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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-14187
Non-Argument Calendar
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D.C. Docket No. 8:11-cr-00178-JDW-MAP-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DEVON TURNER,
a.k.a. Devante Turner,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
________________________
(August 5, 2013)
Before DUBINA, MARCUS and KRAVITCH, Circuit Judges.
PER CURIAM:
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Appellant Devon Turner appeals his 110-month sentence for three counts of
being a felon in possession of firearms and ammunition, in violation of 18 U.S.C.
§ 922(g)(1), imposed after the district court determined that Turner had two prior
“crimes of violence” as defined by the career offender guidelines. On appeal,
Turner argues, and the government agrees, that the district court plainly erred in
counting as a crime of violence Turner’s sexual battery of a minor conviction,
under Florida law. See Fla. Stat. § 800.04(3) (1994). As additional error, Turner
argues that the district court should not have counted his prior first-degree burglary
conviction as a crime of violence because the residual clause of the career offender
guidelines is unconstitutionally vague.
Ordinarily, we review de novo whether a particular conviction is a crime of
violence under the career offender provisions of the Sentencing Guidelines.
United States v. Lockley, 632 F.3d 1238, 1240 (11th Cir.), cert. denied, 132 S. Ct.
257 (2011). However, we “consider sentence objections raised for the first time on
appeal under the plain error doctrine to avoid manifest injustice.” United States v.
Hansley, 54 F.3d 709, 715 (11th Cir. 1995) (internal quotation marks omitted).
“For the Court to correct plain error: (1) there must be error; (2) the error
must be plain; and (3) the error must affect substantial rights.” United States v.
Stevenson, 68 F.3d 1292, 1294 (11th Cir. 1995). If the first three conditions are
met, we may exercise our discretion to “notice a forfeited error, but only if (4) the
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error seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005)
(internal quotation marks omitted). “‘Plain’ is synonymous with ‘clear’ or,
equivalently, ‘obvious.’” United States v. Olano, 507 U.S. 725, 734, 113 S. Ct.
1770, 1777 (1993). For an error to affect substantial rights, it “must have affected
the outcome of the district court proceedings.” Id. at 734, 113 S. Ct. at 1778.
Under the career offender guidelines, an offense “can be a crime of violence
if it fits within one of three categories.” United States v. Chitwood, 676 F.3d 971,
975 (11th Cir.), cert. denied, 133 S. Ct. 288 (2012). The first category covers
offenses under the “elements clause,” which have “as an element the use,
attempted use, or threatened use” of violent physical force against another.
U.S.S.G. § 4B1.2(a)(1); see United States v. Harris, 608 F.3d 1222, 1225 (11th
Cir. 2010) (equating “physical force” with “violent force,” pursuant to Johnson v.
United States, 559 U.S. 133, 140‒41, 130 S. Ct. 1265, 1271 (2010)). The second
category covers the offenses listed in the enumerated crimes clause: burglary of a
dwelling, arson, extortion, and crimes involving the use of explosives. U.S.S.G.
§ 4B1.2(a)(2). The third category covers the “residual clause” crimes that
“otherwise involve[] conduct that presents a serious potential risk of physical
injury to another.” Id. (alteration added). Because the Armed Career Criminal Act
(ACCA) provides a definition for “violent felony” that is “virtually identical” to
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the definition of a crime of violence under the career offender guidelines, we have
indicated that “decisions about one apply to the other.” Gilbert v. United States,
640 F.3d 1293, 1309 n.16 (11th Cir. 2011) (en banc), cert. denied, 132 S. Ct. 1001
(2012).
We utilize two different approaches in determining whether a crime falls
within the elements clause or the residual clause: the categorical and the modified
categorical approaches. Chitwood, 676 F.3d at 975–76. Under the categorical
approach to the residual clause, we first focus on whether the offense at issue
inherently “poses a serious potential risk of physical injury that is similar in kind
and in degree to the risks posed by the enumerated crimes.” United States v.
Owens, 672 F.3d 966, 968–69 (11th Cir. 2012) (internal quotation marks omitted).
Then, we ask “whether the conduct at issue in the statute is purposeful, violent and
aggressive” or is instead “a more passive crime of inaction.” Chitwood, 676 F.3d
at 978 (internal quotation marks omitted); see id. at 978–79 (holding that the
inquiry into whether conduct is “purposeful, violent and aggressive” is limited to
strict liability, negligence, and recklessness offenses).
We use the modified categorical approach to the residual clause “when the
law under which a defendant has been convicted contains different statutory
phrases—some of which [qualify as crimes of violence] and some of which do
not.” United States v. Pantle, 637 F.3d 1172, 1175 (11th Cir.), cert. denied, 132 S.
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Ct. 1091 (2012) (internal quotation marks omitted) (alteration in original). The
modified categorical approach permits us to look to the specific facts of a
defendant’s conviction. Id. at 1175‒76; see also Johnson, 559 U.S. at 145, 130 S.
Ct. at 1273 (further noting that “the absence of records” often frustrates this
inquiry). When applying the modified categorical approach, sentencing courts are
“generally limited to examining the statutory definition, charging document,
written plea agreement, transcript of plea colloquy, and any explicit factual finding
by the trial judge to which the defendant assented.” Shepard v. United States, 544
U.S. 13, 16, 125 S. Ct. 1254, 1257 (2005); see Pantle, 637 F.3d at 1175.
The statute and subsection under which Turner was convicted prohibits
sexual battery upon any child under the age of 16. Fla. Stat. § 800.04(3) (1994).
“‘Sexual battery’ means oral, anal, or vaginal penetration by, or union with, the
sexual organ of another or the anal or vaginal penetration of another by any other
object . . . .” Fla. Stat. § 794.011(1)(h) (1994). Section 800.04(3) is a strict
liability offense; therefore, consent is irrelevant and not a defense. Fla. Stat.
§ 800.04 (1994); State v. Sorakrai, 543 So.2d 294, 295 (Fla. Dist. Ct. App. 1989)
(“It is our judgment that conduct violative of section 800.04 carries with it the
same concept of ‘strict liability’ that has traditionally characterized ‘statutory
rape.’”).
In Harris, we held that a conviction under Fla. Stat. § 800.04(3) (1996),
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identical to the version under which Turner was convicted, is not categorically a
violent felony under the ACCA’s residual clause. Harris, 608 F.3d at 1233. The
government has conceded in its brief that a violation of this state law is not a crime
of violence under the ACCA’s elements clause.
Turner concedes that, because he never objected to the district court’s
guideline calculation, his arguments on appeal should be reviewed for plain error.
Because the district court did not articulate a basis for its implicit decision that
Turner’s § 800.04(3) conviction is a crime of violence, we review Turner’s
conviction under each of the three aforementioned analysis categories. See
Chitwood, 676 F.3d at 975.
We conclude from the record that the district court plainly erred in treating
Turner’s conviction under § 800.04(3) as a crime of violence under the elements
clause of the career offender guidelines because violent force is not an element of
the offense. Like the statutory rape offense in Owens, a violation of § 800.04(3)
requires physical contact, but it does “not require, as an element, the use of violent
physical force against the victim.” See Owens, 672 F.3d. at 970–71. The elements
the government must establish are the age of the offender, that sexual intercourse
occurred, and that the victim was too young to give legal consent. Compare Fla.
Stat. § 800.04(4) (1994) (prohibiting anyone from “engag[ing] in sexual activity”
with a person between 12 and 16 years of age), with, e.g., Fla. Stat.
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§ 794.011(4)(a)–(b) (1994) (criminalizing sexual battery of nonminors that is
achieved by physical overpowering or threat of violence). Unlike Florida statute
§ 794.011(4)(a)–(b), § 800.04(3) is violated by mere physical contact, not physical
force, and “the merest touching” or “the slightest penetration” does not show the
kind of physical force required for a crime of violence. See Owens, 672 F.3d at
971. Further, the government concedes that a violation of § 800.04(3) is not a
crime of violence under the elements clause. Accordingly, it was plain error to
treat Turner’s Florida conviction under § 800.04(3) as a crime of violence under
the elements clause of the career offender guidelines.
Because Turner’s offense is not an enumerated crime of violence, see
U.S.S.G. § 4B1.2(a)(2), his conviction may only support a career offender
enhancement if it fits within U.S.S.G. § 4B1.2(a)(2)’s residual clause, under either
the categorical or the modified categorical approach.
Under the categorical approach to the residual clause, we conclude that to
treat Turner’s Florida conviction under § 800.04(3) as a crime of violence was also
plainly erroneous. See Harris, 608 F.3d at 1233. Although a violation of
§ 800.04(3) “involves conduct that presents a serious potential risk of physical
injury to another,” the statute “covers a wide array of conduct” and not all such
conduct qualifies as a crime of violence. See id. at 1229, 1232 (explaining that
§ 800.04(3) “criminaliz[es] conduct in respect to which the offender need not have
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had any criminal intent at all”). Accordingly, “a violation of Florida statute
§ 800.04(3) generally—without further specifics—is not a crime of violence”
under the residual clause of the career offender guidelines. See id. at 1233.
As for the modified categorical approach to the residual clause, the
government concedes that it “presented no evidence at sentencing regarding the
facts of Turner’s conviction” to show that Turner’s offense qualified as a crime of
violence. Without the government’s introduction of Shepard-approved documents,
it was plain error to conclude that Turner’s Florida conviction under § 800.04(3)
was a crime of violence under the residual clause. United States v. Dunlap, 279
F.3d 965, 967 (11th Cir. 2002) (holding that “the lack of evidentiary foundation for
the application of [a guideline enhancement] is error; [and] it is plain”).
Although the district court plainly erred in treating Turner’s Fla. Stat.
§ 800.04(3) conviction as a crime of violence, we will not vacate his sentence
unless the error affected his substantial rights. See Rodriguez, 398 F.3d at 1298.
Here, without the career offender enhancement, Turner’s guideline range would be
reduced by four offense levels. Turner’s imposed sentence of 110 months is at the
low end of the incorrect guideline range, and there is a reasonable probability that
the district court would have sentenced him differently if the correct offense level
had been used. See United States v. Bennett, 472 F.3d 825, 835 (11th Cir. 2006)
(vacating and remanding sentence because district court plainly erred in using a
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total offense level of 32 instead of 31). Accordingly, we conclude that the plain
error affected Turner’s substantial rights, and, and for that reason, we must vacate
his sentence and remand for resentencing.
Turner asserts, for the first time on appeal and to preserve the argument
pending a potential Supreme Court decision, that the residual clause in the career
offender guidelines is unconstitutionally vague. Accordingly, Turner argues, his
first-degree burglary conviction should not be treated as a crime of violence. This
argument is unavailing. The Supreme Court has held that the violent felony
residual clause in the ACCA “states an intelligible principle and provides guidance
that allows a person to conform his or her conduct to the law.” United States v.
Sykes, ___ U.S. ___, ___, 131 S. Ct. 2267, 2277 (2011) (internal quotation marks
omitted). This Court has subsequently determined that Sykes “appears to foreclose
a conclusion, . . . that the residual clause is unconstitutionally vague.” Chitwood,
676 F.3d at 978 n.3. Thus, we conclude that the district court did not plainly err in
treating Turner’s Florida burglary conviction as a crime of violence under the
career offender guidelines.
For the aforementioned reasons, we vacate Turner’s sentence and remand
this case to the district court for resentencing consistent with this opinion.
VACATED and REMANDED.
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