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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-11555
Non-Argument Calendar
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D.C Docket No. 9:13-cr-80208-KLR-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TAIWAN LENARD DRIVER,
a.k.a. “Taiwan Martin”,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
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(January 27, 2017)
ON REMAND FROM THE UNITED STATES SUPREME COURT
Before WILSON, JULIE CARNES, and ANDERSON, Circuit Judges.
PER CURIAM:
Defendant pled guilty to possessing a firearm as a convicted felon, in
violation of 18 U.S.C. § 922(g)(1). Based on his prior Florida convictions for false
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imprisonment, manslaughter, and possession of cocaine with intent to sell,
Defendant was sentenced under the Armed Career Criminal Act (“ACCA”) to
serve 180 months in prison. On appeal, Defendant argues that he should not have
been sentenced under the ACCA because neither his false imprisonment nor his
manslaughter conviction is a valid ACCA predicate. We agree that, following the
Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015), the
ACCA enhancement is no longer applicable to Defendant. Accordingly, we vacate
Defendant’s sentence and remand for sentencing consistent with this opinion.
BACKGROUND
Defendant pled guilty in January 2014 to being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1). The pre-sentence report (“PSR”)
recommended that Defendant’s sentence be enhanced under the ACCA based on
his prior Florida convictions for: (1) false imprisonment in violation of Florida
Statute § 787.02, (2) manslaughter with a firearm in violation of Florida Statute
§ 782.07(1), and (3) possession of cocaine with intent to sell. Based on the
recommendation in the PSR, the district court applied the ACCA enhancement and
sentenced Defendant to 180 months in prison.
Defendant appealed the sentence. Subsequently, Defendant’s prior appellate
counsel filed a brief pursuant to Anders v. California, 386 U.S. 745 (1967) and
moved to withdraw from representing Defendant. Defendant submitted a pro se
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response to the Anders brief, in which he argued that he did not have three
qualifying predicate convictions as required to support a sentence enhancement
under the ACCA. Specifically, Defendant argued that his Florida false
imprisonment and manslaughter convictions did not qualify as “violent felonies”
under the ACCA. Based on then-governing case law, we granted prior appellate
counsel’s motion to withdraw pursuant to Anders and affirmed Defendant’s
conviction and sentence.
Thereafter, Defendant filed a petition for writ of certiorari in the United
States Supreme Court. The Supreme Court granted the petition, vacated this
Court’s decision, and remanded the case for further consideration in light of its
intervening decision in Johnson v. United States, 135 S. Ct. 2551 (2015),
invalidating the ACCA’s residual clause as unconstitutionally vague. Driver v.
United States, 135 S. Ct. 2943 (2015). On remand, this Court appointed the
Federal Public Defender to represent Defendant and ordered supplemental briefing
as to how the Supreme Court’s decision in Johnson impacted this appeal. The
Court directed the parties to address in their supplemental briefing whether (1)
Defendant’s false imprisonment and manslaughter convictions qualified as
predicates under the ACCA’s “elements clause” and (2) plain error or another
standard of review applied to the district court’s application of the ACCA
enhancement under the circumstances.
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The parties responded to the Court’s order with a joint letter brief indicating
that they agreed the ACCA enhancement did not apply to Defendant following
Johnson and requesting that Defendant’s case be remanded to the district court for
resentencing. However, the letter brief did not answer the questions posed to the
parties and did not contain any argument or analysis as to why Johnson precluded
the application of the ACCA. Thus, after reviewing the letter brief, the Court
issued a second order requesting briefing on these issues. The Court noted in its
second order that false imprisonment and manslaughter do not fall with the
ACCA’s list of enumerated violent felonies under the ACCA and, as a result of
Johnson, cannot qualify as violent felonies under the ACCA’s residual clause, but
that they might nevertheless qualify as violent felonies under the elements clause if
they are defined to include the use of physical force as a necessary element.
The parties now have filed a second joint letter brief in which they again
argue that Defendant is not subject to an ACCA-enhanced sentence because, in
light of Johnson, neither Defendant’s false imprisonment nor his manslaughter
conviction qualifies as a violent felony under the ACCA.
DISCUSSION
I. Standard of Review
The parties agree that we review Defendant’s newly raised Johnson-based
challenge to his ACCA sentence for plain error. See United States v. Moriarty, 429
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F.3d 1012, 1018 (11th Cir. 2005) (stating that we review constitutional objections
“not raised before the district court only for plain error”). For an error to be plain,
it must be “contrary to explicit statutory provisions or to on-point precedent in this
Court or the Supreme Court.” United States v. Hoffman, 710 F.3d 1228, 1232
(11th Cir. 2013) (internal quotation marks omitted). Assuming there is plain error,
we have discretion to correct the error if it implicates the defendant’s “substantial
rights” and “seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Jones, 743 F.3d 826, 829 (11th Cir. 2014) (internal
quotation marks omitted).
II. The ACCA
A defendant who has been convicted of being a felon in possession of a
firearm and who has at least three prior convictions for a “violent felony” or a
“serious drug offense” is subject to a sentencing enhancement under the ACCA.
18 U.S.C. § 924(e)(1). Defendant concedes that he has one prior conviction that
qualifies as a “serious drug offense.” The determinative question for this appeal is
whether Defendant’s convictions for false imprisonment and manslaughter in
violation of Florida Statute §§ 787.02 and 782.07(1) qualify as “violent felonies”
under the ACCA. Both convictions must qualify in order for Defendant to have
the three predicates necessary to support an ACCA-enhanced sentence.
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The ACCA defines “violent felony” to include any crime punishable by
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.
Id. § 924(e)(2)(B). The first prong is known as the “elements” clause. United
States v. Seabrooks, 839 F.3d 1326 (11th Cir. 2016). The second prong contains
an “enumerated crimes” clause and a “residual clause.” Id. Neither false
imprisonment nor manslaughter fall within the enumerated crimes clause and, as
indicated above, the residual clause is no longer valid as a result of the Supreme
Court’s decision in Johnson. See Johnson, 135 S. Ct. at 2563 (concluding that the
ACCA’s residual clause is unconstitutionally vague). Thus, Defendant is only
subject to an ACCA enhancement if false imprisonment and manslaughter, as
those crimes are defined by Florida Statute §§ 787.02 and 782.07(1), have as an
element “the use, attempted use, or threatened use of physical force against the
person of another.” 18 U.S.C. § 924(e)(2)(B).
We generally use a categorical approach to determine whether a state
conviction qualifies as an ACCA predicate. United States v. White, 837 F.3d 1225,
1229 (11th Cir. 2016). “Under this approach, we are concerned only with the fact
of the conviction and the statutory definition of the offense, rather than with the
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particular facts of the defendant’s crime.” Id. When a divisible statute1 covers
some conduct that falls within, and other conduct that is broader than, a predicate
offense as defined by the ACCA, we may use a modified categorical approach to
determine whether a defendant’s prior conviction qualifies. See Mathis v. United
States, 136 S. Ct. 2243, 2249 (2016) (clarifying that a statute enumerating “various
factual means of committing a single element” is not divisible). Under the
modified categorical approach, we look to a limited class of documents—known as
Shepard documents and including reliable materials such as indictments and jury
instructions—to determine which alternative element was the basis of the
defendant’s conviction and whether that element is encompassed by the ACCA
predicate offense. See Descamps v. United States, 133 S. Ct. 2276, 2281 (2013).
III. Defendant’s False Imprisonment Conviction
First applying the categorical approach, we agree with the parties that a
conviction for false imprisonment under Florida Statute § 787.02 does not
categorically satisfy the ACCA’s elements clause. The statute defines “false
imprisonment” to mean “forcibly, by threat, or secretly confining, abducting,
imprisoning, or restraining another person without lawful authority and against her
or his will.” Fla. Stat. § 787.02(1)(a). In United States v. Rosales-Bruno, 676 F.3d
1017 (11th Cir. 2012), we held that this language does not necessarily require the
1
A divisible statute “sets out one or more elements of the offense in the alternative.” Descamps
v. United States, 133 S. Ct. 2276, 2281 (2013).
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“use, attempted use, or threatened use of physical force” to support a conviction.
Rosales-Bruno, 676 F.3d at 1020–22. As we explained in Rosales-Bruno, the
statute’s “secretly confining” language and the interpreting Florida case law make
it clear that § 787.02 can be violated “without employing the type of ‘physical
force’ contemplated” by the elements clause. Id. at 1022. Rosales-Bruno analyzed
the Florida false imprisonment statute in the context of the elements clause of the
Sentencing Guidelines, but the same rationale applies to the identically-worded
elements clause of the ACCA. See United States v. Romo-Villalobos, 674 F.3d
1246, 1248 (11th Cir. 2012) (noting that the elements clause of the Guidelines “is
the same as the elements clause of the . . . ACCA”).
We further agree with the parties that the modified categorical approach
cannot be applied in this particular case because the Government failed to enter
any Shepard documents into evidence at Defendant’s sentencing. The parties
dispute whether § 787.02 is divisible, and thus whether use of the modified
approach would ever be appropriate when analyzing a conviction under the statute
for ACCA purposes. We need not—and do not—resolve that dispute because,
even assuming that § 787.02 is divisible and that some convictions under the
statute might qualify as ACCA predicates under the modified categorical approach,
there are no Shepard documents in the record that would enable us to apply the
approach to the particular false imprisonment conviction at issue in this case.
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IV. Plain Error
As noted, we held in Rosales-Bruno that the crime of false imprisonment as
defined by Florida Statute § 787.02 does not categorically satisfy the elements
clause. See Rosales-Bruno, 676 F.3d at 1020–22. The Government did not
produce any Shepard documents that would have enabled the district court to
conclude that Defendant’s conviction under § 787.02 satisfied the elements clause
under the modified categorical approach, and false imprisonment does not fall
within the ACCA’s “enumerated crimes” clause. Presumably, then, the district
court relied upon the residual clause to conclude that Defendant’s false
imprisonment conviction qualified as a “violent felony” under the ACCA. See
United States v. Schneider, 681 F.3d 1273, 1282 (11th Cir. 2012) (concluding,
prior to Johnson, that Florida false imprisonment qualifies as a violent felony
under the ACCA’s residual clause because it “produces a serious potential risk of
physical injury to another”) (internal quotation marks omitted). In light of the
Supreme Court’s decision in Johnson, that was plain error. See Jones, 743 F.3d at
829–30 (“an intervening decision by . . . the Supreme Court squarely on point may
make an error plain”) (internal quotation marks omitted). And because Defendant
now lacks the three predicate convictions necessary to support an ACCA
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sentencing enhancement, the error warrants correction. 2 Id. at 830 (vacating and
remanding for resentencing where the defendant did not have the “three qualifying
convictions necessary” for the ACCA sentencing enhancement he received as a
result of an intervening Supreme Court decisions).
CONCLUSION
For the reasons discussed above, we VACATE Defendant’s sentence and
REMAND the case for resentencing consistent with this opinion.
2
Because our ruling as to the false imprisonment conviction resolves this appeal, we do not
consider Defendant’s alternative argument that his manslaughter conviction also does not qualify
as a “violent felony” under the elements clause.
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