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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-11484
Non-Argument Calendar
________________________
D.C. Docket Nos. 4:16-cv-00017-RH-MJF; 4:12-cr-00006-RH-MJF-1
FRED SOMERS,
Petitioner - Appellant,
versus
UNITED STATES OF AMERICA,
Respondent - Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
ON PETITION FOR REHEARING
(September 28, 2021)
Before JILL PRYOR, ANDERSON and MARCUS, Circuit Judges.
MARCUS, Circuit Judge:
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In Somers v. United States, 799 F. App’x 691 (11th Cir. 2020) (“Somers I”),
issued on January 14, 2020, we affirmed the district court’s denial of appellant
Fred Somers’s 28 U.S.C. § 2255 motion to vacate his sentence. We held that
Somers’s Florida aggravated assault conviction, see Fla. Stat. § 784.021, qualified
as a violent felony under the Armed Career Criminal Act’s (“ACCA”) elements
clause, 18 U.S.C. § 924(e)(2)(B)(i). After Somers filed a petition for rehearing, we
held issuance of the mandate in abeyance pending the Supreme Court’s decision in
Borden v. United States, 141 S. Ct. 1817 (2021). After Borden was decided, we
asked the parties for further briefing about its effect on Somers I and on the
precedent on which we relied, Turner v. Warden Coleman FCI, 709 F.3d 1328,
1337–38 (11th Cir. 2013), abrogated on other grounds by Johnson v. United States,
576 U.S. 591 (2015). In supplemental briefing, Somers claims that the ACCA’s
elements clause applies only to specific-intent crimes, and that Florida aggravated
assault is not a specific-intent crime. Though the Florida aggravated assault statute
does not use the phrase “specific intent,” the government in substance argues that
the specific intent to threaten another is an element of Florida aggravated assault.
To facilitate full consideration of these questions, we grant the petition for
rehearing, vacate our previous opinion and judgment in Somers I, substitute this
opinion in its place, and certify to the Florida Supreme Court two related questions
about the nature of the Florida assault statutes.
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I.
Because the facts and procedural setting have not changed since our initial
opinion in this case, we reproduce the portions describing them in their entirety:
Under the ACCA, a defendant convicted of being a felon in
possession of a firearm who has three or more prior convictions for a
“violent felony” or “serious drug offense” faces a mandatory
minimum 15-year sentence. 18 U.S.C. § 924(e)(1). The ACCA
defines a violent felony as 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 of this definition is referred
to as the “elements clause,” while the second prong contains the
“enumerated crimes” and “residual clause.” United States v. Owens,
672 F.3d 966, 968 (11th Cir. 2012). In Johnson [] the Supreme Court
struck down the residual clause as unconstitutionally vague. [576
U.S. at 595–602.] In holding that the residual clause was void, the
Supreme Court clarified that it did not call into question the
application of the elements clause. Id. at [604–05]. It later held that
Johnson announced a new substantive rule that applied retroactively
to cases on collateral review. Welch v. United States, 136 S. Ct.
1257, 1265 (2016).
To qualify as a violent felony under the ACCA’s elements
clause, a conviction must have as an element the use, attempted use,
or threatened use of physical force against the person of another. 18
U.S.C. § 924(e)(2)(B)(i). We employ the categorical approach to
determine whether a conviction necessarily requires the use or
threatened use of physical force, looking only at the required elements
of a defendant’s prior offenses, and not to the particular facts
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underlying those convictions. United States v. Jones, 906 F.3d 1325,
1328 (11th Cir. 2018), cert. denied, 139 S. Ct. 1202 (2019). A crime
is categorically a violent felony under the elements clause if even the
least of the culpable conduct criminalized by the statute would fall
within the ACCA definition. Id.
In Florida, an aggravated assault is an assault (a) with a deadly
weapon without intent to kill, or (b) with an intent to commit a felony
. Fla. Stat. § 784.021. An assault is defined as an intentional,
unlawful threat by word or act to do violence to the person of another,
coupled with an apparent ability to do so, and doing some act which
creates a well-founded fear in such other person that such violence is
imminent. Fla. Stat. § 784.011.
In 2013, we held that a movant’s Florida conviction for
aggravated assault qualified as a violent felony under the ACCA’s
elements clause. Turner, 709 F.3d [at 1337–38], abrogated on other
grounds by Johnson, [576 U.S. 591]. We reasoned, first, that
aggravated assault, by its definitional terms, necessar[il]y included an
assault, which is an intentional and unlawful threat “to do violence” to
the person of another. Id. at 1338. We further concluded that
aggravated assault necessarily included as an element the “threatened
use of physical force against the person of another.” Id.
In United States v. Golden, we affirmed the defendant’s
sentence because Turner, as binding precedent, foreclosed the
argument that his conviction for aggravated assault was not a violent
felony. 854 F.3d 1256, 1256–57 (11th Cir. 2017); see also [United
States v.] Deshazior, 882 F.3d 1352, 1355 (holding that a defendant’s
argument that Florida aggravated assault is not a violent felony for
purposes of the ACCA is foreclosed by Turner). We said in Golden
that, even if Turner was flawed, that did not give a later panel
authority to disregard it. Golden, 854 F.3d at 1257.
Somers I, 799 F. App’x at 692–93. In Somers I, we followed Turner and Golden
to hold that Florida aggravated assault was a violent felony under the ACCA
elements clause and, therefore, we affirmed the district court’s decision to rely on
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this conviction as one of three necessary violent felony predicates to support the
application of the ACCA’s fifteen-year mandatory minimum to Somers’s sentence.
Id. at 693. According to the Presentence Investigation Report in this case, without
the ACCA mandatory minimum, Somers’s sentencing guidelines range would have
been 130 to 162 months.
II.
Recently, in Borden, the Supreme Court clarified the meaning of the phrase
“against the person of another” as used in the ACCA elements clause. We’ve
described Borden this way:
In Borden, the Supreme Court held that the phrase “use . . . against the
person of another” in the ACCA’s elements clause “sets out a mens
rea requirement -- of purposeful or knowing conduct.” Borden, 141 S.
Ct. at 1828, 1829 n.6 (plurality opinion). The elements clause
“demands that the perpetrator direct his action at, or target, another
individual.” Id. at 1825. A crime that can be committed with a mens
rea of mere recklessness therefore cannot qualify as a crime of
violence under the elements clause -- “[r]eckless conduct is not aimed
in [the] prescribed manner.” Id.; see also id. at 1833 (“‘[A]gainst the
person of another,’ when modifying the ‘use of physical force,’
introduces that action’s conscious object. So it excludes conduct, like
recklessness, that is not directed or targeted at another.”) (citation
omitted).
United States v. Carter, 7 F.4th 1039, 1045 (11th Cir. 2021). Borden held that
Tennessee reckless aggravated assault, which can be accomplished with a mens rea
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of recklessness, was not a violent felony under the elements clause. 131 S. Ct. at
1822, 1825.
In supplemental briefing, Somers characterizes Borden as having held that to
meet the elements clause definition of violent felony, an offense must require more
than general intent in the sense of a mere “intent to commit the act.” See 1 Wayne
R. LaFave, Substantive Criminal Law § 5.2(e) (3d ed. Oct. 2020 update) (In “the
most common usage,” “general intent is only the intention to make the bodily
movement which constitutes the act which the crime requires.” (internal quotation
marks omitted)). According to Somers, Borden holds that the elements clause
requires specific intent. Specific intent is most commonly understood as
“designat[ing] a special mental element which is required above and beyond any
mental state required with respect to the actus reus of the crime.” LaFave, supra, §
5.2(e).
Notably, the Borden plurality did not use the phrase “specific intent,” as
Somers suggests. Rather, the Borden plurality held that the elements-clause phrase
“against the person of another” requires that the subject of the verb that phrase is
modifying -- either the “use, attempted use, or threatened use of force” -- not only
use, attempt, or threaten force volitionally, but also “direct his action at, or target,
another individual.” 141 S. Ct. at 1825; see also 18 U.S.C. § 924(e)(2)(B)(i)
(defining “violent felony” as a crime punishable by more than one year that “has as
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an element the use, attempted use, or threatened use of physical force against the
person of another”). Put another way, the elements clause requires both the
general intent to volitionally take the action of using, attempting to use, or
threating to use force and something more: that the defendant direct the action at a
target, namely another person. Specific intent to direct action at another satisfies
this latter requirement, as does “knowing conduct.” Borden, 141 S. Ct. at 1828
(holding that the elements clause’s “against the person of another” phrase “sets out
a mens rea requirement -- of purposeful or knowing conduct”).1
Thus, if Florida aggravated assault requires a mens rea of specific intent to
use, attempt to use, or threaten to use physical force against the person of another,
then Florida aggravated assault qualifies as an ACCA violent felony predicate and
Somers’s ACCA-enhanced sentence must stand. If not, Somers would be entitled
1
Justice Thomas concurred in the judgment on the ground that the phrase “use of physical force,”
all by itself without any assistance from the “against” phrase, “has a well-understood meaning
applying only to intentional acts designed to cause harm.” Borden, 141 S. Ct. at 1835 (Thomas,
J., concurring in the judgment) (internal quotation marks and citation omitted). “[W]e determine
the holding of split decisions . . . by looking to the ‘narrowest grounds’ of agreement among the
members of the Court who concurred in the judgment.” Reprod. Health Servs. v. Strange, 3 F. 4th
1240, 1259 n.6 (11th Cir. 2021) (citing Marks v. United States, 430 U.S. 188, 193 (1977)). Both
Justice Thomas and the members of the plurality agreed that the elements clause requires more
than general intent in the sense of a mere volitional act. See Borden, 141 S. Ct. at 1835 (Thomas,
J., concurring in the judgment) (the elements clause extends only to crimes that involve
“intentional acts designed to cause harm”) (emphasis added); id. at 1829 n.6 (plurality opinion)
(“Four Justices think that the ‘use’ phrase, as modified by the ‘against’ phrase, in ACCA’s
elements clause excludes reckless conduct. [Justice Thomas] thinks, consistent with his previously
stated view, that the ‘use’ phrase alone accomplishes that result. And that makes five to answer
the question presented. Q: Does the elements clause exclude reckless conduct? A: Yes, it does.”)
(citation omitted).
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to re-sentencing. Florida aggravated assault incorporates the Florida simple assault
statute, the text of which lays out three elements of assault: (1) “an intentional,
unlawful threat by word or act to do violence to the person of another,” (2) that is
“coupled with an apparent ability to do so,” and (3) “doing some act which creates
a well-founded fear in such other person that such violence is imminent.” Fla. Stat.
§ 784.011. The most natural reading of the first element’s text requires the specific
intent to threaten another person with violence: it defines assault as “an intentional
. . . . threat . . . to do violence to the person of another.” Indeed, Turner (and by
proxy, Golden and Somers I) relied on this text to hold that Florida aggravated
assault always includes a threat to use physical force against the person of another
and therefore meets the elements clause definition of “violent felony.” Of course,
in determining the elements of a state crime for federal sentencing purposes, we
are “bound by [state] courts’ determination and construction of the substantive
elements of [the] state offense.” United States v. Rosales-Bruno, 676 F.3d 1017,
1021 (11th Cir. 2012) (emphasis added). “[A]bsent a decision from the state
supreme court on an issue of state law, we are bound to follow decisions of the
state’s intermediate appellate courts unless there is some persuasive indication that
the highest court of the state would decide the issue differently.” United States v.
Hill, 799 F.3d 1318, 1322 (11th Cir. 2015).
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The Florida Supreme Court has not answered the question of whether
Florida aggravated assault requires specific intent, or something just like it (e.g.,
“purposeful or knowing conduct,” Borden, 141 S. Ct. at 1828). Panel decisions
from each of Florida’s intermediate appellate courts seem to support the plain
reading of the text; they have confirmed, in words or substance, that a specific
intent to threaten another person is indeed a necessary element of simple assault.
See, e.g., Swift v. State, 973 So. 2d 1196, 1199 (Fla. 2d DCA 2008) (reversing
aggravated assault on a law enforcement 2 officer conviction because the evidence
“did not tend to establish that [the defendant] had a specific intent to threaten [the
officer]”); Denard v. State, 30 So. 3d 595, 596 (Fla. 5th DCA 2010) (reversing
aggravated assault conviction because “the evidence [did] not establish that [the
defendant] had the specific intent to threaten” the victim); J.S. v. State, 207 So. 3d
903, 905 (Fla. 4th DCA 2017) (“The issue in this case is focused on the first
element [of assault]: did the appellant intend to threaten the victim? In this case,
there is no evidence that appellant verbally ‘threatened’ the victim. The case
therefore rises or falls on whether there was an overt act that the [defendant]
intentionally threatened the victim.”); Williams v. State, 238 So. 3d 915, 916 (Fla.
1st DCA 2018) (“[T]he first question [for an aggravated assault conviction] is
2
This offense, like the general aggravated assault statute, incorporates simple assault. See Swift,
973 So. 2d at 1199.
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whether a reasonable jury could have concluded from the evidence that Williams
intentionally and unlawfully threatened Dixon and Byrd ‘by word or act.’”); State
v. Conroy, 118 So. 3d 305, 312 n.10 (Fla. 3d DCA 2013) (“Because attempted first
degree murder and aggravated assault are each a specific intent crime, the requisite
intent must be directed toward a specific victim . . . .”).
Thus, in Swift, Florida’s Second District Court of Appeal reversed an
aggravated assault on a law enforcement officer conviction for backing an SUV
toward a police officer because the state “was unable to establish that [the
defendant] knew that [the victim officer] had run behind the SUV during the
minimal amount of time that elapsed” before the defendant put his SUV in reverse.
973 So. 2d at 1199. Since the state could not prove that the defendant knew the
officer was standing behind his car, it could not prove that the defendant
specifically intended to threaten the officer by reversing the car. Id. And in J.S.,
the Fourth District Court of Appeal held that an assault had not been proven
because “no evidence was introduced that would support a finding that the
appellant intentionally threatened the victim.” 207 So. 3d at 906. See also Benitez
v. State, 901 So. 2d 935, 937 (Fla. 4th DCA 2005) (reversing aggravated assault on
a law enforcement officer conviction because “the defendant’s act of placing his
hand behind his back, while alarming to the deputy, [was] not substantial,
competent evidence the defendant intentionally and unlawfully threatened the
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deputy”); Pinkney v. State, 74 So. 3d 572, 577 n.3 (Fla. 2d DCA 2011)
(concluding that Swift’s “reasoning” -- reversing a conviction because there was
insufficient evidence that the defendant “had intentionally threatened the officer” --
“is ultimately correct”). If these decisions correctly state the elements of Florida
simple assault, the offense requires the specific intent to direct a threat of violence
at the person of another and therefore satisfies Borden’s interpretation of the
ACCA elements clause.
However, some intermediate Florida appellate courts have explicated
Florida’s law of aggravated assault in a different way. Thus, in Kelly v. State
Florida’s Fifth District Court of Appeal upheld an aggravated assault conviction
for shooting into an occupied vehicle because the evidence established that the
defendant knew the victim was in the car and that the defendant’s “actions . . .
involved criminal conduct directed toward a victim.” 552 So. 2d 206, 208 (Fla. 5th
DCA), rev. denied, 563 So. 2d 632 (Fla. 1990). Along the way, the court
explained its ruling in this way:
Aggravated assault is a crime of intent. Where, as here, there is no
proof of an intentional assault on the victim, that proof may be
supplied by proof of conduct equivalent to culpable negligence, Green
v. State, 315 So.2d 499 (Fla. 4th DCA 1975), or by proof of willful
and reckless disregard for the safety of others. Dupree v. State, 310
So.2d 396 (Fla. 2d DCA 1975).
In LaValley v. State, 633 So. 2d 1126, 1128 (Fla. 5th DCA 1994), the Fifth District
Court of Appeal relied upon Kelly to again state that “‘willful and reckless
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disregard for the safety of others’ could substitute for proof of intentional assault
on the victim.” To the extent Kelly and LaValley hold that aggravated assault can
be proven without evidence of an intentional threat to do violence to another, they
suggest that Florida’s aggravated assault statute could not meet the ACCA
elements clause’s definition of violent felony.
Thus, as we see it, there is a split in Florida authority on the mens rea
required by the Florida assault statutes.3 This issue controls the resolution of
Somers’s case and may affect others similarly situated, so we respectfully seek the
guidance of the Florida Supreme Court on this pivotal question. See United States
v. Conage, 976 F.3d 1244, 1263 (11th Cir. 2020) (“[T]his Court has found
certification to the Florida Supreme Court warranted where an appeal ‘depends on
resolution of questions of unsettled Florida law’ that ‘will affect many other
cases.’”) (citation omitted). “The certification procedure is ‘a valuable tool’ that
‘helps save time, energy, and resources and produces authoritative answers to
novel or unsettled questions of state law.’” Id. (citation omitted). “Florida’s
3
In State v. Hackley, 95 So. 3d 94 (Fla. 2012), the Florida Supreme Court held that a conviction
for burglary of a conveyance with an assault met the definition of Florida’s prison release
reoffender statute, which extends to “[a]ny felony that involves the use or threat of physical force
or violence against an individual.” Fla. Stat. § 775.082(9)(a)1(o) (2006). The Court reasoned that
“assault is a felony that necessarily involves the ‘threat by word or act to do violence to the person
of another’” and noted that an assault “by definition . . . always includes the threat to do violence.”
Hackley, 95 So. 3d at 94, 96. While the statutory definition at issue in Hackley is similar to the
ACCA elements clause before us today, Hackley relied on the “plain language” of the assault
statute and did not definitively answer whether assault requires a specific intent. See id. at 94.
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constitution expressly provides for certification to the Florida Supreme Court of
state law questions that are ‘determinative of the cause and for which there is no
controlling precedent of the supreme court of Florida.’” Id. (quoting Fla. Const.
art. V, § 3(b)(6)); see also Fla. Stat. § 25.031; Fla. R. App. P. 9.150.
Accordingly, we certify to the Florida Supreme Court the following
questions of law:
1. Does the first element of assault as defined in Fla. Stat. §
784.011(1) -- “an intentional, unlawful threat by word or act to do
violence to the person of another” -- require specific intent?
2. If not, what is the mens rea required to prove that element of the
statute?
“Our statement of the certified questions is merely suggestive and is not meant to
limit the inquiry of the Florida Supreme Court.” Conage, 976 F.3d at 1263 (“As
this Court has explained many times, ‘the particular phrasing used in the certified
question[s] is not to restrict the Supreme Court’s consideration of the problems
involved and the issues as the Supreme Court perceives them to be in its analysis
of the record certified in this case.’”) (citation omitted).
OPINION AND JUDGMENT VACATED AND QUESTIONS CERTIFIED.
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