United States v. Benjamin Smith

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 20-12609

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BENJAMIN SMITH,

Defendant-Appellant.

____________________

Appeals from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 1:18-cr-00305-ELR-CMS-1

____________________

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2 Opinion of the Court 20-12609

____________________

No. 20-12773

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BENJAMIN SMITH,

Defendant-Appellant.

____________________

Appeals from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 1:18-cr-00305-ELR-CMS-1

____________________

Before JILL PRYOR, BRANCH, and ED CARNES, Circuit Judges.

PER CURIAM:

In 2018, Benjamin Smith, a prior convicted felon, was

arrested on an outstanding warrant. At the time of his arrest, he

had a firearm in his possession. As a result, a grand jury indicted

him for possession of a firearm by a convicted felon, in violation of

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18 U.S.C. §§ 922(g) and 924(e). A jury convicted Smith as charged,

and the district court sentenced him as an armed career criminal

under the Armed Career Criminal Act (“ACCA”) to 235 months’

imprisonment followed by three years’ supervised release.

The main issue we must address in this appeal is whether

the district court erred in concluding that Smith’s prior Georgia

convictions for aggravated assault with intent to rob, aggravated

assault, and criminal attempt to commit armed robbery qualify as

violent felonies for purposes of the ACCA. Additionally, we

address Smith’s arguments that (1) the district court erred in

denying Smith’s motion for a new trial; (2) the government

committed prosecutorial misconduct by misstating the law during

closing argument; (3) the district court abused its discretion in

denying Smith’s counsel’s motion to withdraw; and (4) the district

court erred in enhancing Smith’s sentence under the ACCA

without submitting his prior convictions to the jury. After review

and with the benefit of oral argument, we conclude that Smith’s

convictions for Georgia aggravated assault with intent to rob,

Georgia aggravated assault, and Georgia criminal attempt to

commit armed robbery do not qualify as violent felony predicates

for purposes of the ACCA enhancement. Because Smith does not

have three qualifying predicate convictions, the ACCA

enhancement cannot stand. Therefore, we vacate Smith’s sentence

and remand for resentencing. We affirm as to the other issues.

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I. Background

In August 2018, a grand jury in the Northern District of

Georgia indicted Smith on one count of possession of a firearm by

a convicted felon, in violation of 18 U.S.C. § 922(g). Prior to trial,

Smith filed a motion in limine, seeking to exclude details of his

prior convictions at trial and seeking redaction of these prior

convictions from the indictment. He offered to stipulate that prior

to the instant charged offense, he had sustained a felony conviction.

The district court granted his motion and accepted the parties’

stipulation. Smith’s trial began in February 2019, but the district

court declared a mistrial due to improper prejudicial testimony

from the State’s first witness.

In May 2019, between the mistrial and the retrial, the

government obtained a superseding indictment. The superseding

indictment alleged as follows:

On or about April 27, 2018, in the Northern District

of Georgia, the defendant, BENJAMIN SMITH,

knowing that he had been previously convicted of at

least one of the following offenses:

(1) Theft By Shoplifting, on or about April 6,

1998, in Fulton County Superior Court,

Atlanta, Georgia;

(2) Aggravated Assault, on or about January 4,

1999, in Fulton County Superior Court,

Atlanta, Georgia;

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(3) Aggravated Assault, on or about February

6, 2009, in Fulton County Superior Court,

Atlanta, Georgia; and

(4) Possession of a Firearm by a Convicted

Felon, on or about March 23, 2010, in Fulton

County Superior Court, Atlanta, Georgia;

each of which was a crime punishable by

imprisonment for a term exceeding one year, did

knowingly possess the following firearm in and

affecting interstate and foreign commerce: a Smith

and Wesson, .38 caliber revolver, in violation of Title

18, United States Code, Sections 922(g)(1) and

924(e)(1).

Smith filed a motion to strike the language in the

superseding indictment that he knew that he had been previously

convicted of a felony. He acknowledged that the government

added this language in anticipation of the Supreme Court’s decision

in the then-pending case Rehaif v. United States, which presented

the question of whether knowledge of one’s prohibited status was

an element of a § 922(g) offense. However, because Rehaif was still

pending, Smith argued that the knowledge of status language

should be struck as mens rea about one’s status was not an element

of the offense. The district court granted Smith’s motion and

struck the challenged language from the indictment, finding that

mens rea of one’s status was not an element of the offense.

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At trial, officers with the Atlanta Police Department’s

(“APD”) Fugitive Unit testified that in April 2018, a warrant issued

for Smith on an unrelated matter. The officers learned that Smith

was a mobile mechanic and arranged a meeting with Smith near a

local AutoZone under the guise of a needed car repair. Officers in

unmarked vehicles went to the designated location to meet Smith

on April 27, 2018. The officers pulled into the parking lot and

approached Smith wearing tactical vests bearing the words

“Atlanta Police Department,” announced that they were APD, and

instructed Smith to get on the ground. Smith’s girlfriend was inside

Smith’s vehicle in the passenger seat. Smith attempted to flee in

his vehicle, but he was blocked in. Smith exited his vehicle and

attempted to “grab a gun with a sock on it” 1 from his waistband.

Smith then dropped to one knee and tossed the gun under his

vehicle. After a brief struggle, the officers took Smith into custody

and seized the gun.

In his defense, Smith’s counsel argued that Smith did not

know where the gun under his car came from and that he did not

possess a gun.2 In support, Smith’s counsel presented testimony

from the AutoZone manager where Smith was arrested that the

area experienced frequent crime and people often loitered and

dumped items in the parking lot.

1 Officers described the gun as being in a “dirty sock” with “the barrel sticking

out of it.”

2 Smith did not testify in his defense.

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The parties stipulated that Smith had been previously

convicted of a felony. The government also introduced, over

Smith’s objections, certified copies of Smith’s prior conviction for

possession of a firearm by a convicted felon, in violation of Georgia

law. The district court instructed the jury that the prior conviction

was not to be used to determine whether Smith was guilty of the

present charged offense, and was

admitted and may be considered . . . for the limited

purpose of assisting [the jury] in determining whether

the defendant had the state of mind or intent

necessary to commit the crime charged in the

indictment, the defendant acted according to a plan

or in preparation to commit a crime, or the defendant

committed the acts charged in the indictment by

accident or mistake.

The government then called Smith’s parole and probation officer,

who testified that Smith was released on parole on March 30, 2011,

for his Georgia conviction for possession of a firearm by a

convicted felon. After the close of the evidence, the jury found

Smith guilty as charged. 3

Sixteen days after the guilty verdict, the Supreme Court held

in Rehaif that to convict a defendant of violating § 922(g), “the

3 For the first time on appeal, Smith takes issue with the government’s closing

argument. We discuss the closing argument at issue in greater detail below

when addressing Smith’s claim.

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Government must prove both that the defendant knew he

possessed a firearm and that he knew he belonged to the relevant

category of persons barred from possessing a firearm.” Rehaif v.

United States, 588 U.S.__, 139 S. Ct. 2191, 2200 (2019). Smith filed

a motion for a new trial, arguing that, in light of Rehaif, a new trial

was warranted because the jury was not instructed on an essential

element of the offense and the evidence was insufficient to sustain

his conviction. The government opposed the motion, noting that

it attempted to add knowledge of Smith’s felon status to the

superseding indictment and introduce evidence on this point, but

Smith successfully opposed its efforts—thus, inviting the error.

Alternatively, the government argued that there was sufficient

evidence to prove Smith knew of his felon status at the time he

possessed the firearm in question.

The district court denied the motion for a new trial. It

concluded that (1) “there [was] an abundance of evidence

demonstrating that [Smith] was well aware of his felony status at

the time he possessed a gun”—including that prior to that date, he

had pleaded guilty in two cases to the charge of possession of a

firearm by a convicted felon; and (2) “based on [Smith’s] own

argument to redact language indicating his knowledge of his felony

status, the interest of justice would dictate that [he] not be

permitted to now benefit from the [c]ourt’s ruling in his favor.”

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Prior to sentencing,4 the United States Probation Office

prepared a presentence investigation report (“PSI”), which

indicated, in relevant part, that Smith was subject to the ACCA

sentencing enhancement because he had at least three prior

unspecified convictions for a violent felony or a serious drug

offense. 5 Smith objected to the enhancement, arguing that he did

not have three qualifying violent felony convictions.

In response, the government argued that Smith had five

potentially qualifying ACCA violent felony predicate convictions

(all from Georgia): (1) a 1999 conviction for aggravated assault;

(2) a 2009 conviction for aggravated assault with intent to rob; (3) a

2009 conviction for criminal attempt to commit armed robbery;

(4) a 2010 conviction for obstruction of a law enforcement officer;

and (5) a 2014 conviction for obstruction of law enforcement.

4 Smith’s court-appointed counsel moved to withdraw, and Smith filed a pro

se motion supporting the motion to withdraw and requesting appointment of

new counsel prior to sentencing. The district court denied the motions

following two hearings. We discuss these motions and the district court’s

rulings in more detail below when addressing Smith’s challenge to the denial

of these motions.

5 At the time of Smith’s conviction, a violation of § 922(g) carried a statutory

maximum of ten years’ imprisonment. 18 U.S.C. § 924(a)(2) (2019). The

ACCA, however, mandated a minimum 15-year sentence if a defendant

convicted of a § 922(g) offense has three or more prior convictions for a

“violent felony” and/or “a serious drug offense.” Id. § 924(e)(1).

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At sentencing, the district court overruled Smith’s objection

to the ACCA enhancement and found that Smith, “based on his

priors, [was] an armed career criminal.” The district court did not

elaborate on its reasoning or explain on which of Smith’s prior

convictions it relied. The district court sentenced Smith to 235

months’ imprisonment to be followed by three years’ supervised

release. This appeal followed.

II. Discussion

Smith raises five issues on appeal: (1) the district court erred

in denying his motion for a new trial based on Rehaif; (2) the

government committed prosecutorial misconduct by misstating

the law during closing argument; (3) the district court abused its

discretion in denying Smith’s counsel’s motion to withdraw and

appoint new counsel for the sentencing phase; (4) the district court

erred in imposing the ACCA sentencing enhancement; and (5) the

district court erred in enhancing Smith’s sentence under the ACCA

without submitting his prior convictions to the jury. We address

each argument in turn.

A. Denial of Smith’s Motion for a New Trial

Smith argues that the district court erred in denying his

motion for a new trial based on the Supreme Court’s intervening

decision in Rehaif, which held that knowledge of one’s prohibited

status is an element of a § 922(g) offense that the government must

prove beyond a reasonable doubt. 139 S. Ct. at 2200. He maintains

that a new trial is warranted because the district court did not

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instruct the jury on the knowledge of status element and there was

insufficient evidence to prove his knowledge of his status.

We review the district court’s denial of a motion for a new

trial for abuse of discretion. United States v. Jeri, 869 F.3d 1247,

1259 (11th Cir. 2017). “In evaluating whether specific trial errors

warrant a new trial, we apply the harmless-error standard found in

Fed. R. Civ. P. 61.” Id. Under that rule, “a new trial is warranted

only where the error has caused substantial prejudice to the

affected party (or, stated somewhat differently, affected the party’s

substantial rights or resulted in substantial injustice).” Id.

(quotation omitted).

Under § 922(g)(1), it is “unlawful” for anyone “who has been

convicted in any court of . . . a crime punishable by imprisonment

for a term exceeding one year” to possess a firearm, and an

individual who “knowingly” does so is subject to punishment by

fine or imprisonment. 18 U.S.C. §§ 922(g)(1), 924(a)(2). 6 In Rehaif,

the Supreme Court held that a “prosecution under 18 U.S.C.

§ 922(g) and § 924(a)(2) [requires] the Government [to] prove both

that the defendant knew he possessed a firearm and that he knew

6 At the time of Smith’s conviction, the penalty for violating § 922(g) was

codified in § 924(a)(2). See 18 U.S.C. § 924(a)(2) (2019). In 2022, however,

Congress amended § 924, and the penalty for violating § 922(g) is now codified

in § 924(a)(8). See 18 U.S.C. § 924(a)(8) (2022). For ease of reference, we refer

to the statutory provisions in effect at the time of Smith’s conviction and

sentence.

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he belonged to the relevant category of persons barred from

possessing a firearm.” 139 S. Ct. at 2200.

Here, the district court did not instruct the jury on the

knowledge of status element. 7 Nevertheless, Smith is not entitled

to a new trial because he cannot show that the error affected his

substantial rights. Jeri, 869 F.3d at 1259. We have held that, when

reviewing whether Rehaif errors affected a defendant’s substantial

rights, courts “may consult the whole record.” United States v.

Reed, 941 F.3d 1018, 1021 (11th Cir. 2019) (quotation omitted);

United States v. Moore, 954 F.3d 1322, 1337 (11th Cir. 2020) (“We

may consult the entire record when considering the effect of an

error on appellants’ substantial rights.”). “[I]t is particularly

important for appellate courts to relive the whole trial

7 Although we do not decide this issue on invited error grounds, we note that

Smith arguably invited the error of which he now complains. The record

demonstrates that the government added a knowledge-of-felon-status

element to the superseding indictment to “avoid a potential appellate issue”

should the Supreme Court hold—as it did—that knowledge of one’s status is

an element of a § 922(g) offense. But Smith successfully moved to have this

language struck from the indictment. He also successfully moved to exclude

references to his prior convictions. Both of these choices were clearly

“strategic decision[s]” for purposes of trial, but now he complains that

reversible error occurred because the very information he sought to have

struck from the indictment was not presented to the jury. See United States

v. Jernigan, 341 F.3d 1273, 1290 (11th Cir. 2003) (explaining that “a criminal

defendant may not make an affirmative, apparently strategic decision at trial

and then complain on appeal that the result of that decision constitutes

reversible error”).

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imaginatively and not to extract from episodes in isolation abstract

questions of evidence and procedure.” Reed, 941 F.3d at 1021

(quotation omitted).

There is ample evidence in the record showing that Smith

knew of his status as a convicted felon when he possessed the

firearm in question. First, at trial, the government introduced a

certified copy of one of Smith’s convictions for possession of a

firearm by a convicted felon in Georgia in 2010. 8 This prior

conviction clearly demonstrates that it is implausible that Smith

was unaware of his felon status in 2018 at the time of the

underlying offense.

Second, aside from the certified conviction, Smith’s PSI

indicates that he had multiple felony convictions and that he served

seven years in custody for a 1999 Georgia aggravated assault

conviction and over a year in custody for a 2010 fleeing or

attempting to elude law enforcement conviction. As we previously

explained, “[m]ost people convicted of a felony know that they are

8 Contrary to Smith’s argument, the fact that the district court instructed the

jury that it could not consider the conviction in determining whether Smith

was guilty of the present felon-in-possession charge does not limit our ability

to consider this information on appellate review. As part of our inquiry into

whether the alleged error affected a defendant’s substantial rights, we consider

the whole record, including evidence that was available but not presented at

trial. See United States v. McLellan, 958 F.3d 1110, 1119–20 (11th Cir. 2020);

Reed, 941 F.3d at 1021. Where there is clear evidence that the defendant knew

of his prohibited status, he is not entitled to a new trial. McLellan, 958 F.3d at

1119–20.

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felons. And someone who has been convicted of felonies

repeatedly is especially likely to know he is a felon.” United States

v. Innocent, 977 F.3d 1077, 1082 (11th Cir. 2020) (internal citation

omitted). Thus, had the issue been contested at Smith’s trial,

Smith’s prior felony convictions would have provided the

government powerful evidence that he knew he was a felon.

Third, although not admitted during the trial, the record

includes recorded phone calls between Smith and his girlfriend

after Smith was arrested that demonstrated his knowledge of his

status. In those calls, Smith told his girlfriend that she was “going

to basically have to take one for the team, because [Smith] can’t go

down for this crime because [Smith was] a convicted felon.”

We have held that a defendant could not show that a Rehaif

error affected his substantial rights under similar circumstances.

See United States v. Elysee, 993 F.3d 1309, 1346 (11th Cir. 2021)

(holding that the jury could have inferred defendant’s knowledge

of felon status based on the defendant’s stipulation that he was

previously convicted of a felony coupled with a jail call in which

defendant implied knowledge of his status); Moore, 954 F.3d at

1337–38 (holding that the record clearly established both

defendants knew of their felon status where both defendants had

prior federal convictions for being a felon in possession of a firearm

and had served lengthy sentences); Reed, 941 F.3d at 1021–22

(holding that the record established that the defendant knew of his

felon status because the defendant had eight prior felony

convictions and admitted at sentencing that he had served 18 years

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on a prior conviction). Accordingly, the district court did not abuse

its discretion in denying Smith’s motion for a new trial based on

Rehaif.

B. Closing Argument

For the first time on appeal, Smith argues that the

government committed prosecutorial misconduct when it stated

during closing argument that a convicted felon is never allowed to

possess a firearm. 9 Smith asserts that the government misstated

the law because a felon is allowed to assert a justification defense

to a felon-in-possession charge. And he maintains that he was

prejudiced by this misstatement of law “because he argued to the

jury that he was unaware of what was happening when officers

surrounded him.”

The record demonstrates that, during closing argument,

Smith argued that when he encountered the officers, he was at the

location for a lawful purpose, believing that he was meeting

someone to perform a car repair, and that he did not comply with

the officers’ directives because he did not recognize that they were

police officers. Smith also argued to the jury that he never

9 Because Smith did not object to the government’s closing argument, we

review for plain error only. United States v. Frank, 599 F.3d 1221, 1238 (11th

Cir. 2010). “Plain error requires (1) an error, (2) the error is plain or obvious,

and (3) the error affects the defendant’s substantial rights. The plain error rule

should be used sparingly, and a conviction should be reversed only if a

miscarriage of justice would otherwise result.” Id. (quotation and internal

citation omitted).

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possessed the firearm found under his car. Instead, he merely

“parked over an item that looked like trash in an area where trash

was common.”

In response, the government argued that:

[w]hether the defendant knew they were law

enforcement or not [was] completely irrelevant. It

[did not] matter what he [knew] with regard to who

was coming to encounter him that day. He can’t

have a firearm. Whether he thought it was law

enforcement [made] no difference. He can’t possess

a firearm. He is a previously convicted felon. What

he knew about [the identity of the officers was] not

an issue that [was] relevant to whether he knowingly

possessed a firearm.

Smith did not object to the government’s closing argument.

Prosecutorial misconduct warrants a new trial only “if we

find the remarks (1) were improper and (2) prejudiced the

defendant’s substantive rights. We must examine the statements

in the context of the trial as a whole and assess their probable

impact on the jury.” Frank, 599 F.3d at 1238 (quotation and

internal citation omitted). “When the record contains sufficient

independent evidence of guilt, any error is harmless.” United

States v. Rivera, 780 F.3d 1084, 1096 (11th Cir. 2015) (quotation

omitted).

Smith cannot show that any error occurred because the

government did not misstate the law. The government’s

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statement that Smith could not possess a firearm because he was a

felon is legally accurate. See 18 U.S.C. § 922(g)(1) (“It shall be

unlawful for any person—(1) who has been convicted in any court

of, a crime punishable by imprisonment for a term exceeding one

year . . . to . . . possess in or affecting commerce, any firearm or

ammunition[.]”). While a justification defense is an affirmative

defense to a § 922(g)(1) charge, United States v. Deleveaux, 205

F.3d 1292, 1297 (11th Cir. 2000), Smith raised no such defense.

Instead, he argued throughout the trial that he never had a gun and

that the gun was already in the parking lot when he unknowingly

parked over it. Therefore, the government did not misstate the law

or otherwise prejudice Smith’s defense when it stated that Smith

could not possess a firearm.

Moreover, it is well-established that “[a] prosecutor is

entitled to make a fair response to defense counsel’s arguments,”

and Smith’s counsel opened the door to the government’s

statements during closing by arguing that the reason Smith did not

comply with the officers’ directives is that he did not know who

they were. Frank, 599 F.3d at 1238. Accordingly, Smith has not

demonstrated that he is entitled to relief under plain error review.

C. Denial of Smith’s counsel-related motions

Prior to sentencing, Smith’s court-appointed counsel filed a

motion to withdraw stating, without further elaboration, that “[a]

conflict has arisen between counsel and Mr. Smith that constitutes

a breakdown of their ability to communicate about the case.”

Smith also filed a pro se motion requesting appointment of new

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counsel, asserting that his current trial counsel did not have his

“best interest” in mind and “lack[ed] in many areas of being a good

defense attorney.” 10

The district court held two ex parte hearings on the motions

with only Smith and his counsel present. At the hearings, when

asked to elaborate on the “breakdown in communication,” counsel

declined to do so, stating “I hesitate to say much more because I do

think it will eventually come to a point of violating his right to

confidentiality.” When asked for his position, Smith stated that he

did not feel that counsel had his “best interest” in mind, and he

noted that he had filed numerous pro se motions during the trial

proceedings because counsel was not taking certain actions that

Smith felt needed to be taken. Smith asserted that if he had “an

effective relationship with [his] counsel, then counsel should

adhere to what it is that [he had] to say.” Smith also emphasized

that he had asked counsel (unspecified) questions that she had not

been able to answer.

The district court denied the motions, explaining that it did

not hear “what [it] felt rose to the level of an issue that warranted

removing counsel.” Additionally, the district court noted that it

10 The record reflects that throughout the trial proceedings Smith filed

numerous pro se pleadings and requested ex parte communications with the

district court, even though the district court instructed him that he could not

file pro se pleadings because he had counsel. In some of these pro se filings,

Smith expressed a general disagreement with his counsel and counsel’s

strategy.

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had reviewed a list of Smith’s questions that he asserted were

unanswered by counsel and did not find anything of concern or

that indicated an ineffective assistance of counsel. The district

court emphasized that “bringing on new counsel unfamiliar with

this case at this point would do much more harm to Mr. Smith than

good.”

Smith argues that the district court applied the wrong

standard and abused its discretion in denying his counsel’s motion

to withdraw and his request for appointment of new counsel for

the sentencing phase. He contends that instead of evaluating

whether there was “good cause” for appointing new counsel, the

district court erroneously evaluated whether counsel had been

ineffective. He maintains that had the district court applied the

good cause standard, it would have appointed new counsel based

on the clear breakdown of relationship between Smith and his trial

counsel.

“Although the Sixth Amendment [of the United States

Constitution] guarantees counsel, it does not grant defendants the

unqualified right to counsel of their choice. An indigent criminal

defendant for whom counsel has been appointed does not have a

right to demand a different appointed lawyer except for good

cause.” United States v. Joyner, 899 F.3d 1199, 1205 (11th Cir. 2018)

(alteration in original) (quotation and internal citation omitted).

“Good cause . . . means a fundamental problem, such as a conflict

of interest, a complete breakdown in communication or an

irreconcilable conflict which leads to an apparently unjust verdict.”

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United States v. Garey, 540 F.3d 1253, 1263 (11th Cir. 2008)

(quotation omitted).

Where, as here, the district court conducts an inquiry into

the merits of a motion for the withdrawal of counsel and

appointment of new counsel, we review the district court’s ruling

for an abuse of discretion. United States v. Calderon, 127 F.3d 1314,

1343 (11th Cir. 1997). “A district court abuses its discretion if it

applies an incorrect legal standard, applies the law in an

unreasonable or incorrect manner, follows improper procedures in

making a determination, or makes findings of fact that are clearly

erroneous.” United States v. Jimenez-Antunez, 820 F.3d 1267, 1270

(11th Cir. 2016) (quotation omitted).

In determining whether the district court abused its

discretion, we consider “(1) the timeliness of the motion; (2) the

adequacy of the court’s inquiry into [the] merits of the motion; and

(3) whether the conflict was so great that it resulted in a total lack

of communication between the defendant and his counsel thereby

preventing an adequate defense.” Calderon, 127 F.3d at 1343. We

require a “serious breakdown in communications”—more than a

client’s mere displeasure with his lawyer’s performance—before

we can conclude that the district court abused its discretion in

denying a motion to withdraw. Id.

Here, the district court did not abuse its discretion in

concluding that there was not a “total lack of communication

between the defendant and his counsel thereby preventing”

effective representation at the sentencing hearing. Joyner, 899 F.3d

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at 1205 (quoting Calderon, 127 F.3d at 1343). The district court

held two ex parte hearings and provided both Smith and his

counsel an opportunity to explain their respective concerns with

the attorney-client relationship. Smith’s counsel declined to

elaborate further out of confidentiality concerns. And Smith

himself referred only generally to his distrust in his counsel,

disagreement with her strategy throughout the trial, and his belief

that counsel did not have his “best interest” in mind. “But we have

held that a defendant’s general loss of confidence or trust in his

counsel, standing alone, is not sufficient for good cause to demand

new appointed counsel.” Id. at 1205–06 (alterations adopted)

(quotation omitted).

There was no evidence presented that there was a total lack

of communication between Smith and his counsel. Rather, the

record is clear that Smith was in communication with his counsel

about various matters and simply did not like the answers (or, at

times, no answer) he received in response to his inquiries. To be

sure, Smith’s statements during the ex parte hearings indicate that

he was unhappy with his trial counsel, but there was no indication

that “they were unable to communicate in [a] manner that would

allow for effective representation at the sentencing hearing.”

Calderon, 127 F.3d at 1343. 11 Accordingly, the district court did

not abuse its discretion in denying these motions.

11 Contrary to Smith’s contention, the district court did not apply the wrong

standard in evaluating the motion to withdraw and request for new appointed

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22 Opinion of the Court 20-12609

D. The ACCA Enhancement

Smith argues that the district court erred in enhancing his

sentence under the ACCA for several reasons, including that he

does not have three qualifying predicate offenses. Smith is correct.

As noted previously, during the relevant time period, a

violation of § 922(g) carried a statutory maximum of ten years’

imprisonment. 18 U.S.C. § 924(a)(2) (2019). The ACCA, however,

mandates a minimum 15-year sentence if a defendant convicted of

a § 922(g) offense has three or more prior convictions for a “violent

felony” or “a serious drug offense.” Id. § 924(e)(1). In this case, we

must determine whether Smith had three prior convictions that

qualify as violent felonies. We conclude that he does not.

We begin with the language of the statute. The ACCA

defines a “violent felony” as:

any crime punishable by imprisonment for a term

exceeding one year, or any act of juvenile

delinquency involving the use or carrying of a

firearm, knife, or destructive device that would be

punishable by imprisonment for such term if

committed by an adult, that—

counsel. “[T]he exception for good cause protects the right to effective

assistance of counsel; if good cause exists, a defendant no longer has effective

representation.” Joyner, 899 F.3d at 1206 (quoting Jimenez-Antunez, 820 F.3d

at 1271). Thus, the district court’s conclusion that it did not find anything that

indicated ineffective assistance of counsel was simply another way of stating

that Smith failed to establish good cause.

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(i) has as an element the use, attempted use, or

threatened use of physical force against the person of

another; or

(ii) is burglary, arson, or extortion, involves use

of explosives, or otherwise involves conduct that

presents a serious potential risk of physical injury to

another[.]

18 U.S.C. § 924(e)(2)(B)(i)–(ii). Subsection (i) contains the

“elements clause,” while subsection (ii) contains the “enumerated

crimes” clause and the “residual clause.” 12 United States v. Owens,

672 F.3d 966, 968 (11th Cir. 2012). This case involves only the

elements clause.

“Under the [ACCA’s] elements clause, ‘use’ requires active

employment of physical force.” United States v. Moss, 920 F.3d

752, 756 (11th Cir. 2019) (citing Leocal v. Ashcroft, 543 U.S. 1, 9

(2004)), opinion reinstated, 4 F.4th 1292 (11th Cir. 2021) (mem.).

“[P]hysical force means violent force—that is, force capable of

causing physical pain or injury to another person.” Id. (quoting

Johnson v. United States, 559 U.S. 133, 140 (2010)); see also

Stokeling v. United States, 139 S. Ct. 544, 553 (2019) (same). Thus,

to qualify as a violent felony under the ACCA’s elements clause, a

12 In 2015, the Supreme Court struck down the ACCA’s residual clause as

unconstitutionally vague. See Johnson v. United States, 576 U.S. 591, 597–602

(2015). In holding that the residual clause was void for vagueness, the Court

clarified that it did not call into question the validity of the elements clause or

the enumerated crimes clause. Id. at 606.

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24 Opinion of the Court 20-12609

conviction must be predicated on the intentional use, attempted

use, or threatened use of physical force. Moss, 920 F.3d at 756.

We review de novo whether a prior conviction qualifies as

a violent felony offense under the ACCA. Id. at 755. We must

evaluate each prior conviction to determine if it qualifies as a

violent felony under the ACCA’s elements clause. To do so, we

employ a particular framework known as the “categorical

approach.” United States v. Oliver, 962 F.3d 1311, 1316 (11th Cir.

2020). The categorical approach focuses solely on the elements of

the statute of conviction, not the defendant’s underlying conduct

(i.e., the facts). See Taylor v. United States, 495 U.S. 575, 600

(1990); see also Mathis v. United States, 579 U.S. 500, 504–06 (2016).

When examining whether a conviction qualifies as a violent felony

under the elements clause, the categorical approach requires that

courts focus only on the statutory elements and “presume that the

conviction rested upon the ‘least of the acts criminalized’ by the

statute.” Oliver, 962 F.3d at 1316 (quoting Moncrieffe v. Holder,

569 U.S. 184, 190–91 (2013)). “If the ‘least of the acts criminalized’

by the statute of conviction has an element requiring ‘the use,

attempted use, or threatened use of physical force against the

person of another,’ then the offense categorically qualifies as a

violent felony under the ACCA’s elements clause.” Id. (quoting

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United States v. Davis, 875 F.3d 592, 597 (11th Cir. 2017)); see also

Moss, 920 F.3d at 756. 13

The government argued below that Smith had five

potentially qualifying felony convictions (all from Georgia): (1) a

1999 conviction for aggravated assault; (2) a 2009 conviction for

aggravated assault with intent to rob; (3) a 2009 conviction for

criminal attempt to commit armed robbery; (4) a 2010 conviction

for obstruction of a law enforcement officer; and (5) a 2014

conviction for obstruction of a law enforcement officer. The

district court found that Smith qualified as an armed career

criminal, but it did not state on which convictions it relied in

making that determination. Smith maintains that none of the

proffered offenses qualify as predicates under the ACCA’s elements

clause. We examine each in turn and conclude that only two are

qualifying violent felonies.

13 We alter our approach, however, when the statute of conviction is

“divisible,” meaning the statute lists multiple, alternative elements, effectively

creating multiple crimes. Moss, 920 F.3d at 756. When dealing with a divisible

statute, we employ the modified categorical approach, which “allows us to

look at a limited class of documents—known as Shepard documents—to

determine what crime, with what elements, a defendant was convicted of.”

Id. (quotation omitted); see also Shepard v. United States, 544 U.S. 13, 16, 25

(2005) (specifying the documents a court may consider under the modified

categorical approach). Under this approach, after looking at Shepard

documents to determine which of the alternative statutory elements a

defendant was convicted under, we then apply the categorical approach to

that particular offense. Descamps v. United States, 570 U.S. 254, 257 (2013);

Moss, 920 F.3d at 756.

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26 Opinion of the Court 20-12609

i. Obstruction of a law enforcement officer convictions

(2010 and 2014)

Smith’s claim that his 2010 and 2014 Georgia convictions for

obstruction of a law enforcement officer do not qualify as violent

felony predicates is squarely foreclosed by binding precedent. In

United States v. Brown, 805 F.3d 1325, 1327 (11th Cir. 2015), we

held that felony obstruction of a law enforcement officer under

Georgia law is categorically a violent felony for purposes of the

ACCA. Although Smith maintains that Brown was wrongly

decided, we are bound by Brown under the prior-panel-precedent

rule. United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008)

(explaining that under the prior-panel-precedent rule “a prior

panel’s holding is binding on all subsequent panels unless and until

it is overruled or undermined to the point of abrogation by the

Supreme Court or by this court sitting en banc”). Accordingly,

Smith has two qualifying predicate violent felonies.

ii. Aggravated assault with intent to rob conviction (2009)

Next, we consider Smith’s 2009 aggravated assault with

intent to rob conviction. In Georgia, “[a] person commits the

offense of simple assault when he or she either . . . (1) [a]ttempts to

commit a violent injury to the person of another; or (2) [c]ommits

an act which places another in reasonable apprehension of

immediately receiving a violent injury.” O.C.G.A. § 16-5-20(a). At

the time of Smith’s conviction, Georgia’s aggravated assault statute

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provided that a person commits the offense of aggravated assault

when he commits a simple assault:

(1) With intent to murder, to rape, or to rob;

(2) With a deadly weapon or with an object,

device, or instrument which, when used

offensively against a person, is likely to or

actually does result in serious bodily injury; or

(3) A person or persons without legal justification

by discharging a firearm from within a motor

vehicle toward a person or persons.

O.C.G.A. § 16-5-21(a) (2009); 14 see also Moss, 920 F.3d at 757

(explaining that Georgia’s aggravated assault statue has two

essential elements—(A) simple assault as defined in O.C.G.A. § 16-

5-20(a)(1) or (2), and (B) an aggravating factor listed in § 16-5-

21(a)(1), (2), or (3)).

Both Georgia’s simple assault and aggravated assault

statutes are divisible. Moss, 920 F.3d at 757. Accordingly, we may

employ the modified categorical approach to determine which

elements formed the basis of Smith’s offense of conviction. Both

parties agree that “intent to rob” under § 16-5-21(a)(1) is the

relevant aggravating factor. But because aggravated assault is

simple assault plus an aggravating factor, we must also determine

14 The Georgia legislature has since amended the statute to add a fourth

aggravator that is not relevant here. See O.C.G.A. § 16-5-21(b)(3) (2016).

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28 Opinion of the Court 20-12609

whether the aggravated assault was based on simple assault under

O.C.G.A. § 16-5-20(a)(1) or (a)(2). However, because the

government failed to produce any Shepard documents related to

Smith’s conviction in the district court, we cannot determine on

which version of simple assault Smith’s aggravated assault

conviction was based. Therefore, the modified categorical

approach ends here, and we must assume that Smith’s aggravated

assault with intent to rob conviction is based on the least of the acts

criminalized under the simple assault statute—i.e., “[c]ommit[ting]

an act which places another in reasonable apprehension of

immediately receiving a violent injury.” O.C.G.A. § 16-5-20(a);

Moss, 920 F.3d at 758; Oliver, 962 F.3d at 1316.

In Moss, however, we held that simple assault under § 16-5-

20(a)(2) does not satisfy the intentional use of force requirement of

the ACCA’s elements clause because it can be committed with a

mens rea of recklessness. Id. at 757–58. And while Smith’s appeal

was pending, the Supreme Court took up the issue and held that

“[o]ffenses with a mens rea of recklessness do not qualify as violent

felonies under [the] ACCA” because “[t]hey do not require . . . the

active employment of force against another person.” Borden v.

United States, 141 S. Ct. 1817, 1834 (2021).

Accordingly, the only way that this conviction can qualify as

a violent felony for purposes of the ACCA is if the intent to rob

aggravating factor adds the necessary element of intent to use

“violent force,” or “force capable of causing physical pain or injury

to another person.” Stokeling, 139 S. Ct. at 552 (internal quotation

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marks omitted). If it does not, then the conviction does not

categorically qualify as a violent felony.

In examining the “intent to rob” aggravating factor, we must

consider how Georgia defines the crime of robbery. See Johnson

v. State, 696 S.E.2d 396, 397 (Ga. Ct. App. 2010) (“Aggravated

assault with intent to rob requires the reasonable apprehension of

receiving bodily injury and proof of the intent to rob the victim.”

(quotation omitted)). Under Georgia law, a person commits

robbery “when, with intent to commit theft, he takes property of

another from the person or immediate presence of another” either

“(1) [b]y use of force; (2) [b]y intimidation, by the use of threat or

coercion, or by placing such person in fear of immediate serious

bodily injury to himself or to another; or (3) [b]y sudden

snatching.” O.C.G.A. § 16-8-40(a). Although Georgia’s robbery

statute is divisible, United States v. Harrison, 56 F. 4th 1325, 1335–

36 (11th Cir. 2023), because there are no Shepard documents in the

record, we apply the categorical approach and we must assume

Smith intended to commit the least of the robbery acts

criminalized. Sudden snatching is clearly the least of the three

robbery acts criminalized. See O.C.G.A. § 16-8-40(a).

Consequently, our analysis is limited to a Georgia aggravated

assault conviction with intent to rob by sudden snatching.

Georgia courts have explained that although “force is

implicit in sudden snatching,” the only force required is “that effort

necessary for the robber to transfer the property taken from the

owner to his possession.” Copeland v. State, 754 S.E.2d 636, 639

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30 Opinion of the Court 20-12609

(Ga. Ct. App. 2014) (quotation omitted); King v. State, 447 S.E.2d

645, 647 (Ga. Ct. App. 1994) (“Robbery by sudden snatching is

where no other force is used than is necessary to obtain possession

of the property from the owner, who is off his guard, and where

there is no resistance by the owner or injury to his person.”

(quotation omitted)). That amount of force, the Supreme Court

has suggested in dicta, 15 would not satisfy the ACCA’s elements

clause. See Stokeling, 139 S. Ct. at 555 (contrasting Florida’s

robbery statute—which qualifies as a violent felony under ACCA’s

elements clause—with its robbery by sudden snatching statute,

under which it is “unnecessary to show . . . that the defendant used

any amount of force beyond that effort necessary to obtain

possession of the money or other property,” and suggesting the

latter would not satisfy the ACCA’s elements clause (quotations

omitted)).

Additionally, a review of Georgia cases reveals that the

Court of Appeals of Georgia routinely affirms robbery by sudden

snatching convictions involving substantially less force than that

capable of causing physical pain or injury to another person. See,

e.g., Anderson v. State, 834 S.E.2d 369, 374 (Ga. Ct. App. 2019)

(affirming robbery by sudden snatching conviction where victim’s

car keys fell from his pocket onto the ground and defendant

15 See Schwab v. Crosby, 451 F.3d 1308, 1325 (11th Cir. 2006) (explaining that

“there is dicta, and then there is Supreme Court dicta” and that “dicta from

the Supreme Court is not something to be lightly cast aside”).

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grabbed the keys from the ground in the victim’s presence and

refused to return them); Brown v. State, 710 S.E.2d 674, 677–78

(Ga. Ct. App. 2011) (affirming robbery by sudden snatching

conviction where defendant took the victim’s wallet out of a

shopping cart while the victim was several feet away and the victim

yelled for defendant to stop); Sweet v. State, 697 S.E.2d 246, 248–

49 (Ga. Ct. App. 2010) (affirming robbery by sudden snatching

conviction where defendant opened cash register drawer at

restaurant and took money while the cashier’s back was turned but

she heard the drawer open and suspected the defendant was

stealing money); King, 447 S.E.2d at 647 (affirming robbery by

sudden snatching conviction where defendant grabbed six cartons

of cigarettes off a checkout counter and ran out of the store while

the clerk’s attention was on something else). Thus, the force

required to commit a robbery by sudden snatching in Georgia is

not by necessity “violent force—that is, force capable of causing

physical pain or injury to another person.” Stokeling, 139 S. Ct. at

552 (emphasis omitted) (quotation omitted). Therefore, the

“intent to rob” element of aggravated assault—at least when that

intent is based on robbery by sudden snatching—does not provide

the intentional use of force requirement necessary to satisfy the

ACCA’s elements clause.

Accordingly, Smith’s 2009 aggravated assault with intent to

rob conviction does not categorically qualify as a violent felony

under the ACCA’s elements clause.

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32 Opinion of the Court 20-12609

iii. Aggravated assault conviction (1999)

Smith’s 1999 aggravated assault conviction does not qualify

as a violent felony. As discussed above, in Moss, we held that

aggravated assault predicated on simple assault under § 16-5-

20(a)(2) does not satisfy the intentional use of force requirement of

the ACCA’s elements clause because it can be committed with a

mens rea of recklessness. Id. at 757–58; see also Borden, 141 S. Ct.

at 1825, 1834 (holding that “[o]ffenses with a mens rea of

recklessness do not qualify as violent felonies under the ACCA”

because “[t]hey do not require . . . the active employment of force

against another person”). Accordingly, because aggravated assault

can be predicated on a mens rea of recklessness, this offense does

not qualify under the ACCA’s elements clause. 16

iv. Criminal attempt to commit armed robbery conviction

(2009)

Finally, we turn to Smith’s 2009 Georgia criminal attempt to

commit armed robbery conviction. Smith argues that this

conviction does not qualify as a violent felony for purposes of the

ACCA because (1) criminal attempt in Georgia does not include as

an element the use, attempted use, or threatened use of force, and

16 Both parties conceded at oral argument that, in light of the Supreme

Court’s intervening decision in Borden, this offense no longer qualifies as a

violent felony.

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(2) armed robbery under Georgia law does not necessarily require

the use, attempted use, or threatened use of force.

Under Georgia law, “[a] person commits the offense of

armed robbery when, with intent to commit theft, he or she takes

property of another from the person or the immediate presence of

another by use of an offensive weapon, or any replica, article, or

device having the appearance of such weapon.” 17 O.C.G.A. § 16-

17 The Supreme Court of Georgia has explained that “Georgia’s armed

robbery statute clearly contemplates that the offensive weapon be used as a

concomitant to a taking which involves the use of actual force or intimidation

(constructive force) against another person.” State v. Epps, 476 S.E.2d 579,

581 (Ga. 1996) (quotation omitted). The Court reasoned that

[a] taking accomplished by force or intimidation is the

“distinguishing characteristic” of robbery—the “gist” of the

offense. The force necessary for robbery is actual violence or

intimidation exerted upon the person robbed, by operating

upon his fears—the fear of injury to his person, or property, or

character. Intimidation is that terror . . . likely to create an

apprehension of danger, and induce a person to part with his

property for the safety of his person. Intimidation is that act

by the perpetrator which puts the person robbed in fear

sufficient to suspend the free exercise of his will or prevent

resistance to the taking. A threat by a perpetrator to inflict

harm constitutes the requisite force or intimidation if that

threat of harm induces the victim/possessor of property to

relinquish possession. However, if the person in possession of

the property voluntarily yields possession of the property to

the robber, that is, consents to the taking of the property, an

essential element of robbery, force, is missing.

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34 Opinion of the Court 20-12609

8-41(a). An “offensive weapon” for purposes of Georgia’s armed

robbery statute means a “deadly weapon.” Long v. State, 700

S.E.2d 399, 402 (Ga. 2010).

In Georgia, a person “commits the offense of criminal

attempt when, with intent to commit a specific crime, he performs

any act which constitutes a substantial step toward the commission

of that crime.” O.C.G.A. § 16-4-1; see also Howell v. Georgia, 278

S.E.2d 43, 46 (Ga. Ct. App. 1981) (explaining that criminal attempt

requires (1) the intent to commit the specific crime, (2) the

performance of some overt act towards the commission of that

crime, and (3) a failure to complete the crime).

Id. at 580–81 (quotation and internal citations omitted). In other words, “[a]n

element of armed robbery is that the taking be effectuated with force, either

actual or constructive (intimidation).” Wilson v. State, 448 S.E.2d 184, 185

(Ga. 1994) (emphasis in original). And “[w]hen the Code speaks of force, it

means actual violence; and when it speaks of intimidation, it still means force;

not actual and direct, but exerted upon the person robbed, by operating upon

his fears—the fear of injury to his person, or property, or character.” Alford

v. State, 418 S.E.2d 397, 398 (Ga. Ct. App. 1992) (quotation omitted) (emphasis

added). The use of violent force required by Georgia’s statute suggests that

substantive Georgia armed robbery would categorically qualify as a violent

felony under the ACCA’s elements clause. See Porter v. United States, 959

F.3d 800, 802–04 (6th Cir. 2020) (holding that Georgia armed robbery

categorically qualifies as a violent felony under the ACCA). However,

whether substantive Georgia armed robbery is a violent felony is not the

question before us. Smith was convicted of criminal attempt to commit armed

robbery; therefore, we must decide whether the offense of criminal attempted

armed robbery in Georgia categorically qualifies as a violent felony.

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While Smith’s appeal was pending, the Supreme Court

addressed attempt crimes in United States v. Taylor, 596 U.S. __,

142 S. Ct. 2015 (2022). Taylor held that attempted Hobbs Act

robbery did not qualify as a crime of violence under 18 U.S.C.

§ 924(c)’s elements clause—which is nearly identical to the ACCA’s

elements clause. Id. at 2020–21. In reaching its decision, the

Supreme Court explained that a completed Hobbs Act robbery can

be committed by means of actual or threatened use of force. Id. at

2020. Therefore, the government could secure a conviction for

attempted Hobbs Act robbery by proving “two things: (1) [t]he

defendant intended to unlawfully take or obtain personal property

by means of actual or threatened force, and (2) he completed a

‘substantial step’ toward that end.” Id. The Supreme Court

reasoned that “whatever a substantial step requires, it does not

require the government to prove that the defendant used,

attempted to use, or even threatened to use force against the

person or property of another.” Id.

Here, similar to a conviction for attempted Hobbs Act

robbery, a conviction for criminal attempt to commit armed

robbery in Georgia may be secured by proving beyond a

reasonable doubt that (1) a defendant intended to take the

“property of another from the person or the immediate presence

of another by use of an offense weapon, or any replica, article, or

device having the appearance of such weapon,” and (2) took a

substantial step toward that objective. See O.C.G.A. §§ 16-8-41(a),

16-4-1. As discussed above, completed armed robbery in Georgia

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36 Opinion of the Court 20-12609

may be committed by the threatened use of force, Epps, 476 S.E.2d

at 580–81, which means that a conviction for criminal attempt to

commit armed robbery in Georgia could be secured based on an

attempt to threaten to use force. Post-Taylor, we have held that

“where a crime may be committed by the threatened use of force,

an attempt to commit that crime—i.e., an attempt to threaten—

falls outside the elements clause.” Alvarado-Linares v. United

States, 44 F.4th 1334, 1346 (11th Cir. 2022). Accordingly, because

criminal attempt to commit armed robbery in Georgia may be

committed by an attempt to threaten, it is not categorically a

violent felony under the ACCA’s elements clause.

Consequently, Smith has only two qualifying violent

felonies, and the ACCA enhancement cannot stand.18

Accordingly, we vacate his sentence and remand for resentencing.

III. Conclusion

Based on the above, we affirm Smith’s conviction and the

non-sentencing issues he raises. However, we vacate his sentence

and remand for resentencing without the ACCA enhancement.

AFFIRMED IN PART, VACATED IN PART, AND

REMANDED FOR RESENTENCING.

18 Smith also argues that the district court erred in enhancing his sentence

under the ACCA without submitting his prior convictions to the jury—a claim

which he acknowledges is foreclosed by Almendarez-Torres v. United States,

523 U.S. 224 (1998). Because the ACCA enhancement does not apply, we do

not reach this issue.