[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-12092 ELEVENTH CIRCUIT
FEB 17, 2012
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D.C. Docket No. 8:09-cr-00305-SDM-EAJ-1
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
SAMUEL ALLEN SANDERS,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(February 17, 2012)
Before BARKETT, MARTIN, and ANDERSON, Circuit Judges.
PER CURIAM:
The government appeals Samuel Allen Sanders’s sentence of 100 months’
imprisonment, for conspiracy to possess with intent to distribute fifty grams or
more of cocaine base, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A)(iii). In
sentencing Sanders, the district court found that Sanders was not a career offender
under the Sentencing Guidelines because Sanders’s prior Florida conviction under
Fla. Stat. § 843.01 for resisting a law enforcement officer with violence1 was not a
“crime of violence” for purposes of the career-offender enhancement. As a result,
the court determined that Sanders did not qualify for a sentence enhancement
pursuant to U.S.S.G. § 4B1.1.
On appeal, the government challenges the court’s finding and insists that a
violation of Fla. Stat. § 843.01 is a “crime of violence” under U.S.S.G. § 4B1.2.
The government further emphasizes that we are bound by this Court’s prior
decision in United States v. Nix, 628 F.3d 1341 (11th Cir. 2010), which holds that
a violation of Fla. Stat. § 843.01 is a “violent felony” under the residual clause of
the Armed Career Criminal Act (“ACCA”). Id. at 1342. Conversely, Sanders
claims that the offense is not a “crime of violence” under U.S.S.G. § 4B1.2 in light
of precedent from the Supreme Court, which, he argues, undermines the holding in
Nix to the point of abrogation.
1
Fla. Stat. § 843.01 makes it a felony to “knowingly and willfully resist[], obstruct[], or
oppose[] any officer . . . in the lawful execution of any legal duty, by offering or doing violence
to the person of such officer.” Fla. Stat. § 843.01.
2
We review de novo whether a defendant’s prior conviction qualifies as a
crime of violence under the Sentencing Guidelines. United States v. Lockley, 632
F.3d 1238, 1240 (11th Cir. 2011). In doing so, we apply the same analysis to the
Sentencing Guidelines’ career offender enhancement as we do to the violent felony
enhancement under the ACCA, id. at 1243 n.5; United States v. Whitson, 597 F.3d
1218, 1220 (11th Cir. 2010), even though the provisions differ slightly in their
wording, compare U.S.S.G. § 4B1.2(a), with 18 U.S.C. § 924(e)(2)(B).
Consequently, cases that address the classification of offenses as violent felonies
under the ACCA inform our conclusion regarding whether such offenses qualify as
crimes of violence under § 4B1.2(a). United States v. Alexander, 609 F.3d 1250,
1253 (11th Cir. 2010).
The district court’s determination that Sander’s prior conviction for resisting
arrest under Fla. Stat. § 843.01 did not qualify as a crime of violence was a
reasonable conclusion under then-existing precedent, especially given Justice
Scalia’s recent observations about efforts to clarify what distinguishes “violent
felonies” from non-violent ones under the ACCA. See Sykes v. United States, __
U.S. __, __,131 S. Ct. 2267, 2284 (2011) (Scalia, J., dissenting) (“As was perhaps
predictable, instead of producing a clarification of the Delphic residual clause,
today’s opinion produces a fourth ad hoc judgment that will sow further
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confusion. . . . We should admit that ACCA’s residual provision is a drafting
failure and declare it void for vagueness.”). At the time of Sander’s sentencing, the
district court did not have the benefit of our decisions in Nix and United States v.
Hayes, 409 F. App’x 277 (11th Cir. 2010).
In Nix, we held that a defendant’s conviction for resisting a law enforcement
officer with violence, in violation of Fla. Stat. § 843.01, constituted a predicate
“violent felony” under the ACCA. 628 F.3d at 1342. In doing so, we adopted the
reasoning of the Court in Hayes, which holds that § 843.01 is a “violent felony”
under the ACCA’s residual clause because it presents a serious potential risk of
physical injury to another, and involves elements of purposeful violence and
aggression. Nix, 628 F.3d at 1342; see Hayes, 409 F. App’x at 278–79.
Seeing no basis for distinguishing Nix, we conclude we are bound by it. See
United States v. Kaley, 579 F.3d 1246, 1255 (11th Cir. 2009) (emphasizing that
“[w]e may disregard the holding of a prior opinion only where that holding is
overruled” or undermined to the point of abrogation “by the Court sitting en banc
or by the Supreme Court” (quotation marks omitted)); see also Garrett v. Univ. of
Ala. at Birmingham Bd. of Trs., 344 F.3d 1288, 1292 (11th Cir. 2003) (“Without a
clearly contrary opinion of the Supreme Court or of this court sitting en banc, we
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cannot overrule a decision of a prior panel of this court . . . .” (quotation marks
omitted)). Even if, as Sanders points out, there is serious tension between Nix and
recent Supreme Court case law, we may not disregard prior panel precedents as
overruled or abrogated by the Supreme Court unless the conflicting Supreme Court
decision is “clearly on point.” Id. (quotation marks omitted); see also United
States v. Vega-Castillo, 540 F.3d 1235, 1237 (11th Cir. 2008) (explaining that
“[f]or the Supreme Court to overrule a case, its decision must have actually
overruled or conflicted with this court’s prior precedent,” and that “[e]ven if the
reasoning of an intervening high court decision is at odds with a prior appellate
court decision, that does not provide the appellate court with a basis for departing
from its prior decision” (quotation marks omitted)). Under these constraints, we
have little choice but to vacate the district court’s decision and remand for
resentencing in light of this Court’s decision in Nix.2
Although we reverse this case and remand for resentencing, we express no
opinion as to the reasonableness of the ultimate sentence imposed by the district
court, which is in a superior position to evaluate all of the relevant sentencing
2
Given that our holding in Nix decides the issue, we do not address the government’s
argument that violation of Fla. Stat. § 843.01 is also a “crime of violence” under the elements
clause of the Sentencing Guidelines’ career-offender enhancement.
5
factors under 18 U.S.C. § 3553(a), of which the Sentencing Guidelines are only
one part.
VACATED AND REMANDED.
6