               Case: 16-12951       Date Filed: 04/06/2017       Page: 1 of 14


                                                                       [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 16-12951
                               ________________________

                         D.C. Docket No. 1:15-cr-20815-JLK-1


UNITED STATES OF AMERICA,

                                                                        Plaintiff - Appellant,
                                            versus

DENARD STOKELING,

                                                                      Defendant - Appellee.
                                ______________________

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

                                       (April 6, 2017)

Before WILLIAM PRYOR, MARTIN, and BOGGS,* Circuit Judges.

PER CURIAM:

       This appeal presents the question whether a conviction for Florida robbery,

Fla. Stat. § 812.13, from before Florida passed a “robbery by sudden snatching”


*
 Honorable Danny J. Boggs, United States Circuit Judge for the Sixth Circuit, sitting by
designation.
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statute in 1999, Fla. Stat. § 812.131, categorically qualifies as a violent felony

under the elements clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e).

The district court did not enhance the sentence of Denard Stokeling under the Act

because it held that his robbery conviction was not a violent felony. The United

States appealed. Stokeling argues that before 1999, Florida robbery included

robbery by sudden snatching, so it did not always require sufficient force to

constitute a violent felony. But this argument is foreclosed by our precedents. E.g.,

United States v. Fritts, 841 F.3d 937, 943–44 (11th Cir. 2016). We vacate and

remand.

      We have held many times that a conviction under the Florida robbery statute

categorically qualifies as a violent felony under the elements clause of the Act,

even if it occurred before 1999. See, e.g., id. at 938, 943–44 (conviction from

1989); United States v. Dowd, 451 F.3d 1244, 1255 (11th Cir. 2006) (conviction

from 1974). And in Fritts, we specifically rejected the argument that the sudden-

snatching statute changed the elements of Florida robbery. 841 F.3d at 942–44. We

explained that the Florida Supreme Court has held that Florida robbery “has never

included a theft or taking by mere snatching because snatching is theft only and

does not involve the degree of physical force needed to sustain a robbery

conviction.” Id. at 942. “Th[e] new sudden snatching statute was apparently

needed because . . . []robbery[] did not cover sudden snatching where there was no



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resistance by the victim and no physical force to overcome it.” Id. at 942 n.7

(emphasis added).

      Our precedents apply to Florida robbery as well as armed robbery because

the elements are identical, differing only in what “the offender carried” “in the

course of committing the robbery.” Fla. Stat. § 812.13. Our precedents rely on the

shared force element in section 812.13(1) and do not mention the additional

requirements for armed robbery in section 812.13(2). For example, this Court is

bound by United States v. Lockley, 632 F.3d 1238, 1245 (11th Cir. 2011), which

held that “Florida robbery is categorically a crime of violence under the elements

of even the least culpable of these acts criminalized by Florida Statutes

§ 812.13(1).” Fritts, 841 F.3d at 941. Stokeling cannot circumvent this holding,

even if he presents arguments the prior panel did not consider. See Tippitt v.

Reliance Standard Life Ins. Co., 457 F.3d 1227, 1234 (11th Cir. 2006).

      The district court also applied the incorrect method to determine whether a

conviction is a violent felony under the Act. The parties agree that the district court

erroneously looked to the underlying facts of Stokeling’s crime. But the district

court should have applied the “categorical approach,” which “look[s] only to the

elements of the crime, not the underlying facts of the conduct,” United States v.

Braun, 801 F.3d 1301, 1304–05 (11th Cir. 2015).




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      The force element of Florida robbery satisfies the elements clause of the Act.

The Act defines a violent felony as any crime 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). An element of Florida robbery is “the use of force,

violence, assault, or putting in fear,” Fla. Stat. § 812.13, which requires “resistance

by the victim that is overcome by the physical force of the offender.” Robinson v.

State, 692 So. 2d 883, 886 (Fla. 1997).

      We VACATE Stokeling’s sentence and REMAND for resentencing.




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MARTIN, Circuit Judge, concurring:

       I agree with the majority that our Circuit precedent dictates that Mr.

Stokeling’s prior robbery conviction under Fla. Stat. § 812.13 qualifies as a violent

felony as that term is defined by the elements clause of the Armed Career Criminal

Act (“ACCA”). 18 U.S.C. § 924(e). See United States v. Fritts, 841 F.3d 937,

943–44 (11th Cir. 2016). However, I believe Fritts was wrongly decided.

       The Fritts panel did not engage in the categorical analysis the Supreme

Court instructed us to use when deciding whether a person’s prior conviction

requires a longer sentence under ACCA. When it turned its back on the required

categorical approach, the Fritts panel failed to give proper deference to McCloud v.

State, 335 So. 2d 257 (Fla. 1976), the controlling Florida Supreme Court case

interpreting § 812.13 from 1976 to 1997. In McCloud, Florida’s highest court held

that taking by “any degree of force” was sufficient to justify a robbery conviction.

Id. at 258–59 (emphasis added). The result of the mistakes in Fritts is that people

like Mr. Fritts will serve longer prison sentences that are not authorized by law.

Although Mr. Stokeling is not one of those people (he was convicted after the

Florida Supreme Court decided Robinson v. State, 692 So. 2d 883 (Fla. 1997),

which abrogated McCloud’s “any degree of force” holding), our reliance on Fritts

here gives me the opportunity to talk about what went wrong in that case and why

it matters.

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                                          I.

      The ACCA caps a federal prison sentence for a felon in possession of a

firearm at ten years. 18 U.S.C. § 924(a)(2). That is except when the felon has

three or more felony convictions, and those felonies are violent or are otherwise

serious crimes, his sentence cannot be less than fifteen years. Id. § 924(e). The

ACCA defines “violent felony” in more than one way. Id. § 924(e)(2)(B). The

Supreme Court has told us that one of those definitions—the “residual clause”—is

unconstitutionally vague. Johnson v. United States, 576 U.S. ___, 135 S. Ct. 2551,

2557–58 (2015). As a result, a person’s prior robbery conviction can serve as a

basis for an ACCA sentence enhancement only if it meets another definition of

“violent felony” from what is known as ACCA’s “elements clause.” 18 U.S.C.

§ 924(e)(2)(B)(i) (“As used in this subsection . . . the term ‘violent felony’ means

any crime punishable by imprisonment for a term exceeding one year . . . that has

as an element the use, attempted use, or threatened use of physical force against the

person of another.”). So a prior robbery conviction can serve as an ACCA

predicate only if it has “as an element the use, attempted use, or threatened use of

physical force against the person of another.” Id.

      When deciding whether a person’s prior conviction qualifies as one

requiring a longer sentence under ACCA, courts must first apply what is called the

formal categorical approach. Under this approach, we do not look at the facts that

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resulted in the earlier conviction. Descamps v. United States, 570 U.S. ___, 133 S.

Ct. 2276, 2283 (2013). Instead, Supreme Court precedent requires us to look only

to the elements of the statute under which the person was convicted. See Mathis v.

United States, 579 U.S. ___, 136 S. Ct. 2243, 2251 (2016). We must decide

whether, in order to be convicted under a given statute, a person was required to

use, attempt to use, or threaten to use physical force against another person.

      In keeping with this, I will apply the formal categorical approach to decide

whether a conviction under § 812.13 counts as a violent felony under the ACCA.

If a defendant could have been convicted under § 812.13 without the use,

attempted use, or threatened use of “violent force,” Curtis Johnson v. United

States, 559 U.S. 133, 140, 130 S. Ct. 1265, 1271 (2010) (interpreting “physical

force” in the elements clause), or a “substantial degree of force,” United States v.

Owens, 672 F.3d 966, 971 (11th Cir. 2012) (holding that second-degree rape in

Alabama doesn’t require “physical force” as defined by Curtis Johnson), against

another person, then that defendant’s prior conviction under § 812.13 can’t be a

“violent felony” under the ACCA’s elements clause.

      In recent years, the Supreme Court has clarified the analytical steps that

make up the formal categorical approach. In taking that approach, we must first

“presume that the conviction rested upon nothing more than the least of the acts

criminalized” by the state statute. Moncrieffe v. Holder, 569 U.S. ___, 133 S. Ct.

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1678, 1684 (2013) (alterations adopted and quotation omitted). This is often

referred to as the “least culpable conduct.” See Donawa v. U.S. Att’y Gen., 735

F.3d 1275, 1283 (11th Cir. 2013) (citing Moncrieffe, 133 S. Ct. at 1685). To

identify the least culpable conduct criminalized by the statute, we look to the state

courts’ interpretations of the statute. See Curtis Johnson, 559 U.S. at 138 (“We are

[] bound by the Florida Supreme Court’s interpretation of state law . . . in

determining whether a felony conviction for battery under Fla. Stat. § 784.03(2)

meets the definition of ‘violent felony’ in 18 U.S.C. § 924(e)(2)(B)(i).”); see also

United States v. Rosales-Bruno, 676 F.3d 1017, 1021 (11th Cir. 2012) (“[W]e look

to Florida case law to determine whether a conviction under § 787.02 necessarily

involves the employment of ‘physical force’ as that term is defined by federal

law.”). And as part of this step, we have to analyze “the version of state law that

the defendant was actually convicted of violating.” McNeill v. United States, 563

U.S. 816, 821, 131 S. Ct. 2218, 2222 (2011).

      Second, after identifying the least culpable conduct, we then have to figure

out whether “those acts are encompassed by the generic federal offense.”

Moncrieffe, 133 S. Ct. at 1684 (alteration adopted). In the elements clause context,

this means we examine whether the least culpable conduct involved the use,

attempted use, or threatened use of violent force or a substantial degree of force. If




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it didn’t, then under the formal categorical approach, the defendant’s earlier

conviction is not a violent felony.

                                          II.

      These recent Supreme Court cases tell us that a § 812.13 unarmed robbery

conviction sustained while McCloud was controlling Florida law does not fall

within the ACCA’s elements clause. First, heeding the Supreme Court’s

instruction that we should “turn[] to the version” of § 812.13 that a defendant was

“actually convicted of violating,” McNeill, 563 U.S. at 821, 131 S. Ct. at 2222, we

must look to what the Florida state courts said about the conduct that could support

a robbery conviction under § 812.13 at the time the defendant was convicted.

More to the point, we must look to how Florida courts defined the least culpable

conduct—in this case, the smallest degree of force—sufficient to support a

§ 812.13 robbery conviction at that time.

      Section 812.13 defines robbery as the taking of money or property with

intent to deprive when “in the course of the taking there is the use of force,

violence, assault, or putting in fear.” From 1976 to 1997, the controlling precedent

from the Florida Supreme Court held that “[a]ny degree of force suffices to convert

larceny into a robbery.” McCloud, 335 So. 2d at 258 (emphasis added). So during

that time period, Florida law was clear that conduct involving “any degree of

force,” like sudden snatching, was enough to justify a robbery conviction.

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      In keeping with the deference federal courts owe states’ interpretations of

their own criminal statutes, this Court has recognized and accepted Florida’s view

of what it took to sustain a conviction under the Florida robbery statute when

McCloud was the controlling precedent. In United States v. Welch, 683 F.3d 1304

(11th Cir. 2012), this Court used the formal categorical approach to determine that

sudden snatching was the least culpable conduct that could support a 1996 Florida

robbery conviction. Id. at 1311–12. This decision was necessary to Welch’s

holding that the 1996 Florida robbery conviction was categorically a violent felony

under the residual clause. Id. at 1313–14. Our precedent therefore binds us to

Welch’s conclusion that sudden snatching was the least culpable conduct covered

by § 812.13 when McCloud was the controlling Florida case defining that statute.

      Having identified the least culpable conduct, we are next required to decide

whether this conduct necessarily involves the use, attempted use, or threatened use

of violent force or a substantial degree of force. It doesn’t. Sudden snatching with

“any degree of force,” McCloud, 335 So. 2d at 258, plainly does not require the

use of “a substantial degree of force.” Owens, 672 F.3d at 971. Neither does it

necessarily entail “violent force—that is, force capable of causing physical pain or

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

This means a conviction for Florida unarmed robbery during the time McCloud




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was controlling should not count as a violent felony within the meaning of the

elements clause.

                                          III.

      In reaching its (erroneous) conclusion that a 1989 armed robbery conviction

under § 812.13 falls within the elements clause under the formal categorical

approach, the Fritts panel sidestepped McCloud’s “any degree of force” holding by

looking instead to our own court’s previous decision in United States v. Lockley,

632 F.3d 1238 (11th Cir. 2011). See Fritts, 841 F.3d at 940–42. And when it did,

that panel stretched Lockley well past its limits.

      Lockley held that a 2001 Florida attempted robbery conviction under

§ 812.13(1) categorically counts as a “crime of violence” within the meaning of the

identically-worded elements clause of the Sentencing Guidelines. See 632 F.3d at

1240–41, 1244–45. But Lockley looked to Florida law as it existed in 2001, when

Mr. Lockley was convicted, and not as it existed in 1989, when Mr. Fritts was

convicted. Id. at 1240 n.1, 1242. Again, the year of conviction matters because

the least culpable conduct sufficient to support a robbery conviction under Fla.

Stat. § 812.13 changed in 1997. As I’ve set out above, the controlling Florida

Supreme Court case from 1976 to 1997 (McCloud) held that conduct involving

“any degree of force,” was enough for a robbery conviction. 335 So. 2d at 258.

However, in 1997 the Florida Supreme Court shifted course and held that robbery

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requires the perpetrator to use “more than the force necessary to remove the

property from the person”—that is, “physical force” that “overcome[s]” the

“resistance [of] the victim.” Robinson, 692 So. 2d at 886.

      A Florida robbery conviction could no longer be supported by “any degree

of force” after the Florida Supreme Court decided Robinson in 1997. For that

reason, the Lockley court correctly identified “[p]utting in fear”—and not sudden

snatching—as the least culpable conduct in its categorical analysis of Mr.

Lockley’s 2001 attempted robbery conviction. 632 F.3d at 1244. But again, the

Supreme Court has told us to look at what state courts required for a conviction at

the time of that conviction. See McNeill, 563 U.S. at 821, 131 S. Ct. at 2222. And

our 2011 federal court ruling doesn’t change the fact that before the 1997 Florida

Supreme Court ruling in Robinson the least culpable conduct for which someone

could be convicted of robbery in Florida was sudden snatching with any degree of

force. Lockley looked, as it should have, to a different time, so it did not apply to

Mr. Fritts’s appeal and has no bearing on any robbery convictions sustained while

the Florida Supreme Court’s 1976 ruling in McCloud was still good law.

      The Fritts panel insisted that Lockley isn’t limited to post-Robinson

robberies—but instead applies to all Florida robberies—because § 812.13 has

never included sudden snatching. Fritts, 841 F.3d at 943. As support, it pointed to

language in Robinson suggesting that § 812.13 has always required more than

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sudden snatching. Id. It also emphasized that when the Florida Supreme Court

interprets a Florida statute, “it tells us what that statute always meant.” Id. But

again, this reasoning ignores what the Supreme Court told us about how to conduct

the categorical analysis.1 See McNeill, 563 U.S. at 821, 131 S. Ct. at 2222 (“The

only way to answer this backward-looking question is to consult the law that

applied at the time of that conviction.”). McCloud was controlling Florida

Supreme Court law from 1976 to 1997, and it said “any degree of force” could

support a robbery conviction. 335 So. 2d at 258. Regardless of how the Florida

Supreme Court characterized McCloud in its Robinson decision, there is no erasing

the fact that conduct involving minimal force was prosecuted as robbery when

McCloud was the controlling precedent. See, e.g., Santiago v. State, 497 So. 2d

975, 976 (Fla. 4th DCA 1986) (upholding a robbery conviction because robbery

required only “ever so little” force).

       Another problem with Fritts’s reliance on Robinson for the proposition that

§ 812.13 has never included sudden snatching is that it was plainly foreclosed by

our own decision in Welch. In looking to the version of § 812.13 under which Mr.

Welch was convicted, the Welch panel acknowledged and even discussed


       1
          It’s generally true that when a court interprets a statute it tells us what the statute has
always meant. But here our interest is not in divining the true meaning of § 812.13. Rather, our
interest is in understanding what conduct could have resulted in convictions under the statute
between 1976 and 1997, even if Florida courts were misinterpreting the statute during that time.


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Robinson, but it did not adopt Robinson’s suggestion that sudden snatching had

never been sufficient to support a conviction under § 812.13. Welch, 683 F.3d at

1311–12. Rather, it identified sudden snatching as the least culpable conduct for

which a person could be convicted under the statute because Mr. Welch pleaded

guilty in 1996—before Robinson was decided. Id. And 1996 was “a time when

the controlling Florida Supreme Court authority held that ‘any degree of force’

would convert larceny into a robbery.” Id. at 1311 (quoting McCloud, 335 So. 2d

at 258–59).

                                   *      *      *

      Fritts was wrong to suggest that all unarmed robbery convictions under Fla.

Stat. § 812.13 are violent felonies as defined by ACCA’s elements clause because

use of “any degree of force” could support a § 812.13 conviction from 1976 to

1997. This mistake will continue to have enormous consequences for many

criminal defendants who come before our Court. For that reason, and even though

Fritts’s mistakes do not affect Mr. Stokeling, I feel compelled to explain the error

in Fritts’s statement, relied on here by the majority, that § 812.13 “has never

included a theft or taking by mere [sudden] snatching.” Fritts, 841 F.3d at 942.




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