 1235, 1236 (11th Cir. 2008) (per
curiam).
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by more than one year in prison that “has as an element the use, attempted use, or

threatened use of physical force against the person of another.” 18 U.S.C.

§ 924(e)(2)(B)(i).

      To determine whether an offense is a violent felony under the ACCA, we

use a categorical approach, looking at “the fact of conviction and the statutory

definition of the prior offense.” See Petite, 703 F.3d at 1294 (internal quotation

marks omitted). The phrase “physical force” in the context of the statutory

definition of “violent felony” means “force capable of causing physical pain or

injury to another person.” Johnson, 559 U.S. at 140, 130 S. Ct. at 1271. While the

meaning of “physical force” is a question of federal law, federal courts are bound

by a state supreme court’s interpretation of state law, including its determination of

the elements of the underlying state offense. See id. at 138, 130 S. Ct. at 1269.

“[A]bsent a decision from the state supreme court on an issue of state law, we are

bound to follow decisions of the state’s intermediate appellate courts unless there

is some persuasive indication that the highest court of the state would decide the

issue differently.” McMahan v. Toto, 311 F.3d 1077, 1080 (11th Cir. 2002).

      In Florida, any person who “knowingly and willfully resists, obstructs, or

opposes any officer . . . in the lawful execution of any legal duty, by offering or

doing violence to the person of such officer,” is guilty of resisting an officer with

violence—a third degree felony. See Fla. Stat. § 843.01. Florida’s intermediary


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courts have held that violence is a necessary element of the offense. See Rawlings

v. State, 976 So. 2d 1179, 1181 (Fla. Dist. Ct. App. 2008) (“[V]iolence is a

necessary element of the offense [of resisting an officer with violence].”); see also

Walker v. State, 965 So. 2d 1281, 1284 (Fla. Dist. Ct. App. 2007) (“[R]esisting

arrest with violence is a felony that involves the use or threat of physical force or

violence . . . .”) (quoting Watson v. State, 749 So. 2d 556, 556 (Fla. Dist. Ct. App.

2000))).

       In looking to the decisions of Florida’s intermediary courts before, we have

held that a prior conviction for resisting an officer with violence categorically

qualifies as a violent felony under the elements clause of the ACCA. See United

States v. Romo-Villalobos, 674 F.3d 1246, 1251 (11th Cir. 2012) (per curiam)

(concluding that a conviction under section 843.01 “is sufficient for liability under

the first prong of the ACCA” (internal quotation marks omitted)). Therefore, we

conclude that the district court erred in finding that Hill’s Florida conviction for

resisting an officer with violence under section 843.01 did not constitute a violent

felony under the ACCA. 2


       2
         The government concedes that Hill’s Florida conviction for battery on a law
enforcement officer under Florida Statutes sections 784.03 and 784.07(2)(b) does not
categorically constitute a violent felony under the elements clause of the ACCA pursuant to
Supreme Court precedent. See Johnson v. United States, 559 U.S. 133, 136–37, 140–42, 130 S.
Ct. 1265, 1269, 1271–72 (2010) (concluding that a Florida conviction for battery under section
784.03 is not categorically a violent felony because the elements of the offense are in the
disjunctive and the prosecution can prove a battery in one of three ways: that the defendant (1)
intentionally caused bodily harm, (2) intentionally struck the victim, or merely (3) actually and
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                                              III.

       Based on the foregoing, we affirm Hill’s conviction, but vacate his sentence

given the district court’s error in finding that Hill’s prior felony conviction for

resisting an officer with violence did not constitute a violent felony under the

ACCA.

       On remand and prior to resentencing Hill, the district court must also

determine whether any of Hill’s previous drug convictions constitute “serious drug

offenses” under the ACCA. See 18 U.S.C. § 924(e)(2)(A)(ii). In response to Hill’s

objections to the presentence investigation report, the government contended that

Hill’s 1999 cocaine sale/delivery conviction, in violation of Florida Statutes

section 893.13(1)(a)(1), and his 2008 cocaine trafficking conviction, in violation of

Florida Statutes section 893.135(1)(b)(1), were ACCA-qualifying “serious drug

offenses.” At sentencing, the district court did not address whether Hill’s prior

drug convictions were serious drug offenses. As such, the government’s brief

declined to address Hill’s drug convictions “in the first instance on appeal” and

relied primarily on Hill’s other convictions and the residual clause. Given the

intervening decision of the Supreme Court in Johnson that overrules the Supreme




intentionally touched the victim). In Johnson, the Supreme Court added that “nothing in the
record of Johnson’s 2003 battery conviction permitted the District Court to conclude that it
rested upon anything more than the least of these acts,” which is merely touching the victim.


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Court’s prior decisions about the same residual clause,3 we direct the district court

to allow the parties on remand to raise and brief whether any of Hill’s prior

convictions nevertheless support the ACCA enhancement under the two other

provisions of the ACCA.

       Finally, we acknowledge the existence of a clerical error in the judgment,

which states that Hill pleaded guilty to the indictment. Hill was, in fact, convicted

by a jury after trial. We may sua sponte raise the issue of clerical errors in the

judgment and remand with instructions that the district court correct the errors.

See United States v. Anderton, 136 F.3d 747, 751 (11th Cir. 1998) (per curiam)

(remanding with directions to the district court to correct the clerical errors).

Accordingly, the district court should correct the clerical error contained in the

judgment after resentencing.

       AFFIRMED in part, VACATED and REMANDED in part.




       3
         The Supreme Court twice upheld the ACCA’s residual clause before holding it
unconstitutionally vague. Compare James v. United States, 550 U.S. 192, 127 S. Ct. 1586
(2007), and Sykes v. United States, 564 U.S. __, 131 S. Ct. 2267 (2011), with Johnson, 576 U.S.
at __, 135 S. Ct. at 2557-58.
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