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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-13809
Non-Argument Calendar
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D.C. Docket No. 8:11-cr-00530-VMC-TBM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee.
versus
DANIEL ARROYO,
a.k.a. King Tweet,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(April 9, 2014)
Before HULL, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
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Daniel Arroyo appeals his sentence of 188 months of imprisonment,
imposed following his plea of guilty to possessing a firearm and ammunition as a
felon. See 18 U.S.C. § 922(g)(1). Arroyo challenges the enhancement of his
sentence under the Armed Career Criminal Act, see id. § 924(e), and the
reasonableness of his sentence. Arroyo also argues, for the first time, that the
district court erred by adding two points to his criminal history for his prior
sentence for loitering. The government concedes that the district court plainly
erred when it miscalculated Arroyo’s criminal history. Because the district court
must recalculate Arroyo’s criminal history, we need not address the reasonableness
of his sentence. We affirm in part, vacate in part, and remand for resentencing.
Arroyo challenges the enhancement of his sentence as a career criminal on
three grounds that are foreclosed by our precedents. First, Arroyo argues that his
prior convictions for simple battery of a law enforcement officer and discharging a
firearm from a vehicle are not violent felonies, but Arroyo concedes that his
arguments are foreclosed by our decisions in Turner v. Warden Coleman FCI
(Medium), 709 F.3d 1328, 1338–39 (11th Cir. 2013) (battery of an officer), and
United States v. Alexander, 609 F.3d 1250, 1258–59 (11th Cir. 2010) (discharging
a firearm), that the offenses are categorically violent. Second, Arroyo argues that
the residual clause of the Armed Career Criminal Act, which defines the term
“violent felony,” is unconstitutionally vague, but Arroyo concedes that we squarely
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rejected that argument in United States v. Weeks, 711 F.3d 1255, 1262 (11th Cir.
2013). Third, Arroyo argues that an enhancement of his sentence based on facts
not found by a jury nor admitted by him violates his rights under the Fifth and
Sixth Amendments, but we have held that “district courts may determine both the
existence of prior convictions and the factual nature of those convictions, including
whether they were committed on different occasions, so long as they limit
themselves to Shepard-approved documents.” Id. at 1259. The district court
adhered to that limitation.
Arroyo also argues that the classification of his prior conviction for battery
of an officer as a predicate offense under the Armed Career Criminal Act violated
his rights under the Ex Post Facto and Due Process Clauses of the U.S.
Constitution, but this argument fails. Because the Ex Post Facto Clause does not
apply directly to the Judicial Branch and is “inherent in the notion of due process,”
we consider whether the classification of Arroyo’s crime as a violent felony
operated as an ex post facto law in violation of his right to due process. See
Rogers v. Tennessee, 532 U.S. 451, 468, 121 S. Ct. 1693, 1703 (2001); United
States v. Duncan, 400 F.3d 1297, 1307 (11th Cir. 2005). To violate “the ex post
facto principle of fair warning,” the decision of the district court must have been
“‘unexpected and indefensible’ by reference to the law which has been expressed
prior to the conduct in issue.” Rogers, 532 U.S. at 462, 121 S. Ct. at 1700. Arroyo
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argues that our decision in Turner was unexpected in the light of Johnson v. United
States, 559 U.S. 133, 130 S. Ct. 1265 (2010), but the Court in Johnson specifically
refused to address whether a conviction for simple battery under Florida law
constituted a violent felony under the residual clause, id. at 145, 130 S. Ct. at 1274.
Turner was not an unjustified and unpredictable break from Johnson, which held
that simple battery does not qualify as a violent felony because the use of physical
force is not an element of the offense, id. at 137–45, 130 S. Ct. at 1269–74.
Arroyo argues, and the government concedes, that the district court plainly
erred by adding two points to Arroyo’s criminal history for his prior conviction for
loitering. That error was “obvious and clear under current law.” United States v.
Bacon, 598 F.3d 772, 777 (11th Cir. 2010). The Sentencing Guidelines provide
that a sentence imposed for the offense of loitering is “never counted” when
calculating a defendant’s criminal history. United States Sentencing Guidelines
Manual § 4A1.2(c)(2) (Nov. 2012). And the addition of the two additional
criminal history points prejudiced Arroyo’s substantive rights. See Bacon, 598
F.3d at 777. Arroyo’s presentence investigation report provided that he had 10
criminal history points, which yielded a criminal history category of V and, as an
armed career criminal, resulted in a sentencing range between 180 and 188 months
of imprisonment. See U.S.S.G. app. G, sentencing table. Had the district court
excluded Arroyo’s prior sentence for loitering, he would have had eight criminal
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history points, a criminal history category of IV, and, because of his status as an
armed career offender, a statutorily required minimum sentence of 180 months of
imprisonment. See id. § 5G1.1(b); 18 U.S.C. § 924(e)(1). Accordingly, we vacate
Arroyo’s sentence and remand to allow the district court to resentence him at the
correct criminal history level of IV and the corresponding advisory guideline range
of 180 months.
AFFIRMED IN PART, VACATED AND REMANDED IN PART.
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