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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-12609
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BENJAMIN SMITH,
Defendant-Appellant.
____________________
Appeals from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:18-cr-00305-ELR-CMS-1
____________________
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2 Opinion of the Court 20-12609
____________________
No. 20-12773
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BENJAMIN SMITH,
Defendant-Appellant.
____________________
Appeals from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:18-cr-00305-ELR-CMS-1
____________________
Before JILL PRYOR, BRANCH, and ED CARNES, Circuit Judges.
PER CURIAM:
In 2018, Benjamin Smith, a prior convicted felon, was
arrested on an outstanding warrant. At the time of his arrest, he
had a firearm in his possession. As a result, a grand jury indicted
him for possession of a firearm by a convicted felon, in violation of
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20-12609 Opinion of the Court 3
18 U.S.C. §§ 922(g) and 924(e). A jury convicted Smith as charged,
and the district court sentenced him as an armed career criminal
under the Armed Career Criminal Act (“ACCA”) to 235 months’
imprisonment followed by three years’ supervised release.
The main issue we must address in this appeal is whether
the district court erred in concluding that Smith’s prior Georgia
convictions for aggravated assault with intent to rob, aggravated
assault, and criminal attempt to commit armed robbery qualify as
violent felonies for purposes of the ACCA. Additionally, we
address Smith’s arguments that (1) the district court erred in
denying Smith’s motion for a new trial; (2) the government
committed prosecutorial misconduct by misstating the law during
closing argument; (3) the district court abused its discretion in
denying Smith’s counsel’s motion to withdraw; and (4) the district
court erred in enhancing Smith’s sentence under the ACCA
without submitting his prior convictions to the jury. After review
and with the benefit of oral argument, we conclude that Smith’s
convictions for Georgia aggravated assault with intent to rob,
Georgia aggravated assault, and Georgia criminal attempt to
commit armed robbery do not qualify as violent felony predicates
for purposes of the ACCA enhancement. Because Smith does not
have three qualifying predicate convictions, the ACCA
enhancement cannot stand. Therefore, we vacate Smith’s sentence
and remand for resentencing. We affirm as to the other issues.
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I. Background
In August 2018, a grand jury in the Northern District of
Georgia indicted Smith on one count of possession of a firearm by
a convicted felon, in violation of 18 U.S.C. § 922(g). Prior to trial,
Smith filed a motion in limine, seeking to exclude details of his
prior convictions at trial and seeking redaction of these prior
convictions from the indictment. He offered to stipulate that prior
to the instant charged offense, he had sustained a felony conviction.
The district court granted his motion and accepted the parties’
stipulation. Smith’s trial began in February 2019, but the district
court declared a mistrial due to improper prejudicial testimony
from the State’s first witness.
In May 2019, between the mistrial and the retrial, the
government obtained a superseding indictment. The superseding
indictment alleged as follows:
On or about April 27, 2018, in the Northern District
of Georgia, the defendant, BENJAMIN SMITH,
knowing that he had been previously convicted of at
least one of the following offenses:
(1) Theft By Shoplifting, on or about April 6,
1998, in Fulton County Superior Court,
Atlanta, Georgia;
(2) Aggravated Assault, on or about January 4,
1999, in Fulton County Superior Court,
Atlanta, Georgia;
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(3) Aggravated Assault, on or about February
6, 2009, in Fulton County Superior Court,
Atlanta, Georgia; and
(4) Possession of a Firearm by a Convicted
Felon, on or about March 23, 2010, in Fulton
County Superior Court, Atlanta, Georgia;
each of which was a crime punishable by
imprisonment for a term exceeding one year, did
knowingly possess the following firearm in and
affecting interstate and foreign commerce: a Smith
and Wesson, .38 caliber revolver, in violation of Title
18, United States Code, Sections 922(g)(1) and
924(e)(1).
Smith filed a motion to strike the language in the
superseding indictment that he knew that he had been previously
convicted of a felony. He acknowledged that the government
added this language in anticipation of the Supreme Court’s decision
in the then-pending case Rehaif v. United States, which presented
the question of whether knowledge of one’s prohibited status was
an element of a § 922(g) offense. However, because Rehaif was still
pending, Smith argued that the knowledge of status language
should be struck as mens rea about one’s status was not an element
of the offense. The district court granted Smith’s motion and
struck the challenged language from the indictment, finding that
mens rea of one’s status was not an element of the offense.
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At trial, officers with the Atlanta Police Department’s
(“APD”) Fugitive Unit testified that in April 2018, a warrant issued
for Smith on an unrelated matter. The officers learned that Smith
was a mobile mechanic and arranged a meeting with Smith near a
local AutoZone under the guise of a needed car repair. Officers in
unmarked vehicles went to the designated location to meet Smith
on April 27, 2018. The officers pulled into the parking lot and
approached Smith wearing tactical vests bearing the words
“Atlanta Police Department,” announced that they were APD, and
instructed Smith to get on the ground. Smith’s girlfriend was inside
Smith’s vehicle in the passenger seat. Smith attempted to flee in
his vehicle, but he was blocked in. Smith exited his vehicle and
attempted to “grab a gun with a sock on it” 1 from his waistband.
Smith then dropped to one knee and tossed the gun under his
vehicle. After a brief struggle, the officers took Smith into custody
and seized the gun.
In his defense, Smith’s counsel argued that Smith did not
know where the gun under his car came from and that he did not
possess a gun.2 In support, Smith’s counsel presented testimony
from the AutoZone manager where Smith was arrested that the
area experienced frequent crime and people often loitered and
dumped items in the parking lot.
1 Officers described the gun as being in a “dirty sock” with “the barrel sticking
out of it.”
2 Smith did not testify in his defense.
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The parties stipulated that Smith had been previously
convicted of a felony. The government also introduced, over
Smith’s objections, certified copies of Smith’s prior conviction for
possession of a firearm by a convicted felon, in violation of Georgia
law. The district court instructed the jury that the prior conviction
was not to be used to determine whether Smith was guilty of the
present charged offense, and was
admitted and may be considered . . . for the limited
purpose of assisting [the jury] in determining whether
the defendant had the state of mind or intent
necessary to commit the crime charged in the
indictment, the defendant acted according to a plan
or in preparation to commit a crime, or the defendant
committed the acts charged in the indictment by
accident or mistake.
The government then called Smith’s parole and probation officer,
who testified that Smith was released on parole on March 30, 2011,
for his Georgia conviction for possession of a firearm by a
convicted felon. After the close of the evidence, the jury found
Smith guilty as charged. 3
Sixteen days after the guilty verdict, the Supreme Court held
in Rehaif that to convict a defendant of violating § 922(g), “the
3 For the first time on appeal, Smith takes issue with the government’s closing
argument. We discuss the closing argument at issue in greater detail below
when addressing Smith’s claim.
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Government must prove both that the defendant knew he
possessed a firearm and that he knew he belonged to the relevant
category of persons barred from possessing a firearm.” Rehaif v.
United States, 588 U.S.__, 139 S. Ct. 2191, 2200 (2019). Smith filed
a motion for a new trial, arguing that, in light of Rehaif, a new trial
was warranted because the jury was not instructed on an essential
element of the offense and the evidence was insufficient to sustain
his conviction. The government opposed the motion, noting that
it attempted to add knowledge of Smith’s felon status to the
superseding indictment and introduce evidence on this point, but
Smith successfully opposed its efforts—thus, inviting the error.
Alternatively, the government argued that there was sufficient
evidence to prove Smith knew of his felon status at the time he
possessed the firearm in question.
The district court denied the motion for a new trial. It
concluded that (1) “there [was] an abundance of evidence
demonstrating that [Smith] was well aware of his felony status at
the time he possessed a gun”—including that prior to that date, he
had pleaded guilty in two cases to the charge of possession of a
firearm by a convicted felon; and (2) “based on [Smith’s] own
argument to redact language indicating his knowledge of his felony
status, the interest of justice would dictate that [he] not be
permitted to now benefit from the [c]ourt’s ruling in his favor.”
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Prior to sentencing,4 the United States Probation Office
prepared a presentence investigation report (“PSI”), which
indicated, in relevant part, that Smith was subject to the ACCA
sentencing enhancement because he had at least three prior
unspecified convictions for a violent felony or a serious drug
offense. 5 Smith objected to the enhancement, arguing that he did
not have three qualifying violent felony convictions.
In response, the government argued that Smith had five
potentially qualifying ACCA violent felony predicate convictions
(all from Georgia): (1) a 1999 conviction for aggravated assault;
(2) a 2009 conviction for aggravated assault with intent to rob; (3) a
2009 conviction for criminal attempt to commit armed robbery;
(4) a 2010 conviction for obstruction of a law enforcement officer;
and (5) a 2014 conviction for obstruction of law enforcement.
4 Smith’s court-appointed counsel moved to withdraw, and Smith filed a pro
se motion supporting the motion to withdraw and requesting appointment of
new counsel prior to sentencing. The district court denied the motions
following two hearings. We discuss these motions and the district court’s
rulings in more detail below when addressing Smith’s challenge to the denial
of these motions.
5 At the time of Smith’s conviction, a violation of § 922(g) carried a statutory
maximum of ten years’ imprisonment. 18 U.S.C. § 924(a)(2) (2019). The
ACCA, however, mandated a minimum 15-year sentence if a defendant
convicted of a § 922(g) offense has three or more prior convictions for a
“violent felony” and/or “a serious drug offense.” Id. § 924(e)(1).
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At sentencing, the district court overruled Smith’s objection
to the ACCA enhancement and found that Smith, “based on his
priors, [was] an armed career criminal.” The district court did not
elaborate on its reasoning or explain on which of Smith’s prior
convictions it relied. The district court sentenced Smith to 235
months’ imprisonment to be followed by three years’ supervised
release. This appeal followed.
II. Discussion
Smith raises five issues on appeal: (1) the district court erred
in denying his motion for a new trial based on Rehaif; (2) the
government committed prosecutorial misconduct by misstating
the law during closing argument; (3) the district court abused its
discretion in denying Smith’s counsel’s motion to withdraw and
appoint new counsel for the sentencing phase; (4) the district court
erred in imposing the ACCA sentencing enhancement; and (5) the
district court erred in enhancing Smith’s sentence under the ACCA
without submitting his prior convictions to the jury. We address
each argument in turn.
A. Denial of Smith’s Motion for a New Trial
Smith argues that the district court erred in denying his
motion for a new trial based on the Supreme Court’s intervening
decision in Rehaif, which held that knowledge of one’s prohibited
status is an element of a § 922(g) offense that the government must
prove beyond a reasonable doubt. 139 S. Ct. at 2200. He maintains
that a new trial is warranted because the district court did not
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instruct the jury on the knowledge of status element and there was
insufficient evidence to prove his knowledge of his status.
We review the district court’s denial of a motion for a new
trial for abuse of discretion. United States v. Jeri, 869 F.3d 1247,
1259 (11th Cir. 2017). “In evaluating whether specific trial errors
warrant a new trial, we apply the harmless-error standard found in
Fed. R. Civ. P. 61.” Id. Under that rule, “a new trial is warranted
only where the error has caused substantial prejudice to the
affected party (or, stated somewhat differently, affected the party’s
substantial rights or resulted in substantial injustice).” Id.
(quotation omitted).
Under § 922(g)(1), it is “unlawful” for anyone “who has been
convicted in any court of . . . a crime punishable by imprisonment
for a term exceeding one year” to possess a firearm, and an
individual who “knowingly” does so is subject to punishment by
fine or imprisonment. 18 U.S.C. §§ 922(g)(1), 924(a)(2). 6 In Rehaif,
the Supreme Court held that a “prosecution under 18 U.S.C.
§ 922(g) and § 924(a)(2) [requires] the Government [to] prove both
that the defendant knew he possessed a firearm and that he knew
6 At the time of Smith’s conviction, the penalty for violating § 922(g) was
codified in § 924(a)(2). See 18 U.S.C. § 924(a)(2) (2019). In 2022, however,
Congress amended § 924, and the penalty for violating § 922(g) is now codified
in § 924(a)(8). See 18 U.S.C. § 924(a)(8) (2022). For ease of reference, we refer
to the statutory provisions in effect at the time of Smith’s conviction and
sentence.
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he belonged to the relevant category of persons barred from
possessing a firearm.” 139 S. Ct. at 2200.
Here, the district court did not instruct the jury on the
knowledge of status element. 7 Nevertheless, Smith is not entitled
to a new trial because he cannot show that the error affected his
substantial rights. Jeri, 869 F.3d at 1259. We have held that, when
reviewing whether Rehaif errors affected a defendant’s substantial
rights, courts “may consult the whole record.” United States v.
Reed, 941 F.3d 1018, 1021 (11th Cir. 2019) (quotation omitted);
United States v. Moore, 954 F.3d 1322, 1337 (11th Cir. 2020) (“We
may consult the entire record when considering the effect of an
error on appellants’ substantial rights.”). “[I]t is particularly
important for appellate courts to relive the whole trial
7 Although we do not decide this issue on invited error grounds, we note that
Smith arguably invited the error of which he now complains. The record
demonstrates that the government added a knowledge-of-felon-status
element to the superseding indictment to “avoid a potential appellate issue”
should the Supreme Court hold—as it did—that knowledge of one’s status is
an element of a § 922(g) offense. But Smith successfully moved to have this
language struck from the indictment. He also successfully moved to exclude
references to his prior convictions. Both of these choices were clearly
“strategic decision[s]” for purposes of trial, but now he complains that
reversible error occurred because the very information he sought to have
struck from the indictment was not presented to the jury. See United States
v. Jernigan, 341 F.3d 1273, 1290 (11th Cir. 2003) (explaining that “a criminal
defendant may not make an affirmative, apparently strategic decision at trial
and then complain on appeal that the result of that decision constitutes
reversible error”).
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imaginatively and not to extract from episodes in isolation abstract
questions of evidence and procedure.” Reed, 941 F.3d at 1021
(quotation omitted).
There is ample evidence in the record showing that Smith
knew of his status as a convicted felon when he possessed the
firearm in question. First, at trial, the government introduced a
certified copy of one of Smith’s convictions for possession of a
firearm by a convicted felon in Georgia in 2010. 8 This prior
conviction clearly demonstrates that it is implausible that Smith
was unaware of his felon status in 2018 at the time of the
underlying offense.
Second, aside from the certified conviction, Smith’s PSI
indicates that he had multiple felony convictions and that he served
seven years in custody for a 1999 Georgia aggravated assault
conviction and over a year in custody for a 2010 fleeing or
attempting to elude law enforcement conviction. As we previously
explained, “[m]ost people convicted of a felony know that they are
8 Contrary to Smith’s argument, the fact that the district court instructed the
jury that it could not consider the conviction in determining whether Smith
was guilty of the present felon-in-possession charge does not limit our ability
to consider this information on appellate review. As part of our inquiry into
whether the alleged error affected a defendant’s substantial rights, we consider
the whole record, including evidence that was available but not presented at
trial. See United States v. McLellan, 958 F.3d 1110, 1119–20 (11th Cir. 2020);
Reed, 941 F.3d at 1021. Where there is clear evidence that the defendant knew
of his prohibited status, he is not entitled to a new trial. McLellan, 958 F.3d at
1119–20.
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felons. And someone who has been convicted of felonies
repeatedly is especially likely to know he is a felon.” United States
v. Innocent, 977 F.3d 1077, 1082 (11th Cir. 2020) (internal citation
omitted). Thus, had the issue been contested at Smith’s trial,
Smith’s prior felony convictions would have provided the
government powerful evidence that he knew he was a felon.
Third, although not admitted during the trial, the record
includes recorded phone calls between Smith and his girlfriend
after Smith was arrested that demonstrated his knowledge of his
status. In those calls, Smith told his girlfriend that she was “going
to basically have to take one for the team, because [Smith] can’t go
down for this crime because [Smith was] a convicted felon.”
We have held that a defendant could not show that a Rehaif
error affected his substantial rights under similar circumstances.
See United States v. Elysee, 993 F.3d 1309, 1346 (11th Cir. 2021)
(holding that the jury could have inferred defendant’s knowledge
of felon status based on the defendant’s stipulation that he was
previously convicted of a felony coupled with a jail call in which
defendant implied knowledge of his status); Moore, 954 F.3d at
1337–38 (holding that the record clearly established both
defendants knew of their felon status where both defendants had
prior federal convictions for being a felon in possession of a firearm
and had served lengthy sentences); Reed, 941 F.3d at 1021–22
(holding that the record established that the defendant knew of his
felon status because the defendant had eight prior felony
convictions and admitted at sentencing that he had served 18 years
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on a prior conviction). Accordingly, the district court did not abuse
its discretion in denying Smith’s motion for a new trial based on
Rehaif.
B. Closing Argument
For the first time on appeal, Smith argues that the
government committed prosecutorial misconduct when it stated
during closing argument that a convicted felon is never allowed to
possess a firearm. 9 Smith asserts that the government misstated
the law because a felon is allowed to assert a justification defense
to a felon-in-possession charge. And he maintains that he was
prejudiced by this misstatement of law “because he argued to the
jury that he was unaware of what was happening when officers
surrounded him.”
The record demonstrates that, during closing argument,
Smith argued that when he encountered the officers, he was at the
location for a lawful purpose, believing that he was meeting
someone to perform a car repair, and that he did not comply with
the officers’ directives because he did not recognize that they were
police officers. Smith also argued to the jury that he never
9 Because Smith did not object to the government’s closing argument, we
review for plain error only. United States v. Frank, 599 F.3d 1221, 1238 (11th
Cir. 2010). “Plain error requires (1) an error, (2) the error is plain or obvious,
and (3) the error affects the defendant’s substantial rights. The plain error rule
should be used sparingly, and a conviction should be reversed only if a
miscarriage of justice would otherwise result.” Id. (quotation and internal
citation omitted).
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possessed the firearm found under his car. Instead, he merely
“parked over an item that looked like trash in an area where trash
was common.”
In response, the government argued that:
[w]hether the defendant knew they were law
enforcement or not [was] completely irrelevant. It
[did not] matter what he [knew] with regard to who
was coming to encounter him that day. He can’t
have a firearm. Whether he thought it was law
enforcement [made] no difference. He can’t possess
a firearm. He is a previously convicted felon. What
he knew about [the identity of the officers was] not
an issue that [was] relevant to whether he knowingly
possessed a firearm.
Smith did not object to the government’s closing argument.
Prosecutorial misconduct warrants a new trial only “if we
find the remarks (1) were improper and (2) prejudiced the
defendant’s substantive rights. We must examine the statements
in the context of the trial as a whole and assess their probable
impact on the jury.” Frank, 599 F.3d at 1238 (quotation and
internal citation omitted). “When the record contains sufficient
independent evidence of guilt, any error is harmless.” United
States v. Rivera, 780 F.3d 1084, 1096 (11th Cir. 2015) (quotation
omitted).
Smith cannot show that any error occurred because the
government did not misstate the law. The government’s
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statement that Smith could not possess a firearm because he was a
felon is legally accurate. See 18 U.S.C. § 922(g)(1) (“It shall be
unlawful for any person—(1) who has been convicted in any court
of, a crime punishable by imprisonment for a term exceeding one
year . . . to . . . possess in or affecting commerce, any firearm or
ammunition[.]”). While a justification defense is an affirmative
defense to a § 922(g)(1) charge, United States v. Deleveaux, 205
F.3d 1292, 1297 (11th Cir. 2000), Smith raised no such defense.
Instead, he argued throughout the trial that he never had a gun and
that the gun was already in the parking lot when he unknowingly
parked over it. Therefore, the government did not misstate the law
or otherwise prejudice Smith’s defense when it stated that Smith
could not possess a firearm.
Moreover, it is well-established that “[a] prosecutor is
entitled to make a fair response to defense counsel’s arguments,”
and Smith’s counsel opened the door to the government’s
statements during closing by arguing that the reason Smith did not
comply with the officers’ directives is that he did not know who
they were. Frank, 599 F.3d at 1238. Accordingly, Smith has not
demonstrated that he is entitled to relief under plain error review.
C. Denial of Smith’s counsel-related motions
Prior to sentencing, Smith’s court-appointed counsel filed a
motion to withdraw stating, without further elaboration, that “[a]
conflict has arisen between counsel and Mr. Smith that constitutes
a breakdown of their ability to communicate about the case.”
Smith also filed a pro se motion requesting appointment of new
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counsel, asserting that his current trial counsel did not have his
“best interest” in mind and “lack[ed] in many areas of being a good
defense attorney.” 10
The district court held two ex parte hearings on the motions
with only Smith and his counsel present. At the hearings, when
asked to elaborate on the “breakdown in communication,” counsel
declined to do so, stating “I hesitate to say much more because I do
think it will eventually come to a point of violating his right to
confidentiality.” When asked for his position, Smith stated that he
did not feel that counsel had his “best interest” in mind, and he
noted that he had filed numerous pro se motions during the trial
proceedings because counsel was not taking certain actions that
Smith felt needed to be taken. Smith asserted that if he had “an
effective relationship with [his] counsel, then counsel should
adhere to what it is that [he had] to say.” Smith also emphasized
that he had asked counsel (unspecified) questions that she had not
been able to answer.
The district court denied the motions, explaining that it did
not hear “what [it] felt rose to the level of an issue that warranted
removing counsel.” Additionally, the district court noted that it
10 The record reflects that throughout the trial proceedings Smith filed
numerous pro se pleadings and requested ex parte communications with the
district court, even though the district court instructed him that he could not
file pro se pleadings because he had counsel. In some of these pro se filings,
Smith expressed a general disagreement with his counsel and counsel’s
strategy.
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had reviewed a list of Smith’s questions that he asserted were
unanswered by counsel and did not find anything of concern or
that indicated an ineffective assistance of counsel. The district
court emphasized that “bringing on new counsel unfamiliar with
this case at this point would do much more harm to Mr. Smith than
good.”
Smith argues that the district court applied the wrong
standard and abused its discretion in denying his counsel’s motion
to withdraw and his request for appointment of new counsel for
the sentencing phase. He contends that instead of evaluating
whether there was “good cause” for appointing new counsel, the
district court erroneously evaluated whether counsel had been
ineffective. He maintains that had the district court applied the
good cause standard, it would have appointed new counsel based
on the clear breakdown of relationship between Smith and his trial
counsel.
“Although the Sixth Amendment [of the United States
Constitution] guarantees counsel, it does not grant defendants the
unqualified right to counsel of their choice. An indigent criminal
defendant for whom counsel has been appointed does not have a
right to demand a different appointed lawyer except for good
cause.” United States v. Joyner, 899 F.3d 1199, 1205 (11th Cir. 2018)
(alteration in original) (quotation and internal citation omitted).
“Good cause . . . means a fundamental problem, such as a conflict
of interest, a complete breakdown in communication or an
irreconcilable conflict which leads to an apparently unjust verdict.”
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United States v. Garey, 540 F.3d 1253, 1263 (11th Cir. 2008)
(quotation omitted).
Where, as here, the district court conducts an inquiry into
the merits of a motion for the withdrawal of counsel and
appointment of new counsel, we review the district court’s ruling
for an abuse of discretion. United States v. Calderon, 127 F.3d 1314,
1343 (11th Cir. 1997). “A district court abuses its discretion if it
applies an incorrect legal standard, applies the law in an
unreasonable or incorrect manner, follows improper procedures in
making a determination, or makes findings of fact that are clearly
erroneous.” United States v. Jimenez-Antunez, 820 F.3d 1267, 1270
(11th Cir. 2016) (quotation omitted).
In determining whether the district court abused its
discretion, we consider “(1) the timeliness of the motion; (2) the
adequacy of the court’s inquiry into [the] merits of the motion; and
(3) whether the conflict was so great that it resulted in a total lack
of communication between the defendant and his counsel thereby
preventing an adequate defense.” Calderon, 127 F.3d at 1343. We
require a “serious breakdown in communications”—more than a
client’s mere displeasure with his lawyer’s performance—before
we can conclude that the district court abused its discretion in
denying a motion to withdraw. Id.
Here, the district court did not abuse its discretion in
concluding that there was not a “total lack of communication
between the defendant and his counsel thereby preventing”
effective representation at the sentencing hearing. Joyner, 899 F.3d
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at 1205 (quoting Calderon, 127 F.3d at 1343). The district court
held two ex parte hearings and provided both Smith and his
counsel an opportunity to explain their respective concerns with
the attorney-client relationship. Smith’s counsel declined to
elaborate further out of confidentiality concerns. And Smith
himself referred only generally to his distrust in his counsel,
disagreement with her strategy throughout the trial, and his belief
that counsel did not have his “best interest” in mind. “But we have
held that a defendant’s general loss of confidence or trust in his
counsel, standing alone, is not sufficient for good cause to demand
new appointed counsel.” Id. at 1205–06 (alterations adopted)
(quotation omitted).
There was no evidence presented that there was a total lack
of communication between Smith and his counsel. Rather, the
record is clear that Smith was in communication with his counsel
about various matters and simply did not like the answers (or, at
times, no answer) he received in response to his inquiries. To be
sure, Smith’s statements during the ex parte hearings indicate that
he was unhappy with his trial counsel, but there was no indication
that “they were unable to communicate in [a] manner that would
allow for effective representation at the sentencing hearing.”
Calderon, 127 F.3d at 1343. 11 Accordingly, the district court did
not abuse its discretion in denying these motions.
11 Contrary to Smith’s contention, the district court did not apply the wrong
standard in evaluating the motion to withdraw and request for new appointed
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22 Opinion of the Court 20-12609
D. The ACCA Enhancement
Smith argues that the district court erred in enhancing his
sentence under the ACCA for several reasons, including that he
does not have three qualifying predicate offenses. Smith is correct.
As noted previously, during the relevant time period, a
violation of § 922(g) carried a statutory maximum of ten years’
imprisonment. 18 U.S.C. § 924(a)(2) (2019). The ACCA, however,
mandates a minimum 15-year sentence if a defendant convicted of
a § 922(g) offense has three or more prior convictions for a “violent
felony” or “a serious drug offense.” Id. § 924(e)(1). In this case, we
must determine whether Smith had three prior convictions that
qualify as violent felonies. We conclude that he does not.
We begin with the language of the statute. The ACCA
defines a “violent felony” as:
any crime punishable by imprisonment for a term
exceeding one year, or any act of juvenile
delinquency involving the use or carrying of a
firearm, knife, or destructive device that would be
punishable by imprisonment for such term if
committed by an adult, that—
counsel. “[T]he exception for good cause protects the right to effective
assistance of counsel; if good cause exists, a defendant no longer has effective
representation.” Joyner, 899 F.3d at 1206 (quoting Jimenez-Antunez, 820 F.3d
at 1271). Thus, the district court’s conclusion that it did not find anything that
indicated ineffective assistance of counsel was simply another way of stating
that Smith failed to establish good cause.
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(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)(i)–(ii). Subsection (i) contains the
“elements clause,” while subsection (ii) contains the “enumerated
crimes” clause and the “residual clause.” 12 United States v. Owens,
672 F.3d 966, 968 (11th Cir. 2012). This case involves only the
elements clause.
“Under the [ACCA’s] elements clause, ‘use’ requires active
employment of physical force.” United States v. Moss, 920 F.3d
752, 756 (11th Cir. 2019) (citing Leocal v. Ashcroft, 543 U.S. 1, 9
(2004)), opinion reinstated, 4 F.4th 1292 (11th Cir. 2021) (mem.).
“[P]hysical force means violent force—that is, force capable of
causing physical pain or injury to another person.” Id. (quoting
Johnson v. United States, 559 U.S. 133, 140 (2010)); see also
Stokeling v. United States, 139 S. Ct. 544, 553 (2019) (same). Thus,
to qualify as a violent felony under the ACCA’s elements clause, a
12 In 2015, the Supreme Court struck down the ACCA’s residual clause as
unconstitutionally vague. See Johnson v. United States, 576 U.S. 591, 597–602
(2015). In holding that the residual clause was void for vagueness, the Court
clarified that it did not call into question the validity of the elements clause or
the enumerated crimes clause. Id. at 606.
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24 Opinion of the Court 20-12609
conviction must be predicated on the intentional use, attempted
use, or threatened use of physical force. Moss, 920 F.3d at 756.
We review de novo whether a prior conviction qualifies as
a violent felony offense under the ACCA. Id. at 755. We must
evaluate each prior conviction to determine if it qualifies as a
violent felony under the ACCA’s elements clause. To do so, we
employ a particular framework known as the “categorical
approach.” United States v. Oliver, 962 F.3d 1311, 1316 (11th Cir.
2020). The categorical approach focuses solely on the elements of
the statute of conviction, not the defendant’s underlying conduct
(i.e., the facts). See Taylor v. United States, 495 U.S. 575, 600
(1990); see also Mathis v. United States, 579 U.S. 500, 504–06 (2016).
When examining whether a conviction qualifies as a violent felony
under the elements clause, the categorical approach requires that
courts focus only on the statutory elements and “presume that the
conviction rested upon the ‘least of the acts criminalized’ by the
statute.” Oliver, 962 F.3d at 1316 (quoting Moncrieffe v. Holder,
569 U.S. 184, 190–91 (2013)). “If the ‘least of the acts criminalized’
by the statute of conviction has an element requiring ‘the use,
attempted use, or threatened use of physical force against the
person of another,’ then the offense categorically qualifies as a
violent felony under the ACCA’s elements clause.” Id. (quoting
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United States v. Davis, 875 F.3d 592, 597 (11th Cir. 2017)); see also
Moss, 920 F.3d at 756. 13
The government argued below that Smith had five
potentially qualifying felony convictions (all from Georgia): (1) a
1999 conviction for aggravated assault; (2) a 2009 conviction for
aggravated assault with intent to rob; (3) a 2009 conviction for
criminal attempt to commit armed robbery; (4) a 2010 conviction
for obstruction of a law enforcement officer; and (5) a 2014
conviction for obstruction of a law enforcement officer. The
district court found that Smith qualified as an armed career
criminal, but it did not state on which convictions it relied in
making that determination. Smith maintains that none of the
proffered offenses qualify as predicates under the ACCA’s elements
clause. We examine each in turn and conclude that only two are
qualifying violent felonies.
13 We alter our approach, however, when the statute of conviction is
“divisible,” meaning the statute lists multiple, alternative elements, effectively
creating multiple crimes. Moss, 920 F.3d at 756. When dealing with a divisible
statute, we employ the modified categorical approach, which “allows us to
look at a limited class of documents—known as Shepard documents—to
determine what crime, with what elements, a defendant was convicted of.”
Id. (quotation omitted); see also Shepard v. United States, 544 U.S. 13, 16, 25
(2005) (specifying the documents a court may consider under the modified
categorical approach). Under this approach, after looking at Shepard
documents to determine which of the alternative statutory elements a
defendant was convicted under, we then apply the categorical approach to
that particular offense. Descamps v. United States, 570 U.S. 254, 257 (2013);
Moss, 920 F.3d at 756.
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26 Opinion of the Court 20-12609
i. Obstruction of a law enforcement officer convictions
(2010 and 2014)
Smith’s claim that his 2010 and 2014 Georgia convictions for
obstruction of a law enforcement officer do not qualify as violent
felony predicates is squarely foreclosed by binding precedent. In
United States v. Brown, 805 F.3d 1325, 1327 (11th Cir. 2015), we
held that felony obstruction of a law enforcement officer under
Georgia law is categorically a violent felony for purposes of the
ACCA. Although Smith maintains that Brown was wrongly
decided, we are bound by Brown under the prior-panel-precedent
rule. United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008)
(explaining that under the prior-panel-precedent rule “a prior
panel’s holding is binding on all subsequent panels unless and until
it is overruled or undermined to the point of abrogation by the
Supreme Court or by this court sitting en banc”). Accordingly,
Smith has two qualifying predicate violent felonies.
ii. Aggravated assault with intent to rob conviction (2009)
Next, we consider Smith’s 2009 aggravated assault with
intent to rob conviction. In Georgia, “[a] person commits the
offense of simple assault when he or she either . . . (1) [a]ttempts to
commit a violent injury to the person of another; or (2) [c]ommits
an act which places another in reasonable apprehension of
immediately receiving a violent injury.” O.C.G.A. § 16-5-20(a). At
the time of Smith’s conviction, Georgia’s aggravated assault statute
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provided that a person commits the offense of aggravated assault
when he commits a simple assault:
(1) With intent to murder, to rape, or to rob;
(2) With a deadly weapon or with an object,
device, or instrument which, when used
offensively against a person, is likely to or
actually does result in serious bodily injury; or
(3) A person or persons without legal justification
by discharging a firearm from within a motor
vehicle toward a person or persons.
O.C.G.A. § 16-5-21(a) (2009); 14 see also Moss, 920 F.3d at 757
(explaining that Georgia’s aggravated assault statue has two
essential elements—(A) simple assault as defined in O.C.G.A. § 16-
5-20(a)(1) or (2), and (B) an aggravating factor listed in § 16-5-
21(a)(1), (2), or (3)).
Both Georgia’s simple assault and aggravated assault
statutes are divisible. Moss, 920 F.3d at 757. Accordingly, we may
employ the modified categorical approach to determine which
elements formed the basis of Smith’s offense of conviction. Both
parties agree that “intent to rob” under § 16-5-21(a)(1) is the
relevant aggravating factor. But because aggravated assault is
simple assault plus an aggravating factor, we must also determine
14 The Georgia legislature has since amended the statute to add a fourth
aggravator that is not relevant here. See O.C.G.A. § 16-5-21(b)(3) (2016).
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28 Opinion of the Court 20-12609
whether the aggravated assault was based on simple assault under
O.C.G.A. § 16-5-20(a)(1) or (a)(2). However, because the
government failed to produce any Shepard documents related to
Smith’s conviction in the district court, we cannot determine on
which version of simple assault Smith’s aggravated assault
conviction was based. Therefore, the modified categorical
approach ends here, and we must assume that Smith’s aggravated
assault with intent to rob conviction is based on the least of the acts
criminalized under the simple assault statute—i.e., “[c]ommit[ting]
an act which places another in reasonable apprehension of
immediately receiving a violent injury.” O.C.G.A. § 16-5-20(a);
Moss, 920 F.3d at 758; Oliver, 962 F.3d at 1316.
In Moss, however, we held that simple assault under § 16-5-
20(a)(2) does not satisfy the intentional use of force requirement of
the ACCA’s elements clause because it can be committed with a
mens rea of recklessness. Id. at 757–58. And while Smith’s appeal
was pending, the Supreme Court took up the issue and held that
“[o]ffenses with a mens rea of recklessness do not qualify as violent
felonies under [the] ACCA” because “[t]hey do not require . . . the
active employment of force against another person.” Borden v.
United States, 141 S. Ct. 1817, 1834 (2021).
Accordingly, the only way that this conviction can qualify as
a violent felony for purposes of the ACCA is if the intent to rob
aggravating factor adds the necessary element of intent to use
“violent force,” or “force capable of causing physical pain or injury
to another person.” Stokeling, 139 S. Ct. at 552 (internal quotation
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marks omitted). If it does not, then the conviction does not
categorically qualify as a violent felony.
In examining the “intent to rob” aggravating factor, we must
consider how Georgia defines the crime of robbery. See Johnson
v. State, 696 S.E.2d 396, 397 (Ga. Ct. App. 2010) (“Aggravated
assault with intent to rob requires the reasonable apprehension of
receiving bodily injury and proof of the intent to rob the victim.”
(quotation omitted)). Under Georgia law, a person commits
robbery “when, with intent to commit theft, he takes property of
another from the person or immediate presence of another” either
“(1) [b]y use of force; (2) [b]y intimidation, by the use of threat or
coercion, or by placing such person in fear of immediate serious
bodily injury to himself or to another; or (3) [b]y sudden
snatching.” O.C.G.A. § 16-8-40(a). Although Georgia’s robbery
statute is divisible, United States v. Harrison, 56 F. 4th 1325, 1335–
36 (11th Cir. 2023), because there are no Shepard documents in the
record, we apply the categorical approach and we must assume
Smith intended to commit the least of the robbery acts
criminalized. Sudden snatching is clearly the least of the three
robbery acts criminalized. See O.C.G.A. § 16-8-40(a).
Consequently, our analysis is limited to a Georgia aggravated
assault conviction with intent to rob by sudden snatching.
Georgia courts have explained that although “force is
implicit in sudden snatching,” the only force required is “that effort
necessary for the robber to transfer the property taken from the
owner to his possession.” Copeland v. State, 754 S.E.2d 636, 639
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30 Opinion of the Court 20-12609
(Ga. Ct. App. 2014) (quotation omitted); King v. State, 447 S.E.2d
645, 647 (Ga. Ct. App. 1994) (“Robbery by sudden snatching is
where no other force is used than is necessary to obtain possession
of the property from the owner, who is off his guard, and where
there is no resistance by the owner or injury to his person.”
(quotation omitted)). That amount of force, the Supreme Court
has suggested in dicta, 15 would not satisfy the ACCA’s elements
clause. See Stokeling, 139 S. Ct. at 555 (contrasting Florida’s
robbery statute—which qualifies as a violent felony under ACCA’s
elements clause—with its robbery by sudden snatching statute,
under which it is “unnecessary to show . . . that the defendant used
any amount of force beyond that effort necessary to obtain
possession of the money or other property,” and suggesting the
latter would not satisfy the ACCA’s elements clause (quotations
omitted)).
Additionally, a review of Georgia cases reveals that the
Court of Appeals of Georgia routinely affirms robbery by sudden
snatching convictions involving substantially less force than that
capable of causing physical pain or injury to another person. See,
e.g., Anderson v. State, 834 S.E.2d 369, 374 (Ga. Ct. App. 2019)
(affirming robbery by sudden snatching conviction where victim’s
car keys fell from his pocket onto the ground and defendant
15 See Schwab v. Crosby, 451 F.3d 1308, 1325 (11th Cir. 2006) (explaining that
“there is dicta, and then there is Supreme Court dicta” and that “dicta from
the Supreme Court is not something to be lightly cast aside”).
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grabbed the keys from the ground in the victim’s presence and
refused to return them); Brown v. State, 710 S.E.2d 674, 677–78
(Ga. Ct. App. 2011) (affirming robbery by sudden snatching
conviction where defendant took the victim’s wallet out of a
shopping cart while the victim was several feet away and the victim
yelled for defendant to stop); Sweet v. State, 697 S.E.2d 246, 248–
49 (Ga. Ct. App. 2010) (affirming robbery by sudden snatching
conviction where defendant opened cash register drawer at
restaurant and took money while the cashier’s back was turned but
she heard the drawer open and suspected the defendant was
stealing money); King, 447 S.E.2d at 647 (affirming robbery by
sudden snatching conviction where defendant grabbed six cartons
of cigarettes off a checkout counter and ran out of the store while
the clerk’s attention was on something else). Thus, the force
required to commit a robbery by sudden snatching in Georgia is
not by necessity “violent force—that is, force capable of causing
physical pain or injury to another person.” Stokeling, 139 S. Ct. at
552 (emphasis omitted) (quotation omitted). Therefore, the
“intent to rob” element of aggravated assault—at least when that
intent is based on robbery by sudden snatching—does not provide
the intentional use of force requirement necessary to satisfy the
ACCA’s elements clause.
Accordingly, Smith’s 2009 aggravated assault with intent to
rob conviction does not categorically qualify as a violent felony
under the ACCA’s elements clause.
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32 Opinion of the Court 20-12609
iii. Aggravated assault conviction (1999)
Smith’s 1999 aggravated assault conviction does not qualify
as a violent felony. As discussed above, in Moss, we held that
aggravated assault predicated on simple assault under § 16-5-
20(a)(2) does not satisfy the intentional use of force requirement of
the ACCA’s elements clause because it can be committed with a
mens rea of recklessness. Id. at 757–58; see also Borden, 141 S. Ct.
at 1825, 1834 (holding that “[o]ffenses with a mens rea of
recklessness do not qualify as violent felonies under the ACCA”
because “[t]hey do not require . . . the active employment of force
against another person”). Accordingly, because aggravated assault
can be predicated on a mens rea of recklessness, this offense does
not qualify under the ACCA’s elements clause. 16
iv. Criminal attempt to commit armed robbery conviction
(2009)
Finally, we turn to Smith’s 2009 Georgia criminal attempt to
commit armed robbery conviction. Smith argues that this
conviction does not qualify as a violent felony for purposes of the
ACCA because (1) criminal attempt in Georgia does not include as
an element the use, attempted use, or threatened use of force, and
16 Both parties conceded at oral argument that, in light of the Supreme
Court’s intervening decision in Borden, this offense no longer qualifies as a
violent felony.
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(2) armed robbery under Georgia law does not necessarily require
the use, attempted use, or threatened use of force.
Under Georgia law, “[a] person commits the offense of
armed robbery when, with intent to commit theft, he or she takes
property of another from the person or the immediate presence of
another by use of an offensive weapon, or any replica, article, or
device having the appearance of such weapon.” 17 O.C.G.A. § 16-
17 The Supreme Court of Georgia has explained that “Georgia’s armed
robbery statute clearly contemplates that the offensive weapon be used as a
concomitant to a taking which involves the use of actual force or intimidation
(constructive force) against another person.” State v. Epps, 476 S.E.2d 579,
581 (Ga. 1996) (quotation omitted). The Court reasoned that
[a] taking accomplished by force or intimidation is the
“distinguishing characteristic” of robbery—the “gist” of the
offense. The force necessary for robbery is actual violence or
intimidation exerted upon the person robbed, by operating
upon his fears—the fear of injury to his person, or property, or
character. Intimidation is that terror . . . likely to create an
apprehension of danger, and induce a person to part with his
property for the safety of his person. Intimidation is that act
by the perpetrator which puts the person robbed in fear
sufficient to suspend the free exercise of his will or prevent
resistance to the taking. A threat by a perpetrator to inflict
harm constitutes the requisite force or intimidation if that
threat of harm induces the victim/possessor of property to
relinquish possession. However, if the person in possession of
the property voluntarily yields possession of the property to
the robber, that is, consents to the taking of the property, an
essential element of robbery, force, is missing.
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34 Opinion of the Court 20-12609
8-41(a). An “offensive weapon” for purposes of Georgia’s armed
robbery statute means a “deadly weapon.” Long v. State, 700
S.E.2d 399, 402 (Ga. 2010).
In Georgia, a person “commits the offense of criminal
attempt when, with intent to commit a specific crime, he performs
any act which constitutes a substantial step toward the commission
of that crime.” O.C.G.A. § 16-4-1; see also Howell v. Georgia, 278
S.E.2d 43, 46 (Ga. Ct. App. 1981) (explaining that criminal attempt
requires (1) the intent to commit the specific crime, (2) the
performance of some overt act towards the commission of that
crime, and (3) a failure to complete the crime).
Id. at 580–81 (quotation and internal citations omitted). In other words, “[a]n
element of armed robbery is that the taking be effectuated with force, either
actual or constructive (intimidation).” Wilson v. State, 448 S.E.2d 184, 185
(Ga. 1994) (emphasis in original). And “[w]hen the Code speaks of force, it
means actual violence; and when it speaks of intimidation, it still means force;
not actual and direct, but exerted upon the person robbed, by operating upon
his fears—the fear of injury to his person, or property, or character.” Alford
v. State, 418 S.E.2d 397, 398 (Ga. Ct. App. 1992) (quotation omitted) (emphasis
added). The use of violent force required by Georgia’s statute suggests that
substantive Georgia armed robbery would categorically qualify as a violent
felony under the ACCA’s elements clause. See Porter v. United States, 959
F.3d 800, 802–04 (6th Cir. 2020) (holding that Georgia armed robbery
categorically qualifies as a violent felony under the ACCA). However,
whether substantive Georgia armed robbery is a violent felony is not the
question before us. Smith was convicted of criminal attempt to commit armed
robbery; therefore, we must decide whether the offense of criminal attempted
armed robbery in Georgia categorically qualifies as a violent felony.
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While Smith’s appeal was pending, the Supreme Court
addressed attempt crimes in United States v. Taylor, 596 U.S. __,
142 S. Ct. 2015 (2022). Taylor held that attempted Hobbs Act
robbery did not qualify as a crime of violence under 18 U.S.C.
§ 924(c)’s elements clause—which is nearly identical to the ACCA’s
elements clause. Id. at 2020–21. In reaching its decision, the
Supreme Court explained that a completed Hobbs Act robbery can
be committed by means of actual or threatened use of force. Id. at
2020. Therefore, the government could secure a conviction for
attempted Hobbs Act robbery by proving “two things: (1) [t]he
defendant intended to unlawfully take or obtain personal property
by means of actual or threatened force, and (2) he completed a
‘substantial step’ toward that end.” Id. The Supreme Court
reasoned that “whatever a substantial step requires, it does not
require the government to prove that the defendant used,
attempted to use, or even threatened to use force against the
person or property of another.” Id.
Here, similar to a conviction for attempted Hobbs Act
robbery, a conviction for criminal attempt to commit armed
robbery in Georgia may be secured by proving beyond a
reasonable doubt that (1) a defendant intended to take the
“property of another from the person or the immediate presence
of another by use of an offense weapon, or any replica, article, or
device having the appearance of such weapon,” and (2) took a
substantial step toward that objective. See O.C.G.A. §§ 16-8-41(a),
16-4-1. As discussed above, completed armed robbery in Georgia
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36 Opinion of the Court 20-12609
may be committed by the threatened use of force, Epps, 476 S.E.2d
at 580–81, which means that a conviction for criminal attempt to
commit armed robbery in Georgia could be secured based on an
attempt to threaten to use force. Post-Taylor, we have held that
“where a crime may be committed by the threatened use of force,
an attempt to commit that crime—i.e., an attempt to threaten—
falls outside the elements clause.” Alvarado-Linares v. United
States, 44 F.4th 1334, 1346 (11th Cir. 2022). Accordingly, because
criminal attempt to commit armed robbery in Georgia may be
committed by an attempt to threaten, it is not categorically a
violent felony under the ACCA’s elements clause.
Consequently, Smith has only two qualifying violent
felonies, and the ACCA enhancement cannot stand.18
Accordingly, we vacate his sentence and remand for resentencing.
III. Conclusion
Based on the above, we affirm Smith’s conviction and the
non-sentencing issues he raises. However, we vacate his sentence
and remand for resentencing without the ACCA enhancement.
AFFIRMED IN PART, VACATED IN PART, AND
REMANDED FOR RESENTENCING.
18 Smith also argues that the district court erred in enhancing his sentence
under the ACCA without submitting his prior convictions to the jury—a claim
which he acknowledges is foreclosed by Almendarez-Torres v. United States,
523 U.S. 224 (1998). Because the ACCA enhancement does not apply, we do
not reach this issue.