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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-13386
Non-Argument Calendar
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D.C. Docket No. 0:15-cr-60224-WJZ-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CALVIN FORD,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(July 11, 2017)
Before MARCUS, ROSENBAUM, and ANDERSON, Circuit Judges.
PER CURIAM:
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Calvin Ford appeals his total 180-month sentence for one count of felon in
possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1), and
one count of possession with intent to distribute a substance containing heroin and
a substance containing 28 grams of cocaine base, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(B)–(C). On appeal, Ford argues that the district court erred by
applying the career offender enhancement in calculating his advisory guidelines
range. Ford argues that the career offender guideline’s residual clause is
unconstitutionally vague in light of Johnson v. United States, 135 S. Ct. 2551
(2015) (invalidating the residual clause of the Armed Career Criminal Act
(“ACCA”)), and that his Florida burglary of a conveyance with battery conviction
does not qualify under either the elements or the enumerated offenses clauses. In
an issue heading, Ford states that recent the amendments to the Sentencing
Guidelines should apply retroactively to his case, but he raises no arguments in
support of this position.
We review “de novo whether a defendant’s prior conviction qualifies as a
‘crime of violence’ under the Sentencing Guidelines.” United States v. Harris, 586
F.3d 1283, 1284 (11th Cir. 2009). A party seeking to raise a claim or issue on
appeal must indicate so plainly and prominently. United States v. Jernigan, 341
F.3d 1273, 1283 n.8 (11th Cir. 2003) (noting that passing references to an
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argument are insufficient to raise it on appeal). If a party has not done so, we
consider the argument abandoned. Id.
Under the Sentencing Guidelines, a defendant is designated as a “career
offender” if (1) he was at least 18 years old when he committed the instant offense,
(2) the instant offense was a crime of violence or a controlled substance offense,
and (3) he had at least two prior felony convictions for a crime of violence or a
controlled substance offense. U.S.S.G. § 4B1.1(a). The 2015 Sentencing
Guidelines defined a “crime of violence” as any offense punishable by
imprisonment for a term exceeding one year under state or federal law that:
(1) has as an element the use, attempted use, or threatened use of
physical force against the person of another; or
(2) is burglary, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential risk
of physical injury to another.
U.S.S.G. § 4B1.2(a) (2015). The first prong of this definition is referred to as the
“elements clause,” while the second prong contains the “enumerated offenses
clause” and the “residual clause.” See United States v. Chitwood, 676 F.3d 971,
975 (11th Cir. 2012). Amendment 798 to the Sentencing Guidelines amended the
definition of a “crime of violence” under U.S.S.G. § 4B1.2(a)(2). U.S.S.G. App.
C, amend. 798 (Supp. Aug. 1, 2016). The amended version of § 4B1.2(a)(2) no
longer includes the residual clause. Id. The amendment states that it does not
apply retroactively to sentences imposed prior to August 1, 2016. Id.
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The Sentencing Guidelines are advisory rather than mandatory. United
States v. Booker, 543 U.S. 220, 245 (2005). However, sentencing courts must still
determine a defendant’s applicable guidelines range under the Sentencing
Guidelines before imposing a sentence. United States v. Kinard, 472 F.3d 1294,
1297 (11th Cir. 2006).
We have held that Florida burglary qualifies as a predicate offense under the
residual clause of the crime of violence definition. United States v. Matchett, 802
F.3d 1185, 1196–97 (11th Cir. 2015) (holding that Florida burglary of an
unoccupied dwelling qualifies as a crime of violence under the residual clause
because it involves conduct that presents a serious potential risk of physical injury
to another); United States v. Matthews, 466 F.3d 1271, 1275 (11th Cir. 2006)
(holding that Florida third-degree burglary qualified as a predicate offense under
the residual clause of the ACCA’s violent felony definition).
In Johnson, the Supreme Court held that the residual clause of the ACCA
was unconstitutionally vague because it created uncertainty about (1) how to
evaluate the risks posed by the crime and (2) how much risk it takes for a crime to
qualify as a violent felony. 135 S. Ct. at 2257–58. Subsequently, in Matchett, we
held that Johnson did not apply to the residual clause of the definition of a crime of
violence under the Sentencing Guidelines. 802 F.3d at 1194. We determined that
Johnson was limited by its own terms to “criminal statutes that define[d] elements
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of a crime or fixed punishments.” Id. Thus, we held that the Sentencing
Guidelines were not subject to challenges based on vagueness. Id. In Beckles v.
United States, the Supreme Court confirmed our holding in Matchett by also
holding that the advisory Sentencing Guidelines are not subject to vagueness
challenges and that the residual clause contained in § 4B1.2(a)(2) of the Guidelines
was not void. Beckles v. United States, __ U.S. __, 137 S.Ct. 886, 895 (2017).
As an initial matter, Ford abandoned any argument that Amendment 798
should apply retroactively to his sentence. Jernigan, 341 F.3d at 1283 n.8.
The district court did not err in sentencing Ford as a career offender. Ford
does not argue on appeal that his 2013 Florida conviction for burglary of a
conveyance with battery does not qualify as a crime of violence under the
Guidelines’ residual clause; instead, he argues only that the residual clause is void
for vagueness, and that argument is foreclosed by binding precedent from both this
Court and the Supreme Court. Beckles, 137 S.Ct. at 895; Matchett, 802 F.3d at
1194.
Accordingly, we affirm Ford’s 180-month sentence.
AFFIRMED.
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