                Case: 14-11555    Date Filed: 01/27/2017   Page: 1 of 10


                                                                [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                   No. 14-11555
                               Non-Argument Calendar
                             ________________________

                         D.C Docket No. 9:13-cr-80208-KLR-1

UNITED STATES OF AMERICA,

                                                        Plaintiff - Appellee,

versus

TAIWAN LENARD DRIVER,
a.k.a. “Taiwan Martin”,

                                                Defendant - Appellant.
                             ________________________

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

                                   (January 27, 2017)

     ON REMAND FROM THE UNITED STATES SUPREME COURT

Before WILSON, JULIE CARNES, and ANDERSON, Circuit Judges.

PER CURIAM:

         Defendant pled guilty to possessing a firearm as a convicted felon, in

violation of 18 U.S.C. § 922(g)(1). Based on his prior Florida convictions for false
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imprisonment, manslaughter, and possession of cocaine with intent to sell,

Defendant was sentenced under the Armed Career Criminal Act (“ACCA”) to

serve 180 months in prison. On appeal, Defendant argues that he should not have

been sentenced under the ACCA because neither his false imprisonment nor his

manslaughter conviction is a valid ACCA predicate. We agree that, following the

Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015), the

ACCA enhancement is no longer applicable to Defendant. Accordingly, we vacate

Defendant’s sentence and remand for sentencing consistent with this opinion.

                                 BACKGROUND

      Defendant pled guilty in January 2014 to being a felon in possession of a

firearm in violation of 18 U.S.C. § 922(g)(1). The pre-sentence report (“PSR”)

recommended that Defendant’s sentence be enhanced under the ACCA based on

his prior Florida convictions for: (1) false imprisonment in violation of Florida

Statute § 787.02, (2) manslaughter with a firearm in violation of Florida Statute

§ 782.07(1), and (3) possession of cocaine with intent to sell. Based on the

recommendation in the PSR, the district court applied the ACCA enhancement and

sentenced Defendant to 180 months in prison.

      Defendant appealed the sentence. Subsequently, Defendant’s prior appellate

counsel filed a brief pursuant to Anders v. California, 386 U.S. 745 (1967) and

moved to withdraw from representing Defendant. Defendant submitted a pro se

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response to the Anders brief, in which he argued that he did not have three

qualifying predicate convictions as required to support a sentence enhancement

under the ACCA. Specifically, Defendant argued that his Florida false

imprisonment and manslaughter convictions did not qualify as “violent felonies”

under the ACCA. Based on then-governing case law, we granted prior appellate

counsel’s motion to withdraw pursuant to Anders and affirmed Defendant’s

conviction and sentence.

      Thereafter, Defendant filed a petition for writ of certiorari in the United

States Supreme Court. The Supreme Court granted the petition, vacated this

Court’s decision, and remanded the case for further consideration in light of its

intervening decision in Johnson v. United States, 135 S. Ct. 2551 (2015),

invalidating the ACCA’s residual clause as unconstitutionally vague. Driver v.

United States, 135 S. Ct. 2943 (2015). On remand, this Court appointed the

Federal Public Defender to represent Defendant and ordered supplemental briefing

as to how the Supreme Court’s decision in Johnson impacted this appeal. The

Court directed the parties to address in their supplemental briefing whether (1)

Defendant’s false imprisonment and manslaughter convictions qualified as

predicates under the ACCA’s “elements clause” and (2) plain error or another

standard of review applied to the district court’s application of the ACCA

enhancement under the circumstances.

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      The parties responded to the Court’s order with a joint letter brief indicating

that they agreed the ACCA enhancement did not apply to Defendant following

Johnson and requesting that Defendant’s case be remanded to the district court for

resentencing. However, the letter brief did not answer the questions posed to the

parties and did not contain any argument or analysis as to why Johnson precluded

the application of the ACCA. Thus, after reviewing the letter brief, the Court

issued a second order requesting briefing on these issues. The Court noted in its

second order that false imprisonment and manslaughter do not fall with the

ACCA’s list of enumerated violent felonies under the ACCA and, as a result of

Johnson, cannot qualify as violent felonies under the ACCA’s residual clause, but

that they might nevertheless qualify as violent felonies under the elements clause if

they are defined to include the use of physical force as a necessary element.

      The parties now have filed a second joint letter brief in which they again

argue that Defendant is not subject to an ACCA-enhanced sentence because, in

light of Johnson, neither Defendant’s false imprisonment nor his manslaughter

conviction qualifies as a violent felony under the ACCA.

                                  DISCUSSION

I.    Standard of Review

      The parties agree that we review Defendant’s newly raised Johnson-based

challenge to his ACCA sentence for plain error. See United States v. Moriarty, 429

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F.3d 1012, 1018 (11th Cir. 2005) (stating that we review constitutional objections

“not raised before the district court only for plain error”). For an error to be plain,

it must be “contrary to explicit statutory provisions or to on-point precedent in this

Court or the Supreme Court.” United States v. Hoffman, 710 F.3d 1228, 1232

(11th Cir. 2013) (internal quotation marks omitted). Assuming there is plain error,

we have discretion to correct the error if it implicates the defendant’s “substantial

rights” and “seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” United States v. Jones, 743 F.3d 826, 829 (11th Cir. 2014) (internal

quotation marks omitted).

II.   The ACCA

      A defendant who has been convicted of being a felon in possession of a

firearm and who has at least three prior convictions for a “violent felony” or a

“serious drug offense” is subject to a sentencing enhancement under the ACCA.

18 U.S.C. § 924(e)(1). Defendant concedes that he has one prior conviction that

qualifies as a “serious drug offense.” The determinative question for this appeal is

whether Defendant’s convictions for false imprisonment and manslaughter in

violation of Florida Statute §§ 787.02 and 782.07(1) qualify as “violent felonies”

under the ACCA. Both convictions must qualify in order for Defendant to have

the three predicates necessary to support an ACCA-enhanced sentence.




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      The ACCA defines “violent felony” to include any crime punishable by

imprisonment exceeding one year that:

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

             (ii)   is burglary, arson, or extortion, involves use of explosives, or
                    otherwise involves conduct that presents a serious potential risk
                    of physical injury to another.

Id. § 924(e)(2)(B). The first prong is known as the “elements” clause. United

States v. Seabrooks, 839 F.3d 1326 (11th Cir. 2016). The second prong contains

an “enumerated crimes” clause and a “residual clause.” Id. Neither false

imprisonment nor manslaughter fall within the enumerated crimes clause and, as

indicated above, the residual clause is no longer valid as a result of the Supreme

Court’s decision in Johnson. See Johnson, 135 S. Ct. at 2563 (concluding that the

ACCA’s residual clause is unconstitutionally vague). Thus, Defendant is only

subject to an ACCA enhancement if false imprisonment and manslaughter, as

those crimes are defined by Florida Statute §§ 787.02 and 782.07(1), have 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).

      We generally use a categorical approach to determine whether a state

conviction qualifies as an ACCA predicate. United States v. White, 837 F.3d 1225,

1229 (11th Cir. 2016). “Under this approach, we are concerned only with the fact

of the conviction and the statutory definition of the offense, rather than with the
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particular facts of the defendant’s crime.” Id. When a divisible statute1 covers

some conduct that falls within, and other conduct that is broader than, a predicate

offense as defined by the ACCA, we may use a modified categorical approach to

determine whether a defendant’s prior conviction qualifies. See Mathis v. United

States, 136 S. Ct. 2243, 2249 (2016) (clarifying that a statute enumerating “various

factual means of committing a single element” is not divisible). Under the

modified categorical approach, we look to a limited class of documents—known as

Shepard documents and including reliable materials such as indictments and jury

instructions—to determine which alternative element was the basis of the

defendant’s conviction and whether that element is encompassed by the ACCA

predicate offense. See Descamps v. United States, 133 S. Ct. 2276, 2281 (2013).

III.   Defendant’s False Imprisonment Conviction

       First applying the categorical approach, we agree with the parties that a

conviction for false imprisonment under Florida Statute § 787.02 does not

categorically satisfy the ACCA’s elements clause. The statute defines “false

imprisonment” to mean “forcibly, by threat, or secretly confining, abducting,

imprisoning, or restraining another person without lawful authority and against her

or his will.” Fla. Stat. § 787.02(1)(a). In United States v. Rosales-Bruno, 676 F.3d

1017 (11th Cir. 2012), we held that this language does not necessarily require the

1
   A divisible statute “sets out one or more elements of the offense in the alternative.” Descamps
v. United States, 133 S. Ct. 2276, 2281 (2013).
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“use, attempted use, or threatened use of physical force” to support a conviction.

Rosales-Bruno, 676 F.3d at 1020–22. As we explained in Rosales-Bruno, the

statute’s “secretly confining” language and the interpreting Florida case law make

it clear that § 787.02 can be violated “without employing the type of ‘physical

force’ contemplated” by the elements clause. Id. at 1022. Rosales-Bruno analyzed

the Florida false imprisonment statute in the context of the elements clause of the

Sentencing Guidelines, but the same rationale applies to the identically-worded

elements clause of the ACCA. See United States v. Romo-Villalobos, 674 F.3d

1246, 1248 (11th Cir. 2012) (noting that the elements clause of the Guidelines “is

the same as the elements clause of the . . . ACCA”).

      We further agree with the parties that the modified categorical approach

cannot be applied in this particular case because the Government failed to enter

any Shepard documents into evidence at Defendant’s sentencing. The parties

dispute whether § 787.02 is divisible, and thus whether use of the modified

approach would ever be appropriate when analyzing a conviction under the statute

for ACCA purposes. We need not—and do not—resolve that dispute because,

even assuming that § 787.02 is divisible and that some convictions under the

statute might qualify as ACCA predicates under the modified categorical approach,

there are no Shepard documents in the record that would enable us to apply the

approach to the particular false imprisonment conviction at issue in this case.

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IV.   Plain Error

      As noted, we held in Rosales-Bruno that the crime of false imprisonment as

defined by Florida Statute § 787.02 does not categorically satisfy the elements

clause. See Rosales-Bruno, 676 F.3d at 1020–22. The Government did not

produce any Shepard documents that would have enabled the district court to

conclude that Defendant’s conviction under § 787.02 satisfied the elements clause

under the modified categorical approach, and false imprisonment does not fall

within the ACCA’s “enumerated crimes” clause. Presumably, then, the district

court relied upon the residual clause to conclude that Defendant’s false

imprisonment conviction qualified as a “violent felony” under the ACCA. See

United States v. Schneider, 681 F.3d 1273, 1282 (11th Cir. 2012) (concluding,

prior to Johnson, that Florida false imprisonment qualifies as a violent felony

under the ACCA’s residual clause because it “produces a serious potential risk of

physical injury to another”) (internal quotation marks omitted). In light of the

Supreme Court’s decision in Johnson, that was plain error. See Jones, 743 F.3d at

829–30 (“an intervening decision by . . . the Supreme Court squarely on point may

make an error plain”) (internal quotation marks omitted). And because Defendant

now lacks the three predicate convictions necessary to support an ACCA




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sentencing enhancement, the error warrants correction. 2 Id. at 830 (vacating and

remanding for resentencing where the defendant did not have the “three qualifying

convictions necessary” for the ACCA sentencing enhancement he received as a

result of an intervening Supreme Court decisions).

                                      CONCLUSION

       For the reasons discussed above, we VACATE Defendant’s sentence and

REMAND the case for resentencing consistent with this opinion.




2
  Because our ruling as to the false imprisonment conviction resolves this appeal, we do not
consider Defendant’s alternative argument that his manslaughter conviction also does not qualify
as a “violent felony” under the elements clause.
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