           Case: 15-10694   Date Filed: 01/25/2016   Page: 1 of 20


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-10694
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 1:14-cr-20406-BB-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                 versus

SHANE MARIANO,

                                                          Defendant-Appellant.

                       ________________________

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

                            (January 25, 2016)

Before TJOFLAT, WILSON and JILL PRYOR, Circuit Judges.

PER CURIAM:
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      Shane Mariano appeals his conviction and resulting sentence for being a

felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Mariano

asserts his conviction should be vacated because: the district court erroneously

admitted eyewitness testimony and DNA evidence at his trial; the district court

erred by refusing to instruct the jury on cross-racial identification; and there was

insufficient evidence to support his conviction. Mariano also challenges his

sentence, asserting the district court: erroneously sentenced him pursuant to 18

U.S.C. § 924(e)(1) of the Armed Career Criminal Act (ACCA); improperly

calculated his base offense level under the Sentencing Guidelines; and imposed an

unreasonable sentence on him. We hold that the district court did not commit any

reversible trial error. However, we conclude that the court erred in sentencing

Mariano pursuant to § 924(e)(1). Accordingly, we affirm Mariano’s conviction,

but vacate his sentence and remand for resentencing.

                                I.   BACKGROUND

   A. Trial

      In 2014, Mariano was indicted on one count of being a felon in possession of

a firearm, in violation of § 922(g)(1). At his trial, the prosecution argued that

Mariano threatened a cab driver with a silver pistol on January 17, 2014. In

support thereof, the prosecution proffered, inter alia, testimony from the cab




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driver, testimony from one of the police officers who apprehended Mariano, and

DNA evidence related to the silver pistol.

      1. Summary of the Cab Driver’s Testimony

      At approximately 1:00 a.m. on January 17, someone driving a white Ford

Mustang began honking at the cab driver while he was dropping off a customer.

After the cab driver received his fare from the customer and drove to the nearest

intersection, the white Mustang pulled up next to him and the Mustang’s driver

began cursing at him. The cab driver ignored the white Mustang and continued

driving. But, at a red light, the white Mustang pulled up to him again. The

Mustang’s driver exited the Mustang, walked to the cab, and began banging on the

cab’s window. While banging on the window, the Mustang’s driver threatened to

shoot the cab driver. The Mustang’s driver then returned to the Mustang and

retrieved a silver pistol, which he pointed at the cab driver. After the light turned

green, the cab driver drove away and proceeded to search for police officers.

      The cab driver found police officers at a local restaurant and informed them

about his altercation with the Mustang’s driver. The cab driver told the officers

that the Mustang was white and had a Florida license plate. He also reported to the

officers that the Mustang had an Italian flag near the dashboard. The cab driver

described the Mustang’s driver as Caucasian with short hair and a clean shaven

face. In addition, he stated that the Mustang’s driver was wearing a gray sweater.


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The officers then told the cab driver to stay nearby until they located the Mustang.

Shortly thereafter, the officers directed the cab driver to a gas station. The officers

had an individual handcuffed at the gas station. The white Mustang was also at the

gas station. The officers asked the cab driver if the handcuffed individual was the

Mustang’s driver, and the cab driver responded affirmatively. 1 The individual was

Mariano. 2

       2. Summary of Apprehending Police Officer’s Testimony

       Shortly after receiving the cab driver’s description of the Mustang and its

driver, the police officer found a white Mustang at a gas station and saw an

individual fitting the description provided by the cab driver leaving the gas station.

The officer requested assistance and for the cab driver to come to the gas station.

After the cab driver identified Mariano as the individual who had threatened him

with a silver pistol, the officer searched Mariano’s person. The officer found car

keys for a Ford Mustang in Mariano’s pockets. The keys matched the white

Mustang parked at the gas station. The officer and another officer then searched

the Mustang and found a silver pistol. The Mustang also had an Italian flag

hanging from the rearview mirror near the dashboard.


       1
          This identification procedure is known as a “show-up.”
       2
          Relevant to Mariano’s claim that the district court erred by refusing to offer a jury
instruction on cross-racial identification, the cab driver is of Egyptian ethnicity. Prior to trial,
Mariano proposed a jury instruction regarding the inaccuracies of cross-racial identification. The
court declined to provide the instruction, finding that the Eleventh Circuit’s pattern jury
instruction on identification was sufficient.
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       3. DNA Evidence Related to the Silver Pistol

       At trial, the prosecution proffered an expert witness to testify about DNA

evidence obtained from the silver pistol. The evidence was derived from testing

done by the police department’s crime lab. The results of the testing were

inconclusive—the pistol had a mixture of DNAs on it. However, according to the

expert witness, Mariano’s DNA could not be excluded as a possible “contributor”

to the mixture.3

   B. Sentencing

       The district court determined Mariano has a base offense level of 24 under §

2K2.1 of the Guidelines. But, the court enhanced Mariano’s sentence pursuant to §

924(e)(1), finding Mariano qualifies for the enhancement because of his prior

convictions for third degree burglary under New York Penal Law § 140.20, second

degree assault under New York Penal Law § 120.05(02), and resisting an officer

with violence under Florida Statutes § 843.01. Ultimately, the court sentenced

Mariano to 18 years’ imprisonment.




       3
        Mariano presented one witness during his defense. The witness testified that she and
two other individuals were in Mariano’s car during the altercation with the cab driver.
According to the witness, Mariano did not have a silver pistol in his possession at that time.
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                                     II.    DISCUSSION

   A. Challenges to Conviction

      Mariano challenges his conviction on a number of grounds. He asserts the

district court committed trial error by admitting the cab driver’s testimony, not

excluding the DNA evidence related to the silver pistol, and refusing to provide a

jury instruction on cross-racial identification. According to Mariano, these various

errors, individually and cumulatively, require us to vacate his sentence. Mariano

also contends his conviction must be vacated due to insufficient evidence. We

address each argument in turn.

      1. The District Court Did Not Err by Admitting the Cab Driver’s
         Testimony.

      Mariano asserts the cab driver’s testimony was derived from an

unconstitutional, unduly suggestive out-of-court identification—the show-up at the

gas station.4 As such, he claims the district court erred in allowing the testimony.

      Typically, the constitutionality of an out-of-court identification is reviewed

de novo. See United States v. Elliot, 732 F.3d 1307, 1309 (11th Cir. 2013) (per

curiam). However, we review constitutional objections not raised before the

district court, such as Mariano’s challenge to the cab driver’s identification, for

plain error. See United States v. Moriarty, 429 F.3d 1012, 1018 (11th Cir. 2005)

(per curiam). Under plain error review, the party raising the challenge bears the

      4
          Notably, Mariano never challenged the testimony during trial.
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burden of establishing that (1) there is an error; (2) the error is plain; (3) the error

affects the substantial rights of the defendant; and (4) “the error seriously affects

the fairness, integrity or public reputation of judicial proceedings.” Id. at 1019

(internal quotation marks omitted).

      The constitutionality of an out-of-court identification is reviewed under a

two-part test. See Cikora v. Dugger, 840 F.2d 893, 895 (11th Cir. 1988). We must

first “determine whether the original identification procedure was unduly

suggestive.” Id. If unduly suggestive, we “must then consider whether, under the

totality of the circumstances, the identification was nonetheless reliable.” Id. The

factors to be considered in determining whether the identification was reliable

include: (1) opportunity to view the defendant at the time of the crime; (2) degree

of attention; (3) accuracy of the description; (4) level of certainty; and (5) length of

time between the crime and the identification. 5 Neil v. Biggers, 409 U.S. 188,

199–200, 93 S. Ct. 375, 382 (1972).

      Assuming arguendo that the show-up at the gas station was unduly

suggestive, the district court did not err in admitting the cab driver’s testimony

because Mariano has not shown that the cab driver’s testimony was plainly

unreliable. Each of the Biggers factors suggests the cab driver’s identification was

reliable. First, the cab driver had a reasonable opportunity to view Mariano during


      5
          These factors are known as the “Biggers factors.”
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their altercation: Mariano banged on the cab driver’s window and, subsequently,

Mariano pointed the silver pistol at the cab driver from a relatively short distance.

Second, the cab driver “was not a casual or passing observer,” rather he directly

engaged with Mariano and was the subject of Mariano’s threats. See Manson v.

Brathwaite, 432 U.S. 98, 115, 97 S. Ct. 2243, 2253 (1977). Third, the cab driver’s

description accurately portrayed Mariano’s physical characteristics and clothing.

Relatedly, the cab driver provided an accurate description of Mariano’s car.

Fourth, the cab driver never expressed or otherwise indicated that he was uncertain

about his identification of Mariano. Finally, the cab driver gave his description of

Mariano to police “within minutes” of the altercation. See id. at 115–16, 96 S. Ct.

at 2253.

      In response to this evidence, Mariano asserts the cab driver gave varying

descriptions of the Mustang’s driver to police on the night of the altercation and,

therefore, the cab driver’s identification was unreliable. Specifically, Mariano

alleges the cab driver first described the Mustang’s driver as having a shaved head

then later stated the Mustang’s driver had short dark hair. But, this claim is belied

by the cab driver’s testimony at trial. The cab driver testified that he described the

Mustang’s driver as “clean shaven,” not as having a shaved head. Based on this

testimony and the above evidence, we cannot conclude that the cab driver’s




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identification was obviously unreliable. Therefore, we find no plain error. See

Moriarty, 429 F.3d at 1018.

      2. The District Court Did Not Err by Admitting the DNA Testimony.

      Mariano next argues the district court erroneously admitted the DNA

evidence related to the silver pistol, claiming the evidence did not assist the trier of

fact and was both unfairly prejudicial and confusing.

      We review the admissibility of expert testimony for abuse of discretion—a

standard so deferential that we will not reverse “unless the ruling is manifestly

erroneous.” United States v. Frazier, 387 F.3d 1244, 1258 (11th Cir. 2004) (en

banc) (internal quotation marks omitted). Moreover, we will only reverse an

erroneous admission of expert testimony if the error was not harmless. See United

States v. Bradley, 644 F.3d 1213, 1270 (11th Cir. 2011). “An error is harmless

unless there is a reasonable likelihood that it affected the defendant’s substantial

rights.” Id. (internal quotation marks omitted).

      The admissibility of expert testimony turns on whether: (1) “the expert is

qualified to testify competently regarding the matters he intends to address”; (2)

the expert’s methodology is reliable, and (3) “the testimony assists the trier of

fact.” Frazier, 387 F.3d at 1260. Although testimony meeting these criteria is

generally admissible, it may be excluded under Federal Rule of Evidence 403 if its

probative value is substantially outweighed by its potential to confuse or mislead


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the jury. Id. at 1263. At the same time, “Rule 403 is an extraordinary remedy

which should be used only sparingly”—the balance in making a Rule 403

determination “should be struck in favor of admissibility.” United States v.

Terzado-Madruga, 897 F.2d 1099, 1117 (11th Cir. 1990) (internal quotation marks

omitted).

      Here, the district court did not abuse its discretion in admitting the DNA

evidence. Mariano does not contest the DNA expert’s competency or the

reliability of the expert’s methodology; he only argues that the district court should

have excluded the expert’s testimony because it did not assist the trier of fact and it

implicated Rule 403. However, these arguments are unavailing.

      Under the “assists the trier of fact” admissiblity requirement, relevant

“expert testimony is admissible if it concerns matters that are beyond the

understanding of the average lay person.” Frazier, 387 F.3d at 1261–62. The

DNA expert testified that Mariano was a possible contributor to the mixture of

DNA found on the silver pistol. Providing further guidance to the fact finder, the

expert also testified to the probability of Mariano’s DNA actually contributing to

the mixture. This evidence was relevant and “concern[ed] matters that are beyond

the understanding of the average lay person,” as it was scientific evidence that

made it “more or less probable” that Mariano possessed the silver pistol. See id. at

1262; Fed. R. Evid. 401. Therefore, the district court did not abuse its discretion


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with respect to the “assists the trier of fact” requirement when it admitted the

evidence.

        Mariano has also failed to show that the district court abused its discretion

by not invoking Rule 403 to exclude the expert’s testimony. “It is only unfair

prejudice [or confusion], substantially outweighing probative value, which permits

exclusion of relevant matter under Rule 403.” Terzado-Madruga, 897 F.2d at 1119

(internal quotation marks omitted). Mariano asserts the expert’s testimony was

“prejudicial and confusing” because the DNA evidence was inconclusive and the

evidence revealed “a scientifically certain DNA match to a different person on the”

magazine of the silver pistol. However, any prejudice or confusion resulting from

these facts does not substantially outweigh the probative value of the expert’s

testimony. Indeed, we are unconvinced that this evidence is prejudicial or

confusing at all, and Mariano cites no precedent from this court suggesting

otherwise. Moreover, even assuming the DNA evidence was prejudicial or

confusing, there is no “reasonable likelihood” that the district court’s admission of

the evidence “affected [Mariano’s] substantial rights.” See Bradley, 644 F.3d at

1270.

        3. The District Court Did Not Err in Refusing to Provide a Jury
           Instruction on Cross-Racial Identification.

        Mariano also claims the district court erred in refusing to provide a jury

instruction on cross-racial identification. He asserts the instruction was required
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because he and the cab driver are of different ethnicities and there is a significant

risk of inaccurate identification amongst individuals of different ethnicities.

       We review a district court’s refusal to give a requested jury instruction for

abuse of discretion. United States v. King, 751 F.3d 1268, 1275 (11th Cir. 2014)

(per curiam). A “defendant is entitled to have the jury instructed regarding his

theory of defense separate and apart from instructions given on the elements of the

charged offense if there has been some evidence adduced at trial relevant to that

defense.” Id. (internal quotation marks omitted). “We view the evidence in the

light most favorable to the defendant in determining whether there was a proper

evidentiary foundation for the instruction.” Id.

       Here, “no evidence was adduced at trial related to” the ability of a witness to

make a cross-racial identification. See id. Mariano “did not present any evidence

regarding the effect of race on the ability of a witness to make an accurate

identification, nor did he cross-examine” the relevant witness—the cab driver—“to

determine whether [the cab driver] had difficulty making cross-racial

identifications.” See id. at 1275–76. “Accordingly, [Mariano] failed to adduce a

sufficient evidentiary basis for the requested instruction, and the district court did

not abuse its discretion in declining to give it.” See id. at 1275.6



       6
         Given Mariano has not shown any trial errors, his argument regarding cumulative error
is without merit. See United States v. Taylor, 417 F.3d 1176, 1182 (11th Cir. 2005) (per curiam).
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      4. Sufficient Evidence Supported Mariano’s Conviction.

      Finally, Mariano contends his conviction was not supported by sufficient

evidence. We review de novo the sufficiency of the evidence to support a

conviction. United States v. Calhoon, 97 F.3d 518, 523 (11th Cir. 1996). In doing

so, we “view[] the evidence in the light most favorable to the government, with all

reasonable inferences and credibility choices made in the government’s favor.”

United States v. Keller, 916 F.2d 628, 632 (11th Cir. 1990). In order to uphold the

conviction, we “need only find that a reasonable factfinder could conclude that the

evidence establishes the defendant’s guilt beyond a reasonable doubt.” Id.

      To obtain a conviction for felon in possession of a firearm under §

922(g)(1), “the government must prove . . . three elements: (1) that the defendant

was a convicted felon, (2) that the defendant was in knowing possession of a

firearm, and (3) that the firearm was in or affecting interstate commerce.” United

States v. Deleveaux, 205 F.3d 1292, 1296–97 (11th Cir. 2000). At trial, Mariano

stipulated to the first and third elements. Thus, the only issue before us is whether

the evidence was sufficient to show Mariano knowingly possessed a firearm. The

record includes the following evidence relevant to this inquiry: (1) eyewitness

testimony that Mariano had actual possession of a silver pistol; (2) testimony from

police and the same eyewitness that this pistol was found in Mariano’s car; and (3)

testimony from a friend of Mariano’s that, contrary to the eyewitness’s testimony,


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Mariano did not have possession of any firearms when he came into contact with

the eyewitness. Taking such evidence in the light most favorable to the

prosecution, there was sufficient evidence to support a finding that Mariano

knowingly possessed a firearm. Therefore, we uphold Mariano’s conviction.

   B. Challenges to Sentence

      Mariano asserts the district court erred by sentencing him pursuant to §

924(e)(1) and determining that his base offense level under § 2K2.1 of the

Guidelines is 24. In addition, he asserts his sentence is both procedurally and

substantively unreasonable. We again address each argument in turn.

      1. The District Court Erred in Sentencing Mariano Pursuant to §
         924(e)(1).

      Under the ACCA, “a person who violates 18 U.S.C. § 922(g) and has three

previous convictions for a violent felony or a serious drug offense is subject to

additional fines and a fifteen-year minimum sentence (and has an enhanced

guidelines sentence under U.S.S.G. § 4B1.4).” United States v. Petite, 703 F.3d

1290, 1293 (11th Cir. 2013) (internal quotation marks omitted); see also 18 U.S.C.

§ 924(e)(1). The district court found Mariano has three prior convictions for

violent felonies: third degree burglary under New York Penal Law § 140.20,

second degree assault under New York Penal Law § 120.05(02), and resisting an




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officer with violence under Florida Statute § 843.01. 7 Based on this finding, the

court sentenced Mariano pursuant to § 924(e)(1). Mariano argues that the district

court erred in determining he has three prior convictions for violent felonies. We

agree. We hold that Mariano’s conviction for third degree burglary under New

York Penal Law § 140.20 does not qualify as a violent felony and, therefore,

Mariano has, at most, two violent felonies under the ACCA. 8

       We review de novo whether a prior conviction is a violent felony under the

ACCA. See Petite, 703 F.3d at 1292. Prior to the Supreme Court’s ruling in

Johnson, there were three ways a felony could be classified as a violent felony: the

“elements clause,” the “enumerated clause,” and the residual clause. The elements

clause provides that a crime punishable by more than one year constitutes a violent

felony if it “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). The enumerated

clause includes a felony if it “is burglary, arson, or extortion, [or] involves the use

of explosives.” Id. § 924 (e)(2)(B)(ii). Finally, the residual clause includes any

felony that “otherwise involves conduct that presents a serious potential risk of

physical injury to another.” Id. As noted above, the Supreme Court struck down

       7
          The district court relied on the “residual clause” of the ACCA in finding that Mariano’s
burglary conviction qualifies as a violent felony. After the court sentenced Mariano, the
Supreme Court held that the residual clause is unconstitutional. Johnson v. United States, 576
U.S. __, __, 135 S. Ct. 2551, 2557 (2015). We discuss Johnson further below.
        8
          We do not address whether Mariano’s other two previous convictions constitute violent
felonies—such an inquiry is irrelevant to our finding that the district court erred in sentencing
Mariano under the ACCA.
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the residual clause as unconstitutionally vague in Johnson. 135 S. Ct. at 2557.

Therefore, an offense now only constitutes a violent felony if it meets the criteria

included in the elements or enumerated clause. See id. at 2563.

      To determine whether the elements or enumerated clause applies to

Mariano’s burglary conviction, we first look to the statute Mariano was convicted

under—New York Penal Law § 140.20. Under § 140.20, a person commits third

degree burglary when “he knowingly enters or remains unlawfully in a building

with the intent to commit a crime therein.” N.Y. Penal Law § 140.20. New York’s

definition of “building” includes “any structure, vehicle or watercraft used for

overnight lodging of persons, or used by persons for carrying on business therein,

or used as an elementary or secondary school, or an inclosed motor truck, or an

inclosed motor truck trailer.” N.Y. Penal Law § 140.00. As is apparent, third

degree burglary in New York does not have “as an element the use, attempted use,

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

924(e)(2)(B)(i) (elements clause). Accordingly, we focus our analysis on whether

this conviction falls under the enumerated clause.

      The enumerated clause only includes burglary convictions for “generic”

burglary. See Descamps v. United States, 570 U.S. __, __, 133 S. Ct. 2276, 2281

(2013). Generic burglary is defined as “unlawful or unprivileged entry into, or

remaining in, a building or structure, with intent to commit a crime.” Id. at 2283


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(internal quotation marks omitted). There are two approaches for determining

whether a burglary conviction meets this requirement: the “categorical approach”

and the “modified categorical approach.” See id. at 2281.

      Under the categorical approach, we “compare the elements of the statute

forming the basis of the defendant’s conviction with the elements of the generic

crime.” Id. (internal quotation marks omitted). “The prior conviction qualifies as

an ACCA predicate only if the statute’s elements are the same as, or narrower than,

those of the generic offense.” Id. Mariano’s burglary conviction does not qualify

as a violent felony under this approach. The conviction is “non-generic [under the

categorical approach] because its definition of ‘building,’ which includes things

such as vehicles and watercraft, is broader than the scope of generic burglary’s

‘building or structure’ element.” See United States v. Howard, 742 F.3d 1334,

1343 (11th Cir. 2014). Therefore, we turn to the modified categorical approach.

      Under the modified categorical approach, we may look beyond the statutory

elements of the prior conviction and consider a “limited class of documents, such

as indictments and jury instructions,” to determine whether the conviction was for

a generic offense. See Descamps, 133 S. Ct. at 2281. This approach only applies

if the statute in question is “divisible,” meaning that it “sets out one or more

elements of the offense in the alternative.” See id. at 2281, 2283. Here, even

assuming New York Penal Law § 140.20 is divisible, the parties agree that there


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are no documents or uncontested Presentence Investigation Report facts that

provide the details of Mariano’s burglary conviction. Thus, we cannot find that the

conviction was for a generic offense.

       Given Mariano’s conviction is not generic under the categorical or modified

categorical approach, the enumerated clause does not apply to the conviction, and

therefore, the conviction is not a violent felony. As a result, Mariano has, at most,

two prior § 924(e)(1) qualifying convictions, and he was incorrectly sentenced

under § 924(e)(1). Moreover, relief is warranted, as this error was not harmless.

Mariano was convicted under § 922(g)(1), which ordinarily has a statutory

maximum sentence of 10 years. See 18 U.S.C. § 924(a)(2). But, due to the district

court’s finding that he has three prior convictions for violent felonies, the court

sentenced him to 18 years’ imprisonment. To remedy this error, we vacate

Mariano’s sentence and remand for resentencing without the ACCA enhancement.

       2. The District Court Did Not Err in Calculating Mariano’s Base
          Offense Level.

       Mariano next argues the district court erroneously determined that his base

level offense under § 2K2.1 of the Guidelines is 24.9 A defendant receives a base

offense level of 24 if his offense was committed after sustaining at least two prior

felony convictions for a “crime of violence.” U.S.S.G. § 2K2.1(a)(2). Mariano

       9
        Because of the district court’s ACCA determination, this base offense level was
superseded by the ACCA’s higher base level. Given our holding that Mariano is not subject to
the ACCA’s enhancement, his base level under U.S.S.G. § 2K2.1 is relevant.
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asserts that he does not have at least two prior convictions for crimes of violence.

However, as explained below, his convictions for resisting arrest with violence

under Florida Statutes § 843.01 and second degree assault under New York Penal

Law § 120.05(02) are crimes of violence. As such, the district court properly

determined he has a base offense level of 24 under § 2K2.1 of the Guidelines.

      A federal or state offense that is “punishable by imprisonment for a term

exceeding one year” and “has as an element the use, attempted use, or threatened

use of physical force against the person of another” is a crime of violence under the

Guidelines. U.S.S.G. § 4B1.2(a). We have previously held that a conviction for

resisting arrest with violence under Florida Statutes § 843.01 is a crime of violence

under this provision of the Guidelines. See United States v. Romo-Villalobos, 674

F.3d 1246, 1249 (11th Cir. 2012) (per curiam). The provision also encompasses

Mariano’s second degree assault conviction under New York Penal Law §

120.05(02). Section 120.05(02) states: “a person is guilty of assault in the second

degree when . . . [w]ith intent to cause physical injury to another person, he causes

such injury to such person or to a third person by means of a deadly weapon or a

dangerous instrument.” Clearly, this offense “has as an element the use . . . of

physical force against the person of another.” See U.S.S.G. § 4B1.2(a). Thus,

Mariano has at least two prior convictions for crimes of violence.




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      3. Mariano’s Reasonableness Challenges are Moot.

      In light of our finding that Mariano’s sentence must be vacated because the

district court erroneously sentenced Mariano pursuant to § 924(e)(1), his

reasonableness challenges are moot.

                              III.    CONCLUSION

      Upon review of the record and consideration of the parties’ briefs, we affirm

Mariano’s conviction, but vacate his sentence and remand for resentencing,

without the ACCA enhancement. In resentencing Mariano, the district court shall

perform a fresh review of the 18 U.S.C. § 3553(a) factors. See United States v.

Estrada, 777 F.3d 1318, 1323 (11th Cir. 2015) (per curiam) (ordering that, on

remand for resentencing, “the district court shall consider all appropriate 18 U.S.C.

§ 3553(a) factors in determining a reasonable sentence”).

      AFFIRMED IN PART, VACATED AND REMANDED IN PART.




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