“If we conclude that it was suggestive, we then must consider whether, under the totality of the circumstances, the identification was nonetheless reliable.”
How later courts described this case
- “If we conclude that it was suggestive, we then must consider whether, under the totality of the circumstances, the identification was nonetheless reliable.”
- applying de novo review to constitutional questions
- reaffirming the validity of Turner’s holding as to aggravated battery
Written by the judges who cited it.
The opinion
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-15463
Non-Argument Calendar
________________________
D.C. Docket No. 1:14-cr-00030-JRH-BKE-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHNNY LEE WEAVER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
________________________
(January 10, 2019)
Before ROSENBAUM, JILL PRYOR and HULL, Circuit Judges.
PER CURIAM:
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A jury convicted defendant Johnny Lee Weaver of several offenses arising
out of a robbery of a Family Dollar store. At sentencing, the district court found
that he was a career offender under the Sentencing Guidelines and sentenced him
to 360 months’ imprisonment. On appeal, Weaver raises several challenges to his
conviction and sentence.
Weaver’s challenges include whether: (1) the district court violated his due
process rights by admitting into evidence out-of-court and in-court identification
testimony by eyewitness Denise Murray; (2) the prosecutor made an improper
comment meant to inflame the jury by asking the jury to “[t]ell Johnny Weaver
that this community will not tolerate him terrorizing its citizens”; (3) the district
court abused its discretion by giving a jury instruction concerning flight; (4) he
could be convicted for using, carrying, and brandishing a firearm during a crime of
violence under 18 U.S.C. § 924 when the underlying offense was Hobbs Act
robbery; and (5) his prior Florida convictions for strong-arm robbery and
aggravated battery qualify as predicate offenses for purposes of the career offender
enhancement in § 4B1.1 of the Sentencing Guidelines. After careful review, and
for the reasons below, we affirm.
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I. FACTUAL BACKGROUND
A. The Robbery
Weaver, along with Jaron Wallace and Saintwain Roberts, robbed a Family
Dollar store in Augusta, Georgia. Two of the men robbed the store, with a third
driving a getaway car. Driving away from the laundromat next door, Denise
Murray and her son, Kendrick Murray, saw the robbers exit the Family Dollar.
One of the men wore a camouflage jacket, pants, and hat. Denise Murray testified
that the man in camouflage looked at her twice, “like he was trying to figure out
why we was trailing beside them as they ran.”
Two police officers arrived at the scene shortly after the robbery. Kendrick
Murray described to the police the robbers’ black car and the direction in which it
was heading. The police chased the car, reaching speeds in excess of 100 miles per
hour. When the car pulled into a convenience store parking lot, three men jumped
out of the car and fled on foot. The police arrested two of the men—Roberts and
Wallace—but not the third.
The police discovered that the car contained items stolen from the Family
Dollar, a handgun, and a camouflage jacket and hat. The car, the handgun, and the
camouflage clothing belonged to a friend with whom Weaver was staying. The
police also found Weaver’s fingerprint on the car’s front passenger window.
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The police prepared two photo lineups to aid in eyewitness identification of
the robbers. Lineup one consisted of one page with six small photographs of
African-American men, five non-suspects plus co-defendant Wallace. This lineup
was not introduced at trial to prevent confusion. Lineup two contained six separate
pages, each of which displayed one eight by ten inch color photograph of an
African-American man. This lineup included a photograph of Weaver and five
pictures of non-suspects.
Later in the afternoon, the police met the witnesses at the Family Dollar in
hopes of identifying the robbers. Investigator David Powell stayed with the
witnesses to ensure that they did not influence one another while Investigator Tim
Rzasa showed individual witnesses both photo lineups. Rzasa explained that
witnesses should indicate if they recognized anyone in the photos, but that they
should feel no pressure to pick one. Denise and Kendrick Murray identified
Weaver out of the second lineup. The other two robbers, Roberts and Wallace,
also viewed the second lineup and subsequently identified Weaver as the third
robber.
For his role in the offense, a federal grand jury indicted Weaver for, among
other crimes: (1) conspiracy to rob a commercial business, in violation of
18 U.S.C. § 1951; (2) conspiracy to use firearms during a violent crime, in
violation of 18 U.S.C. § 924(o); (3) robbery of a commercial business, in violation
4
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of 18 U.S.C. § 1951; and (4) using, carrying, and brandishing a firearm during a
crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). Weaver pled not
guilty.
B. The Trial
Before the trial began, Weaver filed a motion in limine asking the district
court to preclude the government from eliciting testimony about the second photo
lineup, admitting the photo lineup into evidence, and attempting any in-court
identification of Weaver. The district court denied the motion.
At trial, the government introduced evidence of the second out-of-court
lineup and related testimony. Denise Murray identified Weaver in court as the
man wearing camouflage who had run out of the Family Dollar store. During
closing argument, the prosecution said, “Tell Johnny Weaver that this community
will not tolerate him terrorizing its citizens.” Weaver’s counsel objected to the
statement. Before jury deliberations began, the district court gave the following
instruction on flight:
If you believe that the defendant fled from the law enforcement officer,
then you may consider this conduct, along with all the other evidence,
in deciding whether the government has proved beyond a reasonable
doubt that he committed the crime charged. This conduct may indicate
that he thought he was guilty and was trying to avoid punishment. On
the other hand, sometimes an innocent person may flee to avoid being
arrested or for some other reason.
The jury found Weaver guilty on all counts.
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C. The Sentencing
Before Weaver’s sentencing, the probation office issued a presentence
investigation report (“PSR”). The PSR explained that Weaver was subject to
enhancement as a career offender because he had three prior crimes of violence or
serious drug offense convictions. Weaver objected to the enhancement. At the
sentencing hearing, the probation officer identified Weaver’s Florida convictions
for aggravated battery in 1998, armed robbery in 1999, and strong-arm robbery in
2011 as qualifying offenses for the career offender enhancement. The district court
overruled Weaver’s objection, finding that his prior convictions were sufficient to
trigger the career offender enhancement. After applying the enhancement, the
district court found that Weaver’s guidelines range was 360 months to life
imprisonment and ultimately sentenced him to a total of 360 months’
imprisonment.
Weaver appealed his conviction. While his appeal was pending, the
Supreme Court decided Johnson v. United States, 135 S. Ct. 2551, 2557 (2015),
holding that the residual clause in the Armed Career Criminal Act (“ACCA”),
18 U.S.C. § 924(e)(2)(B)(ii), was unconstitutionally vague. We ordered the parties
to submit supplemental briefing to address Johnson. In his initial supplemental
brief, Weaver argued that he was entitled to be resentenced because in light of
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Johnson the residual clause in the Sentencing Guidelines’ career offender
enhancement was void for vagueness.
After the Supreme Court held in Beckles v. United States that the
Guidelines’ residual clause in the career offender enhancement was not void for
vagueness, 137 S. Ct. 886, 892 (2017), Weaver submitted a supplemental reply
brief. Regarding the career offender enhancement, he asserted that remand was
required so that the district court could apply the modified categorical approach to
determine whether his prior convictions in Florida for strong-arm robbery and
aggravated battery qualified as predicate offenses. He also challenged his § 924(c)
conviction, arguing that his Hobbs Act robbery conviction did not qualify as a
crime of violence under the statute’s elements clause and also that § 924(c)’s
residual clause was unconstitutionally vague.
II. LEGAL ANALYSIS
A. The District Court Properly Admitted Eye Witness Testimony
Identifying Weaver.
We begin by considering Weaver’s claim that his due process rights were
violated when the district court admitted Denise Murray’s eye witness
identification of Weaver. Weaver challenges the admissibility of her
identifications that were made both outside of court and in court. We conclude
that the district court did not clearly err in admitting the out-of-court or in-court
identifications of Weaver.
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When considering whether an eye-witness identification procedure violates
due process, we examine whether the identification procedure unduly influenced
the witness to select Weaver. We will set aside a conviction “based on eyewitness
identification at trial following a pretrial identification by photograph . . . only if
the photographic identification procedure was so impermissibly suggestive as to
give rise to a very substantial likelihood of irreparable misidentification.”
Simmons v. United States, 390 U.S. 377, 384 (1968). We review for clear error a
district court’s finding that an identification procedure was not unduly suggestive.
United States v. Diaz, 248 F.3d 1065, 1103 (11th Cir. 2001). But we review de
novo the district court’s ultimate conclusion regarding a violation of due process.
See United States v. Whatley, 719 F.3d 1206, 1213 (11th Cir. 2013) (applying de
novo review to constitutional questions).
1. Out-of-Court Identification
We use a two-step process to assess the constitutionality of a trial court’s
decision to admit an out-of-court identification. See Diaz, 248 F.3d at 1102. We
first ask whether the original identification procedure was unduly suggestive. Id.
If it was, we then consider whether the identification was reliable under the totality
of the circumstances. Id. “When determining whether a photo array is unduly
suggestive, we consider the size of the array, the manner of its presentation, and
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the details of the photographs in the array.” United States v. Perkins, 787 F.3d
1329, 1344 (11th Cir. 2015). 1
We conclude that the photo array presented to Denise Murray was not
unduly suggestive. It contained six photos, all headshots of African-American men
in blue prison jumpsuits. Although there were minor differences between
Weaver’s picture and the pictures of the other men in the array, the district court
found that Weaver’s photograph was not so different as to “stick out.” Each of the
men in the array had closely cropped hair and similar skin tones. Although
Weaver claims that he was shorter and older, with lighter skin tone, and weighed
less than the other men in the photos, a reasonable viewer could not discern a
significant difference in height, weight, age, or complexion from the headshots.
Moreover, there were no distinguishing features, marks, or tattoos visible in
Weaver’s picture to make him stand out from the other men’s photos.
1
The government argues that Weaver abandoned any argument regarding the admission
of testimony about Denise Murray’s pretrial identification by failing to sufficiently develop his
“contentions and the reasons for them.” See Fed. R. App. P. 28(a)(8)(A) (“The appellant’s brief
must contain . . . the argument, which must contain: (A) appellant’s contentions and the reasons
for them, with citations to the authorities and parts of the record on which the appellant relies
. . . .”). Weaver arguably abandoned this issue because on appeal he fails to challenge explicitly
the district court’s determination that the pretrial identification procedure was not unduly
suggestive. The section of Weaver’s brief concerning the identification includes contentions
regarding Denise Murray’s reliability and potential confusion over which lineups she saw. These
paragraphs set forth defense counsel’s objections at trial without elaboration. “We have rejected
the practice of incorporating by reference arguments made to the district courts.” United States
v. Kapordelis, 569 F.3d 1291, 1312 (11th Circ. 2009) (internal quotation marks omitted). But we
need not definitively decide whether Weaver waived the issue because even assuming that he
preserved it, the district court committed no clear error in admitting the identifications.
9
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Additionally, the district court found no evidence “that the officers administering
the line-up made suggestions or put pressure on the eye-witnesses to choose a
particular photograph.” The district court did not clearly err in finding that the
photo array was not unduly suggestive, and thus we need not consider whether the
identification was reliable. See Diaz, 248 F.3d at 1102 (“If we conclude that it was
suggestive, we then must consider whether, under the totality of the circumstances,
the identification was nonetheless reliable.”).
2. In-Court Identification
The district court also did not clearly err in allowing Denise Murray’s in-
court identification. “An in-court identification, even if preceded by a suggestive
out-of-court identification procedure, is nevertheless admissible if the in-court
identification has an independent source.” United States v. Cannington, 729 F.2d
702, 711 (11th Cir. 1984). The factors used to determine whether an in-court
identification had a reliable, independent source are: “the witness’s opportunity to
observe the defendant at the time of the offense, the witness’s degree of attention,
the degree of certainty shown at the confrontation, and the length of time between
the crime and the confrontation.” Id. Denise Murray watched Weaver run from
the Family Dollar immediately after the robbery. She accurately described what
Weaver was wearing during the robbery. She never hesitated in stating that
Weaver was the individual she saw. And she identified Weaver as the man who
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had robbed the Family Dollar very soon after the robbery occurred. Denise
Murray’s in-court identification meets the independent source test. As a result, the
district court did not clearly err in admitting it.
B. No Prosecutorial Misconduct Occurred During Closing Argument.
Weaver argues that a comment made by the government during closing
argument, to “[t]ell Johnny Weaver that this community will not tolerate him
terrorizing its citizens,” inflamed the jury. In considering whether a comment by
the government during closing argument rises to the level of prosecutorial
misconduct, we apply de novo review. United States v. Sosa, 777 F.3d 1279,
1294 (11th Cir. 2015). The government’s statement to the jury during closing
argument did not amount to prosecutorial misconduct.
To establish prosecutorial misconduct, “(1) the remarks must be improper,
and (2) the remarks must prejudicially affect the substantial rights of the
defendant.” United States v. Wilson, 149 F.3d 1298, 1301 (11th Cir. 1998)
(internal quotation marks omitted). Improper statements may be rectified by a
curative instruction. United States v. Lopez, 590 F.3d 1238, 1256 (11th Cir. 2009).
First, the statement made by the prosecutor in Weaver’s case was not
improper. A prosecutor is “forbidden to make improper suggestions, insinuations
and assertions calculated to mislead the jury and may not appeal to the jury’s
passion or prejudice.” United States v. Rodriguez, 765 F.2d 1546, 1560 (11th Cir.
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1985) (internal quotation marks omitted). “Appeals to the jury to act as the
conscience of the community, unless designed to inflame the jury, are not per se
impermissible.” United States v. Kopituk, 690 F.2d 1289, 1342-43 (11th Cir.
1982).
In Kopituk, we determined that the following statement during closing
argument was not improper:
(Y)ou ladies and gentlemen, representing the citizens of this
community and the citizens of Southeastern United States by your
verdict telling them that enough is enough. We ask you by your verdict,
ladies and gentlemen, to help clean up Dodge Island. We ask you by
your verdict to help rid the ports of Jacksonville, Savannah and
Charleston of people who by participating, directly and indirectly, in
racketeering activity are corrupting our nation’s ports, who by misusing
and utilizing their position of fiduciary responsibility on behalf of
unions and on behalf of different companies are influencing and
controlling and affecting the lives of people and everyone that works in
these different cities.
Id. at 1342 (alteration in original). Specifically, we stated that the foregoing “did
not constitute a direct suggestion that the jury had a personal stake in the outcome
of the case” and thus approached, but did not breach, “the line demarcating
permissible oratorical flourish from impermissible comment calculated to incite the
jury against the accused.” Id. Moreover, even assuming that the statement was
improper, we concluded that it was not so offensive as to prejudice the defendant’s
substantial rights. Id. at 1343.
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The statement made in Weaver’s case was less severe than the statement
made in Kopituk. If a comment asking a jury to rid the ports of corruption and
racketeering was not designed to inflame the jury, the prosecutor’s statement here
certainly was not. Id. at 1342.
Second, even if the prosecutor’s statement was improper, it did not prejudice
Weaver’s substantial rights. “A defendant’s substantial rights are prejudicially
affected when a reasonable probability arises that, but for the remarks, the outcome
of the trial would have been different.” Wilson, 149 F.3d at 1301 (internal
quotation marks omitted). Four factors guide our determination as to whether a
prosecutor’s conduct had a reasonable probability of changing the outcome of a
trial:
(1) the degree to which the challenged remarks have a tendency to
mislead the jury and to prejudice the accused; (2) whether they are
isolated or extensive; (3) whether they were deliberately or accidentally
placed before the jury; and (4) the strength of the competent proof to
establish the guilt of the accused.
Lopez, 590 F.3d at 1256. We consider whether a defendant’s substantial rights
were prejudiced “in the context of the entire trial and in light of any curative
instruction.” Wilson, 149 F.3d at 1301 (internal quotation marks omitted).
Under the four-part test set out in Lopez, the statement in Weaver’s trial
cannot be said to have prejudicially affected Weaver’s substantive rights. The
statement had little tendency to mislead the jury or prejudice Weaver. The
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statement was isolated and minimal—only one sentence in 19 pages of closing
argument. We cannot tell from this record whether the statement was deliberately
or accidentally placed before the jury. But given the overwhelming evidence
against Weaver, the outcome of his trial would not have been different but for the
single statement made in closing argument.
Furthermore, the district court cured any prejudice by issuing curative
instructions. Before closing argument, the district court told the jury that “what the
lawyers say in the final argument—in fact, what the lawyers say in any
argument—are not to be considered as evidence whatsoever, or, in addition, it’s
not to be considered instructions on the law.” Additionally, in its jury instructions
the district court informed the jury that its decision must be based on the evidence
presented at trial and again indicated that what the lawyers said was not evidence
and not binding. We presume that the jury followed these instructions. See United
States v. Shenberg, 89 F.3d 1461, 1472 (11th Cir. 1996).
C. The District Court Did Not Abuse Its Discretion in Instructing the Jury.
Turning to whether the district court erred by giving a jury instruction
concerning flight, we review jury instructions for an abuse of discretion. United
States v. Williams, 541 F.3d 1087, 1089 (11th Cir. 2008). Here, the district court
did not abuse its discretion when it gave an instruction on flight.
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An erroneous jury instruction constitutes grounds for reversal only if a
reasonable likelihood exists that the error affected the defendant’s substantial
rights. Id. “Evidence of flight is admissible to demonstrate consciousness of guilt
and thereby guilt.” Id. (internal quotation marks omitted). If sufficient evidence is
presented so that the jury could reasonably conclude that the defendant fled to
avoid the charged crime, the district court does not abuse its discretion by giving a
flight instruction. Id.
The district court did not abuse its discretion because there was sufficient
evidence from which the jury reasonably could conclude that Weaver fled to avoid
the charged crimes. The evidence showed that, immediately after the robbery,
Weaver made multiple attempts to flee from law enforcement officers.
Accordingly, the district court did not abuse its discretion by giving the flight
instruction to the jury. 2
D. Binding Precedent Dictates that Weaver’s Hobbs Act Robbery Offense
Qualifies as a Crime of Violence for Purposes of § 924(c).
Weaver challenges his conviction under 18 U.S.C. § 924(c) for brandishing
a firearm during a crime of violence, arguing that Hobbs Act robbery does not
constitute a crime of violence for purposes of § 924(c). After the Supreme Court
2
Weaver also argues that he was denied a fundamentally fair trial due to the cumulative
errors in admitting the eyewitness identification testimony, the prosecutor’s closing argument,
and the jury instructions. Because there were no individual errors, no cumulative error exists.
United States v. Waldon, 363 F.3d 1103, 1110 (11th Cir. 2004).
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decided Johnson, we ordered the parties to submit supplemental briefing. In his
initial supplemental brief, Weaver did not challenge his § 924(c) conviction.
Weaver challenged this conviction for the first time in his supplemental reply brief.
Assuming for purposes of this appeal that Weaver properly preserved this issue,
binding precedent dictates that we treat Hobbs Act robbery as a crime of violence
for purposes of § 924(c).
Under § 924(c), there are two ways that a predicate offense can qualify as a
crime of violence. The statute specifies that a crime of violence is an offense that
is a felony and
(A) has as an element the use, attempted use, or threatened use of
physical force against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force
against the person or property of another may be used in the
course of committing the offense.
18 U.S.C. § 924(c)(3). Subsection (A) is commonly called the “elements clause”
and subsection (B) the “residual clause.” Ovalles v. United States, 905 F.3d 1231,
1238 (11th Cir. 2018) (en banc). Weaver maintains that Hobbs Act robbery does
not meet the definition of a crime of violence under the elements clause and that
the residual clause in § 924(c)(3)(B) is unconstitutionally vague.
Weaver’s argument that Hobbs Act robbery does not meet the definition of a
crime of violence under the elements clause is foreclosed by binding precedent.
See United States v. St. Hubert, 909 F.3d 335, 346 (11th Cir. 2018). In St. Hubert,
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this Court held that “Hobbs Act robbery is a crime of violence under
§ 924(c)(3)(A)’s [elements] clause.” Id. We remain bound by our prior panel
decision “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. Sneed,
600 F.3d 1326, 1332 (11th Cir. 2010).
Weaver also argues that his Hobbs Act robbery cannot qualify under the
residual clause in § 924(c)(3)(B) because that clause is unconstitutionally vague.
But this Court in Ovalles rejected a void-for-vagueness challenge to
§ 924(c)(3)(B). 905 F.3d at 1252. Because Ovalles forecloses Weaver’s
vagueness challenge to the residual clause, his challenges to his conviction under
§ 924(c) fail.
E. The District Court Did Not Err in Applying a Career Offender
Enhancement.
Weaver also argues that the district court erred in applying the career
offender enhancement. See U.S.S.G. § 4B1.1(b) (2014). This argument, too, is
foreclosed by precedent.
The career offender enhancement increases a defendant’s offense level and
criminal history category for purposes of calculating his sentencing range under the
Sentencing Guidelines. See id. The enhancement applies when a defendant
commits a felony “that is either a crime of violence or a controlled substance
offense” and “has at least two prior felony convictions of either a crime of violence
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or a controlled substance offense.” Id. § 4B1.1(a). The guidelines in effect at the
time of Weaver’s sentencing defined a crime of violence to include any offense
under federal or state law, punishable by a term of imprisonment exceeding one
year that (1) “has an element the use, attempted use, or threatened use of physical
force against the person of another,” (2) is one of a list of enumerated offenses, or
(3) “otherwise involves conduct that presented a serious potential risk of physical
injury to another.” Id. § 4B1.2(a); see U.S.S.G. § 4B1.1 cmt. n.1 (incorporating
the definition of “crime of violence” from U.S.S.G. § 4B1.2).
To determine whether a prior conviction qualifies as a crime of violence, we
generally apply a “categorical approach,” looking no further than the statute of
conviction. United States v. Estrella, 758 F.3d 1239, 1244 (11th Cir. 2014). When
a statute is divisible, meaning that it sets out multiple, alternative elements, we
may apply a “modified” categorical approach to determine which alternative
version of the elements the defendant was convicted of. Mathis v. United States,
136 S. Ct. 2243, 2249 (2016); Descamps v. United States, 570 U.S. 254, 263-64
(2013). Under the modified categorical approach, we may look beyond the statute
of conviction to a limited class of documents from the record of conviction to
determine which version of the elements the defendant was convicted of. See
Mathis, 136 S. Ct. at 2249.
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Weaver asserted in supplemental briefing that the district court erred in
applying the career offender enhancement because the residual clause in the career
offender guideline was void for vagueness. But after Weaver submitted his
supplemental brief, the Supreme Court held in Beckles that the Sentencing
Guidelines are not subject to a vagueness challenge under the Due Process Clause
and, accordingly, that § 4B1.2(a) is not void for vagueness. 137 S. Ct. at 895. As
Weaver concedes, Beckles forecloses his vagueness challenge.
Weaver advanced a second reason for challenging the district court’s
application of the career offender enhancement, claiming that he is entitled to be
resentenced so that the district court may apply the modified categorical approach
to determine whether his prior convictions for aggravated battery and strong-arm
robbery qualify as crimes of violence. But our precedent dictates that each of these
crimes categorically qualifies as a crime of violence under the elements clause of
the career offender guideline.
Weaver first contends that his conviction for Florida aggravated battery may
not qualify as a crime of violence. In Florida, “a person commits aggravated
battery by committing a battery: (1) that intentionally or knowingly causes great
bodily harm, permanent disability, or disfigurement; (2) while using a deadly
weapon; or (3) upon a victim whom the offender knows to be pregnant.” Turner v.
Warden Coleman FCI (Medium), 709 F.3d 1328, 1341 (11th Cir. 2013) (citing Fla.
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Stat. § 785.045), abrogated on other grounds by Johnson, 135 S. Ct. 2551.
Because the aggravated battery statute is divisible, meaning it sets forth alternative
crimes with different elements, we use the modified categorical approach to
determine which of these alternative crimes Weaver was convicted of, and based
on that crime’s elements, whether his conviction for aggravated battery qualifies as
a predicate felony under the elements clause. Id.
Weaver claims that it is unclear whether he was charged with and convicted
of committing a battery that intentionally or knowingly causes great bodily harm,
permanent disability, or disfigurement under § 784.045(1)(a)(1) or while using a
deadly weapon under § 784.045(1)(a)(2). Notably, he advances no argument that
he was prosecuted for committing a battery upon a pregnant woman under Fla.
Stat. § 784.045(1)(b). But it is irrelevant whether Weaver committed a battery that
intentionally or knowingly causes great bodily harm, permanent disability, or
disfigurement under § 784.045(1)(a)(1) or while using a deadly weapon under
§ 784.045(1)(a)(2) because we recognized in Turner that both subsections qualify
as violent felonies under the elements clause. 3 Turner thus compels us to conclude
that Weaver’s aggravated battery conviction qualifies as a crime of violence and
can serve as a predicate for the purposes of the career offender enhancement. See
3
“Although Turner addressed the ‘elements’ clause of the ACCA, that clause is identical
to the elements clause of § 4B1.2(a)(1).” United States v. Golden, 854 F.3d 1256, 1256-57 (11th
Cir. 2017) (citation omitted). As such, Turner is binding.
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United States v. Golden, 854 F.3d 1256, 1256-57 (11th Cir. 2017) (reaffirming the
validity of Turner’s holding as to aggravated battery).
Next, Weaver contends that his conviction for strong-arm robbery does not
qualify as a crime of violence. He argues that a Florida strong-arm robbery
conviction does not qualify as a crime of violence. We have repeatedly held that
strong-arm robbery under Florida law qualifies a violent felony under ACCA’s
elements clause. United States v. Fritts, 841 F.3d 937, 941-42 (11th Cir. 2016);
United States v. Lockley, 632 F.3d 1238, 1245 (11th Cir. 2011). We acknowledge
that in Stokeling v. United States, 138 S. Ct. 1438 (2018), the Supreme Court is
presently considering the question of whether Florida robbery qualifies as a violent
felony under the elements clause. But even if the Supreme Court decides in
Stoekling that this offense does not qualify under the elements clause, our
precedent still dictates that the offense qualifies as a crime of violence under the
career offender’s residual clause. See Lockley, 632 F.3d at 1245. This precedent
thus compels us to conclude that strong-arm robbery qualifies as a crime of
violence and can serve as a predicate for purposes of the career offender
enhancement.
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III. CONCLUSION
For the reasons set forth above, we affirm the judgment of the district court. 4
AFFIRMED.
4
Also pending before the Court is the government’s Motion to Strike Weaver’s
Supplemental Reply Brief. That motion is DENIED as moot.
22