            Case: 16-11082   Date Filed: 01/25/2018   Page: 1 of 6


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-11082
                         Non-Argument Calendar
                       ________________________

   D.C. Docket Nos. 8:15-cv-02018-SCB-MAP; 8:06-cr-00110-SCB-MAP-3



ERNEST KING,

                                                           Petitioner-Appellant,

                                   versus

UNITED STATES OF AMERICA,

                                                         Respondent-Appellee.

                       ________________________

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

                             (January 25, 2018)

Before JULIE CARNES, FAY, and HULL, Circuit Judges.

PER CURIAM:
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      Ernest King, a federal prisoner serving a total sentence of 300 months’

imprisonment, appeals the district court’s denial of his 28 U.S.C. § 2255 motion to

vacate his sentence, arguing in relevant part that he no longer qualifies for an

enhanced sentence under the Armed Career Criminal Act (“ACCA”), 18 U.S.C.

924(e), following the Supreme Court’s decision in Samuel Johnson v. United

States, __ U.S. __, 135 S. Ct. 2551 (2015), because his pre-1997 Florida robbery

and armed robbery convictions are not “violent felonies” under the ACCA’s

elements clause.

      Under the ACCA, a defendant convicted of violating 18 U.S.C. § 922(g) is

subject to a mandatory minimum sentence of 15 years (180 months) if he has three

prior convictions for a “violent felony” or “serious drug offense.” 18 U.S.C.

§ 924(e)(1). A “violent felony” is 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 is referred to as the “elements clause,”

while the second prong contains the “enumerated crimes” and the “residual

clause.” United States v. Owens, 672 F.3d 966, 968 (11th Cir. 2012). In Samuel

Johnson, the Supreme Court struck down the ACCA’s residual clause as
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unconstitutionally vague, but did not call into question the validity of the ACCA’s

enumerated crimes or elements clause. Samuel Johnson, 135 S. Ct. at 2563.

Under the elements clause, “the phrase ‘physical force’ means violent force—that

is, force capable of causing physical pain or injury to another person.” Curtis

Johnson v. United States, 559 U.S. 133, 140, 130 S. Ct. 1265, 1271 (2010).

      Florida law defines robbery, in relevant part, as “the taking of money or

other property . . . from the person or custody of another, . . . when in the course of

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

provides increased penalties for armed robbery. Fla. Stat. § 812.13(1)-(2). Prior to

1997, Florida’s intermediate appellate courts were divided as to whether a sudden

snatching amounted to robbery under § 812.13(1). See United States v. Welch,

683 F.3d 1304, 1311 & n.29 (11th Cir. 2012) (citing cases). In 1997, the Florida

Supreme Court resolved this division, making clear the robbery statute had never

included theft by mere snatching and had always required that the perpetrator

employ force (1) greater than that necessary to simply remove the property from

the victim and (2) sufficient to overcome the victim’s resistance. See Robinson v.

State, 692 So. 2d 883, 886-87 (Fla. 1997). Additionally, for purposes of robbery

by putting in fear, “‘[t]he fear contemplated . . . is the fear of death or great bodily

harm’” under Florida law. United States v. Lockley, 632 F.3d 1238, 1242 (11th




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Cir. 2011) (quoting Magnotti v. State, 842 So. 2d 963, 965 (Fla. 4th Dist. Ct. App.

2003) (alteration in original)).

      On appeal, King argues that Florida robbery, whether committed before or

after 1997, can never qualify as a violent felony under the ACCA’s elements

clause because the least of the acts criminalized by the Florida statute does not

require the use, attempted use, or threatened use of violent force. Among other

things, King contends that: (1) prior to 1997, Florida robbery included robbery by

sudden snatching, which does not require violent force; (2) both before and after

1997, Florida courts have held that any degree of force, however slight, converts a

theft offense into a robbery so long as the force used is sufficient to overcome the

victim’s resistance; and (3) robbery by putting in fear does not require either that

the defendant intentionally put the victim in fear or that the defendant threaten the

use of physical force.

      King’s arguments are unavailing. In United States v. Fritts, 841 F.3d 937

(11th Cir. 2016), cert. denied, 137 S. Ct. 2264 (2017), the defendant raised, and we

rejected, these very same arguments. Consistent with our prior precedent, we held

that Florida robbery, whether committed before or after 1997, categorically

qualifies as a violent felony under the ACCA’s elements clause. Id. at 939-44.

First, relying in part on our prior decision in Lockley, we explained that even the

least of the acts criminalized by the Florida robbery statute—robbery by putting in


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fear—categorically qualified as a violent felony under the elements clause because

“the fear contemplated by the statute is the fear of death or great bodily harm.”

Fritts, 841 F.3d at 941 (internal quotation marks omitted). We determined that any

act which causes the victim to fear death or great bodily harm would necessarily

involve the use or threatened use of physical force against the victim. Id.

Likewise, each of the other means of committing Florida robbery—use of force,

violence, and assault—by definition “specifically require[s] the use or threatened

use of physical force against the person of another.” Id. (internal quotation marks

omitted).

      In Fritts, we further explained that the Florida Supreme Court’s decision in

Robinson and the earlier Florida cases on which Robinson relied demonstrated that

the Florida robbery statute had never encompassed robbery by sudden snatching

and had always required the use or threatened use of sufficient physical force to

overcome the victim’s resistance. Id. at 942-43; see also Robinson, 692 So. 2d at

886-87 (stating: “[I]n order for the snatching of property from another to amount to

robbery, the perpetrator must employ more than the force necessary to remove the

property from the person. Rather, there must be resistance by the victim that is

overcome by the physical force of the offender.”). Thus, unlike the simple battery

statute at issue in Curtis Johnson, which could be violated by mere touching, slight

force was insufficient to sustain a Florida robbery conviction. Fritts, 841 F.3d at


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942-43. Indeed, we noted that, as early as 1922, the Florida Supreme Court had

held: “‘There can be no robbery without violence, and there can be no larceny with

it. It is violence that makes robbery an offense of greater atrocity than larceny.’”

Id. at 943 (quoting Montsdoca v. State, 93 So. 157, 159 (Fla. 1922)).

      Consequently, given Lockley and Fritts, King’s challenge to his ACCA

sentence fails, and the district court did not err in denying his § 2255 motion. See

United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008) (“Under [the prior

panel precedent] rule, a prior panel’s holding is binding on all subsequent panels

unless and until it is overruled or undermined to the point of abrogation by the

Supreme Court or by this court sitting en banc.”).

      Accordingly, we affirm the district court’s order dismissing King’s § 2255

motion.

      AFFIRMED.




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