               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 16a0232n.06

                                      Case No. 14-6255                              FILED
                                                                                Apr 29, 2016
                         UNITED STATES COURT OF APPEALS                    DEBORAH S. HUNT, Clerk
                              FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                         )
                                                  )
       Plaintiff-Appellee,                        )
                                                  )       ON APPEAL FROM THE UNITED
v.                                                )       STATES DISTRICT COURT FOR
                                                  )       THE EASTERN DISTRICT OF
FRANK J. PITTRO, JR.,                             )       TENNESSEE
                                                  )
       Defendant-Appellant.                       )
                                                  )
                                                  )

BEFORE: BATCHELDER and WHITE, Circuit Judges; and LIPMAN, District Judge.*

       SHERYL H. LIPMAN, District Judge.              Defendant-Appellant Frank J. Pittro, Jr.

(“Defendant”) appeals his sentence for felon in possession of a firearm imposed under the Armed

Career Criminal Act (“ACCA”). Defendant argues that his prior convictions for aggravated

assault, assault with intent to commit murder, and second-degree murder do not qualify as

predicate felonies under the ACCA’s “use-of-force” clause. He therefore contends that the

sentence enhancement he received under the Act was improper. We disagree. For the reasons

set forth below, we AFFIRM the sentence imposed by the district court.




       *
        The Honorable Sheryl H. Lipman, United States District Judge for the Western District
of Tennessee, sitting by designation.
Case No. 14-6255, United States v. Pittro


                                        BACKGROUND

       On January 28, 2014, a grand jury in the United States District Court for the Eastern

District of Tennessee indicted Defendant Frank J. Pittro Jr. on two counts of felon in possession

of a firearm in violation of 18 U.S.C. § 922(g)(1). (R. 1.) Defendant later pled guilty to both

counts of the indictment. (R. 20.) Based on four of Defendant’s prior felony convictions in

Florida, the United States Probation Office classified him as an armed career criminal under the

ACCA. (R. 21.) According to the presentence report, Defendant’s convictions in 1973 for

aggravated assault, in 1976 for two assaults with intent to commit murder, and in 1978 for

second-degree murder constituted predicate offenses that triggered the ACCA sentencing

enhancements. (Id. at ¶¶ 31– 33, 35.)

       Defendant objected to his designation as an armed career criminal, asserting that his prior

convictions did not constitute “violent felonies” under the ACCA. (R. 25, 35.) Plaintiff-

Appellee United States of America (the “Government”) responded that each prior conviction

qualified as a violent felony under both the ACCA’s “use-of-physical-force” clause and its

residual clause. (R. 31.) The district court overruled Defendant’s objections and found that his

aggravated assault and two assault-with-intent-to-commit-murder convictions were violent

felonies under the ACCA’s use-of-physical-force clause.        (R. 44 at Page ID #363, 374.)

Additionally, it found that Defendant’s second-degree murder conviction did not constitute a

felony under the use-of-physical-force clause, but nonetheless fell under the ACCA’s residual

clause. (Id. at Page ID #380.) Consequently, on October 10, 2014, the district court entered a




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Case No. 14-6255, United States v. Pittro


judgment sentencing Defendant to 180 months in prison.1 Defendant filed his timely appeal on

October 13, 2014. (R. 42.)

                                            ANALYSIS

       Defendant challenges his sentence under the ACCA as improper. He argues that the

conduct required to commit the aggravated assault and the two assaults with intent to commit

murder incorporates acts that do not require physical force or the threat of physical force, and

therefore they cannot constitute “violent felonies” under the ACCA’s “use-of-physical-force”

clause. Defendant also asserts that his second-degree murder conviction also cannot constitute a

predicate felony under the ACCA for two reasons. First, he contends that second-degree murder

can be accomplished without the use of physical force; thus, it cannot be a predicate offense

under the “use-of-physical-force” clause. Second, he argues that the Supreme Court found the

ACCA’s residual clause to be unconstitutional in Johnson v. United States, 135 S. Ct. 2551, 2563

(2015), so second-degree murder cannot constitute a predicate offense under the residual clause.

The Government argues that all four of Defendant’s convictions, as defined by Florida law,

plainly constitute violent predicate felonies under the ACCA’s use-of-physical-force clause. We

hold that Defendant’s aggravated assault and assault-with-intent-to-commit-murder convictions

constitute three “violent felonies” within the meaning of the ACCA, and thus AFFIRM the

sentence imposed by the district court.2




       1
          Defendant’s advisory-guidelines range was 188 to 235 months in prison. However,
after considering the 18 U.S.C. § 3553(a) factors, Defendant’s acceptance of responsibility and
Defendant’s other sentencing arguments, the district court imposed a below-Guidelines sentence.
(R. 44 at Page ID #382-83.)
       2
         Because the Court has determined that Defendant’s three prior assault convictions are
“violent felonies” under the ACCA, there is no need to determine whether Defendant’s second-
degree murder conviction is also an ACCA predicate offense.
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Case No. 14-6255, United States v. Pittro


       Whether a defendant’s prior conviction qualifies as a “violent felony” under the ACCA is

a question of law that this Court reviews de novo. United States v. Stafford, 721 F.3d 380, 395–

96 (6th Cir. 2013). The ACCA imposes a fifteen-year mandatory minimum sentence for any

felon convicted of unlawfully possessing a firearm who has “three previous convictions . . . for a

violent felony or a serious drug offense, or both.” 18 U.S.C. § 924(e)(1). The ACCA defines

“violent felony” as “any crime punishable by imprisonment for a term 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 the use of explosives, or

otherwise involves conduct that presents a serious potential risk of physical injury to another.”3

18 U.S.C. § 924(e)(2)(B).

       To determine whether an offense is a violent felony under the ACCA’s “use-of-physical-

force” clause, the Court applies a categorical approach, looking to the statute-of-conviction’s

language to see if it “has as an element the use, attempted use, or threatened use of physical force

against the person of another.”4 18 U.S.C. 924(e)(2)(B)(i); see also United States v. Ford,

560 F.3d 420, 421–22 (6th Cir. 2009). The Supreme Court defines “physical force” as “violent

force—that is, force capable of causing physical pain or injury to another person.” Johnson v.

United States, 559 U.S. 133, 140 (2010) (emphasis in original). If it is possible to convict a


       3
         The last phrase of 18 U.S.C. § 924(b)(2)(E)(ii), “or otherwise involves conduct that
presents a serious potential risk of physical injury to another,” known as the “residual clause,”
was held to be unconstitutionally vague by the Supreme Court in Johnson v. United States,
135 S. Ct. 2551, 2563 (2015).
       4
         If a statute is divisible--one which enumerates alternative ways in which the crime may
be committed--then a court may look beyond the statutory language to certain lower-court
documents to determine which part of the statute formed the basis of the defendant’s conviction.
Deschamps v. United States, 133 S. Ct. 2276, 2283–84 (2013). In this case, the Florida
aggravated assault and assault-with-intent-to-commit-murder statutes at issue are indivisible.
See Fla. Stat. § 784.04, 784.06 (1973). Therefore, the Court need only apply the categorical
approach.
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Case No. 14-6255, United States v. Pittro


person under the statute for conduct not involving the use, attempted use, or threatened use of

physical force, then that crime cannot constitute a predicate felony under the “use-of-physical-

force” clause. See Deschamps v. United States, 133 S. Ct. 2276, 2283 (2013); Taylor v. United

States, 495 U.S. 575, 599–600 (1990). Therefore, for Defendant’s assault convictions to qualify

on their face as “violent felonies,” they must necessarily involve the use, attempted use, or threat

of physical force.

       The Court looks to the language of Florida’s aggravated assault and assault-with-intent-

to-commit-murder statutes to determine if these are crimes involving the use, attempted use, or

threatened use of “physical force.” At the time Defendant committed his prior felonies, Florida

defined aggravated assault as “[assault on] another with a deadly weapon, without intent to kill.”

Fla. Stat. § 784.04 (1973). Assault with intent to commit murder was defined as, inter alia,

“assault on another, with intent to commit any capital felony or felony in the first degree.” Fla.

Stat. § 784.06 (1973). Therefore, whether these two crimes involve the use or threat of physical

force depends on the definition of “assault.” The Florida Supreme Court defined assault as “an

intentional, unlawful threat by word or act to do violence to the person of another coupled with

an apparent ability to do so, and doing some act which creates a well-founded fear of such

violence being done.”5 State v. Wilson, 276 So.2d 45, 46 (Fla. 1973) (internal quotation marks




       5
          In 1975, Florida codified the definition of assault using almost identical language.
See Fla. Stat. § 784.011(1) (2015) (“An ‘assault’ is an intentional, unlawful threat by word or act
to do violence to the person of another, coupled with an apparent ability to do so, and doing
some act which creates a well-founded fear in such other person that such violence is
imminent.”); see also Fla. Stat. § 784.011(1) (1975). In his Reply, Defendant argues that prior
to 1975, Florida’s definition of assault did not necessarily require intent, and thus encompassed
reckless or negligent conduct. (See Reply Br. 8–10.) However, pre-1975 cases defined assault
using the word “intentional,” see, e.g., Wilson, 276 So. 2d at 46; Albright v. State, 214 So. 2d
887, 888 (Fla. Dist. Ct. App. 1968), and case law does not suggest the state interpreted assault
differently before and after its definition was codified.
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Case No. 14-6255, United States v. Pittro


omitted). In turn, whether an assault, and thus Defendant’s crimes, involves physical force

depends upon the meaning of the phrase “to do violence.”

       Defendant contends that “to do violence” encompasses conduct that does not require

physical force. He argues that the phrase has a broader meaning beyond causing physical harm,

because “to do violence” to someone can mean “‘to outrage,’ ‘to damage or violate,’ and to

‘adversely affect.’” (Appellant’s Br., 25.) Defendant asserts that this broad definition fits better

into the statutory scheme because assault was a lesser included offense of battery, which may be

committed merely with intentional, offensive contact with another. See Fla. Stat. § 784.03;

Henderson v. State, 370 So. 2d 435, 437 (Fla. Dist. Ct. App. 1979). Therefore, according to

Defendant, because the “violence” required to commit a battery encompasses conduct short of

physical force, the Court should interpret assault to include threats to engage in conduct that does

not require physical force. However, Defendant’s characterization of assault stands in stark

contrast to how the Florida courts view the crime.

       An examination of Florida case law shows that assault is a crime involving the threat of

physical force. For example, in State v. Hackley, the Florida Supreme Court held that burglary

of a conveyance with an assault qualified as a “felony that involves the use or threat of physical

force or violence” under Florida’s prison releasee reoffender statute. 95 So. 3d 92, 94 (Fla.

2012). The court specifically stated that, because assault was an element of the crime, and

because assault “necessarily involves the ‘threat by word or act to do violence to the person of

another,’” burglary of a conveyance with an assault involved the “‘use or threat of physical force

or violence.’” Id. A number of other Florida cases have also held that to threaten “to do

violence” involves a threat of physical force or violence. See, e.g., Shaw v. State, 26 So. 3d 51,

53 (Fla. Dist. Ct. App. 2009); Harris v. State, 5 So. 3d 750, 751 (Fla. Dist. Ct. App. 2009)



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Case No. 14-6255, United States v. Pittro


(holding in the context of resisting arrest that “[o]ffering to do violence plainly involves the

threat of physical force or violence while actually doing violence plainly involves the use . . . of

physical force or violence.”) (internal quotation marks omitted) (second alteration in original).

       The court’s holding in Hackley also undercuts Defendant’s argument that the definition

of “to do violence” should be broadly construed in light of the assault’s relationship to battery.

The Hackley Court wrote that “[a]n assault—by definition—always includes the threat to do

violence[;] . . . [b]attery, on the other hand, does not necessarily involve the threat or use of force

or violence.” Hackley, 95 So. 3d at 96. Thus, the court made clear that, while battery can

involve conduct short of physical force, assault always involves the threat of physical force.6

       Every federal court to consider this issue has found that aggravated assault in Florida

qualifies as a violent felony.7 See, e.g., United States v. Alonzo-Garcia, 542 F. App’x 412, 416

(5th Cir. 2013) (holding that Florida’s aggravated assault statute has “as an element the use,

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

qualified as a crime of violence warranting sentence enhancement for a defendant convicted of

unlawful reentry after deportation); Turner v. Warden Coleman FCI (Medium), 709 F.3d 1328,

1338 (11th Cir. 2013) (holding that a conviction under Florida’s current aggravated assault

statute “will always include ‘as an element the . . . threatened use of physical force against the

       6
          Defendant’s argument that the law was different at the time of his offense is
unpersuasive. Even then, under Florida law, an offense could be a lesser included offense of
another in some cases but not others, depending on the charges. See State v. Smith, 240 So. 2d
807, 809 (Fla. 1970) (reaffirming holding of Brown v. State, 206 So.2d 377 (Fla. 1968), that “a
lesser included offense is one which may or may not be included in the offense charged
depending on the Accusatory pleading and the evidence”). The cases Defendant cites do not
hold that assault is always a lesser included offense of battery. See Henderson, 370 So. 2d at
437; Rodriguez v. State, 263 So. 2d 267, 268–69 (Fla. Dist. Ct. App. 1972).
       7
         Although these cases only addressed whether aggravated assault qualified as a “violent
felony” under the ACCA or a “crime of violence” under the Sentencing Guidelines’ provision
using the same language, the same reasoning applies to Florida’s assault-with-intent-to-commit-
murder statute because both require “assault” as an element of the offense.
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Case No. 14-6255, United States v. Pittro


person of another’ and . . . thus qualifies as a violent felony for the purposes of the ACCA.”);

United States v. Koenig, 410 F. App’x 971, 973 (7th Cir. 2010) (same). Defendant’s attempts to

distinguish these cases rely largely on his broad interpretation of the phrase “to do violence,” and

for the reasons discussed above, we find them unpersuasive. (See Appellant’s Br. 33–35.) And

although these cases addressed later versions of Florida’s aggravated assault statute, the statutes

at issue use the same language as the statute in effect when Defendant committed the offense.

Defendant’s prior convictions for aggravated assault and assault with intent to commit murder

required a threat “to do violence.” A threat “to do violence” necessarily involves “threatened use

of physical force against the person of another.” Therefore, Defendant’s prior convictions for

aggravated assault and assault with intent to commit murder qualify as violent felonies under the

ACCA’s “use-of-physical-force” clause.

                                         CONCLUSION

       For the foregoing reasons, we AFFIRM the sentence imposed by the district court.




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