United States v. Anthony Barrow

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-10315 JAN 19, 2012
Non-Argument Calendar JOHN LEY
________________________ CLERK

D.C. Docket No. 1:08-cr-20731-JAL-1

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,

versus

ANTHONY BARROW,

llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.

________________________

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

(January 19, 2012)

Before CARNES, WILSON and BLACK, Circuit Judges.

PER CURIAM:
Anthony Barrow appeals his total 144-month sentence of imprisonment,

originally imposed after he pled guilty to two counts of possessing with intent to

distribute crack cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii).

The district court reimposed the 144-month sentence after having granted

Barrow’s 28 U.S.C. § 2255 motion to vacate the original sentence. On appeal,

Barrow argues that the district court erred by including his prior conviction for

resisting a police officer with violence, under Fla. Stat. § 843.01, when applying

the career offender provision of the Sentencing Guidelines.

We apply de novo review to the district court’s decision to sentence a

defendant as a career offender under the Sentencing Guidelines. United States v.

Whitson, 597 F.3d 1218, 1220 (11th Cir. 2010).

In order to be sentenced as a career offender under the Sentencing

Guidelines, a defendant must have at least two felony convictions of either a crime

of violence or a controlled substance offense. U.S.S.G. § 4B1.1(a). For purposes

of the career offender provision, the Guidelines define a “crime of violence” as

one that “(1) has as an element the use, attempted use, or threatened use of

physical force against the person of another, or (2) is burglary of a dwelling, arson,

or extortion, involves use of explosives, or otherwise involves conduct that

2
presents a serious potential risk of physical injury to another.” U.S.S.G.

§ 4B1.2(a).

In United States v. Nix, 628 F.3d 1341, 1342 (11th Cir. 2010), this Court

held that a conviction for resisting a police officer with violence, in violation of

Fla. Stat. § 843.01, constitutes a “violent felony” under the “residual clause” of the

Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(ii). We have

repeatedly recognized that the ACCA’s definition of “violent felony” is “virtually

identical” to U.S.S.G. § 4B1.2(a)’s definition of “crime of violence.” United

States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008). As a result, Nix forecloses

Barrow’s argument that a conviction under Fla. Stat. § 843.01 is not a “crime of

violence” under U.S.S.G. § 4B1.2(a).

We reject Barrow’s contention that the Supreme Court’s decision in

Johnson v. United States, 559 U.S. ----, 130 S.Ct. 1265 (2010), compels this Court

to modify our binding precedent. In Johnson, the Supreme Court held that a

battery under Fla. Stat. § 784.03(1)(a) is not a “violent felony” under the ACCA.

Id. at 1270. The Johnson court, however, explicitly declined to consider the

meaning of “violent felony” under the ACCA’s “residual clause.” Id. at 1274.

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Because the ACCA’s “residual clause” is at issue here, Johnson is not clearly on

point and does not bind us in this case.1 See Archer, 531 F.3d at 1352.

Accordingly, the district court did not err in sentencing Barrow as a career

offender based on his prior conviction for resisting an officer with violence.

AFFIRMED.

1
We find persuasive this Court’s analysis in United States v. Jackson, ---- F. App’x ----,
2011 WL 4360910, at *1 (11th Cir. 2011) (unpublished). In Jackson, a panel of this Court
affirmed a determination that resisting an officer with violence under Florida law was a “violent
felony” within the meaning of the ACCA. Id. The Supreme Court, however, subsequently
remanded the case for further consideration in light of Johnson. On remand, this Court noted Nix
remained binding precedent and again held that “resisting an officer with violence constitutes a
violent felony within the meaning of the residual clause of the ACCA.” Id.