United States v. Charles Calvin Foster

Case: 12-12121 Date Filed: 11/01/2012 Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 12-12121
Non-Argument Calendar
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D.C. Docket No. 1:11-cr-00017-MP-GRJ-1

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,

versus

CHARLES CALVIN FOSTER,

lllllllllllllllllllllllllllllllll lllllllDefendant-Appellant.

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Appeal from the United States District Court
for the Northern District of Florida
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(November 1, 2012)

Before TJOFLAT, MARCUS and MARTIN, Circuit Judges.

PER CURIAM:
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Charles Calvin Foster appeals his 150-month sentence for possession of a

firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g) and 924(e). The

district court found that Foster was an armed career criminal under U.S.S.G. § 4B1.4,

based in part on two prior Florida convictions for resisting an officer with violence,

Fla. Stat. § 843.01, which the court deemed “violent felon[ies]” under the Armed

Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1). On appeal, Foster argues that

the district court’s finding and the Eleventh Circuit precedent on which it relied are

erroneous. After careful review, we affirm.

We review de novo a district court’s ruling that an offense is a “violent felony”

under the ACCA. United States v. McGill, 618 F.3d 1273, 1274-75 (11th Cir. 2010).

We may affirm on any basis supported by the record, even if not relied on by the

district court. United States v. Al-Arian, 514 F.3d 1184, 1189 (11th Cir. 2008).

To determine whether an offense constitutes a “violent felony,” we use a

categorical approach, looking only at the fact of the defendant’s conviction and the

statutory definition of the prior offense. United States v. Llanos-Agostadero, 486

F.3d 1194, 1196-97 (11th Cir. 2007). In so doing, we have applied the same analysis

to both violent felony enhancements under the ACCA and career offender provisions

in the sentencing guidelines, although the provisions differ slightly in their wording.

See, e.g., United States v. Lockley, 632 F.3d 1238, 1243 n.5 (11th Cir. 2011).

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Florida law 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. The ACCA defines

a “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 explosives, or
otherwise involves conduct that presents a serious potential risk of
physical injury to another . . . .

18 U.S.C. § 924(e)(2)(B) (emphasis added). Thus, a crime is a “violent felony” if it

satisfies either the “elements clause,” id. § 924(e)(2)(B)(i), or the “residual clause,”

id. § 924(e)(2)(B)(ii), of the statute.

In United States v. Romo-Villalobos, 674 F.3d 1246 (11th Cir. 2012), cert.

denied, __ S. Ct. __ (Oct. 1, 2012) (No. 11-10997), the precedent relied upon by the

district court, we held that a violation of Fla. Stat. § 843.01 constituted a “crime of

violence” under U.S.S.G. § 2L1.2(b)(1)(A)(ii). There, “crime of violence” was

defined under the sentencing guidelines nearly identically with “violent felony” under

subsection (B)(i) of the ACCA (the elements clause), i.e., as an offense that “has as

an element the use, attempted use, or threatened use of physical force against the

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person of another.” Romo-Villalobos, 674 F.3d at 1248-49; compare 18 U.S.C. §

924(e)(2)(B)(i), with U.S.S.G. § 2L1.2, comment. (n.1(B)(iii)).

In addition, in United States v. Nix, 628 F.3d 1341 (11th Cir. 2010), cert.

denied, 132 S.Ct. 258 (2011), we reviewed the offense found in Fla. Stat. 843.01

under subsection (B)(ii) of the ACCA (the residual clause), and determined that it

constituted a “violent felony.” Id. at 1342. We are bound to follow Romo-Villalobos

and Nix unless and until they are overruled by this Court en banc or by the Supreme

Court. United States v. Vega-Castillo, 540 F.3d 1235, 1236 (11th Cir. 2008)

(quotations omitted) (“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.’”).

In this case, the district court did not err in concluding that Foster’s two prior

Florida convictions for resisting an officer with violence constitute “violent felonies”

within the ACCA. First, Romo-Villalobos held that a violation of Fla. Stat. § 843.01

constituted a “violent felony” under an enhancement provision of the sentencing

guidelines that contains nearly identical language to subsection (B)(i) of the ACCA.

Romo-Villalobos, 674 F.3d at 1248-49. Moreover, in Nix, we reviewed the offense

and determined that it constituted a “violent felony” under subsection (B)(ii) of the

ACCA. Nix, 628 F.3d at 1342. Accordingly, our prior precedent dictates that a

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violation of Fla. Stat. § 843.01 constitutes a violent felony under both the elements

clause and the residual clause of the statute. We affirm Foster’s sentence.

AFFIRMED.

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