           Case: 16-12979   Date Filed: 10/18/2017   Page: 1 of 9


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-12979
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 1:15-cr-20674-MGC-1

UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,


                                  versus


BENJIE EARL WRIGHT,

                                                         Defendant-Appellant.

                      ________________________

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

                            (October 18, 2017)



Before JORDAN, ROSENBAUM and BLACK, Circuit Judges.

PER CURIAM:
                 Case: 16-12979        Date Filed: 10/18/2017        Page: 2 of 9


       Benjie Earl Wright appeals the denial of his motion to suppress and his 180-

month sentence for being a felon in possession of a firearm or ammunition, 18

U.S.C. §§ 922(g)(1) and 924(e). Wright asserts the district court erred by denying

his motion to suppress evidence when it determined police officers had not

exceeded their authority during an investigatory stop and pat-down. He also

contends the district court erred by determining Florida strong armed robbery

qualified as a violent felony under the Armed Career Criminal Act (ACCA). After

review, 1 we affirm Wright’s conviction and sentence.

                                I. MOTION TO SUPPRESS

       “The Fourth Amendment prohibits ‘unreasonable searches and seizures’ by

the Government, and its protections extend to brief investigatory stops of persons

or vehicles that fall short of traditional arrest.” United States v. Arvizu, 534 U.S.

266, 273 (2002). “[W]here a police officer observes unusual conduct which leads

him reasonably to conclude in light of his experience that criminal activity may be

afoot and that the persons with whom he is dealing may be armed and presently

dangerous, where in the course of investigating this behavior he identifies himself

       1
          We review the district court’s denial of a motion to suppress under a mixed standard,
reviewing the district court’s findings of fact under the clearly erroneous standard and the district
court’s application of law to those facts de novo. United States v. Gil, 204 F.3d 1347, 1350 (11th
Cir. 2000). Questions of probable cause and reasonable suspicion are reviewed de novo.
Ornelas v. United States, 517 U.S. 690, 699 (1996). We review de novo the district court’s
conclusion that a particular offense constitutes a “violent felony” under 18 U.S.C. § 924(e).
United States v. Wilkerson, 286 F.3d 1324, 1325 (11th Cir. 2002).


                                                 2
               Case: 16-12979    Date Filed: 10/18/2017    Page: 3 of 9


as a policeman and makes reasonable inquiries, . . . he is entitled for the protection

of himself and others in the area to conduct a carefully limited search of the outer

clothing of such persons in an attempt to discover weapons which might be used to

assault him.” Terry v. Ohio, 392 U.S. 1, 30 (1968). “If a police officer lawfully

pats down a suspect’s outer clothing and feels an object whose contour or mass

make its identity immediately apparent, there has been no invasion of the suspect’s

privacy beyond that already authorized by the officer’s search for weapons.”

United States v. Griffin, 696 F.3d 1354, 1363 (11th Cir. 2012) (quoting Minnesota

v. Dickerson, 508 U.S. 366, 375 (1993)).

      “In determining whether the officer acted reasonably in such circumstances,

due weight must be given, not to his inchoate and unparticularized suspicion or

‘hunch,’ but to the specific reasonable inferences which he is entitled to draw from

the facts in light of his experience.” Terry, 392 U.S. at 26. We must look at the

“totality of the circumstances” to see whether the detaining officer has a

“particularized and objective basis” for suspecting legal wrongdoing. Arvizu, 534

U.S. at 273.

      The police officers had reasonable suspicion to detain Wright based on

articulable facts. The police officers were permitted to rely on the description,

given from the victim, that the armed robber suspect was black, heavyset, in his

30s, located in the Yellow Meat Market, wearing a white shirt and black cargo


                                           3
                 Case: 16-12979       Date Filed: 10/18/2017        Page: 4 of 9


shorts, with a lowboy haircut and tattoos. See United States v. Hensley, 469 U.S.

221, 232 (1985) (holding “if a flyer or bulletin has been issued on the basis of

articulable facts supporting a reasonable suspicion the wanted person has

committed an offense, then reliance on that flyer or bulletin justifies a stop to

check identification, to pose questions to the person, or to detain the person briefly

while attempting to obtain further information” (internal citations omitted)). The

police officers saw Wright, who was black, appeared to be in his 30s, had on dark

colored cargo shorts, had tattoos, had a lowboy haircut, and was in the Yellow

Meat Market.2 Officer Yunieski Arriola testified he believed Wright matched the

description of the suspect. Officer Arriola testified that, based on his experience,

he knew descriptions of suspects can be incorrect because suspects change or

discard clothing.

       When Officer Arriola asked for his identification, Wright stated that he

worked at the Yellow Meat Market and did not provide any identification. Officer

Arriola stated the police respond to crime incidents at the Yellow Meat Market

once or twice per week. He stated he did not recognize Wright as an employee or

regular at the store. He believed Wright lied to the officers when he told them he

worked there, based on their frequent visits to the Yellow Meat Market.


       2
           Other facts, such as the fact Wright was wearing a black shirt and not a white shirt,
was “medium-set” and not heavyset, had on dark cargo shorts and not black cargo shorts, and
was sitting calmly in the location of the robbery indicated he might not be the suspect.
                                                 4
               Case: 16-12979     Date Filed: 10/18/2017    Page: 5 of 9


      Based on the totality of the circumstances, including the suspect’s

description and the officers’ familiarity with the Yellow Meat Market, the officers

had enough articulable facts amounting to reasonable suspicion and were justified

in conducting a brief, investigatory stop. See Arvizu, 534 U.S. at 273; Hensley,

469 U.S. at 232.

      Furthermore, because the officers had reasonable suspicion to believe

Wright matched the description of the armed robber, the officers had reasonable

suspicion to believe he was armed and dangerous. Based on this reasonable

suspicion, the officers were entitled, for their protection, to conduct a carefully

limited search of the outer clothing of Wright in an attempt to discover weapons.

See Terry, 392 U.S. at 30. While Terry pat-downs are generally limited to the

outer clothing, the Supreme Court also stated in Terry that a search for weapons

must be confined in scope to an intrusion reasonably designed to discover guns,

knives, clubs, or other hidden instruments for the assault of the police officer. Id.

at 29. The officers raised the back of Wright’s long, baggy shirt no higher than

necessary to view his waistband and pat down his back pockets. Therefore, the

lifting of Wright’s shirt is within the boundary of Terry because the intrusion was

designed to discover a gun when the officers reasonably believed Wright had a gun

and the intrusion was balanced against the necessity of the search.




                                           5
              Case: 16-12979     Date Filed: 10/18/2017    Page: 6 of 9


      Accordingly, the district court did not err by denying Wright’s motion to

suppress when the officers did not exceed their authority to detain and pat-down

Wright because they had reasonable articulable suspicion that he matched the

description of an armed robber and their search was limited to slightly lifting

Wright’s shirt to expose his waistband and patting down the outside of Wright’s

cargo shorts. We affirm the district court’s denial of Wright’s motion to suppress.

                                     II. ACCA

      Under the ACCA, any person who violates 18 U.S.C. § 922(g), and has 3

previous convictions for a violent felony or a serious drug offense, is subject to a

mandatory minimum sentence of 15 years’ imprisonment. 18 U.S.C. § 924(e)(1).

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 referred to as the

“elements clause,” while the second prong contains the “enumerated crimes” and,




                                          6
                Case: 16-12979       Date Filed: 10/18/2017       Page: 7 of 9


finally, what is commonly called the “residual clause.”3 United States v. Owens,

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

       Prior to 1997, Florida’s intermediate appellate courts were divided as to

whether a sudden snatching amounted to robbery under Fla. Stat. § 812.13. See

United States v. Welch, 683 F.3d 1304, 1311 & n.29 (11th Cir. 2012) (citing cases).

In 1997, the Florida Supreme Court held mere snatching of property did not

amount to robbery under § 812.13 unless the perpetrator employed force greater

than that necessary to simply remove the property from the person. Robinson v.

State, 692 So. 2d 883, 886 (Fla. 1997). It stated “in 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.” Id. It explained

the Florida robbery statute required “resistance by the victim that is overcome by

the physical force of the offender.” Id.

       In United States v. Lockley, we addressed whether a 2001 Florida

attempted-robbery conviction qualified as a crime of violence under the elements

clause of the career-offender provision of the Sentencing Guidelines. 632 F.3d

1238, 1244 (11th Cir. 2011). We determined Lockley’s 2001 Florida

       3
           In Johnson, the Supreme Court held the residual clause of the ACCA is
unconstitutionally vague because it creates uncertainty about how to evaluate the risks posed by
a crime and how much risk it takes to qualify as a violent felony. Johnson v. United States, 135
S. Ct. 2551, 2557-58, 2563 (2015). The Supreme Court clarified that, in holding the residual
clause is void, it did not call into question the application of the elements clause and the
enumerated crimes of the ACCA’s definition of a violent felony. Id. at 2563.

                                                7
                Case: 16-12979        Date Filed: 10/18/2017       Page: 8 of 9


attempted-robbery conviction categorically constituted a crime of violence under

the elements clause of the career-offender guideline. Lockley, 632 F.3d at 1244-

45.

       In Seabrooks, we relied on Lockley to determine a 1997 Florida armed

robbery conviction constituted a violent felony under the ACCA. See United

States v. Seabrooks, 839 F.3d 1326, 1338-41 (11th Cir. 2016); id. at 1346

(Baldock, J. concurring); id. at 1346, 1350-51 (Martin, J. concurring). The

narrowest ground on which we agreed in Seabrooks was that, under Lockley,

post-Robinson Florida armed robbery convictions categorically qualify as violent

felonies under the ACCA’s elements clause. See id. at 1340; id. at 1346 (Baldock,

J., concurring); id. at 1350 (Martin, J., concurring).

       Given this Court’s holding in Seabrooks, Wright’s 2000 Florida robbery

conviction qualifies as a violent felony under the elements clause of the ACCA.4

This Court has specifically held a post-1997/post-Robinson, Florida armed robbery

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

clause. See Seabrooks, 839 F.3d at 1338-41.




       4
           Wright does not dispute he has two previous convictions for a serious drug offense that
qualify as predicate offenses under the ACCA. Therefore, he only needs a third predicate
offense to qualify as an armed career criminal.

                                                8
                Case: 16-12979       Date Filed: 10/18/2017       Page: 9 of 9


       Wright’s three qualifying convictions 5 subject him to a mandatory minimum

sentence of 15 years’ imprisonment. 18 U.S.C. § 924(e)(1). Accordingly, we

affirm his sentence.

       AFFIRMED.




       5
         Because Wright’s Florida robbery conviction qualifies as a violent felony, he has three
previous convictions for a violent felony or serious drug offense and this Court need not review
whether Wright’s Florida conviction for battery qualifies as a violent felony.
                                               9
