USCA11 Case: 19-11484 Document: 53-1 Date Filed: 04/25/2023 Page: 1 of 12
[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 19-11484
Non-Argument Calendar
____________________
FRED SOMERS,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 4:16-cv-00017-RH-MJF
____________________
USCA11 Case: 19-11484 Document: 53-1 Date Filed: 04/25/2023 Page: 2 of 12
2 Opinion of the Court 19-11484
Before JILL PRYOR, ANDERSON, and MARCUS, Circuit Judges.
MARCUS, Circuit Judge:
Fred Somers appeals the district court’s denial of his § 2255
habeas petition to vacate his sentence of 211 months’ imprison-
ment on the ground that he was sentenced as an armed career crim-
inal but does not qualify as one. He argues that his prior conviction
in Florida for aggravated assault with a deadly weapon cannot
serve as a predicate offense under the Armed Career Criminal Act
(“ACCA”) because it can be committed with a mens rea of reckless-
ness, and that, without this predicate offense, he does not have
three qualifying convictions, and he must be resentenced.
After careful review, and with the benefit of the Florida Su-
preme Court’s answer to our certified questions, we are persuaded
that aggravated assault under Florida law requires a mens rea of at
least knowing conduct and, accordingly, that it qualifies as an
ACCA predicate offense under Borden v. United States, 141 S. Ct.
1817 (2021). Somers therefore has the requisite three predicate of-
fenses under the ACCA, and he was properly sentenced by the dis-
trict court as an armed career criminal. We affirm.
I.
On November 2, 2012, Somers pled guilty in the United
States District Court for the Northern District of Florida to one
count each of being a felon in possession of a firearm in violation
of 18 U.S.C. §§ 922(g)(1) and 924(a), and possession of an
USCA11 Case: 19-11484 Document: 53-1 Date Filed: 04/25/2023 Page: 3 of 12
19-11484 Opinion of the Court 3
unregistered firearm in violation of 26 U.S.C. §§ 5861(d) and 5871.
He was sentenced to a 211-month term of imprisonment on the
felon-in-possession charge -- which reflected a sentencing enhance-
ment under the ACCA -- and a 120-month term of imprisonment
on the other charge, to run concurrently. Relevant for our pur-
poses, one of the necessary predicate offenses for the ACCA en-
hancement was a Florida conviction for aggravated assault with a
deadly weapon. The other predicate offenses that formed the basis
for the sentencing enhancement were Florida convictions for re-
sisting arrest with violence and battery on a law enforcement of-
ficer; false imprisonment; burglary of a structure; and a Maryland
conviction for conspiracy to distribute heroin. Somers appealed his
sentence, and we affirmed. United States v. Somers, 591 F. App’x
753 (11th Cir. 2014) (“Somers I”).
On February 9, 2016, with about three years of his sentence
down and many more to go, Somers filed an amended petition pur-
suant to 28 U.S.C. § 2255 to vacate his sentence in the district court.
He argued, among other things, that he no longer qualified as an
armed career criminal after the Supreme Court’s decision in John-
son v. United States, 576 U.S. 591, 597 (2015), which declared the
ACCA’s residual clause -- relied on by the government for two of
Somers’s predicate offenses, burglary and false imprisonment -- un-
constitutionally vague. Without these two convictions, which all
agree cannot support an ACCA enhancement under current law,
the three predicate offenses relied on by the government to support
Somers’s sentence are: Florida convictions for (1) aggravated
USCA11 Case: 19-11484 Document: 53-1 Date Filed: 04/25/2023 Page: 4 of 12
4 Opinion of the Court 19-11484
assault in violation of Fla. Stat. § 784.021 and (2) resisting arrest
with violence and battery on a law enforcement officer in violation
of Fla. Stat. §§ 843.01 and 784.07, respectively; and (3) a Maryland
conviction for conspiracy to distribute heroin in violation of the
state’s common law.
Somers also challenged in his habeas petition whether the
remaining three offenses could qualify as ACCA predicates. He ar-
gued that his conviction for resisting arrest lacked the mens rea
needed to qualify under the ACCA’s elements clause and that his
heroin conviction had not been established. Somers further
claimed, in his reply brief, that his aggravated assault conviction
lacked the mens rea needed to qualify under the elements clause.
After considering a Report and Recommendation from a
magistrate judge, the district court denied the motion. It ruled that
even without the two predicate offenses under the residual clause,
Somers had three qualifying predicates “under the law of the cir-
cuit” so “Johnson’s invalidation of the 924(e) residual clause made
no difference” for purposes of Somers’s sentence. But the district
court granted Somers a certificate of appealability on only one
question: “whether a Florida conviction for aggravated assault is a
violent felony under the 18 U.S.C. § 924(e) element clause, as held
in Turner v. Warden Coleman FCI, 709 F.3d 1328 (11th Cir. 2013),
or is not a violent felony under the element clause because it can
be committed recklessly, see United States v. Golden, 854 F.3d
1256, 1257–58 (11th Cir. 2017) (Jill Pryor, J., concurring).”
USCA11 Case: 19-11484 Document: 53-1 Date Filed: 04/25/2023 Page: 5 of 12
19-11484 Opinion of the Court 5
Somers appealed on that issue. He reasoned that because
aggravated assault in Florida can be committed with a mens rea of
recklessness, it cannot serve as an ACCA predicate under this
Court’s decision in United States v. Palomino Garcia, 606 F.3d 1317
(11th Cir. 2010). We rejected this argument, finding that the con-
trolling precedent was Turner and that we were bound by this
precedent to hold that Florida aggravated assault qualifies as a vio-
lent felony under the ACCA’s elements clause. Somers v. United
States, 799 F. App’x 691, 693 (11th Cir. 2020) (“Somers II”), vacated
and superseded on reh’g, 15 F.4th 1049 (11th Cir. 2021) (“Somers
III”).
Somers petitioned for rehearing, and we held the mandate
in abeyance pending the Supreme Court’s decision in Borden,
which presented the question of whether a criminal offense quali-
fies as a “violent felony” for ACCA purposes if it can be committed
with a mens rea of recklessness. 141 S. Ct. at 1821–22. After the
Supreme Court decided Borden, holding that a reckless offense
does not qualify, id. at 1829–30 n.6, we requested additional brief-
ing from the parties, granted Somers’s petition for rehearing, and
vacated Somers II. Somers III, 15 F.4th at 1051. Because Florida’s
intermediate courts of appeal were divided on the mens rea re-
quired to commit aggravated assault under Florida law, we also
certified two questions to the Florida Supreme Court:
1. Does the first element of assault as defined in Fla.
Stat. § 784.011(1) -- “an intentional, unlawful
USCA11 Case: 19-11484 Document: 53-1 Date Filed: 04/25/2023 Page: 6 of 12
6 Opinion of the Court 19-11484
threat by word or act to do violence to the person
of another” -- require specific intent?
2. If not, what is the mens rea required to prove that
element of the statute?
The Florida Supreme Court did not respond directly to our
questions; instead, it rewrote them, as it was free to do, see United
States v. Conage, 976 F.3d 1244, 1263 (11th Cir. 2020), and an-
swered its own: “Does the first element of the assault statute, sec-
tion 784.011(1), require not just the general intent to volitionally
take the action of threatening to do violence but also that the actor
direct the threat at a target, namely another person?” Somers v.
United States, 355 So. 3d 887, 891 (Fla. 2022). It answered this ques-
tion affirmatively, holding that the Florida statute demands the spe-
cific intent to direct a threat at another person and therefore cannot
be violated by a reckless act. Id. at 892–93.
II.
When reviewing the denial of a § 2255 petition, we review
questions of law de novo and findings of fact for clear error. McKay
v. United States, 657 F.3d 1190, 1195 (11th Cir. 2011). We also re-
view de novo whether a conviction qualifies as a violent felony un-
der the ACCA’s elements clause. United States v. Deshazior, 882
F.3d 1352, 1354 (11th Cir. 2018).
This appeal hinges on a single question: whether aggravated
assault in Florida qualifies as a “violent felony” under the elements
clause of the ACCA. The answer turns on whether aggravated
USCA11 Case: 19-11484 Document: 53-1 Date Filed: 04/25/2023 Page: 7 of 12
19-11484 Opinion of the Court 7
assault can be committed in Florida with a mens rea of reckless-
ness. As we now understand Florida law, aggravated assault can-
not be committed with a mens rea of recklessness. It requires
knowing conduct, and it therefore qualifies as a “violent felony”
under the ACCA.
First, the basics. To qualify for an ACCA enhancement, a
defendant must have three prior convictions for either “a violent
felony or a serious drug offense.” 18 U.S.C. § 924(e)(1). Here, we
are concerned only with the first category. The ACCA defines a
“violent felony” as:
[A]ny crime punishable by imprisonment for a term
exceeding one year . . . that --
(i) has as an element the use, attempted use, or
threatened use of physical force against the per-
son of another[.]
Id. § 924(e)(2)(B). This definition is often referred to as the “ele-
ments clause.”
To determine whether an offense falls within the reach of
the elements clause, we employ the categorical approach. Borden,
141 S. Ct. at 1822 (plurality opinion). “Under that by-now-familiar
method . . . the facts of a given case are irrelevant. The focus is
instead on whether the elements of the statute of conviction meet
the federal standard.” Id. In this case, “that means asking whether
[the Florida] offense necessarily involves the defendant’s ‘use, at-
tempted use, or threatened use of physical force against the person
USCA11 Case: 19-11484 Document: 53-1 Date Filed: 04/25/2023 Page: 8 of 12
8 Opinion of the Court 19-11484
of another.’” Id. (citation omitted). If the “least of the acts crimi-
nalized” does, “the offense categorically qualifies as a violent felony
under the ACCA’s elements clause.” United States v. Oliver, 962
F.3d 1311, 1316 (11th Cir. 2020) (citation omitted). So we begin
with the statutory elements of aggravated assault in Florida.
Under Florida law, an aggravated assault is “an assault: (a)
With a deadly weapon without intent to kill; or (b) With an intent
to commit a felony.” Fla. Stat. § 784.021(1). An assault, in turn, is
“an intentional, unlawful threat by word or act to do violence to
the person of another, coupled with an apparent ability to do so,
and doing some act which creates a well-founded fear in such other
person that such violence is imminent.” Id. § 784.011(1). Putting
the Florida definition and the federal definition together, we must
determine whether “an intentional, unlawful threat by word or act
to do violence to the person of another, coupled with an apparent
ability to do so, and doing some act which creates a well-founded
fear in such other person that such violence is imminent” “has as
an element the use, attempted use, or threatened use of physical
force against the person of another.” Id.; 18 U.S.C. § 924(e)(2)(B).
The Florida Supreme Court has told us that, based on the
plain language of the Florida statute, assault under Florida law re-
quires a mens rea of at least knowing conduct and “an intentional
threat to do violence to another person,” Somers, 355 So. 3d at 891
-- or, in other words, a “specific intent to use, attempt to use, or
threaten to use physical force against the person of another,” Som-
ers III, 15 F.4th at 1054. To arrive at this conclusion, the Florida
USCA11 Case: 19-11484 Document: 53-1 Date Filed: 04/25/2023 Page: 9 of 12
19-11484 Opinion of the Court 9
Supreme Court relied on dictionary definitions for “threat” and “vi-
olence” and emphasized that, with respect to the former, the
“threat” must include “an intent . . . to do violence to another” and,
with respect to the latter, the violence must specifically be directed
“to the person of another.” Somers, 355 So. 3d at 891–92. Thus,
the Florida Supreme Court explained that
Whether or not section 784.011(1) requires “specific
intent” under any particular understanding of that
term, it certainly demands the intentional directing of
action or “[s]pecific intent to direct action at another”
to which Somers [III] refers. This is especially true
considering that the statute contemplates the exist-
ence of “such other person” who has developed a
well-founded fear that such violence is imminent as a
result of the threat.
Id. at 892. So a reckless act will not suffice. Id. And “[t]he fact that
an assault cannot be committed by a reckless act under Florida law
means that a violation of section 784.011(1) requires at least know-
ing conduct.” Id. The Florida Supreme Court’s interpretation of
Florida law is determinative here. See United States v. Hill, 799
F.3d 1318, 1322 (11th Cir. 2015) (“[F]ederal courts are bound by a
state supreme court’s interpretation of state law, including its de-
termination of the elements of the underlying state offense.”).
Thus, Borden poses no problem to Somers’s ACCA-enhanced sen-
tence.
USCA11 Case: 19-11484 Document: 53-1 Date Filed: 04/25/2023 Page: 10 of 12
10 Opinion of the Court 19-11484
Somers resists this conclusion. He argues that we should
disregard the Florida Supreme Court’s answer to its rewritten cer-
tified question because the Florida Supreme Court misread Borden
by not construing the narrowest reasoning of the Supreme Court
as its holding. As Somers sees it, the Florida Supreme Court fo-
cused too heavily on the Borden plurality’s analysis of the “against
another” language in the ACCA instead of the narrowest holding
of the majority, which was only that the elements clause excludes
reckless conduct. Borden, 141 S. Ct. at 1829–30 n.6. Somers urges
us to disregard the Florida Supreme Court’s opinion and hold that
aggravated assault under Florida law does not satisfy the elements
clause because at least one opinion from a Florida intermediate
court of appeal has held that proof of an intent to cause harm is not
necessary to establish a Florida assault.
As we have previously explained, in Borden a divided Su-
preme Court held that the ACCA’s elements clause “does not in-
clude offenses that criminalize reckless conduct; it covers only of-
fenses that require a mens rea of knowledge or intent.” United
States v. Carter, 7 F.4th 1039, 1041 (11th Cir. 2021). The four-jus-
tice plurality opinion based this conclusion on the “against another
person” language in the ACCA; it reasoned that offenses with a
mens rea of recklessness “do not require, as ACCA does, the active
employment of force against another person.” Borden, 141 S. Ct.
at 1834. In a concurring opinion, Justice Thomas, who supplied the
fifth vote for the majority holding, relied on different language to
reach the same conclusion. He explained that offenses with a mens
USCA11 Case: 19-11484 Document: 53-1 Date Filed: 04/25/2023 Page: 11 of 12
19-11484 Opinion of the Court 11
rea of recklessness do not qualify under the ACCA because
“crime[s] that can be committed through mere recklessness do[ ]
not have as an element the ‘use of physical force’ because that
phrase ‘has a well-understood meaning applying only to intentional
acts designed to cause harm.’” Id. at 1835 (Thomas, J., concurring
in the judgment) (quoting Voisine v. United States, 579 U.S. 686,
713 (2016) (Thomas, J., dissenting)). So the narrowest holding of
the five-justice majority -- which is what we are bound by, see
Marks v. United States, 430 U.S. 188, 193 (1977) -- was only that the
elements clause excludes reckless conduct. Borden, 141 S. Ct. at
1829–30 n.6.
Somers is correct that the Florida Supreme Court never said,
in as many words, that assault under Florida law is a “specific intent
crime.” But it didn’t need to. Borden only held that offenses that
can be committed with a mens rea of recklessness do not satisfy the
elements clause of the ACCA. Id. Somers concedes this point but
argues that his enhanced sentence runs afoul of Borden anyway be-
cause aggravated assault can be committed recklessly in Florida.
As a matter of Florida law, Somers is plainly wrong. The Florida
Supreme Court has told us unambiguously that assault under Flor-
ida law requires a mens rea of at least knowing conduct; it cannot
be committed recklessly. Somers, 355 So. 3d at 892. “When the
Florida Supreme Court . . . interprets [a] statute, it tells us what that
statute always meant.” United States v. Fritts, 841 F.3d 937, 943
(11th Cir. 2016); see also Rivers v. Roadway Express, Inc., 511 U.S.
USCA11 Case: 19-11484 Document: 53-1 Date Filed: 04/25/2023 Page: 12 of 12
12 Opinion of the Court 19-11484
298, 312–13 (1994). Somers cannot rely on earlier decisions of Flor-
ida’s intermediate courts of appeal to avoid this clear holding.
In short, we hold that aggravated assault under Florida law
categorically qualifies as a “violent felony” under the ACCA’s ele-
ments clause. Somers was convicted of three offenses that qualify
as ACCA predicates and the district court properly classified him as
an armed career criminal.
AFFIRMED.
Fred Somers v. United States
Combined Opinion