# United States v. Jimmy Lightsey

> Court of Appeals for the Eleventh Circuit · October 31, 2024 · 120 F.4th 851

URL: https://www.frixlaw.com/law-library/cases/10639941

## Case

- **Court:** Court of Appeals for the Eleventh Circuit
- **Decided:** October 31, 2024
- **Citations:** 120 F.4th 851
- **Precedential status:** Published
- **Opinion:** Opinion
- **Nature of suit:** NEW
- **Cited by:** 9 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10639941

## How later opinions describe it (automated extraction)

- concluding that attempted Florida armed robbery is still a crime of violence under the ACCA

## Opinion text

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit

____________________

No. 20-13682
____________________

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JIMMY RAY LIGHTSEY,

Defendant-Appellant.

____________________

Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 3:18-cr-209-MMH-MCR
____________________

Before WILSON, LUCK, and LAGOA, Circuit Judges.
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2 Opinion of the Court 20-13682

LAGOA, Circuit Judge:
Following a jury trial, Jimmy Ray Lightsey was convicted of
possessing a firearm as a felon in violation of 18 U.S.C. §§ 922(g)
and 924(e); knowingly possessing with intent to distribute cocaine,
cocaine base, and marijuana in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(C), and (b)(1)(D); and possessing a firearm in furtherance of
a drug-trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i).
At his sentencing, the district court determined that Lightsey was
an armed career criminal within the meaning of the Armed Career
Criminal Act, 18 U.S.C. § 924(e)(1) (“ACCA”), and enhanced Light-
sey’s sentence pursuant to that statute. Lightsey now appeals his
sentence of 240 months’ imprisonment, contending that the district
court plainly erred in finding that his prior convictions qualified as
predicate offenses under ACCA. After careful consideration of the
parties’ arguments and with the benefit of oral argument, we af-
firm.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Lightsey’s Criminal Conduct
Lightsey was charged in a second superseding indictment
with possessing a firearm as a felon in violation of 18 U.S.C.
§§ 922(g) and 924(e) (Count One); knowingly possessing with in-
tent to distribute cocaine, cocaine base, and marijuana in violation
of 21 U.S.C. § 841(a)(1), (b)(1)(C), and (b)(1)(D) (Count Two); and
possessing a firearm in furtherance of a drug-trafficking crime in
violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count Three). As to Count
Two, the government filed an Information to Establish Prior
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20-13682 Opinion of the Court 3

Convictions pursuant to 21 U.S.C. § 851, attaching documents es-
tablishing that Lightsey had, in relevant part, a 2000 Florida convic-
tion for sale of cocaine and a 2009 Florida conviction for sale or
delivery of cocaine, both in violation of Florida Statute
§ 893.13(1)(a). Lightsey proceeded to trial, and the jury found him
guilty of all three counts.
B. Lightsey’s Sentencing
Before sentencing, a probation officer prepared a presen-
tence investigation report (“PSI”) that reported the following facts.
On June 24, 2018, a Jacksonville Sheriff’s Office detective saw Light-
sey driving with improperly tinted windows, then watched him
park and get out of the car to gather with a group of people hang-
ing out in a vacant lot. The detective recognized Lightsey from
prior interactions, ran his name through a computer database, and
discovered that Lightsey’s license was suspended. The detective
waited for backup to arrive and then arrested Lightsey. During the
arrest, officers saw a large bag of marijuana in plain view on the
center console of Lightsey’s car and a loaded handgun (which
turned out to be stolen) in plain view on the driver’s side floor-
board. They then searched the car and found 4 more bags of ma-
rijuana in the center console—together weighing a total of 46.4
grams. The officers also found in another compartment a pill bot-
tle containing 3.3 grams of cocaine and 0.7 grams of cocaine base
packaged for sale. Prior to this arrest, Lightsey had been convicted
of multiple felonies, including the 2000 and 2009 Florida
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convictions for sale or delivery of cocaine and a 1997 conviction for
attempted armed robbery.
The PSI grouped Counts One and Two pursuant to U.S.S.G.
§ 3D1.2(c) and applied the higher offense level applicable to Count
One, as required by § 3D1.3(a). The statute governing Count Three
required a sixty-month consecutive sentence and thus, pursuant to
§ 3D1.1(b)(1), Count Three was not grouped with the others. As
to Counts One and Two, the probation officer calculated a base of-
fense level of 20 under § 2K2.1(a)(4)(A) because Lightsey violated §
922(g)(1) after sustaining a felony conviction for a controlled sub-
stance offense. The PSI then applied a two-level enhancement un-
der § 2K2.1(b)(4)(A) because the firearm Lightsey possessed was
stolen. Lightsey’s adjusted offense level was, therefore, 22. But the
PSI then increased the offense level to 33 because (a) Lightsey was
charged with possession of a firearm by a felon in Count One and
(b) he had at least three prior convictions on different occasions for
violent felonies or serious drug offenses, rendering him an “armed
career criminal” under § 4B1.4(b)(3)(B). Specifically, the PSI cited
Lightsey’s 1997 Florida conviction for attempted armed robbery,
2000 Florida conviction for sale of cocaine, and 2009 Florida con-
viction for sale or delivery of cocaine as predicate offenses for the
armed career criminal enhancement. Lightsey did not receive any
reduction for acceptance of responsibility, resulting in a total of-
fense level of 33. The probation officer calculated a criminal his-
tory score of six, which would typically yield a criminal history cat-
egory of III. But because of Lightsey’s status as an armed career
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20-13682 Opinion of the Court 5

criminal, the PSI increased his criminal history category to IV pur-
suant to § 4B1.4(c)(3).
Under § 924(e), Lightsey was subject to a statutory term of
imprisonment of fifteen years to life for Count One. As for Count
Two, the statutory maximum term was thirty years. His guideline
range on Counts One and Two was 188 to 235 months. On Count
Three, Lightsey faced a mandatory minimum of five years and a
maximum of life, to run consecutively to any other counts.
The PSI also summarized Lightsey’s personal history and
characteristics. In particular, the PSI reported that Lightsey’s child-
hood was unstable as he had been raised in foster care and fre-
quently ran away due to physical abuse. He was homeless at times
and his only male role models were other homeless men. He was
in the juvenile justice system from age thirteen until he was sen-
tenced to prison as an adult at age sixteen. Lightsey has three chil-
dren, each with a different woman, but he does not have contact
with any of them. Lightsey reported that he has suffered from bi-
polar disorder and schizophrenia since childhood, and that he re-
ceived some mental health counseling and medication between
2014 and 2016. Medical records showed that Lightsey was commit-
ted under the Baker Act twice, in July 2014 and October 2016, and
that he had attempted suicide at least once in 2016. Nassau County
Jail records reflected that Lightsey denied any history of mental
health problems during his evaluation there, and he was not pre-
scribed any psychotropic medication during his incarceration.
Lightsey reported some illegal drug use in his past and a urinalysis
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6 Opinion of the Court 20-13682

performed at the time of his initial appearance in November 2018
had negative results. Lightsey dropped out of high school in 11th
grade and does not have a GED. He had some scattered employ-
ment history as a machine operator, truck driver, warehouse
worker, and landscaper. Of all this, the PSI concluded that Light-
sey’s personal history and characteristics may warrant a sentence
outside of the advisory guideline system but did not identify any
basis for departure from the guideline range.
Lightsey objected to the PSI, arguing that he was improperly
designated as an armed career criminal because (a) his 1997 convic-
tion for attempted armed robbery was not a violent felony and (b)
his 2000 and 2009 drug convictions were not “serious drug of-
fenses” as defined in ACCA. The probation officer responded that
in United States v. Fritts, 841 F.3d 937 (11th Cir. 2016), this Court held
that Florida armed robbery under Florida Statute § 812.13 categor-
ically qualified as a “violent felony” under ACCA.1 Likewise, the
probation officer stated that Shular v. United States, 589 U.S. 154
(2020), held that sale of cocaine and sale or delivery of cocaine un-
der Florida Statute § 893.13(1)(a) are both “serious drug offenses”
under ACCA. Lightsey also filed a sentencing memorandum with
mitigating arguments based on his childhood poverty, neglect, and

1 The probation officer did not address whether Fritts extends to the inchoate

crime of “attempt.” At the time the PSI was written, however, it was the law
in our Circuit that “an attempt to commit a violent felony under the ACCA is
also a violent felony.” United States v. St. Hubert 909 F.3d 335, 352 (11th Cir.
2018), abrogated by United States v. Taylor, 596 U.S. 845 (2022).
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abuse and the mental health struggles that precipitated his criminal
offenses.
At sentencing, Lightsey renewed his objection to the ACCA
enhancement “for the record,” but he conceded that “[t]he case law
does not support [his] objections.” He argued that his 1997 convic-
tion for attempted armed robbery was not a qualifying offense for
three reasons: it was stale, attempt crimes did not qualify as violent
felonies, and it was improper to consider because it was a juvenile
conviction. He also maintained that his 2000 Florida cocaine-re-
lated conviction was too stale to count as a predicate offense.
Lightsey again conceded that he had “no case law to support these
objections.” The district court disagreed with that characteriza-
tion, explaining that “it’s slightly different than there being no case
law to support the objections. The current state of the law is that
those objections are all foreclosed.” Lightsey agreed. The govern-
ment, for its part, seconded the probation officer’s view that Shular
held that Lightsey’s specific Florida drug convictions were “serious
drug offenses” under ACCA. The government added that Stokeling
v. United States, 586 U.S. 73 (2019), held that Florida armed rob-
bery—the completed crime that Lightsey was convicted of at-
tempting—was a predicate felony for the ACCA enhancement.
The government also noted that Lightsey had been adjudicated as
an adult in the 1997 case but explained that, even if he were adjudi-
cated as a juvenile, United States v. Burge, 407 F.3d 1183 (11th Cir.
2005), concluded that juvenile offenses may qualify as predicate
convictions under ACCA. The district court added that our Cir-
cuit’s precedent provided that “an attempt to commit a crime of
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8 Opinion of the Court 20-13682

violence is[,] in itself[,] a crime of violence, and so it counts in the
same way as the actual accomplishment of the offense.” With that,
the district court concluded that, “because I believe that those ar-
guments are foreclosed . . . they are noted and preserved for the
record in case the law changes, but for current purposes, I will over-
rule the objection.”
The district court then accepted the facts as recounted in the
PSI and adopted its sentencing calculations: an offense level of 33,
a criminal history category of IV, a guideline range of 188 to 235
months’ imprisonment for Counts One and Two, a 60-month man-
datory consecutive sentence for Count Three, and terms of super-
vised release on each Count. Both Lightsey and the government
agreed with the district court’s recitation of the guidelines.
Regarding the ACCA predicates, the government introduced
into evidence the certified copies of Lightsey’s prior drug and at-
tempted robbery convictions. Lightsey admitted that each of these
convictions had been entered against him and acknowledged that
he would not later be able to challenge the existence of those con-
victions, though he could still appeal whether they qualified as
ACCA predicates.
The government requested a sentence at the low end of the
guideline range on Counts One and Two, followed by the five-year
mandatory minimum on Count Three. The government explained
that its position balanced the need to deter Lightsey and protect the
public from future crimes against the mitigating effect of Light-
sey’s difficult life circumstances. Lightsey reiterated the mitigating
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arguments from his sentencing memorandum. He focused on his
childhood abuse and instability as well as his juvenile drug use. As
for his prior convictions he pointed out that two came from his
teenage years, and that, with respect to the prior drug convictions,
they concerned a total of $70 worth of crack cocaine. Lightsey also
stressed that he had “no prior other violence in his past” and
pointed out that, in this case, he had very small amounts of cocaine
and crack, and a much larger amount of marijuana, implying that
the latter is less serious. Lightsey’s counsel expressed frustration
and acceptance of the reality that “there’s nothing I can say that
will get anything lower than 20 years here,” and asked that the dis-
trict court impose that minimum sentence.
Lightsey addressed the district court himself, conceding that
he “made some very bad mistakes” but expressing despair over his
challenging childhood and his need for psychiatric medication, and
insisting that he did not deserve twenty years in prison. While he
admitted and took responsibility for his drug crimes, Lightsey dis-
puted the validity of his firearm prosecution. The district court
then sentenced Lightsey to 240 months’ imprisonment—consisting
of concurrent terms of 180 months’ imprisonment on each of
Counts One and Two and a consecutive term of sixty months’ im-
prisonment on Count Three—and six years of supervised release.
In doing so, the district court acknowledged that it “ha[d] no au-
thority to impose anything less than 15 years as to Count One, and
ha[d] no authority to impose less than 5 years consecutive as to
Count Three.”
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This appeal timely followed.2
II. ANALYSIS
Lightsey raises two issues on appeal, both of which attack
his enhanced sentence under ACCA. First, Lightsey argues that his
2000 Florida conviction for sale of cocaine and his 2009 Florida con-
viction for sale or delivery of cocaine do not qualify as “serious
drug offenses” under ACCA because Florida’s definition of cocaine
at the time of Lightsey’s state offenses was broader than the federal
definition of cocaine at the time of his federal firearm offense. Sec-
ond, Lightsey contends that his 1997 Florida conviction for at-
tempted armed robbery does not qualify as a “violent offense” un-
der ACCA’s elements clause, following the Supreme Court’s deci-
sion in United States v. Taylor, 596 U.S. 845 (2022). We assume for
purposes of this appeal that Lightsey preserved his core issue—that
these convictions are not proper ACCA predicates—before the dis-
trict court. We therefore consider Lightsey’s challenges properly
preserved, and our review is de novo. United States v. Jackson (“Jack-
son II”), 55 F.4th 846, 849–50 (11th Cir. 2022), aff’d sub nom. Brown
v. United States, 602 U.S. 101 (2024).
ACCA mandates a 15-year minimum sentence for any de-
fendant who possesses a firearm in violation of § 922(g) and is an

2 As we explain below, the government agrees with Lightsey’s view of at least

one issue raised in this appeal. For that reason, a member of this panel ap-
pointed Michael D. Doman of Gibbs & Bruns, LLP, as amicus curiae to defend
the district court’s sentence. We thank Mr. Doman for accepting this appoint-
ment and providing very capable service to this Court during this appeal.
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“armed career criminal,” meaning they have 3 prior convictions for
“violent felonies” or “serious drug offenses” committed on sepa-
rate occasions. See § 924(e)(1). We apply the categorical approach
to determine whether a defendant’s prior state conviction is a pred-
icate offense under ACCA. Jackson II, 55 F.4th at 850. Under the
categorical approach, we look to the statutory definition of the
state offense, not the facts of the crime as committed. Id. A state
conviction qualifies as a “serious drug offense” or “violent felony”
only if the state statute of conviction defines the offense in the
same way as, or more narrowly than, ACCA’s definition. Id. In
other words, the least culpable conduct prohibited by the state stat-
ute must fall within ACCA’s definition of the qualifying predicate
offenses.
We first address Lightsey’s drug crimes, then his attempted
armed robbery.
A. Lightsey’s “Serious Drug Offenses”
On appeal, Lightsey argues that the district court erred by
finding that his 2000 and 2009 Florida cocaine convictions were se-
rious drug offenses under ACCA. This argument, however, is
squarely foreclosed by our binding precedent.
ACCA defines a “serious drug offense,” in relevant part, as
“an offense under State law, involving manufacturing, distributing,
or possessing with intent to manufacture or distribute, a controlled
substance.” § 924(e)(2)(A)(ii). The statute provides that “con-
trolled substances” are defined by the Controlled Substances Act,
21 U.S.C. § 802. Id. The Controlled Substances Act, in turn, defines
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a “controlled substance” as “a drug or other substance, or immedi-
ate precursor, included in schedule I, II, III, IV, or V of part B [§ 812]
of this subchapter.” 21 U.S.C. § 802(6). In Jackson II, this Court
clarified that ACCA’s definition incorporates the law in effect at the
time of the prior drug conviction—as to both the state statute and
the federal drug schedules—and not the law in effect at the time of
the subsequent § 922(g) conviction. Jackson II, 55 F.4th at 850, 854.
And earlier this year, the Supreme Court affirmed Jackson II, con-
firming that “a prior state drug conviction may constitute an ACCA
predicate if the drugs on the federal and state schedules matched
when the state drug offense was committed.” Brown, 602 U.S. at
118.
When applying the categorical approach to determine
whether a previous conviction qualifies as an ACCA predicate, we
must presume that the previous conviction “‘rested upon nothing
more than the least of the acts criminalized’ or the ‘least culpable
conduct.’” United States v. Kushmaul, 984 F.3d 1359, 1364 (11th Cir.
2021) (quoting Donawa v. U.S. Att’y Gen., 735 F.3d 1275, 1280, 1283
(11th Cir. 2013)).
Lightsey proffers that the least culpable conduct under the
Florida statute of conviction was possession with intent to sell io-
flupane. But he concedes that, at the time of each drug conviction,
both Florida law and federal law criminalized manufacturing, dis-
tributing, or possessing with intent to distribute ioflupane. That
the federal drug schedule was later changed to remove ioflupane is
irrelevant to the application of the ACCA enhancement, which is
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tethered to the schedules in effect at the time of the underlying
drug conviction. Brown, 602 U.S. at 118; Jackson II, 55 F.4th at 850,
854. The district court, therefore, correctly concluded that Light-
sey’s 2000 and 2009 drug convictions were “serious drug offenses”
under ACCA. See Brown, 602 U.S. at 109–10; Jackson II, 55 F.4th at
861 (both rejecting this same ioflupane argument).
B. Lightsey’s “Violent Felony”
We turn next to Lightsey’s attempted armed robbery con-
viction, which was his third qualifying ACCA predicate. While
Lightsey contends, and the government agrees, that the district
court erred in finding that Lightsey’s 1997 Florida conviction for
attempted armed robbery was a violent felony under ACCA, “[a]
court is not bound by the parties’ stipulations of law, particularly
when those stipulations are erroneous.” King v. United States, 641
F.2d 253, 258 (5th Cir. Mar. 1981). Indeed, “[i]t is clear that a stipu-
lation of the parties to an action may be ignored by the court if it
is a stipulation as to what the law requires.” See United States v. One
1978 Bell Jet Ranger Helicopter, Serial No. 2464, License No. N500RF, 707
F.2d 461, 462 (11th Cir. 1983).
ACCA defines a “violent felony” as any crime punishable by
more than one year in prison and which “has as an element the use,
attempted use, or threatened use of physical force against the per-
son of another.” § 924(e)(2)(B)(i). This definition comprises the
“elements clause.” As with serious drug offenses, we apply the cat-
egorical approach to determine whether a previous conviction is a
“violent felony.” United States v. Sharp, 21 F.4th 1282, 1285 (11th Cir.
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2021). Under Florida law, robbery is “the taking of money or other
property which may be the subject of larceny from the person or
custody of another, with intent to either permanently or tempo-
rarily deprive the person or the owner of the money or other prop-
erty, when in the course of the taking there is the use of force, vio-
lence, assault, or putting in fear.” Fla. Stat. § 812.13(1). The Florida
Supreme Court has defined the elements of an attempted armed
robbery as “(1) the formation of an intent to commit the crime of
robbery; (2) the commission of some physical act in furtherance of
the robbery; and (3) the use of a [weapon].” Franqui v. State, 699
So. 2d 1312, 1317 (Fla. 1997) (citing Fla. Stat. §§ 777.04(1),
812.13(2)(a)); accord State v. Tripp, 642 So. 2d 728, 730 n.2 (Fla. 1994)
(“[A]ttempted armed robbery is a felony in which the use of a
weapon is an essential element.”).
Attempted armed robbery qualifies as a categorical crime of
violence under ACCA’s elements clause. See United States v. Joyner,
882 F.3d 1369, 1379 (11th Cir. 2018). This remains so after Taylor,
in which the Supreme Court opined only on attempted Hobbs Act
robbery and said nothing of the crime at issue here. 596 U.S. at 848,
860.
Under our prior-panel precedent rule, Joyner “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.” United States v. Archer, 531 F.3d 1347, 1352 (11th Cir.
2008). “For a Supreme Court decision to undermine panel prece-
dent to the point of abrogation, the ‘decision must be clearly on
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point’ and ‘clearly contrary’ to the panel precedent.” Edwards v. U.S.
Att’y Gen., 97 F.4th 725, 743 (11th Cir. 2024) (emphasis in original)
(quoting Garrett v. Univ. of Ala. at Birmingham Bd. of Trs., 344 F.3d
1288, 1292 (11th Cir. 2003)). Indeed, if the Supreme Court “‘never
discussed’ our precedent and did not ‘otherwise comment[] on’ the
precise issue before the prior panel, our precedent remains bind-
ing.” United States v. Dubois, 94 F.4th 1284, 1293 (11th Cir. 2024)
(alteration in original) (quoting United States v. Vega-Castillo, 540
F.3d 1235, 1238 (11th Cir. 2008)). “Even if the reasoning of an in-
tervening high court decision is at odds with a prior appellate court
decision, that does not provide the appellate court with a basis for
departing from its prior decision.” Vega-Castillo, 540 F.3d at 1237.
Instead, to abrogate our precedent, the Supreme Court (or this
Court en banc) must “‘demolish’ and ‘eviscerate’” all the “funda-
mental props” of the prior-panel precedent. Dubois, 94 F.4th at 1293
(quoting Del Castillo v. Sec’y, Fla. Dep’t of Health, 26 F.4th 1214, 1223
(11th Cir. 2022)). “In addition to being squarely on point, the doc-
trine of adherence to prior precedent also mandates that the inter-
vening Supreme Court case actually abrogate or directly conflict
with, as opposed to merely weaken, the holding of the prior panel.”
See United States v. Kaley, 579 F.3d 1246, 1255 (11th Cir. 2009).
Taylor does not speak to attempted armed robbery under
Florida law. It does not cite to our Joyner decision, nor any of the
precedent upon which Joyner relied. Instead, Taylor holds only that
attempted Hobbs Act robbery—a violation of a specific federal
statute, 18 U.S.C. § 1951—is not a “crime of violence” under
ACCA’s elements clause. See 596 U.S. at 851; § 924(c)(3)(A). Joyner,
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on the other hand, holds that attempted armed robbery under Flor-
ida Statute § 812.13 is a “violent felony” within the meaning of
ACCA’s elements clause. See 882 F.3d at 1378; § 924(e)(2)(B)(i). It
cannot be said, therefore, that Taylor is “‘clearly on point’ and
‘clearly contrary’ to the panel precedent.” Edwards, 97 F.4th at 743
(quoting Garrett, 344 F.3d at 1292). In similar cases, we have
reached this same conclusion, reasoning that Taylor’s reach does
not extend to other crimes, arising under other statutes. In United
States v. Wiley, 78 F.4th 1355 (11th Cir. 2023), for example, we con-
sidered an appellant’s challenge to a § 924(c) conviction arising
from a conviction for aiding and abetting a completed Hobbs Act
robbery. Id. at 1364. Wiley contended that Taylor abrogated our
prior precedent on that issue—an argument that we rejected,
“[b]ecause the Supreme Court’s analysis in Taylor was limited to
attempted Hobbs Act robbery” and therefore could not help Wiley
to “overcome our established precedent holding that aiding and
abetting completed Hobbs Act robbery is a crime of violence.” Id.
And, while Taylor’s reasoning may creep towards that which
we applied in Joyner, discordant reasoning provides an insufficient
basis for departure from our precedent. See Vega-Castillo, 540 F.3d
at 1237. In any event, we find that the reasoning does not cut all
that closely once we push beyond the surface.
First, while Taylor and Joyner (and this case) all involve “at-
tempt” convictions, the source of law defining the “attempt” is not
consistent. Taylor, as we know, arose under federal law and thus
implicated the version of “attempt” that exists under the federal
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20-13682 Opinion of the Court 17

common law and the Model Penal Code. 596 U.S. at 851 and pas-
sim. Florida, however, has codified an “attempt” statute, Florida
Statute § 777.04, rendering Taylor’s “attempt” analysis inapposite.
In particular, the federal “attempt” analysis in Taylor requires
courts to ask whether the defendant took a “substantial step” to-
wards the completed offense. Id. at 851. Under Florida law, on the
other hand, attempt is characterized more stringently and includes
not only “substantial step,” but also “proximity,” “probable de-
sistance,” and “equivocality.” Hudson v. State, 745 So. 2d 997, 1000
n.3 (Fla. Dist. Ct. App. 1999); see also id. (“The substantial step ap-
proach is authorized by the Model Penal Code. That model act has
not been adopted in Florida, and it is doubtful we could utilize that
approach in the absence of the model act’s statutory language.”).
While the Court in Taylor declined to answer “what exactly consti-
tutes a substantial step,” 596 U.S. at 851, Florida’s courts have coun-
seled that attempt requires that “some appreciable fragment of the
crime must be committed and it must proceed to the point that the
crime would be consummated unless interrupted by a circum-
stance independent of the attemptor’s will.” State v. Coker, 452 So.
2d 1135, 1136 (Fla. Dist. Ct. App. 1984). Thus, the rendition of “at-
tempt” contemplated in Taylor arguably calls for less culpable con-
duct than that necessary to sustain an “attempt” conviction under
Florida law.
Second, and perhaps more fundamentally, the text of the
Hobbs Act statute and the Florida robbery statute are quite differ-
ent. While the Florida statute requires the use of force against a
person, the broader Hobbs Act statute does not—it also covers the
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18 Opinion of the Court 20-13682

use of force against property. Compare Fla. Stat. § 812.13 with 18
U.S.C. § 1951(b)(1); see also United States v. Eason, 953 F.3d 1184,
1192–93 (11th Cir. 2020) (explaining why a case parsing the lan-
guage of the Florida robbery statute could not control in a categor-
ical analysis of Hobbs Act robbery).
Reasoning, as opposed to holding, “does not provide the ap-
pellate court with a basis for departing from its prior decision.”
Vega-Castillo, 540 F.3d at 1237. And even if it did, the relevant rea-
soning from Taylor does not come nearly close enough to Joyner to
“‘demolish’ and ‘eviscerate’” all the “fundamental props” of our
prior-panel precedent. Dubois, 94 F.4th at 1293 (quoting 26 F.4th at
1223). Because Joyner remains binding in this Circuit, we conclude
that the district court did not err in determining that Lightsey’s at-
tempted armed robbery conviction was a qualifying ACCA predi-
cate.
III. CONCLUSION
For the foregoing reasons, we affirm Lightsey’s sentence.
AFFIRMED.
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20-13682 Wilson, J., Dissenting in Part 1

WILSON, Circuit Judge, Concurring in Part and Dissenting in Part:
The majority concludes our precedent in United States v.
Joyner, 882 F.3d 1369 (11th Cir. 2018) is not abrogated by the Su-
preme Court’s precedent in United States v. Taylor, 596 U.S. 845
(2022). I disagree. I would hold that because Taylor abrogated
Joyner, Jimmy Ray Lightsey should not be subject to a sentencing
enhancement under the Armed Career Criminal Act (ACCA), 18
U.S.C. § 924(e).
As the majority explains, Lightsey was sentenced to 240
months in prison for various firearm-and drug-related offenses.
During sentencing, the district court determined that Lightsey was
an armed career criminal under the ACCA due to three prior con-
victions for a violent felony or serious drug offense. On appeal,
Lightsey argues that his conviction for attempted armed robbery is
not a violent felony. 1 More specifically, Lightsey asserts that, fol-
lowing Taylor, his 1997 conviction for attempted armed robbery is
no longer a violent felony under the ACCA. 2
The ACCA’s definition of “violent felony” includes a crime
punishable by more than one year’s imprisonment that “has as an
element the use, attempted use, or threatened use of physical force

1 Lightsey also contends that his cocaine-related convictions are not serious

drug offenses. I concur with the majority in its determination that those con-
victions remain serious drug offenses under our precedents.
2 Notably, both Lightsey and the government agreed that Taylor abrogated

Joyner. As a result, the court had to appoint amicus curiae counsel to argue that
Joyner was not abrogated by Taylor.
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2 Wilson, J., Dissenting in Part 20-13682

against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i). This pro-
vision of the ACCA is appropriately known as that subsection’s “el-
ements clause.” See, e.g., United States v. Sharp, 21 F.4th 1282, 1285
(11th Cir. 2021). To determine whether a crime is covered by the
elements clause, this court employs the categorical approach: we
scrutinize the elements of the statute under which the defendant
was convicted. Id.
Lightsey was convicted of attempted armed robbery under
Florida’s robbery statute. See Fla. Stat. § 812.13. That statute de-
fines robbery as the intentional “taking of money or other property”
from another’s “person or custody,” with “the use of force, vio-
lence, assault, or putting in fear.” Id. § 812.13(1). An armed robbery
occurs where, “in the course of committing the robbery the of-
fender carried a weapon.” Id. § 812.13 (2)(b). 3 Under Florida law, a
person commits the offense of criminal attempt if he intends to
commit an offense and “does any act toward the commission of
such offense but fails in the perpetration or is intercepted or pre-
vented in the execution.” Id. § 777.04(1).
Interpreting these two statutes, the Supreme Court of Flor-
ida identified three elements of attempted armed robbery: “(1) the
formation of an intent to commit the crime of robbery; (2) the
commission of some physical act in furtherance of the robbery; and
(3) the use of a [weapon].” Franqui v. State, 699 So. 2d 1312, 1317
(Fla. 1997) (citing Fla. Stat. §§ 777.04(1), 812.13(2)(a)). At the time

3 The statute imposes higher penalties if “the offender carried a firearm or

other deadly weapon.” Fla. Stat. § 812.13(2)(a).
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20-13682 Wilson, J., Dissenting in Part 3

Lightsey was sentenced for his federal firearm offense, Florida at-
tempted armed robbery was “categorially a violent felony under
the ACCA” in this circuit under Joyner, 882 F.3d at 1379. The panel’s
holding in Joyner “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.” United States v.
Archer, 531 F.3d 1347, 1352 (11th Cir. 2008).
However, a few years after we decided Joyner, the Supreme
Court issued Taylor, which held that attempted Hobbs Act robbery
is not a “crime of violence” under the elements clause present in 18
U.S.C. § 924(c)(3)(A). 596 U.S. at 852. In addition, Taylor clarified
the standard by which to evaluate attempt crimes under the ele-
ments clause in 18 U.S.C. § 924(c)(3)(A). Id. at 850. The Taylor
Court explained that the relevant inquiry is whether the felony at
issue “always requires the government to prove—beyond a reason-
able doubt, as an element of its case—the use, attempted use, or
threatened use of force.” Id. (emphasis added).
Using this approach, the Court concluded that attempted
Hobbs Act robbery is not a “crime of violence” under 18 U.S.C.
§ 924(c)(3)(A). Id. at 852. Attempted Hobbs Act robbery required
the government to prove: “(1) the defendant intended to unlaw-
fully take or obtain personal property by means of actual or threat-
ened force, and (2) he completed a ‘substantial step’ toward that
end.” Id. at 851.The Court explained whatever proof a “substantial
step” toward taking property by force or threat requires, “it does
not require the government to prove that the defendant used,
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4 Wilson, J., Dissenting in Part 20-13682

attempted to use, or even threatened to use force against another
person or his property.” Id. This circuit has read Taylor to stand for
the principle that, “where a crime may be committed by the threat-
ened 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) (emphasis added);
see also United States v. Sheely, No. 22-13500, 2024 WL 4003394, at
*5 (11th Cir. Aug. 30, 2024) (holding that Florida attempted armed
robbery is not a crime of violence under the Federal Sentencing
Guidelines’ elements clause, which is nearly identical to the ele-
ments clause in the ACCA and is interpreted in the same way).
Notably, Joyner and Taylor addressed different parts of 18
U.S.C. § 924. Joyner addressed the elements clause present in the
ACCA at 18 U.S.C. § 924(e)(2)(B). 882 F.3d at 1377. Taylor ad-
dressed the elements clause present in 18 U.S.C. § 924(c)(3)(A). 596
U.S. at 849. However, the provisions themselves are very close to
identical. We have previously held that where the elements clauses
of the Federal Sentencing Guidelines and the ACCA are basically
identical, the same analysis applies to them. See United States v.
Ochoa, 941 F.3d 1074, 1107 (11th Cir. 2019). Accordingly, we have
used case law interpreting the two provisions interchangeably. Id.
As the Supreme Court explained in Taylor, it has “long understood
similarly worded statutes to demand similarly categorical inquir-
ies.” 596 U.S. at 850. We must consider Taylor’s impact on Joyner
with this reasoning in mind.
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20-13682 Wilson, J., Dissenting in Part 5

For Taylor to undermine Joyner to the point of abrogation,
“the decision must be clearly on point and clearly contrary to the panel
precedent.” 4 Edwards v. U.S. Att’y Gen., 97 F.4th 725, 743 (11th Cir.
2024) (internal quotation marks omitted and emphasis added). Tay-
lor is clearly on point and clearly contrary to our decision in Joyner
and has undermined Joyner to the point of abrogation. See Archer,
531 F.3d at 1352. Just as with attempted Hobbs Act robbery, Florida
attempted armed robbery does not always require the government
to prove the use, attempted use, or threatened use of force. Rather,
that crime may be accomplished by an attempted threat of force,
which is neither an attempted nor threatened use of force. Cf. United
States v. Smith, No. 20-12609, 2023 WL 1860518, at *12–13 (11th Cir.
Feb. 9, 2023) (holding that “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”). Because Florida armed robbery may be commit-
ted by the threatened use of force, an attempt to commit the of-
fense falls outside the elements clause. See Alvarado-Linares, 44 F.4th
at 1346.
I would hold that the district court plainly erred in determin-
ing that Lightsey’s 1997 conviction for attempted armed robbery

4 The majority cites United States v. Dubois, 94 F.4th 1284, 1293 (11th Cir. 2024),

for the proposition that if that if the Supreme Court “‘never discussed’ our
precedent and did not ‘otherwise comment[] on’ the precise issue before the
prior panel, our precedent remains binding,” and explains that Taylor never
cited Joyner. However, the Supreme Court does not have to directly cite our
precedent to abrogate it. See Dubois, 94 F.4th at 1293; Edwards, 97 F.4th at 743.
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6 Wilson, J., Dissenting in Part 20-13682

was a violent felony under ACCA. Because I would hold Lightsey’s
prior conviction for attempted armed robbery under Florida law
does not qualify as an ACCA-predicate offense, I would vacate and
remand for resentencing because Lightsey should not have been
subject to the armed career criminal sentencing enhancement.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10639941. Public record. Not legal advice.