                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                              APR 8, 2009
                               No. 08-13517                 THOMAS K. KAHN
                           Non-Argument Calendar                CLERK
                         ________________________

                     D. C. Docket No. 08-20006-CR-MGC

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

FRANK TOWNSLEY,

                                                           Defendant-Appellant.


                         ________________________

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

                                (April 8, 2009)

Before BIRCH, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

     Frank Townsley appeals his convictions and sentences for being a felon in
possession of a firearm, 18 U.S.C. § 922(g)(1), possession with intent to distribute

cocaine base. 21 U.S.C. § 841(a)(1), and carrying a firearm in furtherance of a drug

trafficking crime, 18 U.S.C. § 924(c)(1)(A). On appeal, Townsley argues that the

district court erred in denying his motion to suppress. Specifically, he argues that

the district court applied a presumption in favor of the government’s witnesses and

summarily discounted his own testimony without making proper credibility

findings. Townsley also argues that the district court erred in sentencing him

under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1), because

his three prior Florida convictions for unlawfully carrying a concealed weapon,

Fla. Stat. § 790.01(2), did not constitute “violent felonies.”

                                           I.

      “A district court’s ruling on a motion to suppress presents a mixed question

of law and fact.” United States v. Zapata, 180 F.3d 1237, 1240 (11th Cir. 1999).

We review the district court’s factual findings for clear error. Id. All facts are

construed in the light most favorable to the prevailing party below. United States

v. Bervaldi, 226 F.3d 1256, 1262 (11th Cir. 2000). The district court’s application

of the law to the facts is reviewed de novo. Id.

      Townsley relies primarily on our decision in Gallego v. United States, 174

F.3d 1196 (11th Cir. 1999). In that case, Gallego, a federal prisoner, brought an 18



                                           2
U.S.C. § 2255 motion alleging that he had received ineffective assistance of

counsel. Id. 1196-1197. He argued that his attorney had failed to inform him that

he had a constitutional right to testify at trial. Id. at 1197. After hearing

conflicting testimony from Gallego and his attorney, the magistrate - and later the

district court - ruled against Gallego because he had not provided any additional

evidence to support his motion. Id. at 1198. The magistrate did not make any

findings as to the credibility of Gallego’s testimony. Id. We vacated and

remanded the lower court’s findings, holding that a court may not adopt a per se

rule against a defendant in a case involving conflicting testimony. Id. at 1198-

1199. Instead, a court must weigh the credibility of the parties’ testimony. Id. at

1198.

        The facts of this case are distinguishable from those of Gallego. In this case,

the district court explicitly found that the government’s witnesses had testified

credibly. Also, unlike the magistrate judge in Gallego, the district court did not

automatically discount all of Townsley’s testimony. The court believed

Townsley’s testimony that the officers had been making statements to him prior to

giving him his Miranda warnings. The court simply concluded that these

statements did not constitute “interrogation,” and, thus, there had been no violation




                                            3
of Miranda.1

      Because the district court here properly analyzed the testimony and the

credibility of the witnesses at the suppression hearing, and because the evidence

supported its finding of probable cause, it did not clearly err in denying

Townsley’s motion to suppress. Because Townsley’s only challenge to his

convictions is his suppression argument, and because we reject that challenge, his

convictions are due to be affirmed. We turn next to Townsley’s challenge to his

sentence.

                                               II.

      We review de novo a district court’s determination that a defendant’s prior

convictions constitute “violent felonies” under the ACCA. United States v.

Bennett, 472 F.3d 825, 831 (11th Cir. 2006). The ACCA provides that a defendant

is subject to an enhanced 15-year mandatory minimum sentence if the defendant

has been convicted of being a felon in possession of a firearm, 18 U.S.C. § 922(g),

and the defendant has at least three prior convictions for a “violent felony” or a

“serious drug offense.” 18 U.S.C. § 924(e)(1).

      The ACCA defines the term “violent felony” as "any crime punishable by

imprisonment for a term exceeding one year" that “(i) has as an element the use,



      1
               Townsley does not challenge this conclusion of the district court.

                                                4
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 term “serious drug offense” is defined as

any state or federal drug offense with a maximum term of imprisonment of ten

years or more. 18 U.S.C. § 924(e)(2)(A). The Sentencing Guidelines provide for

an enhanced guideline range for defendants who fall under the ACCA. U.S.S.G.

§ 4B1.4.

      Florida law makes it a felony for a person to carry a concealed firearm

without a license to do so. Fla. Stat. § 790.01(2)(2008). In United States v. Hall,

77 F.3d 398, 401-402 (11th Cir. 1996), we held that violations of Fla. Stat.

§ 790.01(2) were “violent felonies” under the ACCA. Later, relying on our

analysis in Hall, we also held that violations of Fla. Stat. § 790.01(2) were “crimes

of violence” under the career offender guideline, § 4B1.1. United States v. Gilbert,

138 F.3d 1371, 1372 (11th Cir. 1998).

      Recently, in Begay v. United States, 553 U.S. ___, 128 S.Ct. 1581 (2008),

the Supreme Court established a new standard for determining whether a prior

conviction is a “violent felony” under the ACCA. The Court interpreted the list of

enumerated crimes in the first clause of § 924(e)(2)(B)(ii) as having a limiting



                                           5
effect on the second clause of § 924(e)(2)(B)(ii). Id. at 1584-1585. The Court

concluded that the second clause did not cover all crimes that involved a “serious

potential risk of physical injury to another,” but only those crimes that were

“roughly similar, in kind as well as in degree of risk posed” to burglary, arson,

extortion, or crimes involving the use of explosives. Id. at 1585. The Court also

noted that all of these enumerated crimes “typically involve purposeful, violent,

and aggressive conduct.” Id. at 1586 (quotations omitted).

      In United States v. Archer, 531 F.3d 1347 (11th Cir. 2008). we applied the

Begay analysis to Florida’s concealed weapons statute. Archer was originally

sentenced as a career offender based in part on a previous conviction under Fla.

Stat. § 790.01(2). Archer, 531 F.3d at 1349. We initially affirmed Archer’s

sentence based on our prior precedent in Gilbert, but the Supreme Court granted

certiorari, vacated our decision, and remanded the case for further consideration in

light of its decision in Begay. Id.

      On remand, we concluded that Begay had effectively abrogated Gilbert. Id.

at 1352. Although Begay involved the definition of “violent felony” under the

ACCA, whereas Gilbert and Archer involved the definition of “crime of violence”

under the career offender guideline, we noted that these two definitions were

virtually identical. Id. Therefore, the Begay test applied to both the ACCA and



                                           6
§ 4B1.2. Id. Applying the Begay analysis, we held that violations of Fla. Stat. §

790.01(2) were not “crimes of violence” under the career offender guideline. Id.

We noted that Fla. Stat. § 790.01(2) only punishes possession, and therefore does

not involve the same sort of aggressive, violent, or purposeful conduct as the other

felonies listed in § 924(e)(2)(B). Id. at 1351. Also, we noted that an individual

can obtain a license to carry a concealed weapon in Florida, which indicates that

violations of Fla. Stat. § 790.01(2) are not as serious as the crimes of burglary,

arson, or extortion. Id.

      In this case, the district court found that Townsley was an armed career

criminal based in part on his three previous convictions for carrying a concealed

firearm, in violation of Fla. Stat. § 790.01(2). In light of this Court’s decision in

Archer, the district court erred in counting these convictions as violent felonies.

Accordingly, we vacate Townsley’s sentences and remand this case for

resentencing. Because we are vacating Townsley’s sentences, we need not address

his argument that his present total sentence is unreasonable. Cf. United States v.

McVay, 447 F.3d 1348, 1356 (11th Cir. 2006).

      Accordingly, Townsley’s convictions are AFFIRMED, but his sentences are

VACATED AND REMANDED.2



      2
             Townsley’s request for oral argument is denied.

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