             Case: 15-15223   Date Filed: 11/16/2016   Page: 1 of 16


                                                           [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 15-15223
                           Non-Argument Calendar
                         ________________________

                     D.C. Docket No. 1:15-cr-20366-DPG-1

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                       versus

BRYAN MICHAEL JOHNSON,


                                                           Defendant-Appellant.

                         ________________________

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

                              (November 16, 2016)

Before HULL, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

      Bryan Johnson appeals his 120-month below-guideline sentence, after

pleading guilty to federal bank robbery, in violation of 18 U.S.C. § 2113(a). The
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sentence at issue is a variance below the guideline range of 151-188 months’

imprisonment. On appeal, Johnson argues that: (1) Johnson v. United States, 135

S. Ct. 2552 (2015), which invalidated the residual clause from the Armed Career

Criminals Act (“ACCA”), and the Sentencing Commission’s August 2016

amendment deleting the residual clause from the career offender guideline apply to

his case; (2) neither his Florida burglary nor attempted robbery convictions qualify

as career offender predicate offenses; (3) his instant federal conviction for bank

robbery does not qualify as a crime of violence triggering the application of the

career offender enhancement; and (4) his sentence is procedurally and

substantively unreasonable. After careful review, we affirm.

      We review de novo constitutional challenges to the Sentencing Guidelines.

United States v. Matchett, 802 F.3d 1185, 1191 (11th Cir. 2015). We review the

district court’s factual findings for clear error, and its application of those facts to

justify a sentencing enhancement de novo. Id. For a factual finding to be clearly

erroneous, we must be left with a definite and firm conviction after reviewing all

the evidence that a mistake has been committed. Id. We review de novo whether a

prior conviction qualifies as a “crime of violence” under the Sentencing

Guidelines. United States v. Lockley, 632 F.3d 1238, 1240 (11th Cir. 2011). We

review the sentence a district court imposes for “reasonableness,” which “merely




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asks whether the trial court abused its discretion.” United States v. Pugh, 515 F.3d

1179, 1189 (11th Cir. 2008) (quotation omitted).

      However, we review arguments raised for the first time on appeal for plain

error. United States v. Wright, 607 F.3d 708, 715 (11th Cir. 2010). This requires a

defendant to show (1) an error, (2) that is plain, and (3) that affected his substantial

rights. United States v. Turner, 474 F.3d 1265, 1275-76 (11th Cir. 2007). If the

defendant satisfies the three conditions, we may exercise our discretion to

recognize the error if it seriously affects the fairness, integrity, or public reputation

of judicial proceedings. Id. at 1276. An error is plain if controlling precedent from

the Supreme Court or our Court establishes that an error has occurred. See United

States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003).

      First, we are compelled to reject Johnson’s arguments that Johnson v. United

States extends to invalidate the residual clause of the career offender guideline and

that the Sentencing Commission’s 2016 amendment eliminating the residual clause

from the career offender enhancement applies retroactively to his case. Under the

Guidelines, a defendant’s offense level may be increased if he is a deemed to be a

career offender. U.S.S.G. § 4B1.1. A defendant is a career offender if:

      (1) the defendant was at least 18 years-old at the time he committed the
      instant offense of conviction; (2) the instant offense of conviction is a felony
      that is either a crime of violence or a controlled substance offense; and (3)
      the defendant has at least two prior felony convictions of either a crime of
      violence or a controlled substance offense.


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Id. § 4B1.1(a). At the time of Johnson’s sentencing, the term “crime of violence”

was defined as an offense under federal or state law punishable by imprisonment

for a term exceeding one year, that: “(1) has an element the use, attempted use, or

threatened use of physical force against the person of another, or (2) is burglary of

a dwelling, arson, or extortion, involves use of explosives, or otherwise involves

conduct that presents a serious potential risk of physical injury to another.” Id. §

4B1.2(a) (Nov. 1, 2015) (emphasis added). Section 4B1.2(a)(1) is known as the

“elements clause,” and § 4B1.2(a)(2) contains the “enumerated offenses” and the

“residual clause,” which is underlined above.

      In Johnson, 135 S. Ct. at 2556-57, the Supreme Court addressed the

constitutionality of the residual clause of the ACCA. The ACCA forbids certain

people -- such as convicted felons and drug users -- to ship and possess firearms.

Id. at 2555. In general, a violation of this Act carries a ten year maximum penalty;

however, if the violator has three or more convictions for a “violent felony” or

serious drug offense, his prison term is increased to a minimum of fifteen years and

a maximum of life.      Id.   The ACCA defined “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.
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Id. at 2555-56 (citing 18 U.S.C. § 924(e)(2)(B)).        The closing words of the

definition, emphasized above, are known as the Act’s residual clause. Id. at 2556.

      In Johnson, the Court struck the ACCA’s residual clause as unconstitutional

because it provides no objective basis from which to determine what conduct poses

“a serious potential risk of physical injury to another” and it leaves uncertainty

about how much risk it takes for a crime to qualify as a violent felony. Id. at 2557-

58. “By combining indeterminacy about how to measure the risk posed by a crime

with indeterminacy about how much risk it takes for the crime to qualify as a

violent felony, the residual clause produces more unpredictability and arbitrariness

than the Due Process Clause tolerates.” Id. at 2558.

      We addressed in Matchett whether the vagueness doctrine of Johnson

applied to the residual clause of the career offender definition of crime of violence.

802 F.3d at 1193-94. We held that, while the ACCA defines a crime and fixes a

sentence, the advisory Guidelines do neither and, as a result, Johnson is

inapplicable to the residual clause of the career offender enhancement. Id. at 1194

(recognizing there is no constitutional right to the Sentencing Guidelines because

they are advisory and merely assist a judge in exercising his discretion). We

further noted that because the Guidelines provide no notice to criminal defendants,

they cannot be challenged for vagueness. Id. at 1194-95.



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      In response to litigation surrounding Johnson, the Sentencing Commission

amended the Guidelines -- specifically, the career offender enhancement definition

of “crime of violence” -- in August 2016. In so doing, it eliminated the residual

clause and removed burglary from the list of enumerated offenses that satisfy the

definition. U.S.S.G. Supp. to App. C, amend. 798 (Aug. 1, 2016). The current

definition of “crime of violence” includes any offense under federal or state law,

punishable by imprisonment for a term exceeding one year, that

      (1) has as an element the use, attempted use, or threatened use of physical
      force against the person of another, or

      (2) is murder, voluntary manslaughter, kidnapping, aggravated assault, a
      forcible sex offense, robbery, arson, extortion, or the use or unlawful
      possession of a firearm described in 26 U.S.C. § 5845(a) or explosive
      material as defined in 18 U.S.C. § 841(c).

Id. The Sentencing Commission indicated that the amendment eliminating the

residual clause from the career offender guideline arose because of numerous court

opinions expressing a view that the definition of “crime of violence” is unclear. Id.

The Commission noted that the Supreme Court’s recent decision in Johnson, which

involves the definition of “violent felony” in the ACCA, had given rise to

significant litigation regarding the guideline definition of “crime of violence.” Id.

      In this case, the defendant Johnson was sentenced as a career offender and

not as an armed career criminal under the ACCA.            Thus, under our binding

precedent, Johnson’s argument that the Supreme Court’s decision in Johnson


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renders his sentence invalid is foreclosed. See Matchett, 802 F.3d at 1194. As for

Johnson’s request to hold his case in abeyance until the petition for rehearing in

Matchett is resolved, the petition was resolved when the Court denied rehearing en

banc in September 2016. United States v. Matchett, No. 14-10396, manuscript op.

at 1-2 (11th Cir. Sept. 13, 2016).

      As for Johnson’s claim that Florida burglary no longer qualifies as a career

offender predicate offense under Johnson, this argument was also foreclosed by

Matchett. As we’ve already noted, Matchett held that Johnson applies only to

criminal statutes that define elements of a crime or fix punishments, and the

Sentencing Guidelines do neither. In addition, Matchett held that the Florida

offense of burglary of an unoccupied dwelling is a crime of violence under the

career offender guideline’s residual clause because it “involves conduct that

presents a serious potential risk of physical injury to another.” Id. at 1197 (quoting

U.S.S.G. § 4B1.2(a)(2) (Nov. 1, 2015)). In the alternative, Johnson requests that

we hold his case in abeyance due to the grant of certiorari in Beckles v. United

States, 136 S. Ct. 2510 (2016), a case he says may abrogate Matchett. But we’ve

held that “grants of certiorari do not themselves change the law,” and “must not be

used by courts” as a basis to grant relief that would otherwise be denied. See

Schwab v. Sec’y, Dep’t of Corrs., 507 F.3d 1297, 1298-99 (11th Cir. 2007). As a

result, Florida burglary remains a career offender predicate offense.


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      Nor is Johnson entitled to relief on his claim that Florida attempted robbery

no longer qualifies as a career offender predicate offense.          The Guidelines

commentary provides that robbery is enumerated as a crime of violence. U.S.S.G.

§ 4B1.2, comment. (n.1) (Nov. 1, 2015). If the Guidelines specifically enumerate a

certain offense as a crime of violence, we “compare the elements of the crime of

conviction to the generic form of the offense.” Lockley, 632 F.3d at 1242. Here,

we compare the Florida robbery offense with generic robbery. To make this

comparison, we apply a categorical approach, generally looking no further than the

fact of conviction and the statutory definition of the offense. Id. at 1240. If there

is no ambiguity as to whether the offense qualifies as a predicate offense for

enhancement purposes, we need look no further than those materials. United

States v. Palomino Garcia, 606 F.3d 1317, 1336 (11th Cir. 2010). If, however, the

scope of acts criminalized by the statutory definition of the prior offense is broader

than the generic definition of the enumerated offense, then, under the categorical

approach, the prior conviction does not fall within the enumerated offense. United

States v. Ramirez-Garcia, 646 F.3d 778, 782-83 (11th Cir. 2011).

      An offense qualifies as a crime of violence if: (1) the defendant committed

an enumerated offense; (2) “the use, attempted use, or threatened use of physical

force against another was an element of the offense;” or (3) “the conduct for which

the defendant was convicted presented a serious risk of physical injury to another


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person.” Lockley, 632 F.3d at 1241. In Lockley, we held that the elements of Fla.

Stat. § 812.13 mirror almost exactly the generic definition of robbery. Id. at 1243.

The commission of robbery under Fla. Stat. § 812.13(1) requires that the defendant

(1) commit the taking of money or other property from another person or in the

custody of another person, (2) with the intent to permanently or temporarily

deprive the person of the money or property (3) using force, violence, or an

intentional threat of imminent force or violence against another coupled with an

apparent ability to use that force or violence, or by causing the person to fear death

or great bodily harm (4) where the money or property has value. Id. at 1242-43.

Lockley, making the same argument as Johnson does here, argued that the Florida

statute is non-generic because the “putting in fear” language removes from the

elements the act of physical harm, bodily injury, or violence, and permits

conviction with any act of mere intimidation or slight force. Id. at 1243-44. We

noted that a small minority of states and the Model Penal Code define robbery as

something more than mere intimidation or fear -- the defendant must directly

threaten the victim physically -- but held the difference in definitions slight. Id.

Lockley announced that the generic definition of robbery requires “the taking of

property from another person or from the immediate presence of another person by

force or intimidation.” Id. at 1244 (quotation omitted). Comparing Fla. Stat. §

812.13(1) to the generic definition, we held that they are clear equivalents. Id.


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      Because we’ve found Florida’s robbery statute to be generic, Johnson’s

attempted robbery conviction categorically qualifies as a predicate offense for the

career offender enhancement as an enumerated offense.            See id. at 1244-45

(holding that Florida attempted robbery qualifies as a predicate offense since the

statute is generic). Moreover, we’ve held that this Florida statute also satisfies the

elements and residual clauses of U.S.S.G. § 4B1.2(a) (Nov. 1, 2015). Id. at 1245.

For all of these reasons, Johnson’s prior convictions for burglary and attempted

robbery still qualify as career offender predicate offenses.

      Further, Amendment 798 to the career offender enhancement does not apply

to Johnson. When reviewing a district court’s application of the Guidelines, we

apply the version of the Guidelines in effect on the date of sentencing. United

States v. Descent, 292 F.3d 703, 707 (11th Cir. 2002).            While subsequent

amendments that merely clarify the Guidelines should be considered on appeal

regardless of the date of sentencing, United States v. Dedeker, 961 F.2d 164, 166

n.4 (11th Cir. 1992), Amendment 798 to the career offender enhancement is a

substantive change to the Guideline. Among other things, Amendment 798 deleted

the residual clause and eliminated a class of offenses that previously predicated the

enhancement. U.S.S.G. Supp. to App. C, amend. 798 (Aug. 1, 2016). And the

commentary to the amendment does not say that it is intended to be a clarifying

amendment. See Descent, 292 F.3d at 708 (holding that Amendment 634 was a


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substantive change to the Guidelines since, inter alia, the commentary did not

indicate it was intended to be a clarifying amendment). As a substantive change to

the Guidelines, Amendment 798 does not apply retroactively to his sentence.

      We are also unpersuaded by Johnson’s argument that his underlying instant

bank robbery conviction, in violation of 18 U.S.C. § 2113, does not qualify as a

crime of violence that triggers the application of the career offender enhancement.

As an initial matter, because Johnson did not raise this issue in the district court,

we review for plain error. But Johnson cannot establish plain error because neither

we nor the Supreme Court have held that the federal bank robbery statute is

overbroad and cannot qualify as a crime of violence for the career offender

guideline. See Lejarde-Rada, 319 F.3d at 1291.

      In any event, even under a less demanding standard of review, Johnson

cannot demonstrate that the district court erred in concluding that 18 U.S.C. § 2113

is a crime of violence under the career offender enhancement. As we’ve already

detailed, the Guidelines defined “crime of violence” as any offense under federal

law, 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, or otherwise involves conduct that presents a serious potential

risk of physical injury to another. U.S.S.G. § 4B1.2(a) (Nov. 1, 2015). In addition,

commentary to U.S.S.G. § 4B1.2 names robbery as a crime of violence. Id.,


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comment. (n.1). The federal bank robbery statute provides that the offense may be

committed “by force and violence, or by intimidation.” 18 U.S.C. § 2113(a).

“Under section 2113(a), intimidation occurs when an ordinary person in the teller’s

position reasonably could infer a threat of bodily harm from the defendant’s acts.”

United States v. Kelley, 412 F.3d 1240, 1244 (11th Cir. 2005) (quotation omitted).

      As we’ve detailed above, because the Guidelines specifically enumerate

robbery as a crime of violence, we compare the § 2113(a) offense with generic

robbery. See Lockley, 632 F.3d at 1242. Lockley held that the generic definition

of robbery includes “the taking of property from another person or from the

immediate presence of another person by force or intimidation.” Id. at 1244

(quotation omitted). Based on this definition, just as in Lockley, Johnson’s offense

of federal bank robbery qualifies as a crime of violence under all three avenues

identified in Lockley, for the same reasons as presented there. Id. at 1241-46.

First, robbery by intimidation qualifies under the enumerated clause because it is

nearly identical to the generic definition of robbery, and notably, both involve a

perceived threat of bodily harm. Compare 18 U.S.C. § 2113(a) and Kelley, 412

F.3d at 1244-45, with Lockley, 632 F.3d at 1241, 1244. Second, Johnson’s offense

qualifies under the elements clause because it has as an element “the threatened use

of physical force against the person of another.” U.S.S.G. § 4B1.2(a)(1) (Nov. 1,

2015). Third, Johnson’s offense qualifies under the residual clause because it is


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similar in kind and in degree of risk posed as enumerated offenses, such as

burglary, extortion, and robbery. See Lockley, 632 F.3d at 1245.

      As for Johnson’s statutory interpretation arguments, we are unpersuaded.

Among other things, a finding that robbery by intimidation qualifies as a crime of

violence does not excise intimidation from the statute or introduce inconsistencies

into the statutory language.    Rather, § 2113(a) essentially provides that bank

robbery can be committed by force and violence or by the threat of force and

violence.   A plain reading of the statute does not suggest that “robbery by

intimidation” is nonviolent or that it is not a “crime of violence” as that term is

used in the Sentencing Guidelines. Moreover, the rule of lenity is inapplicable

because there is no ambiguity present in the statute.       Accordingly, Johnson’s

instant conviction for federal bank robbery by intimidation qualified as a crime of

violence for purposes of the § 4B1.1 career offender enhancement.

      Finally, we find no merit to Johnson’s claim that his sentence is

unreasonable. In reviewing sentences for reasonableness, we typically perform

two steps. Pugh, 515 F.3d at 1190. First, we “‘ensure that the district court

committed no significant procedural error, such as failing to calculate (or

improperly calculating) the Guidelines range, treating the Guidelines as mandatory,

failing to consider the § 3553(a) factors, selecting a sentence based on clearly

erroneous facts, or failing to adequately explain the chosen sentence -- including an


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explanation for any deviation from the Guidelines range.’” Id. (quoting Gall v.

United States, 552 U.S. 38, 51 (2007)). 1 The district court is not required to

explicitly state that it considered the § 3553(a) factors, as long as the court’s

comments demonstrate that it considered the factors when imposing sentence.

United States v. Dorman, 488 F.3d 936, 944 (11th Cir. 2007).

       If we conclude that the district court did not procedurally err, we consider

the “‘substantive reasonableness of the sentence imposed under an abuse-of-

discretion standard,’” based on the “‘totality of the circumstances.’” Pugh, 515

F.3d at 1190 (quoting Gall, 552 U .S. at 51). “[W]e will not second guess the

weight (or lack thereof) that the [court] accorded to a given [§ 3553(a)] factor . . .

as long as the sentence ultimately imposed is reasonable in light of all the

circumstances presented.” United States v. Snipes, 611 F.3d 855, 872 (11th Cir.

2010) (quotation, alteration and emphasis omitted). We will not reweigh the

relevant § 3553(a) factors, and will not remand for resentencing unless the district

court committed a clear error of judgment in weighing the § 3553(a) factors by




1
        The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need for the sentence imposed to reflect the
seriousness of the offense, to promote respect for the law, and to provide just punishment for the
offense; (3) the need for the sentence imposed to afford adequate deterrence; (4) the need to
protect the public; (5) the need to provide the defendant with educational or vocational training
or medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) the
pertinent policy statements of the Sentencing Commission; (9) the need to avoid unwanted
sentencing disparities; and (10) the need to provide restitution to victims. 18 U.S.C. § 3553(a).
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imposing a sentence outside the range of reasonable sentences. United States v.

Langston, 590 F.3d 1226, 1237 (11th Cir. 2009).

      The party challenging the sentence bears the burden to show it is

unreasonable. United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).

While we do not automatically presume a sentence falling within the guideline

range to be reasonable, we ordinarily expect that sentence to be reasonable. United

States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008). A sentence’s reasonableness

may also be indicated if the sentence is well below the statutory maximum

sentence. United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008).

      Here, Johnson has not demonstrated that his sentence was procedurally or

substantively unreasonable. For starters, Johnson has not developed any argument

on appeal that the court procedurally erred, so he has waived any challenge in that

regard. United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003).

      As for the substantive reasonableness of the sentence, the record reveals that

the district court considered the seriousness of the offense, Johnson’s arguments in

mitigation, the presentence investigation report, the advisory Guidelines, and the §

3553(a) factors when sentencing him below his guideline range. The substantive

reasonableness of the sentence is also supported by the downward variance the

district court imposed -- well below the statutory maximum sentence and well

below his guideline range. See Hunt, 526 F.3d at 746; Gonzalez, 550 F.3d at 1324.


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      As for Johnson’s argument that our decision in Matchett creates unwarranted

disparities between defendants in different circuits that render his below-guideline

sentence substantively unreasonable, it has no merit. While it is true that Matchett

applied the holding in Johnson only to the ACCA, the differences in sentences

between career offenders under the Guidelines and armed career criminals under

the ACCA does not produce unwarranted disparities.           Indeed, a sentencing

disparity is not “unwarranted” if the individuals being compared are not similarly

situated. See United States v. Spoerke, 568 F.3d 1236, 1252 (11th Cir. 2009)

(finding no unwarranted sentencing disparity between two non-similarly situated

parties). As for his concern about career offender defendants in other circuits that

may be eligible for relief under Johnson, neither this Court nor the Supreme Court

has held that § 3553(a)(6) permits consideration of sentence disparity among

defendants nationwide. Rather, we’ve noted that a sentence imposed in this Circuit

is not necessarily subject to a “national grade curve.” United States v. Hill, 643

F.3d 807, 885 (11th Cir. 2011). In any event, the significant downward variance

that Johnson was awarded mitigated any unwarranted sentencing disparity. In

short, we conclude that the district court did not abuse its discretion in imposing

Johnson’s 120-month below-guidelines sentence.

   AFFIRMED.




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