[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 09-12024 DECEMBER 16, 2010
________________________ JOHN LEY
CLERK
D. C. Docket No. 08-80113-CR-KLR
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHRISTOPHER C. HAYES,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(December 16, 2010)
ON PETITION FOR REHEARING
Before BARKETT and MARCUS, Circuit Judges, and HOOD,* District Judge.
*
Honorable Joseph M. Hood, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
PER CURIAM:
Upon consideration of Defendant-Appellant’s petition for panel rehearing,
we vacate the prior opinion in this case, issued on August 24, 2010, and substitute
the following opinion in its place. In this opinion, we replace an incorrect reference
in the first paragraph of our original opinion to “possession of marijuana with
intent to distribute” with “aggravated battery.” We do not change the opinion in
any other respect. Accordingly, Defendant-Appellant’s petition for panel rehearing
is granted.
Christopher Hayes appeals the enhanced sentence he received pursuant to
the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1), which imposes
a mandatory minimum of fifteen years’ imprisonment on an offender convicted of
being a felon in possession of a firearm, see 18 U.S.C. § 922(g)(1), when that
offender has three prior convictions “for a violent felony or a serious drug
offense,” id. § 924(e)(1). Hayes does not dispute that his criminal record contains
two qualifying felonies -- attempted burglary of a dwelling and aggravated battery
-- but argues that his convictions for “knowingly and willfully resist[ing] . . . an[]
officer . . . in the lawful execution of a[] legal duty, by offering or doing violence
to the person of such officer,” Fla. Stat. § 843.01, and for battery on a law
enforcement officer, Fla. Stat. §§ 784.03 & 784.07, are not “violent felonies” of the
2
kind that trigger ACCA’s mandatory minimum for armed career criminals.
As an initial matter, the Supreme Court recently held that the Florida crime
of battery on a law enforcement officer is not a qualifying crime under ACCA,
Johnson v. United States, -- U.S. --, 130 S. Ct. 1265, 1271-72 (2010), rev’g United
States v. Johnson, 528 F.3d 1318 (11th Cir. 2008), and so we must decide only
whether Hayes’s conviction for resisting an arresting officer with violence is a
“violent felony” for purposes of ACCA. The statute defines a “violent felony” as
“any crime punishable by imprisonment for a term 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 government argues that the Florida crime of
resisting an arresting officer with violence is a “violent felony” under either
statutory subsection. We have no occasion to consider today whether the crime
falls within subsection (B)(i), because we are satisfied that it falls well within the
residual clause contained in subsection (B)(ii). Accordingly, we conclude that the
district court did not error in enhancing Hayes’s sentence pursuant to ACCA.
To determine whether a prior felony conviction falls within ACCA’s
residual clause, we interpret the crime of conviction using a categorical approach,
3
“read[ing] the face of the relevant statute itself to discern the crime as it is
ordinarily committed.” United States v. Harris, 608 F.3d 1222, 1227 (11th Cir.
2010) (quotations, citation marks, and original alterations omitted). We ask
whether the crime is “similar in kind and in degree to the enumerated crimes”
listed in subsection (B)(ii), namely, burglary, arson, and extortion. Id. (citation
omitted). To that end, we ask whether the conduct inherent in the commission of
the crime is “purposeful, violent and aggressive,” Begay v. United States, 553
U.S. 137, 146 (2008), “or, whether it is a more passive crime of inaction, such as
the failure to report to a penal institution or driving under the influence of alcohol,”
Harris, 608 F.3d at 1227 (citation omitted).
Florida’s resisting arrest statute provides that “[w]hoever knowingly and
willfully resists, obstructs, or opposes any officer . . . in the lawful execution of
any legal duty, by offering or doing violence to the person of such officer or
legally authorized person, is guilty of a felony of the third degree.” Fla. Stat. §
843.01. This offense falls squarely within ACCA’s residual clause.
In this kind of case, we rely on “our own common-sense analysis of whether
this conduct poses a serious potential risk of physical injury.” United States v.
Alexander, 609 F.3d 1250, 1257 (11th Cir. 2010). Common sense tells us
emphatically that “[t]he act of resisting arrest poses a threat of direct confrontation
4
between a police officer and the subject of the arrest, creating the potential for
serious physical injury to the officer and others.” United States v. Wardrick, 350
F.3d 446, 455 (4th Cir. 2003).
Furthermore, the plain language of the statute reveals that the Florida crime
of resisting arrest with violence is “purposeful, violent, and aggressive.” Begay,
553 U.S. at 145. Commission of the crime requires, by its own terms, that the
defendant have knowingly and willfully resisted, obstructed, or opposed an officer
by offering or doing violence to the person of that officer. Fla. Stat. § 843.01.
This crime thus shares with the other crimes enumerated in subsection (B)(ii) the
element of purposeful violence and aggression.1
We have no difficulty concluding that one who commits the crime of
resisting arrest by knowingly and willfully offering or doing violence to an
arresting officer has committed a “violent felony” for purposes of ACCA, and that
such a person is properly subject to ACCA’s fifteen-year mandatory minimum
sentence as an “armed career criminal.” Cf. United States v. Almenas, 553 F.3d
1
Inasmuch as the statute plainly requires that the defendant have acted knowingly and
willfully, we reject Hayes’s argument that § 843.01 is a strict liability offense that cannot qualify
as a predicate felony under ACCA. Cf. United States v. Harris, 608 F.3d 1222, 1224 (11th Cir.
2010) (acknowledging “the holding of Begay v. United States, 553 U.S. 137, 143 (2008), that
strict liability crimes are not ‘roughly similar’ to burglary, arson, extortion, or an offense
involving the use of explosives and therefore do not come within the residual clause”). We add
that the Florida Supreme Court has characterized the statute as a general intent crime, not a strict
liability crime. See Frey v. State, 708 So. 2d 918, 921 (Fla. 1998).
5
27, 33-35 (1st Cir. 2009); Wardrick, 350 F.3d at 455.
AFFIRMED.
6