United States v. Bennie Wiley

Case: 17-10818 Date Filed: 08/16/2017 Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 17-10818

Non-Argument Calendar

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D.C. Docket No. 2:00-cr-14057-DLG-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BENNIE WILEY,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

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(August 16, 2017)

Before WILSON, JORDAN, and ROSENBAUM, Circuit Judges.

PER CURIAM:

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Bennie Wiley appeals the district court’s revocation of his supervised release

for committing armed trespassing, under Fla. Stat. § 810.08(2)(c). On appeal,

Wiley argues that he did not commit armed trespassing because his girlfriend

Ashley Tate consented to him being there, and because his folding knife, an

approximately three-inch blade, was not a “dangerous weapon” for purposes of

§ 810.08(2)(c). After a careful review of the record and the parties’ briefs, we

affirm.

I.

“We . . . review a district court’s revocation of supervised release for an

abuse of discretion.” United States v. Velasquez Velasquez, 524 F.3d 1248, 1252

(11th Cir. 2008) (per curiam). The district court may revoke a defendant’s term of

supervised release if it “finds by a preponderance of the evidence that the

defendant violated a condition of [his] supervised release.” 18 U.S.C.

§ 3583(e)(3). We review a district court’s factual findings for clear error. United

States v. Almand, 992 F.2d 316, 318 (11th Cir. 1993). Further, a district court’s

choice between two permissible views of the evidence cannot be clear error.

United States v. Ndiaye, 434 F.3d 1270, 1305 (11th Cir. 2006). Substantial

deference is afforded to a factfinder’s credibility determinations. See United States

v. McPhee, 336 F.3d 1269, 1275 (11th Cir. 2003).

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II.

In determining whether a violation of Florida state law occurred, federal

courts are “bound by Florida courts’ determination and construction of the

substantive elements of that state offense.” See United States v. Rosales-Bruno,

676 F.3d 1017, 1021 (11th Cir. 2012). Under Florida law, a defendant commits

armed trespassing when he, while armed with a “firearm or other dangerous

weapon,” willfully enters or remains in a structure without authorization or, having

been authorized to enter, is warned to depart and refuses to do so. Fla. Stat.

§ 810.08(1), (2)(c); Mitchell v. State, 698 So. 2d 555, 559 (Fla. Dist. Ct. App.

1997). Florida law recognizes consent as an affirmative defense to trespassing.

See Haugabrook v. State, 827 So. 2d 1065, 1069 (Fla. Dist. Ct. App. 2002).

However, consent may be revoked through an “actual communication,” and a

defendant who remains after consent has been revoked is a trespasser. See Smith v.

State, 778 So. 2d 329, 330–31 (Fla. Dist. Ct. App. 2000).

Moreover, although Florida’s armed-trespassing statute does not define the

term “dangerous weapon,” we may look to several other instruments to glean its

meaning. See Fla. Stat. § 810.08. The standard Florida jury instruction for armed

trespassing defines a “dangerous weapon” as “any weapon that, taking into account

the manner in which it is used, is likely to produce death or great bodily harm.”

Fla. Std. Jury Insr. (Crim.). 13.3 Trespass. And the definition section of the

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weapons and firearms chapter of Florida’s criminal code defines a “weapon” as

“any dirk, knife, metallic knuckles, slungshot, billie, tear gas gun, chemical

weapon or device, or other deadly weapon except a firearm or a common

pocketknife, plastic knife, or blunt-bladed table knife.” Fla. Stat. § 790.001(13)

(emphasis added). In L.B. v. State, the Florida Supreme Court interpreted

§ 790.001(13) in connection with a 1951 opinion from the Attorney General of

Florida, which stated that a “common pocketknife” was a pocketknife with a blade

of four inches or less, to determine that the under-four-inch-bladed folding knife at

issue in that case was a “common pocketknife.” 700 So. 2d 370, 371, 373 (Fla.

1997). However, the Fifth District Court of Appeal has determined that the rule in

L.B. does not apply when the pocketknife is in the open position. See Porter v.

State, 798 So. 2d 855, 856 (Fla. Dist. Ct. App. 2001); see also Walls v. State, 730

So. 2d 294, 295 (Fla. Dist. Ct. App. 1999) (stating that, to the extent L.B.

established a per se rule, the rule only applied where the defendant established that

his knife was four inches or less and in the folded position). Further, the Fifth

District Court of Appeal has determined that, even where a pocketknife may

otherwise fall within the “common pocketknife” exception, the rule in L.B. does

not apply and the pocketknife may qualify as a “deadly weapon” where the

pocketknife was used as a weapon. Martin v. State, 747 So. 2d 474, 474 (Fla. Dist.

Ct. App. 1999).

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III.

Here, the district court did not clearly err in determining that Wiley was a

trespasser. Tate’s testimony showed that, even though Wiley initially was

welcome at her house, she twice told him to leave her house and he remained after

being asked to leave. Tate revoked her consent, and by remaining after that

revocation, Wiley was trespassing. See Smith, 778 So. 2d at 330–31. The fact that

he refused to leave and stayed in the house overnight has no bearing on the fact

that Tate revoked her consent. Furthermore, the district court did not clearly err in

determining that Wiley’s folding knife was a “dangerous weapon” and that it did

not fall within the “common pocketknife” exception. Wiley wielded the knife at

Tate when it was in the open position in an attempt to scare and confine her.

Moreover, the knife cut Tate when she tried to take it from Wiley. Thus the

“common pocketknife” exception established in L.B. is not applicable. See Porter,

798 So. 2d at 856; Martin, 747 So. 2d at 474. And because the court’s view of this

evidence is a permissible one, it cannot be deemed clear error. See Ndiaye, 434

F.3d at 1305.

AFFIRMED.

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