Case: 17-13448 Date Filed: 03/19/2018 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-13448
Non-Argument Calendar
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D.C. Docket Nos. 1:16-cv-22372-JLK,
1:09-cr-20602-JLK-1
WILLIE WALKER,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Florida
________________________
(March 19, 2018)
Before WILLIAM PRYOR, MARTIN and JILL PRYOR, Circuit Judges.
PER CURIAM:
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Willie Walker appeals the denial of his second motion to vacate his
sentence. 28 U.S.C. § 2255. Walker argued that he lacked sufficient predicate
offenses to be sentenced as an armed career criminal because, in the wake of
Johnson v. United States, 135 S. Ct. 2551 (2015), his convictions in 1982, 1985,
and 1986 for robbery did not qualify as “violent felon[ies],” 18 U.S.C.
§ 924(e)(2)(B). The district court ruled that Walker’s argument was foreclosed by
United States v. Fritts, 841 F.3d 937 (11th Cir. 2016). We affirm.
The district court correctly denied Walker’s motion to vacate. Fritts controls
this appeal. Walker’s prior convictions in Florida for robbery, Fla. Stat. § 812.13,
qualify categorically as violent felonies under the elements clause of the Armed
Career Criminal Act. See Fritts, 841 F.3d at 939–42 (discussing United States v.
Dowd, 451 F.3d 1244 (11th Cir. 2006), and United States v. Lockley, 632 F.3d
1238 (11th Cir. 2011)); United States v. Seabrooks, 839 F.3d 1326, 1338–45 (11th
Cir. 2016). Fritts “is the law of this Circuit[ and] . . . bind[s] all subsequent panels
unless and until the . . . holding is overruled by the Court sitting en banc or by the
Supreme Court.” Seabrooks, 839 F.3d at 1341 (quoting Smith v. GTE Corp., 236
F.3d 1292, 1300 n.8 (11th Cir. 2001)).
We AFFIRM the denial of Walker’s second motion to vacate.
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MARTIN, Circuit Judge, joined by JILL PRYOR, Circuit Judge, concurring in
judgment:
The majority is quite right that our circuit precedent dictates that Mr.
Walker’s previous robbery convictions under Florida Statute § 812.13 qualify as
violent felonies as that term is defined by the elements clause of the Armed Career
Criminal Act (“ACCA”), 18 U.S.C. § 924(e). See United States v. Fritts, 841 F.3d
937, 943–44 (11th Cir. 2016). However, I continue to believe that Fritts was
wrongly decided. In particular, the Fritts panel failed to give proper deference to
McCloud v. State, 335 So. 2d 257 (Fla. 1976), the controlling Florida Supreme
Court case interpreting § 812.13 at the time Mr. Walker was convicted under that
statute. In McCloud, Florida’s highest court held that taking by “[a]ny degree of
force” was sufficient to justify a robbery conviction. Id. at 258–59 (emphasis
added). Under McCloud, a defendant could therefore be convicted of Florida
robbery without using, attempting to use, or threatening to use “violent force,”
Curtis Johnson v. United States, 559 U.S. 133, 140, 130 S. Ct. 1265, 1271 (2010),
or a “substantial degree of force,” United States v. Owens, 672 F.3d 966, 971 (11th
Cir. 2012), as necessary to qualify as a violent felony under ACCA.
To support Mr. Walker’s ACCA sentence, the government relies in part on
three robberies Mr. Walker was convicted of committing over 30 years ago. All
three convictions—one in 1982, one in 1985, and one in 1986—were controlled by
the Florida Supreme Court’s definition of robbery in McCloud. Because Mr.
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Walker could have been convicted of those crimes for using any degree of force,
not just violent or substantial force, they should not qualify as violent felonies for
purposes of Mr. Walker’s ACCA sentence.
What must be difficult for Mr. Walker to make sense of is that the District
Court initially got his case right. On October 24, 2016, the District Court issued an
order granting Mr. Walker’s motion to vacate his sentence. In reaching this result,
that court noted that “robbery-by-sudden-snatching, which does not require the use
of force or placing a victim in apprehension of the use of force, was prosecuted
under section 812.13 until as late as 1997.” Because Mr. Walker’s convictions
could have been for robbery-by-sudden-snatching, the District Court concluded
they did not categorically qualify as predicate offenses to support an ACCA
enhancement and vacated Mr. Walker’s sentence. But just two weeks after the
District Court issued its order and before Mr. Walker had been resentenced, a panel
of this Court issued Fritts, which concluded, in spite of McCloud, that “the
§ 812.13 robbery statute has never included a theft or taking by mere snatching.”
841 F.3d at 942. Relying on Fritts, the government filed a motion for
reconsideration, which the District Court granted, reinstating Mr. Walker’s ACCA
sentence.
The Bureau of Prisons now estimates that Mr. Walker will be released from
prison in 2023. If Mr. Walker’s resentencing had been finalized before Fritts was
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published, or if the Fritts panel had gone the way of the only other circuit to have
considered this issue in a published decision, there is a good chance Mr. Walker
would now be out of prison. But instead, Mr. Walker’s sentence will continue for
another five years. I hope our Court or the Supreme Court recognizes the error in
Fritts in time to grant Mr. Walker some form of relief.
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