           Case: 16-16193   Date Filed: 07/18/2017   Page: 1 of 4


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-16193
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 9:14-cr-80032-WJZ-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

NICHOLAS MAIDA,

                                                         Defendant-Appellant.

                       ________________________

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

                              (July 18, 2017)

Before MARTIN, JILL PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM:
                 Case: 16-16193    Date Filed: 07/18/2017   Page: 2 of 4


         Nicholas Maida appeals his 120-month sentence, imposed after he pled

guilty to one count of possession of a firearm and ammunition as a convicted felon,

in violation of 18 U.S.C. § 922(g)(1). In calculating Maida’s guideline range, the

district court determined that he qualified for a base offense level of 24 pursuant to

U.S.S.G. § 2K2.1(a)(2) because he had two prior convictions for “crimes of

violence” as defined in U.S.S.G. § 4B1.2. On appeal, Maida argues that the district

court erred in determining that his prior Florida conviction for aggravated battery

with a deadly weapon qualifies as a “crime of violence.” He asserts that the

offense does not include as an element the use, attempted use, or threatened use of

force.

         We review de novo whether a prior conviction qualifies as a crime of

violence under the Sentencing Guidelines. United States v. Estrada, 777 F.3d

1318, 1321 (11th Cir. 2015). The guidelines provide for a base offense level of 24

for a defendant convicted of unlawfully possessing a firearm if the defendant

committed that offense after sustaining at least two felony convictions of either a

crime of violence or a controlled substance offense. U.S.S.G. § 2K2.1(a)(2). The

guidelines that applied when Maida was sentenced defined “crime of violence” as

any offense punishable by imprisonment for a term exceeding on year, that:

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



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      (2) is burglary of a dwelling, arson, extortion, involves the use of
          explosives, or otherwise involves conduct that presents a serious
          potential risk of physical injury to another.
U.S.S.G. § 4B1.2(a) (amended 2016).

      Under Florida law, a person commits aggravated battery when he commits

simple battery along with one of three aggravating factors. Fla. Stat. Ann.

§ 784.045(1). Simple battery is defined as (1) actually and intentionally touching

or striking another person against the will of the other, or (2) intentionally causing

bodily harm to another person. Id. § 784.03(1)(a). Aggravated battery occurs

when a person commits simple battery and (1) intentionally or knowingly causes

great bodily harm, permanent disability, or permanent disfigurement; (2) uses a

deadly weapon; or (3) knew or should have known that the victim was pregnant.

Id. § 784.045(1); Turner v. Warden, Coleman FCI (Medium), 709 F.3d 1328, 1341

(11th Cir. 2013), abrogated on other grounds by Johnson v. United States, 135

S. Ct. 2551 (2015).

      As Maida acknowledges, we previously have held that Florida’s aggravated

battery with a deadly weapon statute qualifies as a “violent felony” under the

Armed Career Criminal Act’s (“ACCA”) elements clause, which is worded the

same as the elements clause in U.S.S.G. § 4B1.2(a). Turner, 709 F.3d at 1341.

Furthermore, we recently confirmed that, despite questions regarding its continuing

validity, Turner remains binding precedent in this Circuit. See generally United


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States v. Golden, 854 F.3d 1256 (11th Cir. 2017); see id. at 1256-57 (noting that

Turner controlled the determination of whether a Florida aggravated assault

conviction qualified as a “crime of violence” under U.S.S.G. § 4B1.2 because,

although Turner concerned ACCA’s elements clause, the elements clauses under

ACCA and guidelines are identical).

      We continue to be bound to follow Turner unless and until it is overruled or

undermined to the point of abrogation by this Court sitting en banc or by the

Supreme Court; thus, we acknowledge that Maida has preserved this challenge but

do not address it further. See United States v. Brown, 342 F.3d 1245, 1246 (11th

Cir. 2003); see also United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008)

(noting that, although a decision of the Supreme Court may overrule or abrogate

prior panel precedent, such a decision “must be clearly on point” (internal

quotation marks omitted)). We therefore affirm Maida’s sentence.

      AFFIRMED.




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