[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
Aug. 13, 2009
No. 08-14198 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00053-CR-J-32HTS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTHONY TYRONE GOOCH,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(August 13, 2009)
Before HULL, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Anthony Gooch appeals his 180-month sentence for possession of a firearm
by a convicted felon. He received an enhanced sentence under the Armed Career
Criminal Act (“ACCA”), 18 U.S.C. § 924(e), on the basis that his prior offense of
lewd or lascivious conduct under Fla. Stat. § 800.04(6) was a violent felony.
Gooch first argues that his state conviction was not a crime of violence
under either the “elements” clause of § 924(e)(2)(B)(i) or the “residual” clause of
§ 924(e)(2)(B)(ii). First, Gooch argues that his conviction was not a crime of
violence under § 924(e)(2)(B)(i) because Ramsey v. INS, 55 F.3d 580 (11th Cir.
1995), held that a violation of § 800.04 could be committed without physical force.
In the alternative, Gooch argues that his conviction did not satisfy
§ 924(e)(2)(B)(ii) simply because it presented a serious potential risk of physical
injury to another. Specifically, Gooch argues that this Court’s decision in United
States v. Rutherford, 175 F.3d 899 (11th Cir. 1999), was superceded by United
States v. Begay, __ U.S. __, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), which held
that a predicate offense no longer qualifies as a violent felony simply because it
involves conduct that presents a serious potential risk of physical injury to another.
Gooch contends that his conviction fails to meet § 924(e)(2)(B)(ii) because it is not
“roughly similar, in kind, as well as in degree of risk posed” to the types of crimes
listed as examples of qualifying felonies in § 924(e)(2)(B)(ii), namely burglary,
arson, extortion, and crimes involving the use of explosives. Gooch argues that his
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conviction is analogous to the DUI conviction at issue in Begay because
§ 800.04(6) imposes strict liability insofar as (1) the touching need not be against
the will of the victim, (2) the perpetrator’s ignorance of the victim’s age is not a
defense to prosecution, and (3) he did not need to have criminal intent to violate
the statute. Further, his conviction was not roughly similar in degree of risk to the
crimes posed in the Begay examples.
We review de novo whether a conviction is a “violent felony” under the
ACCA. United States v. James, 430 F.3d 1150, 1153 (11th Cir. 2005). We may
affirm a criminal conviction based on any grounds supported in the record. United
States v. Mejia, 82 F.3d 1032, 1035 (11th Cir. 1996); see also United States v.
Simmons, 368 F.3d 1335, 1342 (11th Cir. 2004) (stating, in a criminal case, that
we have “the authority to affirm the district court, even if it is on a ground other
than that upon which it based its decision.”).
The ACCA provision applies to defendants subject to an enhanced sentence
under 18 U.S.C. § 924(e) for having at least three prior convictions for “violent
felonies,” “serious drug offenses,” or both. U.S.S.G. § 4B1.4(a). Section
924(e)(2)(B) defines the term “violent felony” as any felony 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
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explosives, or otherwise involves conduct that presents a serious potential risk of
physical injury to another . . . ” 18 U.S.C. § 924(e)(2)(B).
In determining whether a particular offense falls within this definition, the
Supreme Court has stated that we must “look[] only to the statutory definitions of
the prior offenses, and not to the particular facts underlying those convictions.”
Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 2159, 109 L.Ed.2d 607
(1990). In limited circumstances, the district court may examine the conduct
surrounding a conviction, but only if “ambiguities in the judgment make the crime
of violence determination impossible from the face of the judgment itself.” United
States v. Spell, 44 F.3d 936, 939 (11th Cir. 1995). In such a case, the district court
“may rely only on the ‘charging document, written plea agreement, transcript of
plea colloquy, and any explicit factual finding by the trial judge to which the
defendant assented.’” United States v. Aguilar-Ortiz, 450 F.3d 1271, 1274 (11th
Cir. 2006) (quoting Shepard, 544 U.S. at 15, 125 S.Ct. at 1257). We have held that
“our cases interpreting ‘crime of violence’ under [U.S.S.G.] § 4B1.2 provide
important guidance in determining what is a ‘violent felony’ under the ACCA
because the definitions for both terms are virtually identical.” United States v.
Taylor, 489 F.3d 1112, 1113 (11th Cir. 2007) (quotations and citations omitted).
“The plain meaning of physical force is [p]ower, violence, or pressure
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directed against a person consisting in a physical act.” United States v. Griffith,
455 F.3d 1339, 1342 (11th Cir. 2006) (quotation & citation omitted). “A person
cannot make physical contact-particularly of an insulting or provoking nature-with
another without exerting some level of physical force.” Id. In interpreting a statute
similar to § 924(e)(2)(B), we rejected an argument that physical force requires
violent force. See id. at 1343 (interpreting the 18 U.S.C. § 922(g)(9) requirement
that the prior offense of conviction have as an “element, the use or attempted use of
physical force, or the threatened use of a deadly weapon”). We have also
disagreed with interpretations of physical force that required more than
“‘Newtonian mechanics’ . . . [or] ‘de minimis’ touching,” stating that Congress
could have inserted “‘violent’ before the words ‘physical force’” but did not do so.
Id. at 1343-45. We have held that a violation of Fla. Stat. § 784.085 for “Battery of
a Child by Throwing, Tossing, Projecting, or Expelling Certain Fluids or
Materials” involved physical force and was a crime of violence for purposes of the
career offender enhancement. United States v. Young, 527 F.3d 1274, 1278 (11th
Cir. 2008) (“The impact of the fluids against the child creates pressure and this
minimal contact satisfies the requirement of physical force.”).
The 2001 version of Fla. Stat. § 800.04(6) at issue in Gooch’s case provided:
(a) A person who:
1. Intentionally touches a person under 16 years of age in a lewd
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or lascivious manner; or
2. Solicits a person under 16 years of age to commit a lewd or
lascivious act commits lewd or lascivious conduct
(b) An offender 18 years of age or older who commits lewd or lascivious
conduct commits a felony of the second degree . . .
Fla. Stat. § 800.04(6) (2001). Because Fla. Stat. § 800.04(6)(a) is written in the
disjunctive, it can be violated by either touching or solicitation. Given this
ambiguity, the district court was permitted to inquire into the conduct surrounding
Gooch's conviction by looking at, inter alia, the charging information.
Aguilar-Ortiz, 450 F.3d at 1274. The certified state information admitted by the
sentencing court demonstrated that Gooch violated § 800.04(6) by intentionally
touching a child under the age of 16 in a lewd or lascivious manner when Gooch
was over the age of 18.
While this Court has never directly addressed whether a conviction under §
800.04(6) is a violent felony for purposes of the ACCA, the intentional touching of
a child under 16 years old involves "physical force" as the Court has interpreted the
term in previous cases. Young, 527 F.3d at 1278. Gooch is correct that Ramsey
noted that a violation of § 800.04 might be accomplished without the use of
physical force. Ramsey, 55 F.3d at 583. However, the violation at issue in this
case involved actual touching and therefore Gooch’s offense was accomplished
with physical force even more involved than that at issue in Young; thus, the
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holding in Ramsey is irrelevant. Hence, based on this Court’s previous holdings,
Gooch’s conviction for lewd or lascivious conduct involved physical force and
should be considered a violent felony for purposes of § 924(e)(2)(B)(i) of the
ACCA. Because § 924(e)(2)(B)(i) is satisfied, this Court need not address the
parties’ arguments regarding whether the violation of § 800.04(6) also falls within
the residual provision of § 924(e)(2)(B)(ii). Thus, the district court did not err in
finding that Gooch’s conviction under § 800.04(6) was a violent felony for
purposes of § 924(e)(2)(B)(i).
Second, Gooch contends that his constitutional rights were violated when the
district court gave him a sentence enhancement under the ACCA based on three
prior convictions that he did not admit to at his guilty plea hearing. Gooch notes
that while the Supreme Court has not overturned its decision in Almendarez-Torres
v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), it has
noted problems with the decision.
We review properly preserved constitutional claims de novo, but reverse
only for harmful error. United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005).
In Almendarez-Torres, the Supreme Court held that a prior conviction is not a fact
that must be alleged in the indictment or found by a jury beyond a reasonable
doubt. See United States v. Shelton, 400 F.3d 1325, 1329 (11th Cir. 2005). The
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Supreme Court’s subsequent seminal decisions in Apprendi v. New Jersey, 530
U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d. 435 (2000), Blakely v. Washington, 542
U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d. 403 (2004), and United States v. Booker,
543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), have not disturbed the
holding of Almendarez-Torres. See Shelton, 400 F.3d at 1329. Moreover, in
Booker, the Supreme Court stated that “[a]ny fact (other than a prior conviction)
which is necessary to support a sentence exceeding the maximum authorized by the
facts established by a plea of guilty or a jury verdict must be admitted by the
defendant or proved to a jury beyond a reasonable doubt.” Booker, 543 U.S. at
244, 125 S.Ct. at 756 (emphasis added). “Although recent decisions, including
Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005),
may arguably cast doubt on the future prospects of Almendarez-Torres’s holding
regarding prior convictions, the Supreme Court has not explicitly overruled
Almendarez-Torres. As a result, we must follow Almendarez-Torres.” United
States v. Camacho-Ibarquen, 410 F.3d 1307, 1316 n.3 (11th Cir. 2005).
The district court did not err in applying the ACCA enhancement by relying
on prior convictions to which Gooch did not admit. Accordingly, we affirm.
AFFIRMED.1
1
Gooch’s motion for stay of proceedings and request for oral argument are
DENIED.
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