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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-13523
Non-Argument Calendar
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D.C. Docket No. 7:12-cr-00036-HL-TQL-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BACARI MCCARTHREN,
Defendant - Appellant.
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Appeal from the United States District Court
for the Middle District of Georgia
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(December 20, 2017)
ON REMAND FROM THE
SUPREME COURT OF THE UNITED STATES
Before MARTIN, ROSENBAUM, and JILL PRYOR Circuit Judges.
PER CURIAM:
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Bacari McCarthren’s petition for rehearing is GRANTED. We substitute
the following opinion for our original opinion.
Bacari McCarthren pled guilty in 2013 to possession with intent to distribute
cocaine, in violation of 21 U.S.C. § 841(a). The district court sentenced him to the
statutory maximum penalty for that offense, 20 years of imprisonment, after
applying the career-offender enhancement under the United States Sentencing
Guidelines. See U.S.S.G. § 4B1.1. We affirmed McCarthren’s convictions and
sentence on direct appeal after his counsel filed a no-merit brief pursuant to Anders
v. California, 386 U.S. 738 (1967). See United States v. McCarthren, 575 Fed.
App’x 873 (11th Cir. 2014).
McCarthren then petitioned for a writ of certiorari from the Supreme Court.
While his petition was pending, the Supreme Court decided Johnson v. United
States, 576 U.S. __, 135 S. Ct. 2551 (2015). After Johnson, the Solicitor General
of the United States filed a memorandum with the Supreme Court stating the
government’s view that “the appropriate disposition is to grant certiorari, vacate
the judgment of the court of appeals, and remand the case for further consideration
in light of Johnson.” The Supreme Court followed the Solicitor General’s
concession, granted the petition, vacated our judgment, and remanded.
McCarthren v. United States, 136 S. Ct. 332 (2015) (mem.).
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On remand, the government filed a motion to dismiss arguing that
McCarthren’s appeal is barred by the sentence-appeal waiver in his plea
agreement. The government, however, waived its right to assert the sentence-
appeal waiver by filing a memorandum with the Supreme Court recommending
that the Court GVR the case. See United States v. Story, 439 F.3d 226, 231 (5th
Cir. 2006) (holding that appeal waivers are governed by contract law and can be
waived); Cf. Burgess v. United States, 874 F.3d 1292, 1299–1300 (11th Cir. 2017)
(characterizing a collateral-action waiver as an affirmative defense).
We therefore reach the merits of McCarthren’s appeal. He contends that the
district court improperly applied the career-offender enhancement based in part on
a prior Florida conviction for aggravated assault, see Fla. Stat. § 784.021. In
Turner v. Warden Coleman FCI (Medium), this Court held that Florida aggravated
assault qualifies as a “crime of violence” for purposes of the elements clause of the
Armed Career Criminal Act, 18 U.S.C. § 924(e)(2). 709 F.3d 1328, 1337–38 (11th
Cir. 2013). McCarthren says that our decision in Turner has been abrogated by the
Supreme Court’s decision in Mathis v. United States, 136 S. Ct. 2243 (2016), and
that, under Mathis, Florida aggravated assault is not a “crime of violence” for
purposes of the career-offender enhancement. See U.S.S.G. § 4B1.2. Although
“some members of our court have questioned the continuing validity of Turner,”
we remain bound to follow it. United States v. Golden, 854 F.3d 1256, 1257 (11th
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Cir. 2017) (per curiam); see id. (Jill Pryor, J., concurring in result) (explaining
“why Turner’s holding was in tension with prior binding precedent and why, in
light of intervening Supreme Court decisions, Turner should be overruled”).
Because we are bound to follow Turner, McCarthren’s sentence is
AFFIRMED.
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