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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-11082
Non-Argument Calendar
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D.C. Docket Nos. 8:15-cv-02018-SCB-MAP; 8:06-cr-00110-SCB-MAP-3
ERNEST KING,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
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Appeal from the United States District Court
for the Middle District of Florida
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(January 25, 2018)
Before JULIE CARNES, FAY, and HULL, Circuit Judges.
PER CURIAM:
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Ernest King, a federal prisoner serving a total sentence of 300 months’
imprisonment, appeals the district court’s denial of his 28 U.S.C. § 2255 motion to
vacate his sentence, arguing in relevant part that he no longer qualifies for an
enhanced sentence under the Armed Career Criminal Act (“ACCA”), 18 U.S.C.
924(e), following the Supreme Court’s decision in Samuel Johnson v. United
States, __ U.S. __, 135 S. Ct. 2551 (2015), because his pre-1997 Florida robbery
and armed robbery convictions are not “violent felonies” under the ACCA’s
elements clause.
Under the ACCA, a defendant convicted of violating 18 U.S.C. § 922(g) is
subject to a mandatory minimum sentence of 15 years (180 months) if he has three
prior convictions for a “violent felony” or “serious drug offense.” 18 U.S.C.
§ 924(e)(1). A “violent felony” is any crime punishable by a term of 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.
18 U.S.C. § 924(e)(2)(B). The first prong is referred to as the “elements clause,”
while the second prong contains the “enumerated crimes” and the “residual
clause.” United States v. Owens, 672 F.3d 966, 968 (11th Cir. 2012). In Samuel
Johnson, the Supreme Court struck down the ACCA’s residual clause as
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unconstitutionally vague, but did not call into question the validity of the ACCA’s
enumerated crimes or elements clause. Samuel Johnson, 135 S. Ct. at 2563.
Under the elements clause, “the phrase ‘physical force’ means violent force—that
is, force capable of causing physical pain or injury to another person.” Curtis
Johnson v. United States, 559 U.S. 133, 140, 130 S. Ct. 1265, 1271 (2010).
Florida law defines robbery, in relevant part, as “the taking of money or
other property . . . from the person or custody of another, . . . when in the course of
the taking there is the use of force, violence, assault, or putting in fear,” and
provides increased penalties for armed robbery. Fla. Stat. § 812.13(1)-(2). Prior to
1997, Florida’s intermediate appellate courts were divided as to whether a sudden
snatching amounted to robbery under § 812.13(1). See United States v. Welch,
683 F.3d 1304, 1311 & n.29 (11th Cir. 2012) (citing cases). In 1997, the Florida
Supreme Court resolved this division, making clear the robbery statute had never
included theft by mere snatching and had always required that the perpetrator
employ force (1) greater than that necessary to simply remove the property from
the victim and (2) sufficient to overcome the victim’s resistance. See Robinson v.
State, 692 So. 2d 883, 886-87 (Fla. 1997). Additionally, for purposes of robbery
by putting in fear, “‘[t]he fear contemplated . . . is the fear of death or great bodily
harm’” under Florida law. United States v. Lockley, 632 F.3d 1238, 1242 (11th
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Cir. 2011) (quoting Magnotti v. State, 842 So. 2d 963, 965 (Fla. 4th Dist. Ct. App.
2003) (alteration in original)).
On appeal, King argues that Florida robbery, whether committed before or
after 1997, can never qualify as a violent felony under the ACCA’s elements
clause because the least of the acts criminalized by the Florida statute does not
require the use, attempted use, or threatened use of violent force. Among other
things, King contends that: (1) prior to 1997, Florida robbery included robbery by
sudden snatching, which does not require violent force; (2) both before and after
1997, Florida courts have held that any degree of force, however slight, converts a
theft offense into a robbery so long as the force used is sufficient to overcome the
victim’s resistance; and (3) robbery by putting in fear does not require either that
the defendant intentionally put the victim in fear or that the defendant threaten the
use of physical force.
King’s arguments are unavailing. In United States v. Fritts, 841 F.3d 937
(11th Cir. 2016), cert. denied, 137 S. Ct. 2264 (2017), the defendant raised, and we
rejected, these very same arguments. Consistent with our prior precedent, we held
that Florida robbery, whether committed before or after 1997, categorically
qualifies as a violent felony under the ACCA’s elements clause. Id. at 939-44.
First, relying in part on our prior decision in Lockley, we explained that even the
least of the acts criminalized by the Florida robbery statute—robbery by putting in
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fear—categorically qualified as a violent felony under the elements clause because
“the fear contemplated by the statute is the fear of death or great bodily harm.”
Fritts, 841 F.3d at 941 (internal quotation marks omitted). We determined that any
act which causes the victim to fear death or great bodily harm would necessarily
involve the use or threatened use of physical force against the victim. Id.
Likewise, each of the other means of committing Florida robbery—use of force,
violence, and assault—by definition “specifically require[s] the use or threatened
use of physical force against the person of another.” Id. (internal quotation marks
omitted).
In Fritts, we further explained that the Florida Supreme Court’s decision in
Robinson and the earlier Florida cases on which Robinson relied demonstrated that
the Florida robbery statute had never encompassed robbery by sudden snatching
and had always required the use or threatened use of sufficient physical force to
overcome the victim’s resistance. Id. at 942-43; see also Robinson, 692 So. 2d at
886-87 (stating: “[I]n order for the snatching of property from another to amount to
robbery, the perpetrator must employ more than the force necessary to remove the
property from the person. Rather, there must be resistance by the victim that is
overcome by the physical force of the offender.”). Thus, unlike the simple battery
statute at issue in Curtis Johnson, which could be violated by mere touching, slight
force was insufficient to sustain a Florida robbery conviction. Fritts, 841 F.3d at
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942-43. Indeed, we noted that, as early as 1922, the Florida Supreme Court had
held: “‘There can be no robbery without violence, and there can be no larceny with
it. It is violence that makes robbery an offense of greater atrocity than larceny.’”
Id. at 943 (quoting Montsdoca v. State, 93 So. 157, 159 (Fla. 1922)).
Consequently, given Lockley and Fritts, King’s challenge to his ACCA
sentence fails, and the district court did not err in denying his § 2255 motion. See
United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008) (“Under [the prior
panel precedent] rule, a prior panel’s holding is binding on all subsequent panels
unless and until it is overruled or undermined to the point of abrogation by the
Supreme Court or by this court sitting en banc.”).
Accordingly, we affirm the district court’s order dismissing King’s § 2255
motion.
AFFIRMED.
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