[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-15350 MARCH 20, 2012
________________________ JOHN LEY
CLERK
D.C. Docket No. 8:10-cr-00313-RAL-EAJ-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HECTOR MANUEL ROMO-VILLALOBOS,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(March 20, 2012)
Before MARCUS, COX and SILER,* Circuit Judges.
PER CURIAM:
*
Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting by
designation.
Hector Romo-Villalobos appeals his convictions and 37-month total
sentence for illegal reentry after a felony, pursuant to 8 U.S.C. § 1326(a) and
(b)(1), and for illegal reentry after conviction of false representation, pursuant to 8
U.S.C. §§ 1325(a)(1) and 1329. On appeal, he argues that: (1) he should not have
received a 16-level sentencing enhancement based on his Florida conviction for
resisting an officer with violence, because Florida’s statute does not constitute a
crime of violence; and (2) his 37-month sentence was unreasonable because the
district court failed to grant him a variance based on sentencing disparities caused
by the Middle District of Florida’s lack of a fast-track program. After careful
review, we affirm.
We review de novo whether a defendant’s prior conviction qualifies as a
crime of violence under the sentencing guidelines. United States v. Palomino
Garcia, 606 F.3d 1317, 1326 (11th Cir. 2010). We review the sentence a district
court imposes for “reasonableness,” which “merely asks whether the trial court
abused its discretion.” United States v. Pugh, 515 F.3d 1179, 1189 (11th Cir.
2008) (quoting Rita v. United States, 551 U.S. 338, 351 (2007)).
The relevant facts and procedural history are these. A grand jury indicted
Romo-Villalobos on two counts, charging him with: (1) illegal reentry after
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conviction of a felony; and (2) illegal reentry after conviction of false
representation. He pled guilty to both counts without a plea agreement.
Prior to this indictment, Romo-Villalobos, a native and citizen of Mexico,
had been removed from the United States twice before and had illegally reentered
after each deportation. He was deported the first time after being convicted for
false representation. He was deported the second time after being convicted in
Florida for resisting an officer with violence, under Florida Statute § 843.01.
In sentencing Romo-Villalobos for the instant illegal reentry offenses, the
district court imposed a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii)
for having been previously deported after a conviction for a felony crime of
violence, relying on the Florida conviction. The district court then imposed a
3-level reduction for acceptance of responsibility, yielding a total offense level of
21. Romo-Villalobos had one criminal history point, which established a criminal
history category of I. Based on his criminal history category of I and the adjusted
offense level of 21, his resulting guideline range was 37-46 months’
imprisonment. The court sentenced Romo-Villalobos to 37 months’ imprisonment
as to count one and 24 months’ imprisonment as to count two, the terms to run
concurrently. In explaining the sentence, the court said that it had considered all
the statutory factors, especially deterrence and protection of the public. It
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concluded that, after considering the sentencing guidelines and all of the 18 U.S.C.
§ 3553(a) factors, the sentence it imposed was more than reasonable and was
sufficient but not greater than necessary to comply with the statutory purposes of
sentencing. This timely appeal follows.
First, we disagree with Romo-Villalobos’s argument that the district court
erred in imposing a 16-level enhancement for a prior conviction of a crime of
violence. Under U.S.S.G. § 2L1.2(b)(1)(A)(ii), a defendant receives a 16-level
enhancement if his conviction has any criminal history points and if he was
previously “deported, or unlawfully remained in the United States, after . . . a
conviction for a felony that is . . . a crime of violence.” In pertinent part, a “crime
of violence” under this guideline means any “offense under federal, state, or local
law that has as an element the use, attempted use, or threatened use of physical
force against the person of another.” U.S.S.G. § 2L1.2 cmt. n.1(B)(iii) (the
“elements clause”). To determine whether a prior conviction is a qualifying
offense for sentencing enhancement purposes, we typically apply a categorical
approach. Palomino Garcia, 606 F.3d at 1328. That is, we look only at the fact of
conviction and the statutory definition of the prior offense. Id. at 1336.
The elements clause at issue here is the same as the elements clauses of the
Armed Career Criminal Act of 1984 (“ACCA”) and the career-offender guidelines.
4
Specifically, the ACCA provides a 15-year mandatory minimum sentence for any
convicted felon who possesses a firearm or ammunition after having been
convicted of three violent felonies or serious drug offenses, 18 U.S.C. § 924(e)(1),
and defines “violent felony” as “any crime punishable by imprisonment for a term
exceeding one year . . . that . . . has as an element the use, attempted use, or
threatened use of physical force against the person of another,” id. §
924(e)(2)(B)(i). Similarly, the career-offender guidelines provide for an enhanced
sentence for any convicted felon with three convictions for crimes of violence or
controlled substance offenses, U.S.S.G. § 4B1.1(a)-(b), and define “crime of
violence” as “any offense under federal or state law, punishable by imprisonment
for a term exceeding one year, that . . . has as an element the use, attempted use, or
threatened use of physical force against the person of another,” U.S.S.G. §
4B1.2(a)(1). Consequently, cases dealing with the elements clauses of the ACCA
and the career offender guidelines are instructive in this case. Cf. United States v.
Lockley, 632 F.3d 1238, 1241 (11th Cir. 2011).
In Johnson v. United States, 130 S. Ct. 1265 (2010), the Supreme Court
recently instructed that the type of “physical force” required under the ACCA’s
elements clause is “violent force -- that is, force capable of causing physical pain
or injury to another person.” Id. at 1271 (holding that simple battery -- the actual
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and intentional touching of another -- does not constitute a predicate offense
because the ACCA requires “violent force,” not merely offensive contact). It
further held that while the meaning of “physical force” is a question of federal law,
not state law, a federal court is bound by the state supreme court’s interpretation of
the elements of the underlying state statute at issue. Id. at 1269.1
Florida Statute § 843.01 provides in pertinent part: “Whoever 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 a felony of the third degree . . . .” Id. (emphasis added). As for the
nature of the force required to sustain a conviction under § 843.01, Florida’s
appellate courts have held that “violence is a necessary element of the offense.”
Rawlings v. State, 976 So. 2d 1179, 1181 (Fla. 5th DCA 2008); see also Walker v.
State, 965 So. 2d 1281, 1284 (Fla. 2d DCA 2007) (“One of the elements of
resisting arrest with violence under section 843.01 is either offering to do violence
or actually doing it.”). Moreover, Florida’s courts have held that “doing violence”
1
When the state supreme court has not definitively determined a point of state law, we are
bound to adhere to decisions of the state’s intermediate courts absent some indication that the
state supreme court would hold otherwise. Sculptchair, Inc. v. Century Arts, Ltd., 94 F.3d 623,
627 (11th Cir. 1996).
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in this context “plainly involves the use . . . of physical force or violence.” Harris
v. State, 5 So. 3d 750, 751 (Fla. 1st DCA 2009) (quotation omitted).2
While Johnson proscribes us from relying on state case law to determine
whether a crime requires “violent force,” it expressly directs us to look to state
cases to determine the elements of the state offense. 130 S. Ct. at 1269. So, even
though Rawlings, Walker and Harris analyzed whether § 843.01 qualifies as a
violent crime under the state sentencing scheme, we are permitted -- in fact,
required -- to rely on these same state cases when they describe the elements of the
crime, no matter the context. Thus, because Florida’s courts have concluded that
violence is a necessary element of § 843.01, we too conclude that it constitutes a
“crime of violence” for purposes of U.S.S.G. § 2L1.2(b)(1)(A)(ii).
Romo-Villalobos claims, nevertheless, that Florida’s courts have held that
the element of violence in § 843.01 can be satisfied by de minimus force, but we
are unpersuaded. For starters, in State v. Green, 400 So. 2d 1322 (Fla. 5th DCA
1981), the defendant had moved pretrial to dismiss the charge on the ground that
2
Thus, although Johnson held that the Florida crime of felony battery, which required
“proof of only the slightest unwanted physical touch,” could not categorically be considered a
“violent felony” under the ACCA’s elements clause, 130 S. Ct. at 1269, the Florida crime of
resisting an officer with violence significantly differs from the Florida crime of battery on a law
enforcement officer. In United States v. Williams, 609 F.3d 1168 (11th Cir. 2010), we
distinguished the two crimes, recognizing that resisting an officer with violence “requires proof
of conduct or attempted conduct involving threatened or actual physical force with violence.” Id.
at 1169 n.1.
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he had merely “wiggled and struggled” against officers attempting to arrest him,
forcing the officers to place him in a chokehold. Id. at 1323. In reversing the trial
court’s order of dismissal, the appellate court did not suggest that minimal
unwanted physical contact would be sufficient; rather, the court emphasized the
“ambiguity” of the defendant’s description of his conduct and said that whether
the defendant’s actions “constitute[d] ‘violence’” within the meaning of Fla. Stat.
§ 843.01 was an issue of fact for the jury to decide. Id. at 1323-24. In so holding,
it stressed that it was construing the evidence in a light “most favorable to” the
state, and that inferences were “resolved against the defendant.” Id. at 1324.
Given the posture in which it was viewing the case, and its repeated references to
this posture, we cannot conclude, contrary to Romo-Villalobos’s claim, that de
minimis force is sufficient to establish violence in § 843.01.
Similarly, in Wright v. State, 681 So. 2d 852 (Fla. 5th DCA 1996), an
officer repeatedly attempted to arrest the defendant, but the defendant “pushed and
fought him off.” Id. at 853. Another officer “eventually tackled” the defendant
and “sat on his back,” but had difficulty handcuffing the defendant. Id. The
officer had to resort to “a ‘hog-tie position,’ completely cutting off the defendant’s
breathing” because he “was struggling, kicking, and flailing his arms and legs.”
Id. Although the defendant “denied . . . hitting, kicking or resisting the officers
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with violence,” the court held that “the state was not required to prove that [the
defendant] actually struck either officer,” because the evidence was “sufficient to
show that he offered to do violence to the officers within the meaning of [the
statute].” Id. at 853-54 (emphasis added). Wright, therefore, involved a
defendant’s attempt to employ physical force -- by pushing, struggling, kicking
and flailing arms and legs -- that undeniably would have been “capable of causing
physical pain or injury to another person,” Johnson, 130 S. Ct. at 1271.
Romo-Villalobos also argues that § 843.01 cannot involve a “crime of
violence” because it only requires a mens rea of recklessness, which we have held
“does not satisfy the ‘use of physical force’ requirement under § 2L1.2’s definition
of ‘crime of violence.’” Palomino Garcia, 606 F.3d at 1336. He relies on the
Florida Supreme Court’s holding in Frey v. State, 708 So. 2d 918 (Fla. 2009), that
resisting an officer with violence does not require a specific intent to commit the
offense. Id. at 920. In Frey, the Florida Supreme Court considered “whether
resisting arrest with violence is a general intent or specific intent crime” in order
to determine whether a defendant’s requested instruction on a voluntary
intoxication defense should have been given. 708 So. 2d at 919-20. The Florida
Supreme Court held that “[t]he statute’s plain language reveals that no heightened
or particularized, i.e., no specific, intent is required for the commission of this
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crime, only a general intent to ‘knowingly and willfully’ impede an officer in the
performance of his or her duties.” Id. at 920.3
However, the Florida Supreme Court has never equated this general intent
crime with recklessness.4 Moreover, while recklessness crimes do not satisfy the
“crime of violence” provision, Palomino Garcia, 606 F.3d at 1336, neither this
Court nor the Supreme Court has said anything about general intent crimes, which
is what we have here. Indeed, Florida’s courts have spoken broadly about
“general intent” crimes in this way:
3
Romo-Villalobos’s argument that no intent is required for the “offering or doing
violence” element of the crime runs directly contrary to the language of Frey, which held that the
entire crime is one of general intent. Indeed, the court specifically noted that it was answering
“whether resisting arrest with violence is a general intent or specific intent crime.” 708 So. 2d at
919-20. At no point did the Florida Supreme Court say that the statute required no general intent,
or that it in essence created strict liability for the crime.
4
The authorities that Romo-Villalobos provides for the proposition that general intent
crimes only require recklessness are unpersuasive. He first relies on a law review citation in a
non-precedential concurring-dissenting opinion in Frey, 708 So. 2d at 921 (Anstead, J.,
concurring in part and dissenting in part), which clearly does not establish binding Florida
precedent. He also relies on a case discussing the general intent required for a particular, and
different, crime -- aggravated assault -- and has not given us any reason to conclude that this
definition would apply to the crime of resisting an officer with violence. See DuPree v. State,
310 So. 2d 396, 399 (Fla. 2d DCA 1975) (“[T]he element of general intent in aggravated assault
may be satisfied by proof of wilful and reckless disregard of the safety of others.”). Lastly, as for
his reliance on Black’s Law Dictionary, its definition of “general intent crime” makes no
reference to recklessness; and while its definition of “general intent” says that it “usu[ally] takes
the form of recklessness (involving actual awareness of a risk and the culpable taking of that
risk) or negligence (involving blameworthy inadvertence),” this definition notably uses the word
“usually.” Moreover, this definition directly contradicts the only definition of “general intent”
we could find in Florida case law, as discussed infra.
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A “general intent” statute is one that prohibits either a specific voluntary
act or something that is substantially certain to result from the act (e.g.,
damage to a building is the natural result of the act of setting a building
afire). A person’s subjective intent to cause the particular result is
irrelevant to general intent crimes because the law ascribes to him a
presumption that he intended such a result. . . . Thus, in general intent
statutes words such as “willfully” or “intentionally,” without more,
indicate only that the person must have intended to do the act and serve
to distinguish that conduct from accidental (noncriminal) behavior or
strict liability crimes. . . .
Hentz v. State, 62 So. 3d 1184, 1190 (Fla. 4th DCA 2011) (quotation omitted;
emphasis added). In other words, Florida case law instructs that general intent
crimes -- of which § 843.01 is one -- typically require some form of “intent” and
are distinguishable from “accidental” or “strict liability” crimes. As a result, the
underpinning of our decision in Palomino Garcia -- that crimes requiring
recklessness fail to satisfy the “crime of violence” definition because recklessness
is “more akin to negligence,” “cannot be said to require the intentional use of
force,” and would “seem to include” accidental conduct, 606 F.3d at 1335-36
(quotation omitted) -- does not apply here.5 Because Florida’s general intent
crimes plainly require something more than recklessness, these kinds of crimes are
not exempted from the “crime of violence” definition.
5
In Palomino Garcia, we held that the Arizona crime of aggravated assault on a law
enforcement officer was not a “crime of violence,” because, unlike the Florida resisting-with-
violence statute, the Arizona assault statute expressly permitted a conviction for “reckless[]”
conduct that resulted in physical injury. 606 F.3d at 1332.
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Accordingly, as we held in United States v. Jones, 400 F. App’x 462 (11th
Cir. 2010) (unpublished), cert. denied, 131 S. Ct. 2128 (2011), a conviction under
Florida Statute § 843.01 “is sufficient for liability under the first prong of the
ACCA, 18 U.S.C. § 924(e)(2)(B)(i),” id. at 464 n.4, and therefore constitutes a
crime of violence for purposes of the elements clause of U.S.S.G. §
2L1.2(b)(1)(A)(ii). The district court did not err in imposing a 16-level
enhancement for a prior conviction of a crime of violence, based on
Romo-Villalobos’s resisting an officer with violence offense.
Finally, we remain unpersuaded by Romo-Villalobos’s argument that his
37-month sentence was unreasonable because the district court failed to grant him
a downward variance. We have held that a district court is not required to depart
from the applicable guidelines range based on the availability of fast-track
departures in only some districts. United States v. Vega-Castillo, 540 F.3d 1235,
1238 (11th Cir. 2008). In reaching this conclusion, we explained that any
disparities created by fast-track programs do not fall within the scope of the 18
U.S.C. § 3553(a) factors a district court considers in sentencing. Id. “Under the
prior precedent rule, we are bound to follow a prior binding precedent unless and
until it is overruled by this court en banc or by the Supreme Court.” Id. at 1236
(quotation omitted). Since we have held that arguments based on sentencing
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disparities created by fast-track programs fail, we are bound to conclude that
Romo-Villalobos’s argument based on such reasoning fails.
But in any event, even if we were to reconsider our prior precedent,
Romo-Villalobos would not qualify for the fast-track program. Pursuant to
U.S.S.G. § 5K3.1, “[u]pon motion of the Government, the court may depart
downward not more than 4 levels pursuant to an early disposition program
authorized by the Attorney General of the United States and the United States
Attorney for the district in which the court resides.” At the time of Romo-
Villalobos’s sentencing, the Attorney General’s guidance on fast-track programs
provided that they were not available for any case involving an offense designated
as a crime of violence, and furthermore, required a defendant to enter into a
written plea agreement including an agreement to the factual basis of the offense
conduct, a waiver of the pretrial motions described in Fed. R. Crim. P. 12(b)(3), a
waiver of appeal rights, and a waiver of the opportunity to seek collateral relief
under 28 U.S.C. § 2255 on any basis other than ineffective assistance of counsel.
See United States v. Arevalo-Juarez, 464 F.3d 1246, 1248 n.2 (11th Cir. 2006).
Because Romo-Villalobos has a prior conviction for a crime of violence
(resisting an officer with violence) and because he did not enter into a written plea
agreement -- two requirements by the Attorney General for fast-track programs --
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Romo-Villalobos did not meet the Attorney General’s requirements for a fast-track
program. Therefore, he would not have been entitled to fast-track relief even if the
Middle District of Florida were to have this kind of program. See United States v.
Vega-Castillo, 548 F.3d 980, 981-82 (11th Cir. 2008) (denying petition for
rehearing en banc) (Carnes, J., concurring) (“If we are going to take a case en banc
to reconsider our . . . precedents in light of the Kimbrough decision, it needs to be
one where . . . there is no apparent reason why the defendant would not have been
offered the benefits of an early disposition program if he had been in a district
with that kind of program.”). Accordingly, the district court did not err in failing
to grant Romo-Villalobos a variance, and we affirm.
AFFIRMED.
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