                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________           FILED
                                                 U.S. COURT OF APPEALS
                              No. 10-12092         ELEVENTH CIRCUIT
                                                       FEB 17, 2012
                          Non-Argument Calendar
                                                        JOHN LEY
                        ________________________
                                                         CLERK

                 D.C. Docket No. 8:09-cr-00305-SDM-EAJ-1

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellant,

                                   versus

SAMUEL ALLEN SANDERS,

                                                           Defendant-Appellee.


                        ________________________

                 Appeal from the United States District Court
                     for the Middle District of Florida
                      _________________________

                             (February 17, 2012)

Before BARKETT, MARTIN, and ANDERSON, Circuit Judges.

PER CURIAM:

     The government appeals Samuel Allen Sanders’s sentence of 100 months’
imprisonment, for conspiracy to possess with intent to distribute fifty grams or

more of cocaine base, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A)(iii). In

sentencing Sanders, the district court found that Sanders was not a career offender

under the Sentencing Guidelines because Sanders’s prior Florida conviction under

Fla. Stat. § 843.01 for resisting a law enforcement officer with violence1 was not a

“crime of violence” for purposes of the career-offender enhancement. As a result,

the court determined that Sanders did not qualify for a sentence enhancement

pursuant to U.S.S.G. § 4B1.1.

       On appeal, the government challenges the court’s finding and insists that a

violation of Fla. Stat. § 843.01 is a “crime of violence” under U.S.S.G. § 4B1.2.

The government further emphasizes that we are bound by this Court’s prior

decision in United States v. Nix, 628 F.3d 1341 (11th Cir. 2010), which holds that

a violation of Fla. Stat. § 843.01 is a “violent felony” under the residual clause of

the Armed Career Criminal Act (“ACCA”). Id. at 1342. Conversely, Sanders

claims that the offense is not a “crime of violence” under U.S.S.G. § 4B1.2 in light

of precedent from the Supreme Court, which, he argues, undermines the holding in

Nix to the point of abrogation.



       1
         Fla. Stat. § 843.01 makes it a felony to “knowingly and willfully resist[], obstruct[], or
oppose[] any officer . . . in the lawful execution of any legal duty, by offering or doing violence
to the person of such officer.” Fla. Stat. § 843.01.

                                                  2
      We review de novo whether a defendant’s prior conviction qualifies as a

crime of violence under the Sentencing Guidelines. United States v. Lockley, 632

F.3d 1238, 1240 (11th Cir. 2011). In doing so, we apply the same analysis to the

Sentencing Guidelines’ career offender enhancement as we do to the violent felony

enhancement under the ACCA, id. at 1243 n.5; United States v. Whitson, 597 F.3d

1218, 1220 (11th Cir. 2010), even though the provisions differ slightly in their

wording, compare U.S.S.G. § 4B1.2(a), with 18 U.S.C. § 924(e)(2)(B).

Consequently, cases that address the classification of offenses as violent felonies

under the ACCA inform our conclusion regarding whether such offenses qualify as

crimes of violence under § 4B1.2(a). United States v. Alexander, 609 F.3d 1250,

1253 (11th Cir. 2010).

      The district court’s determination that Sander’s prior conviction for resisting

arrest under Fla. Stat. § 843.01 did not qualify as a crime of violence was a

reasonable conclusion under then-existing precedent, especially given Justice

Scalia’s recent observations about efforts to clarify what distinguishes “violent

felonies” from non-violent ones under the ACCA. See Sykes v. United States, __

U.S. __, __,131 S. Ct. 2267, 2284 (2011) (Scalia, J., dissenting) (“As was perhaps

predictable, instead of producing a clarification of the Delphic residual clause,

today’s opinion produces a fourth ad hoc judgment that will sow further


                                           3
confusion. . . . We should admit that ACCA’s residual provision is a drafting

failure and declare it void for vagueness.”). At the time of Sander’s sentencing, the

district court did not have the benefit of our decisions in Nix and United States v.

Hayes, 409 F. App’x 277 (11th Cir. 2010).

      In Nix, we held that a defendant’s conviction for resisting a law enforcement

officer with violence, in violation of Fla. Stat. § 843.01, constituted a predicate

“violent felony” under the ACCA. 628 F.3d at 1342. In doing so, we adopted the

reasoning of the Court in Hayes, which holds that § 843.01 is a “violent felony”

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

physical injury to another, and involves elements of purposeful violence and

aggression. Nix, 628 F.3d at 1342; see Hayes, 409 F. App’x at 278–79.

      Seeing no basis for distinguishing Nix, we conclude we are bound by it. See

United States v. Kaley, 579 F.3d 1246, 1255 (11th Cir. 2009) (emphasizing that

“[w]e may disregard the holding of a prior opinion only where that holding is

overruled” or undermined to the point of abrogation “by the Court sitting en banc

or by the Supreme Court” (quotation marks omitted)); see also Garrett v. Univ. of

Ala. at Birmingham Bd. of Trs., 344 F.3d 1288, 1292 (11th Cir. 2003) (“Without a

clearly contrary opinion of the Supreme Court or of this court sitting en banc, we


                                           4
cannot overrule a decision of a prior panel of this court . . . .” (quotation marks

omitted)). Even if, as Sanders points out, there is serious tension between Nix and

recent Supreme Court case law, we may not disregard prior panel precedents as

overruled or abrogated by the Supreme Court unless the conflicting Supreme Court

decision is “clearly on point.” Id. (quotation marks omitted); see also United

States v. Vega-Castillo, 540 F.3d 1235, 1237 (11th Cir. 2008) (explaining that

“[f]or the Supreme Court to overrule a case, its decision must have actually

overruled or conflicted with this court’s prior precedent,” and that “[e]ven if the

reasoning of an intervening high court decision is at odds with a prior appellate

court decision, that does not provide the appellate court with a basis for departing

from its prior decision” (quotation marks omitted)). Under these constraints, we

have little choice but to vacate the district court’s decision and remand for

resentencing in light of this Court’s decision in Nix.2

       Although we reverse this case and remand for resentencing, we express no

opinion as to the reasonableness of the ultimate sentence imposed by the district

court, which is in a superior position to evaluate all of the relevant sentencing




       2
         Given that our holding in Nix decides the issue, we do not address the government’s
argument that violation of Fla. Stat. § 843.01 is also a “crime of violence” under the elements
clause of the Sentencing Guidelines’ career-offender enhancement.

                                                5
factors under 18 U.S.C. § 3553(a), of which the Sentencing Guidelines are only

one part.

      VACATED AND REMANDED.




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