United States v. Archer

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
June 26, 2008
No. 07-11488 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 06-00205-CR-J-25-HTS

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BRYAN LAMAR ARCHER,
a.k.a. Bookbag,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 26, 2008)

ON REMAND FROM THE
SUPREME COURT OF THE UNITED STATES

Before TJOFLAT, HULL and KRAVITCH, Circuit Judges.

KRAVITCH, Circuit Judge:
 On September 19, 2007, this court ruled that the district court correctly

sentenced Bryan Lamar Archer as a “career offender” pursuant to United States

Sentencing Guidelines § 4B1.1 based, in part, on his prior conviction for carrying a

concealed weapon in violation of Florida Statute § 790.01. United States v.

Archer, 243 Fed.Appx. 564 (11th Cir. 2007). Archer then petitioned the Supreme

Court for certiorari. Meanwhile, on April 16, 2008, the Supreme Court rendered a

decision in Begay v. United States, — U.S. —, 128 S.Ct. 1581 (2008), wherein the

Court concluded that the felony offense of driving under the influence is not a

“violent felony” within the meaning of the Armed Career Criminal Act (“ACCA”),

18 U.S.C. § 924(e). The Court then granted certiorari in Archer, vacated our

decision, and remanded the case for further consideration in light of Begay.

Having carefully reviewed the Supreme Court’s opinion and supplemental

briefs from the parties, we conclude that the crime of carrying a concealed weapon

in violation of Florida law is not a “crime of violence” within the meaning of the

Sentencing Guidelines.

BACKGROUND

Archer pleaded guilty to conspiracy to distribute and to possess with intent

to distribute five grams or more of crack cocaine, in violation of 21 U.S.C. §§ 846,

841(a)(1) and 841(b)(1)(B) (count 1), distribution of crack cocaine (count 2),

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distribution of five or more grams of crack cocaine (counts 3 and 4), and

possession with intent to distribute five or more grams of crack cocaine (count 5)

all in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1).

At sentencing, the district court determined that Archer’s prior conviction for

carrying a concealed weapon constituted a “crime of violence” pursuant to U.S.S.G.

§ 4B1.2(a) and that his prior Florida felony conviction for selling crack cocaine was

a “controlled substance offense” pursuant to U.S.S.G. § 4B1.2(b), thus making

Archer a “career offender” under U.S.S.G. § 4B1.1(a). This status increased

Archer’s adjusted offense level and criminal history category and resulted in an

advisory guidelines range of 188 to 235 months’ imprisonment. Archer objected to

the determination that his prior conviction for carrying a concealed weapon

constituted a “crime of violence” under the Sentencing Guidelines. The district

court overruled the objection and sentenced Archer to 188 months’ incarceration.

On appeal, we were bound by prior Eleventh Circuit precedent to hold that a

conviction for carrying a concealed weapon in violation of Florida law constituted a

crime of violence. See United States v. Gilbert, 138 F.3d 1371, 1372 (11th Cir.

1998) (relying on United States v. Hall, 77 F.3d 398, 401 (11th Cir. 1996) which

held that the same crime comprises a “violent felony” under the ACCA). We now

reconsider that issue in light of the Supreme Court’s decision in Begay.

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 DISCUSSION

The Sentencing Guidelines provide for a sentencing enhancement where the

defendant is a “career offender.” A defendant qualifies as a career offender if, inter

alia, “the defendant has at least two prior felony convictions of either a crime of

violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a). Section 4B1.2

defines a “crime of violence” as

any offense under federal or state law, punishable by imprisonment for
a term exceeding one year, that (1) has as an element the use,
attempted use, or threatened use of physical force against the person of
another, or (2) is burglary of a dwelling, arson, or extortion, involves
use of explosives, or otherwise involves conduct that presents a serious
potential risk of physical injury to another.

We note that the crime of carrying a concealed weapon does not involve the

use, attempted use, or threatened use of force, and so is not a crime of violence

under subsection (1). Carrying a concealed weapon without a license is a crime of

violence only if it “is burglary of a dwelling, arson, or extortion, involves use of

explosives, or otherwise involves conduct that presents a serious potential risk of

physical injury to another.”

In Begay, the Court addressed whether a conviction under New Mexico’s

felony driving under the influence statute (making the fourth conviction for drunk

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driving a felony) constitutes a “violent felony” under the ACCA. 1 128 S.Ct. at

1584. The Court assumed that driving under the influence “otherwise involves

conduct that presents a serious potential risk of physical injury to another,” but

concluded that the crimes enumerated in the ACCA provide meaning by illustrating

the kinds of crimes meant to be covered by the statute. Id. The Court stated that the

presence of the enumerated examples “indicates that the statute covers only similar

crimes, rather than every crime that ‘presents a serious potential risk of physical

injury to another.’” Id. at 1585 (emphasis in original). Thus, the Court held that a

crime is covered by the definition only if the crime is “roughly similar, in kind as

well as in degree of risk posed, to the examples themselves.” Id. at 1584. The

Court then evaluated the list of crimes and noted that burglary, arson, extortion, and

the use of explosives “all typically involve purposeful, violent, and aggressive

conduct.” Id. at 1586.

Applying this standard to felony driving under the influence, the Court held

that that crime did not fall within the scope of the kind of crimes that the statute was

intended to reach. Id. at 1587. The Court noted that statutes forbidding drunk

1
The Supreme Court’s Begay decision regarding the ACCA is instructive here because
of the similar definitions of a “crime of violence” in the Guidelines and of a “violent felony” in
ACCA. See United States v. Taylor, 489 F.3d 1112, 1113 (11th Cir. 2007) (“[O]ur cases
interpreting ‘crime of violence’ under § 4B1.2 provide important guidance in determining what
is a ‘violent felony’ under the ACCA because the definitions for both terms are virtually
identical.) (internal quotation omitted). The only difference in the second clause is that the
ACCA includes “burglary,” 18 U.S.C. § 924(e), and the Guidelines use “burglary of a dwelling.”

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driving do not require a showing of purposeful, violent, aggressive conduct, but

rather are more comparable to crimes that impose strict liability or criminalize

conduct for which the offender need not have had any criminal intent whatsoever.

Id. at 1586. The Court recognized that people may drink on purpose, but “unlike

the example crimes, the conduct for which the drunk driver is convicted (driving

under the influence) need not be purposeful or deliberate.” Id. at 1587.

We turn now to the crime at issue in Archer’s sentencing: carrying a

concealed firearm in violation of Florida Statute 790.01(2). In Begay, the Court

assumed that driving under the influence presented a serious potential risk of injury

to another, and consequently, Begay has not affected the analysis of that portion of

the definition of a crime of violence. In keeping with our prior precedents, we thus

assume that unlawfully carrying a concealed firearm presents a serious potential

risk of physical injury to another. See Hall, 77 F.3d at 401. Our question,

therefore, is whether carrying a concealed firearm is similar in kind and degree to

the crimes enumerated in the Sentencing Guidelines, burglary of a dwelling, arson,

extortion, and crimes involving the use of explosives.

To determine whether a crime is a “crime of violence” we use a categorical

approach; we consider the offense as defined by the law, rather than considering the

facts of the specific violation. Begay, 128S.Ct. at 1584 (citing Taylor v. United

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States, 495 U.S. 575, 602 (1990)). Florida Statute § 790.01(2) states “A person

who carries a concealed firearm on or about his or her person commits a felony.”

The firearm must be “(1) on or about the person and (2) hidden from the ordinary

sight of another person. The term ‘on or about the person’ means physically on the

person or readily accessible to him. This generally includes the interior of an

automobile and the vehicle’s glove compartment, whether or not locked.” Ensor v.

State, 403 So.2d 349, 354 (Fla. 1981). Anyone licensed to carry a concealed

firearm under § 790.06 is exempt from the provisions of § 790.01(2). Fla. Stat.

§ 790.01(3).

Carrying a concealed weapon does not involve the aggressive, violent

conduct that the Supreme Court noted is inherent in the enumerated crimes.

Burglary of a dwelling, arson, extortion, and the use of explosives are all

aggressive, violent acts aimed at other persons or property where persons might be

located and thereby injured. Carrying a concealed weapon, however, is a passive

crime centering around possession, rather than around any overt action. We do not

wish to minimize the danger that possession may quickly transform into use,

especially when the firearm is “readily accessible.” The act of possession does not,

without more, however, involve any aggressive or violent behavior.

Nor does carrying a concealed weapon necessarily involve purposeful

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conduct. Dorelus v. State, 747 So.2d 368, 372 (Fla. 2000). “[T]he specific intent of

the defendant to conceal the weapon is not an element of the crime.” Id. “Whether

[the defendant] intended to carry a concealed firearm in violation of the prohibition

against concealment is immaterial as is his belief that he had a valid permit to carry

the firearm.” Wolfram v. State, 568 So.2d 992, 994 (Fla. App. Ct. 1990). This lack

of required specific intent makes carrying a concealed weapon more similar to

drunk driving—which the Supreme Court noted “need not be purposeful or

deliberate”—than to the enumerated crimes.

Furthermore, carrying a concealed weapon is not universally considered

violent. Only thirteen states make carrying a concealed weapon punishable by a

term exceeding one year; it is only in that handful of states that the crime is

therefore even eligible to be a prior crime of violence under the Sentencing

Guidelines. See Neal Eriksen, Note, The Meaning of Violence: An Interpretive

Analysis on Whether a Prior Conviction for Carrying a Concealed Weapon is a

“Crime of Violence” Under the U.S.S.G., 29 W. N EW E NG. L. R EV. 801, 821

(2007). In order to qualify as a “prior felony conviction” of a crime of violence, the

prior offense must be an offense punishable by imprisonment for over one year.

U.S.S.G. § 4B1.2 comment. ( n.1). Additionally, other circuits addressing this issue

have concluded that carrying a concealed firearm does not involve conduct that

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otherwise presents a serious potential risk of physical injury to another. See United

States v. Flores, 477 F.3d 431, 435-36 (6th Cir. 2007); United States v. Whitfield,

907 F.2d 798, 800 (8th Cir. 1990) (“Although carrying an illegal weapon may

involve a continuing risk to others, the harm is not so immediate as to ‘present[ ] a

serious potential risk of physical injury to another.’”). And, as noted above, in

Florida it is not a crime if one obtains a license. Fla. Stat. § 790.01(3). Indeed, the

fact that a license may be procured indicates that the act of carrying a concealed

firearm is far less serious in nature than the enumerated crimes; one can not, for

example, procure a license to commit burglary.2

Finally, the commentary to the Sentencing Guidelines specifies that “crimes

of violence” does not include the unlawful possession of a firearm by a felon.

U.S.S.G. § 4B1.2 comment. (n.1). In our opinion, a convicted felon in possession

of a firearm presents a greater potential risk of injury to another than does a non-

felon in possession of a firearm. If the offense of possession of a firearm by a felon

is not a crime of violence, then a fortiori carrying a concealed weapon can not be.

We acknowledge the strength of the prior panel precedent rule in this circuit.

Under that rule, a prior panel’s holding is binding on all subsequent panels unless

2
Although one may obtain a license to “use” explosives in, for instance, the demolition
of a building, we note that carrying a concealed weapon differs greatly in degree from a crime
involving the use of explosives as it does not involve the “use” of the weapon, but rather the
placement of the firearm in close proximity to one’s person.

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and until it is overruled or undermined to the point of abrogation by the Supreme

Court or by this court sitting en banc. Smith v. GTE Corp., 236 F.3d 1292, 1300

n.8 (11th Cir. 2001); Chambers v. Thompson, 150 F.3d 1324, 1326 (11th Cir.

1998). “While an intervening decision of the Supreme Court can overrule the

decision of a prior panel of our court, the Supreme Court decision must be clearly

on point.” Garrett v. University of Alabama at Birmingham Bd. of Trustees, 344

F.3d 1288, 1292 (11th Cir. 2003).

Although this prior panel rule suggests we may be bound by this court’s prior

decision in Gilbert, the Supreme Court’s decision in Begay is clearly on point and

has undermined Gilbert to the point of abrogation. This court has repeatedly read

the definition of a “violent felony” under § 924(e) of the Armed Career Criminal

Act as “virtually identical” to the definition of a “crime of violence” under U.S.S.G.

§ 4B.1.2. See e.g., United States v. Rainey, 362 F.3d 733, 735 (11th Cir. 2004). In

Gilbert which involved the Sentencing Guidelines, this court relied—without

further analysis—on its holding in United States v. Hall that carrying a concealed

weapon in violation of the law was a violent felony under the ACCA. Gilbert, 138

F.3d at 1372 (“Because the definitions of ‘violent felony’ and ‘crime of violence’

are in this respect identical, Hall’s conclusion applies equally to the question at

hand here.”). We recognize that Begay addressed a different crime (drunk driving)

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than Gilbert (unlawfully carrying a concealed weapon), but Begay remains “clearly

on point.” Here, where the Supreme Court has clearly set forth a new standard to

evaluate which crimes constitute “violent felonies” and “crimes of violence,” our

prior panel precedent in Gilbert has been undermined to the point of abrogation and

we are thus bound to follow this new rule of law.

We thus conclude that, in light of the Supreme Court’s decision in Begay, the

crime of carrying a concealed firearm may no longer be considered a crime of

violence under the Sentencing Guidelines.

CONCLUSION

For the foregoing reasons, Archer’s sentence is VACATED and we remand

his case for resentencing consistent with this opinion.

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