           Case: 17-11066   Date Filed: 03/23/2018   Page: 1 of 6


                                                        [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-11066
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:16-cr-20795-PCH-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

CEFALO LEWIS,

                                                         Defendant-Appellant.

                       ________________________

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

                             (March 23, 2018)

Before WILSON, JORDAN and HULL, Circuit Judges.

PER CURIAM:
              Case: 17-11066       Date Filed: 03/23/2018   Page: 2 of 6


      After pleading guilty to being a felon in possession of a firearm and

ammunition, in violation of 18 U.S.C. § 922(g), Cefalo Lewis appeals his 180-

month sentence, imposed under the Armed Career Criminal Act (“ACCA”), 18

U.S.C. § 924(e). After review, we affirm.

                                I. BACKGROUND

      Prior to sentencing, the probation officer prepared a presentence

investigation report that, inter alia, designated Lewis an armed career criminal

based on these three qualifying ACCA predicate convictions: (1) a November 1999

Florida armed robbery conviction; (2) an October 2001 Florida conviction for the

sale or delivery of cocaine with intent; and (3) a July 2004 Florida conviction for

the sale or delivery of cocaine with intent. Lewis objected, but only as to his

Florida armed robbery conviction. Lewis argued that his armed robbery conviction

did not categorically qualify as a violent felony under the ACCA because Florida

robbery does not have as an element the use, attempted use, or threatened use of

physical force. The government submitted a copy of Lewis’s state sentencing

order, which showed that, on November 20, 1999, Lewis pled guilty to armed

robbery, in violation of Florida Statutes § 812.13(2)(a) and (b), and attempted

aggravated battery, in violation of §§ 784.045, 777.04, and 775.087, and received

concurrent three-year sentences.




                                           2
                Case: 17-11066      Date Filed: 03/23/2018      Page: 3 of 6


       At sentencing, the district court overruled Lewis’s objection, stating that it

was bound by this Court’s precedent, including United States v. Lockley, 632 F.3d

1238 (11th Cir. 2011), and United States v. Fritts, 841 F.3d 937 (11th Cir. 2016),

cert. denied, ___ U.S. ___, 137 S. Ct. 2264 (2017), which held that Florida robbery

is a violent felony under the ACCA. The district court calculated Lewis’s base

offense level of 33 under U.S.S.G. § 4B1.4(b)(3)(B) and initially determined that

Lewis’s advisory guidelines range was 168 to 210 months’ imprisonment.

However, because the statutory minimum prison term under the ACCA is 15 years,

the advisory guidelines range became 180 to 210 months’ imprisonment. The

district court imposed the mandatory minimum 180-month sentence required by

the ACCA.

                             II. LEWIS’S ACCA CLAIM

       On appeal, Lewis argues that the district court erred as to his Florida armed

robbery conviction and that this Court’s decision in Fritts was wrongly decided.1

       Under the ACCA, a defendant convicted of being a felon in possession of a

firearm who has three or more prior convictions for a “violent felony” or a “serious

drug offense” is subject to a mandatory minimum 15-year sentence. 18 U.S.C.

§ 924(e)(1). Such a defendant may also be subject to increased guidelines



       1
        We review de novo whether a prior conviction is a predicate offense within the meaning
of the ACCA. United States v. Robinson, 583 F.3d 1292, 1294 (11th Cir. 2009).
                                              3
                Case: 17-11066        Date Filed: 03/23/2018       Page: 4 of 6


calculations under U.S.S.G. § 4B1.4, the armed career criminal provision of the

Sentencing Guidelines. See U.S.S.G. § 4B1.4(a)-(c).

       The ACCA defines the term violent felony as any crime punishable by a

term of imprisonment 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 use of explosives, or
               otherwise involves conduct that presents a serious potential risk
               of physical injury to another.

18 U.S.C. § 924(e)(2)(B). The first prong of this definition is sometimes referred

to as the “elements clause,” while the second prong contains the “enumerated

crimes” and, finally, what is commonly called the “residual clause.” United States

v. Owens, 672 F.3d 966, 968 (11th Cir. 2012).2

       Florida robbery, both armed and strong arm, is criminalized by Florida

Statutes § 812.13(2). Both now and in 1999, Florida law defined robbery for

purposes of § 812.13(2) as the taking of money or other property, “when in the

course of the taking there is the use of force, violence, assault, or putting in fear.”

Fla. Stat. § 812.13(1). Under the robbery statute, a defendant commits first degree

robbery if he meets all of those elements and if, during the course of the robbery,

the defendant carried either a weapon or a firearm or other deadly weapon. Fla.

       2
        The Supreme Court recently struck down the residual clause of the ACCA as
unconstitutionally vague, but clarified that it did not call into question the ACCA’s elements
clause. Johnson v. United States, 576 U.S. ___, 135 S. Ct. 2551, 2563 (2015).
                                                4
                Case: 17-11066       Date Filed: 03/23/2018      Page: 5 of 6


Stat. § 812.13(2)(a), (b). The defendant commits second degree robbery if he

meets all of those elements and, during the course of the robbery, he does not carry

a firearm, deadly weapon, or other weapon. Fla. Stat. § 812.13(2)(c).

       This Court has held that Florida armed robbery under § 812.13(1) and (2)

categorically qualifies as a violent felony under the ACCA’s elements clause.

Fritts, 841 F.3d at 940-44 (11th Cir. 2016) (following our precedent in Dowd and

Lockley and concluding, based on the Florida Supreme Court’s decision in

Robinson v. State, McCloud v. State, and Montsdoca v. State, that Florida

“robbery requires more than the force necessary to remove the property and in fact

requires both resistance by the victim and physical force by the offender that

overcomes that resistance” (internal quotation marks omitted));3 Lockley, 632 F.3d

at 1245 (involving the identical elements clause of the Sentencing Guidelines’

career offender provision and concluding Florida robbery in § 812.13(1) qualifies

as a crime of violence under the elements clause); United States v. Dowd, 451 F.3d

1244, 1255 (11th Cir. 2006) (concluding “without difficulty” that a 1974 Florida

armed robbery conviction was “undeniably a conviction for a violent felony” under

the ACCA’s elements clause).

       The district court did not err by counting as one of Lewis’s ACCA predicate

convictions his 1999 Florida armed robbery conviction. Under our precedent,

       3
        Robinson v. State, 692 So. 2d 883, 886 (Fla. 1997); McCloud v. State, 335 So. 2d 257,
258-59 (Fla. 1976); Montsdoca v. State, 93 So. 157, 159 (Fla. 1922).
                                               5
                Case: 17-11066       Date Filed: 03/23/2018      Page: 6 of 6


Florida armed robbery categorically qualifies as a violent felony under the

ACCA’s elements clause. See Fritts, 841 F.3d at 940-42; Lockley, 632 F.3d at

1246; Dowd, 451 F.3d at 1255. Although Lewis argues that Florida robbery can be

committed without violent force, that argument is foreclosed by our precedent in

Lockley and then Fritts, which held that robbery as defined in § 812.13(1) requires

(and has always required) the use of violent force. Although Lewis argues that our

precedent is wrong, under our prior panel precedent rule, we are bound by our

precedent unless and until it is overruled by this Court sitting en banc or by the

Supreme Court. See United States v. Vega-Castillo, 540 F.3d 1235, 1236 (11th

Cir. 2008).4 Accordingly, we affirm Lewis’s 180-month sentence.

       AFFIRMED.




       4
        Contrary to Lewis’s contention, United States v. Archer, 531 F.3d 1347 (11th Cir. 2008)
does not control here. Archer addressed whether a prior conviction for carrying a concealed
weapon in violation of Florida Statutes § 790.01 was a crime of violence under the career
offender provision of the Sentencing Guidelines, and said nothing about the elements of robbery
or armed robbery under Florida Statutes§ 812.13(1) and (2). See Archer, 531 at 1349.
                                               6
