United States v. Keenan Joyner

Case: 16-17285 Date Filed: 02/22/2018 Page: 1 of 23

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 16-17285
________________________

D.C. Docket No. 1:16-cr-20316-MGC-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

KEENAN JOYNER,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Florida
________________________

(February 22, 2018)

Before MARCUS, FAY and HULL, Circuit Judges.

HULL, Circuit Judge:

Defendant Keenan Jermaine Joyner appeals his conviction and sentence after

a jury found him guilty of being a convicted felon in possession of a firearm and
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ammunition. On appeal, defendant Joyner argues that the district court’s

supplemental jury instruction did not adequately address the jury’s question about

possession of a firearm. Joyner also contends that the district court erred in

concluding that his prior Florida convictions for attempted strong arm robbery and

resisting an officer with violence are “violent felonies” under the Armed Career

Criminal Act (“ACCA”). After careful review, and with the benefit of oral

argument, we affirm.

I. BACKGROUND

On May 6, 2016, a federal grand jury indicted defendant Joyner on one

count of possession of a firearm and ammunition by a convicted felon, in violation

of 18 U.S.C. §§ 922(g)(1) & 924(e)(1). Joyner pled not guilty, and the case

proceeded to a jury trial beginning on August 29, 2016.

A. Evidence at Trial

At trial, the government presented four witnesses: Detective Martin Garcia,

Detective Dustin James, crime scene technician Andrea Amy, and crime lab

analyst Hali Meyer.

Detective Garcia testified as follows. Garcia and other officers were

conducting surveillance on a particular car, in connection with an ongoing

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investigation.1 Defendant Joyner was not the registered owner of the car, and was

not a subject of the ongoing investigation.

On the day in question, Detective Garcia and other officers were covertly

observing the subject car, which was parked in a lot adjacent to a convenience

store and laundromat. One of the observing officers, Detective Dustin James, was

the “eyeball” of the surveillance team, meaning that he maintained visual contact

with the car at all times. Garcia testified that when Detective James, the “eyeball,”

told the other officers over the radio that the car appeared to be occupied, all of the

officers, including Garcia, began moving toward the car from their various

positions.

As Detective Garcia approached, he saw two people standing in front of the

car, one of whom was defendant Joyner. When Joyner realized that police officers

were approaching him, he ran from the front of the car to the driver’s side door.

Joyner was “about 20, 25 feet” away from Garcia. At that point, Garcia saw a

firearm in Joyner’s left hand, “as if he was withdrawing it from his waistband.”

Garcia testified he was “[a]bsolutely 100 percent” certain he saw a firearm in

Joyner’s left hand.

Detective Garcia testified that when Joyner reached the driver’s side door,

he spun around, opened the door, dropped to one knee, and “slides the gun

1
The investigation concerned an armed carjacking. Detective Garcia did not testify about
the subject of the investigation.
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underneath the seat.” Garcia did not see which hand Joyner used to open the car

door. However, as far as Garcia could tell, the gun was in Joyner’s left hand at all

times.

Detective Garcia immediately radioed the code “55” to the other officers,

which told the officers that a gun was present. The detectives moved in, and

Joyner was “taken down.” Approximately one minute later, after Joyner was in

custody, Garcia looked inside the car and saw a firearm underneath the driver’s

seat. Later, when the firearm was collected from the scene, it was found to contain

an ammunition magazine with eight live projectile cartridges.

The government’s second eyewitness, Detective Dustin James, was the

“eyeball.” James testified that the car was parked in front of the laundromat and

backed into a parking space, such that James’s vantage point was from the front of

the car. At a certain point, James saw two men, one of whom was Joyner, walking

towards the car. One of the men—the one who was not Joyner—opened a car door

on the passenger side and started loading bins of laundry into the car. The other

man—Joyner—remained in front of the car, “basically looking around.”

When Detective James saw Joyner and the other individual occupy the car,

James radioed the other officers to take both men into custody. The officers

converged on the car. James testified that as the officers approached the car, he

saw defendant Joyner move from the front of the car to the driver’s side and open

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the driver’s side door. James heard Detective Garcia scream “55” as Joyner

opened the door, which James understood to mean a gun was present. However,

because Joyner’s back was to James as Joyner opened the car door, James never

saw a gun in Joyner’s hand. James did not know which hand Joyner used to open

the car door, but James “assum[ed]” that Joyner used his left hand. James testified

that he never saw Joyner bend down or put anything under the driver’s seat.

The government’s third witness, crime scene technician Andrea Amy,

testified that she did not find any fingerprints on the gun or ammunition magazine

recovered from the car. However, Amy explained that “many factors” can affect

whether a fingerprint is left on an item. Amy further testified that after testing for

fingerprints, she collected DNA swabs from the gun, the magazine, and the eight

live projectile cartridges. The swabs were then sent to the county DNA lab for

analysis.2

The government’s last witness, crime lab analyst Hali Meyer, testified that

she tested the DNA swabs taken from the gun and magazine, but was unable to

confirm that Joyner’s DNA was present. Meyer testified that there are “a lot of

reasons” DNA might not be left behind after a person handles an object.

Joyner did not present any witnesses. The parties stipulated that Joyner had

a previous felony conviction and that the firearm he allegedly possessed affected

2
During Amy’s testimony, the government introduced the firearm and magazine with
ammunition into evidence. The firearm was a Sig Sauer .45 caliber handgun.
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interstate or foreign commerce. Thus, the only contested issue was whether Joyner

possessed the firearm.

B. The Jury Charge

After the close of evidence, the district court excused the jury while the

parties discussed the proposed jury instructions. Among other things, the parties

agreed to remove instructions concerning “several kinds of possession” and

“constructive possession,” but to leave in instructions regarding “actual

possession” and “sole possession.”

When the jury returned, the district court issued the instructions to the jury.

The district court gave the charge verbally and in writing to the jury. In relevant

part, on page 10, the charge instructed that the government had to prove defendant

Joyner “knowingly possessed” the firearm, stating:

It’s a Federal crime for anyone who has been convicted
of a felony offense to possess a firearm and/or
ammunition in or affecting interstate or foreign
commerce.

The Defendant can be found guilty of this crime only if
all the following facts are proved beyond a reasonable
doubt:

(1) the Defendant knowingly possessed a firearm
and/or ammunition in or affecting interstate or
foreign commerce; and

(2) before possessing the firearm and/or

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ammunition, the Defendant had been convicted
of a felony – a crime punishable by
imprisonment for more than one year.

(emphasis added).

On page 11 of the charge, the district court instructed the jury about actual

and sole possession, stating:

“Actual possession” of a thing occurs if a person
knowingly has direct physical control of it.

“Sole possession” of a thing occurs if a person is the only
one to possess it.

(emphasis added). On page 12 of the charge, the district court told the

jury the meaning of the word “knowingly,” stating:

The word “knowingly” means that an act was done
voluntarily and intentionally and not because of a
mistake or by accident.

C. Closing Arguments

Once the jury was charged, the parties presented their closing arguments.

The government’s argument focused on the concept of actual possession in a

person’s hand. To illustrate how defendant Joyner knowingly possessed the

firearm, counsel for the government held a pen in his hand. Counsel explained that

he was “possessing” the pen at that point. Counsel then “[got] rid of” the pen by

placing it underneath a lectern. The government argued that the evidence

established that defendant Joyner knowingly possessed the firearm in a similar

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manner. That evidence was Detective Garcia’s testimony that he “saw the

Defendant possessing that firearm first near his waistband, and then he testified he

saw him put that firearm underneath the driver’s seat of that car.” The

government’s theory was that Joyner possessed the firearm before he put it under

the driver’s seat.

The closing argument of defendant Joyner’s counsel emphasized that

Detective Garcia’s testimony was the only evidence that Joyner possessed the gun.

Defense counsel reminded the jury that the car, in which the gun was later found,

was not registered to Joyner, and that Joyner was not involved in the crime for

which the car was being investigated. Defense counsel argued that Joyner “wasn’t

even the only person in the car,” so that “any number of people” could have put the

gun under the driver’s seat. Defense counsel characterized the government’s

physical evidence of possession as “[t]hree different people’s DNA on a gun found

in a car that wasn’t [Joyner’s].”

Defense counsel also argued that the testimonies of witnesses Garcia and

James were inconsistent on certain points. According to defense counsel, Garcia

testified that Joyner held the gun in his left hand at all times, whereas James

testified that Joyner opened the car door with his left hand. In addition, Garcia said

both Joyner and the other man were standing in front of the car when the officers

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approached, whereas James said the second man was loading laundry into the back

of the car.

In rebuttal, the government argued that if defendant Joyner was not guilty,

then Garcia was either mistaken or a liar. The government also argued that

because Joyner opened the driver’s side door of the car and the firearm

undisputedly was found underneath the driver’s seat, “[e]ither this Defendant is the

most unlucky human being I have ever met or he is guilty.”

After both sides presented their closing arguments, the district court asked

the parties, in a sidebar, if they had any objections to the jury instructions as read.

Neither party objected. The district court then directed the jury to begin

deliberations.

D. The Jury’s Question

The jury deliberated for approximately three hours before submitting a

question about actual possession as follows:

Clarification regarding Possession:
We hereby request further clarification of “Actual
Possession” as defined in the Court’s instructions to the
jury. Please explain or provide additional clarification or
explanation on “…knowingly has direct physical control
of it.[”] Clarify “direct” as it pertains to physical control.
Furthermore, does possession imply or not imply
possession of the vehicle [whether] “on” the vehicle or
“in” the vehicle?

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The district court discussed with the parties how to respond to the jury’s question.

The parties agreed the district court should tell the jury that possession of the car

was not at issue, and that the only issue for the jury was whether defendant Joyner

possessed the gun and ammunition.

But Joyner also asked that the district court further clarify to the jury that

“[t]he mere fact that the gun was in the vehicle is not at issue in this case.” Joyner

argued that the government’s theory of the case was that Joyner possessed the gun

in his hand outside the car, and that without his requested clarification, the jury

could find that Joyner possessed the gun merely based on its presence in the car.

Ultimately, the district court concluded that if the court referred the jury

back to the existing written definitions of “actual possession” and “knowingly,” the

jury would understand that it must determine whether or not Joyner had actual

possession of the firearm, and, if so, whether he possessed the firearm knowingly.

The district court gave this written response to the jury, referring them back to

those definitions and advising that possession of the vehicle was not an issue in the

case and that the issue was whether Joyner possessed the firearm, as follows:

The possession of the vehicle is not an issue in this case.
The issue before you is whether Mr. Joyner possessed the
firearm and ammunition.
Please refer to page 11 of the instructions for the
definition of possession.
Please refer to page 12 of the instructions for the
definition of “knowingly.”

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As recounted earlier, the district court’s charge on page 11 instructed that actual

possession of a thing occurs “if a person knowingly has direct physical control of

it.” The district court did not give Joyner’s other requested clarification.

The jury deliberated for two more hours before retiring for the day without

reaching a verdict. Deliberations resumed the following day, and the next

afternoon, the jury returned a guilty verdict against defendant Joyner.

E. Sentencing

In its presentence briefing, the government argued that defendant Joyner

qualified as an armed career criminal under the ACCA based upon these prior

Florida felony convictions: (1) a 2005 conviction for resisting an officer with

violence, in violation of Fla. Stat. § 843.01, (2) a 2009 conviction for attempted

strong arm robbery, in violation of Fla. Stat. §§ 812.13(1), (2)(c), & 777.04, and

(3) a 2009 conviction for possession of cocaine with intent to sell, manufacture, or

deliver, in violation of Fla. Stat. § 893.13(1)(A)(1). Although Joyner

acknowledged that under this Court’s precedent his predicate convictions qualified,

he preserved his objections to this enhancement.

With the ACCA enhancement, Joyner’s advisory sentencing guidelines

range was 235-293 months’ imprisonment. The district court sentenced Joyner to

200 months’ imprisonment, below the low end of the advisory guidelines range,

followed by five years of supervised release.

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Joyner appeals his conviction and sentence. We start with the jury charge.

II. COURT’S JURY CHARGE

We review a district court’s response to a jury question for an abuse of

discretion. United States v. Lopez, 590 F.3d 1238, 1247 (11th Cir. 2009). We also

examine a district court’s refusal to give a requested jury instruction for an abuse

of discretion. Id. at 1248.

When a jury requests supplemental instruction, a district court should answer

“within the specific limits of the question presented” and resolve the jury’s

difficulties “with concrete accuracy.” United States v. Baston, 818 F.3d 651, 661,

663 (11th Cir. 2016) (quotations omitted). District courts have considerable

discretion regarding the extent and character of supplemental jury instructions, but

the supplemental instructions cannot misstate the law or confuse the jury. Lopez,

590 F.3d at 1247-48. A district court has a “duty to guide the jury.” United States

v. Anderton, 629 F.2d 1044, 1048 (5th Cir. 1980).

To determine whether the jury was misled or confused, we review

supplemental jury instructions as part of the entire jury charge and in light of the

indictment, evidence presented, and arguments of counsel. Lopez, 590 F.3d at

1248. We must have “a substantial and ineradicable doubt as to whether the jury

was properly guided in its deliberations” before reversing a conviction on a

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challenge to the jury charge. United States v. House, 684 F.3d 1173, 1196 (11th

Cir. 2012) (quotation omitted).

Here, the district court’s original jury charge, which was given verbally and

in writing, made clear that the issue was Joyner’s actual and sole possession of the

firearm. The original charge was a correct statement of the law. Indeed, the

district court’s instructions regarding actual possession and sole possession were

verbatim the pattern jury instructions for those terms. See Pattern Crim. Jury Instr.

11th Cir. S6 (Apr. 2016). Neither party objected to the original jury charge, then

or now.

Similarly, the evidence and closing arguments also made clear that the issue

for the jury was whether defendant Joyner actually held the gun in his hand outside

the car. Detective Garcia’s testimony centered on seeing Joyner holding the gun

before placing it under the driver’s seat of the car. Witnesses Amy and Meyer

testified about the physical gun and ammunition and whether forensic evidence

could prove Joyner had held the gun in his hand outside the car. The government’s

closing argument emphasized that Joyner possessed the gun in his hand outside the

car. Defense counsel’s closing argument asserted that witness Garcia’s testimony

was the only evidence that Joyner possessed the gun. And the government never

tried to establish that the car belonged to Joyner such that anything found inside

the car could be imputed to him. To the contrary, the government made clear

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through Garcia’s testimony that the car was not registered to Joyner, and the

government said during its closing argument that Joyner “[got] rid of” the gun

when he placed it in the car.

Nevertheless, the jury’s question does reflect a concern about possession of

the car. The jury’s question asked: “Furthermore, does possession imply or not

imply possession of the vehicle [whether] ‘on’ the vehicle or ‘in’ the vehicle?”

The question itself is confusing. It could be read to mean the jury wanted to know

if actual possession of the gun also required that Joyner possessed the vehicle

where the gun was found. On the other hand, Joyner argues the question could

also be read to mean that the jury was deliberating whether Joyner could have

possessed the gun merely by possessing the car. But the question does not mention

the gun at all, and thus that is not necessarily what the question meant. At bottom,

the question borders on being unintelligible.

In any event, the district court responded appropriately and adequately to the

jury’s question. The district court first reminded the jury that “[t]he possession of

the vehicle is not an issue in this case,” and that “[t]he issue before you is whether

Mr. Joyner possessed the firearm and ammunition.” The remainder of the district

court’s response referred the jury to its earlier written instructions, which defined

actual possession on page 11 and knowingly on page 12. Nothing in the district

court’s response was a misstatement of the law. And the district court responded

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to the jury’s question “within the specific limits of the question presented.”

Baston, 818 F.3d at 663 (quotations omitted). Accordingly, the district court did

not fail in its “duty to guide the jury.” See Anderton, 629 F.2d at 1048.

Importantly too, the government never argued that Joyner possessed the gun

by possessing the car. Rather, the government’s theory was that Joyner actually

possessed the gun in his hand outside the car and got rid of it by putting it in the

car. No party mentioned “constructive possession,” and the district court was wise

to stick to actual possession and not inject the term “constructive possession” into

the case. Even assuming arguendo, as Joyner argues, that the jury was confused

about possession of the gun through possession of the car, the district court’s

response to the jury’s question adequately addressed that confusion by making

clear that possession of the car was not an issue but that possession of the gun was

the issue—in other words, the jury should not consider possession of the car, but

should decide whether Joyner possessed the gun.3

We also must reject Joyner’s argument that the district court was required to

say more to prevent the jury’s possible confusion. This ignores that the district

court had substantial discretion regarding the extent and character of its

3
Joyner’s requested instruction as phrased—“[t]he mere fact that the gun was in the
vehicle is not at issue in this case”—was not correct in any event. This is because the fact that a
gun was found in the car was relevant evidence that corroborated Garcia’s testimony that Joyner
held the gun outside the car and then opened the door and put the gun inside. If anything the
district court’s response—telling the jury not to consider possession of the car—was more
beneficial to Joyner than harmful.
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supplemental jury instruction, so long as its instructions adequately guided the jury

and did not misstate the law or mislead the jury. Lopez, 590 F.3d at 1247–48. As

noted above, the district court’s response to the jury’s question was a correct

statement of the law and served to clarify the issue before the jury. Taking into

consideration the jury instructions as a whole, the evidence presented, and the

arguments of counsel, we have nothing near a “substantial and ineradicable doubt”

that the district court misguided the jury. House, 684 F.3d at 1196 (quotations

omitted). Accordingly, defendant Joyner has shown no error in the district court’s

supplemental jury instruction.

III. SENTENCING UNDER THE ACCA

We review de novo constitutional sentencing issues, including the issue of

whether a prior conviction qualifies as a “violent felony” under the ACCA. United

States v. Harris, 741 F.3d 1245, 1248 (11th Cir. 2014); United States v. Canty, 570

F.3d 1251, 1254 (11th Cir. 2009).

A. The ACCA

Joyner does not dispute that he was a convicted felon and prohibited from

possessing a firearm and ammunition. See 18 U.S.C. § 922(g). Under the ACCA,

a defendant felon convicted of having a prohibited firearm and ammunition is

subject to a mandatory minimum sentence of 15 years (180 months) if he has three

prior felony convictions for a “violent felony” or a “serious drug offense.” 18

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U.S.C. § 924(e)(1). In this appeal, Joyner argues that his prior convictions for

resisting an officer with violence and attempted strong arm robbery are not violent

felonies under the ACCA. 4

A “violent felony” is any offense 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 of this definition is referred to as the

“elements clause,” while the second prong contains the “enumerated crimes”

clause and, finally, what is commonly called the “residual clause.” United States

v. Fritts, 841 F.3d 937, 939 (11th Cir. 2016). Joyner’s appeal concerns only the

elements clause. This is because neither Florida robbery nor resisting an officer

with violence is an enumerated crime, and the Supreme Court struck down the

ACCA’s residual clause as unconstitutionally vague in Johnson v. United States,

576 U.S. ___, ___, 135 S. Ct. 2551, 2556-58, 2563 (2015). Thus, we address

whether Joyner’s prior convictions for resisting an officer with violence and for

4
Joyner does not dispute that his conviction for possession with intent to sell cocaine, in
violation of Fla. Stat. § 893.13(1), is a serious drug offense under the ACCA. In any event, this
Court has held that a conviction under Fla. Stat. § 893.13(1), like Joyner’s, qualifies as a “serious
drug offense” under the ACCA. United States v. Smith, 775 F.3d 1262, 1268 (11th Cir. 2014).
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attempted strong arm robbery have “as an element the use, attempted use, or

threatened use of physical force against the person of another” within the meaning

of the ACCA. 18 U.S.C. § 924(e)(2)(B)(i).

B. Resisting an Officer with Violence

Florida Statute § 843.01 provides that any person who “knowingly and

willfully resists, obstructs, or opposes any officer . . . in the lawful execution of

any legal duty, by offering or doing violence to the person of such officer,” is

guilty of resisting an officer with violence. Fla. Stat. § 843.01 (emphasis added).

Florida courts have held that “violence is a necessary element of the offense” of

resisting an officer with violence. United States v. Hill, 799 F.3d 1318, 1322 (11th

Cir. 2015) (citing cases); see also United States v. Romo-Villalobos, 674 F.3d

1246, 1248-51 (11th Cir. 2012) (concluding under the 2010 Sentencing Guidelines

that a conviction under Fla. Stat. § 843.01 constitutes a crime of violence for

purposes of the elements clause of U.S.S.G. § 2L1.2(b)(1)(A)(ii), which has the

same language as the ACCA elements clause). Accordingly, as this Court

previously held in Hill, a Fla. Stat. § 843.01 conviction for resisting an officer with

violence “categorically qualifies as a violent felony under the elements clause of

the ACCA.” Id.

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C. Attempted Strong Arm Robbery

Joyner also has a prior conviction for attempted strong arm robbery, in

violation of Fla. Stat. §§ 812.13(1), (2)(c), & 774.04. Section 812.13(1) defines

“robbery” 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.” Fla. Stat. § 812.13(1). Subsection (2)(c) of the statute

provides that “[i]f in the course of committing the robbery the offender carried no

firearm, deadly weapon, or other weapon,” then the robbery is a second degree

felony. Id. § 812.13(2)(c).

As to attempt, Florida Statute § 777.04 provides that “[a] person who

attempts to commit an offense prohibited by law and in such attempt does any act

toward the commission of such offense, but fails in the perpetration or is

intercepted or prevented in the execution thereof, commits the offense of criminal

attempt.” Fla. Stat. § 777.04(1). Under Florida law, the government must prove

the existence of an overt act as necessary to support a conviction for attempt. See

Thomas v. State, 531 So. 2d 708, 709-10 (Fla. 1988).

In United States v. Lockley, this Court examined the elements of a robbery

offense under Fla. Stat. § 812.13, and held that a Florida conviction for attempted

robbery, without the use of a weapon, categorically qualified as a “crime of

violence” under the career offender sentencing guideline at U.S.S.G. § 4B1.2(a),

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which has the same elements clause as the ACCA. 632 F.3d 1238, 1240, 1242-43,

1245 (11th Cir. 2011). In reaching this conclusion, the Lockley Court pointed out

that robbery under Fla. Stat. § 812.13(1) “necessarily requires” that the defendant

(1) take money or property of some value from another person, (2) with the intent

to permanently or temporarily deprive the person of that money or property, (3) by

“using force, violence, or an intentional threat of imminent force or violence

against another coupled with an apparent ability to use that force or violence, or by

causing the person to fear death or great bodily harm.” Id. at 1242-43 (evaluating

Fla. Stat. § 812.13(1)). The Lockley Court also determined that “[t]hese elements

hew almost exactly to the generic definition of robbery.” Id. at 1243.

Given these elements, the Lockley Court further concluded that Florida

robbery (1) thus involves either the use or threatened use of physical force, or

“some act that puts the victim in fear of death or great bodily harm,” and

(2) therefore “has, as an element, the ‘use, attempted use, or threatened use of

physical force against the person of another.’” Id. at 1245 (citing U.S.S.G.

§ 4B1.2(a)(1)). As such, the Lockley Court held that a Florida conviction for

attempted robbery categorically qualified as a crime of violence under the elements

of even the least culpable of these acts criminalized by Fla. Stat. § 812.13(1). Id.

The Lockley Court further noted that Florida’s attempt statute in Fla. Stat.

§ 777.04 “falls within the generic, contemporary meaning of attempt” because it

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requires that the defendant commit an overt act, beyond mere preparation, in

furtherance of the commission of the offense. Id. at 1245 n.6. As to attempt, this

Court also reasoned as follows:

Florida’s attempt statute is therefore a close analogue to
the Model Penal Code definition of attempt, as both
require an “overt act”—meaning an act or omission—
which clearly signals the commission of the offense
instead of mere preparation. Compare [Morehead v.
State, 556 So. 2d 523, 524 (Fla. Dist. Ct. App. 1990)] . . .
with United States v. Ballinger, 395 F.3d 1218, 1238 n.8
(11th Cir. 2005) (en banc) (“A substantial step must be
more than remote preparation, and must be conduct
strongly corroborative of the firmness of the defendant’s
criminal intent.” (internal quotation marks omitted)).
Section 777.04(1) thus falls within the generic,
contemporary meaning of attempt.

Id.

In challenging the use of his attempted strong arm robbery conviction as an

ACCA predicate, defendant Joyner does not focus so much on the attempt aspect

of his robbery conviction. Rather, Joyner argues that the underlying substantive

offense of strong arm robbery does not qualify as a violent felony because it does

not involve the requisite degree of force. But, as he acknowledges, Joyner’s

arguments concerning attempted strong arm robbery are foreclosed by Lockley, as

well as our other precedent following Lockley. See Fritts, 841 F.3d at 940, 942

(involving an ACCA case but following Lockley, a guidelines case, because the

ACCA’s elements clause is identical, and concluding that nothing in Curtis

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Johnson5 undermines our precedent in Lockley about Florida robbery); see also

United States v. Seabrooks, 839 F.3d 1326, 1341 (11th Cir. 2016) (following

Lockley and concluding that a Florida armed robbery conviction qualified as a

violent felony under the ACCA); United States v. Dowd, 451 F.3d 1244, 1255

(11th Cir. 2006) (holding, “without difficulty,” that a Florida conviction for armed

robbery was “undeniably a conviction for a violent felony” under the ACCA’s

elements clause). Based on our precedent, we conclude that Florida attempted

robbery is categorically a violent felony under the ACCA.

D. Prior Convictions Not Charged in Indictment

Defendant Joyner argues that his ACCA sentence is unconstitutional because

he was subjected to increased statutory penalties based on prior Florida convictions

that were neither alleged in the indictment nor proven to the jury. But the Supreme

Court has explained that a statutory penalty provision, like the ACCA, “simply

authorizes a court to increase the sentence for a recidivist,” and “does not define a

separate crime.” Almendarez-Torres v. United States, 523 U.S. 224, 226, 118 S.

Ct. 1219, 1222 (1998). “Consequently, neither the statute nor the Constitution

requires the Government to charge the factor that it mentions”—Joyner’s prior

5
Curtis Johnson v. United States, 559 U.S. 133, 130 S. Ct. 1265 (2010).
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 Case: 16-17285 Date Filed: 02/22/2018 Page: 23 of 23

convictions—“in the indictment.”6 Id. at 226-27; see also United States v. Sparks,

806 F.3d 1323, 1350 (11th Cir. 2015). In addition, a defendant’s recidivism is not

an element of his crime, and therefore need not be proven beyond a reasonable

doubt. See Almendarez-Torres, 523 U.S. at 247, 118 S. Ct. at 1232-33.

III. CONCLUSION

For all of the above reasons, we conclude that the district court did not err in

its supplemental jury instruction or in declining to give the additional instruction

requested by defendant Joyner. We also hold that Joyner’s prior felony

convictions for resisting an officer with violence and attempted strong arm robbery

qualified as crimes of violence under the ACCA. We therefore affirm Joyner’s

conviction and sentence.

AFFIRMED.

6
Joyner has never disputed that he in fact has these three prior Florida convictions. The
government submitted, and the record contains, certified copies of his convictions. Joyner’s
claim is as to the indictment.
23