United States v. Samuel Lee Lynch

USCA11 Case: 16-12638 Document: 97-1 Date Filed: 08/01/2023 Page: 1 of 18

[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 16-12638

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SAMUEL LEE LYNCH,

REO THOMAS NANCE,

Defendants-Appellants.

____________________

Appeals from the United States District Court

for the Middle District of Florida

D.C. Docket No. 8:15-cr-00171-SCB-JSS-1

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2 Opinion of the Court 16-12638

____________________

Before WILLIAM PRYOR, Chief Judge, and JILL PRYOR and TJOFLAT,

Circuit Judges.

PER CURIAM:

A jury in the Middle District of Florida convicted Appellants

Samuel Lee Lynch and Reo Thomas Nance of conspiracy to com-

mit Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a); Hobbs

Act robbery, in violation of § 1951(a); discharging or brandishing a

firearm in furtherance of a crime of violence, in violation of 18

U.S.C. § 924(c)(1)(A)(ii)–(iii); and being a felon in possession of a

firearm or ammunition, in violation of 18 U.S.C. § 922(g)(1). The

District Court sentenced Lynch to life in prison and Nance to 624

months in prison.

Lynch and Nance both argue on appeal that their Hobbs Act

robbery convictions are not predicate crimes of violence for pur-

poses of their § 924(c) convictions. Lynch also argues that his pre-

vious Florida felony convictions for aggravated assault with a

deadly weapon and aggravated battery on a law enforcement of-

ficer with a deadly weapon are not predicate offenses for his sen-

tencing enhancements under U.S.S.G. § 4B1.1 and 18 U.S.C.

§§ 924(e) and 3559(c). After careful review, we affirm.

I.

We review de novo whether an offense qualifies as a crime of

violence under § 924(c). Steiner v. United States, 940 F.3d 1282, 1288

(11th Cir. 2019) (per curiam). However, an argument raised for the

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16-12638 Opinion of the Court 3

first time on appeal is reviewed only for plain error. United States v.

Rodriguez, 751 F.3d 1244, 1251 (11th Cir. 2014). Similarly, where a

defendant fails to clearly state the grounds for his objection in the

district court, we review only for plain error. United States v.

Ramirez-Flores, 743 F.3d 816, 821 (11th Cir. 2014). To establish plain

error, a defendant must show “(1) error, (2) that is plain, and (3) that

affects substantial rights.” Rodriguez, 751 F.3d at 1251–52 (quoting

United States v. Moriarty, 429 F.3d 1012, 1019 (11th Cir. 2005)). Plain

error review is discretionary, but “the court of appeals should exer-

cise its discretion to correct the forfeited error if the error seriously

affects the fairness, integrity or public reputation of judicial pro-

ceedings.” Molina-Martinez v. United States, 578 U.S. 189, 195, 136 S.

Ct. 1338, 1343 (2016) (internal quotations and citations omitted).

To satisfy the plain error rule, an asserted error must be clear

from the plain meaning of a statute or constitutional provision, or

from a holding of this Court or the Supreme Court. United States

v. Morales, 987 F.3d 966, 976 (11th Cir.), cert. denied, 142 S. Ct. 500

(2021). Even if an error was not “‘plain’ at the time of sentenc-

ing, . . . it is enough that the error be ‘plain’ at the time of appellate

consideration.” United States v. Rodriguez, 398 F.3d 1291, 1299 (11th

Cir. 2005) (quoting Johnson v. United States, 520 U.S. 461, 468, 117 S.

Ct. 1544, 1549 (1997)).

A plain error affected a defendant’s substantial rights if it was

prejudicial, meaning the error actually made a difference in the de-

fendant’s sentence. Rodriguez, 398 F.3d at 1300. If the appellate

court would have to speculate that the result would have been

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4 Opinion of the Court 16-12638

different, the defendant has not met the burden to show that his

substantial rights have been affected. Id. at 1301.

In this case, neither Lynch nor Nance argued in the District

Court—in their motions for judgment of acquittal or otherwise—

that their convictions for Hobbs Act robbery did not qualify as

crimes of violence under § 924(c). Instead, they maintained

throughout the proceedings below that they were innocent of the

underlying crimes. And while both objected to the entirety of the

relevant offense conduct in their respective presentence investiga-

tion reports (“PSR”), they did so only on the broad grounds that

they were factually innocent on all counts of conviction. Accord-

ingly, Lynch and Nance have not properly preserved this issue for

appeal, and so we review only for plain error.

Section 924(c) prohibits using or carrying a firearm during

and in relation to a crime of violence or possessing a firearm in

furtherance of any such crime. 18 U.S.C. § 924(c)(1). It also pro-

vides increased penalties, including a mandatory consecutive sen-

tence, for those who brandish or discharge a firearm while com-

mitting a crime of violence. Id. § 924(c)(1)(A)(ii)–(iii), (c)(1)(D)(ii).

A “crime of violence” within the meaning of § 924(c) means that

an offense 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

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16-12638 Opinion of the Court 5

property of another may be used in the course

of committing the offense.

Id. § 924(c)(3). We refer to § 924(c)(3)(A) as the “elements clause,”

and § 924(c)(3)(B) as the “residual clause.” See, e.g., Thompson v.

United States, 924 F.3d 1153, 1155 (11th Cir. 2019).

Lynch and Nance were convicted under § 924(c) for bran-

dishing a firearm during the commission of a Hobbs Act robbery.

Lynch was also convicted for discharging a firearm during the com-

mission of a Hobbs Act robbery. They maintain that those convic-

tions are invalid because Hobbs Act robbery does not qualify as a

“crime of violence” under § 924(c). In United States v. St. Hubert, we

rejected a similar challenge to a defendant’s § 924(c) conviction and

held that Hobbs Act robbery qualified as a crime of violence under

both the elements clause and the residual clause of § 924(c)(3). 909

F.3d 335, 344–46 (11th Cir. 2018), abrogated in part by United States v.

Davis, 139 S. Ct. 2319, 2336 (2019); see also In re Saint Fleur, 824 F.3d

1337, 1340–41 (11th Cir. 2016) (“Hobbs Act robbery . . . clearly qual-

ifies as a ‘crime of violence’ under the [elements] clause in

§ 924(c)(3)(A).”).

The Supreme Court subsequently held in United States v. Da-

vis that the residual clause of § 924(c) was unconstitutionally vague,

thus abrogating that portion of our holding in St. Hubert. 139 S. Ct.

2319, 2336 (2019). But the remaining St. Hubert holding—that

Hobbs Act robbery qualified as a crime of violence under the ele-

ments clause—remains unaffected, and we are bound by it.

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6 Opinion of the Court 16-12638

Because our binding precedent forecloses Lynch and

Nance’s argument that Hobbs Act robbery does not qualify as a

“crime of violence” under § 924(c)’s elements clause, their argu-

ment fails the second prong of plain error review. The District

Court, then, did not plainly err and their § 924(c) convictions are

affirmed.

II.

Turning to Lynch’s second argument, we review a district

court’s application of the Sentencing Guidelines de novo. United

States v. Perez, 943 F.3d 1329, 1332 (11th Cir. 2019) (per curiam). In

particular, we review the legal standard de novo, the district court’s

findings of fact for clear error, and the district court’s application

of the legal standard and Sentencing Guidelines to those facts de

novo. Id. at 1332–33. But if a defendant fails to object to the PSR

and his sentence with the requisite “specificity and clarity” to alert

the government and the district court to the mistake complained

of on appeal, we review only for plain error. Ramirez-Flores, 743

F.3d at 824. As explained above, Lynch objected to the allegations

in the PSR only on the broad ground that he was not guilty of any

of the crimes of which the jury convicted him. And at sentencing,

he reiterated only his “general global denial” to the factual allega-

tions in the indictment and the PSR. As such, Lynch did not

properly preserve his sentencing challenges for appeal, and we re-

view only for plain error.

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Lynch challenges his sentencing enhancements under the

“career offender” enhancement in U.S.S.G. § 4B1.1, 1 the Armed Ca-

reer Criminal Act (the “ACCA”), 18 U.S.C. § 924(e)(1), 2 and the fed-

eral “three strikes” statute, id. § 3559(c)(1)(A)(i). 3 The District

Court found that Lynch was a career offender and an armed career

offender, and additionally that the counts for Hobbs Act robbery,

conspiracy to commit Hobbs Act robbery, and discharging and

brandishing a firearm all carried mandatory minimum life sen-

tences, based on his three previous Florida convictions for aggra-

vated assault with a deadly weapon, aggravated battery on a law

enforcement officer with a deadly weapon, and robbery.

The Court thus sentenced Lynch to (1) concurrent life sen-

tences on the Hobbs Act robbery and conspiracy to commit Hobbs

Act robbery counts, pursuant to § 3559(c)(1)(a)(i); (2) 15 years to

life imprisonment on the felon-in-possession counts, to run concur-

rently with the life sentences, pursuant to § 924(e)(1); and (3) two

1 The § 4B1.1 “career offender” enhancement was based on a jury convicting

Lynch of violations of § 924(c) (Counts Three and Eight).

2 The ACCA enhancement was based on a jury convicting Lynch of violations

of §§ 922(g) and 924(e) (Counts Four and Nine).

3 Prior to trial, the Government submitted a notice that it intended to pursue

enhanced sentences under the three strikes statute, as it was required to do

under 21 U.S.C. § 851(a)(1). The Government identified Lynch’s indictments

for Hobbs Act robbery (Counts Two, Five, and Seven), conspiracy to commit

Hobbs Act robbery (Count One), discharging a firearm in furtherance of a

crime of violence (Count Three), and brandishing a firearm in furtherance of

a crime of violence (Count Eight) as potential “third strikes” that would bring

18 U.S.C. § 3559’s enhanced penalties into play if Lynch were convicted.

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8 Opinion of the Court 16-12638

additional life sentences for brandishing and discharging a firearm

in connection with the Hobbs Act robberies, to run consecutively

to each other and consecutively to the other sentences, pursuant to

§ 924(c)(1)(A)(ii)–(iii) and § 3559(c)(1)(A)(i). We first consider the

District Court’s application of the career offender enhancement

and the ACCA to Lynch’s sentence; we then turn to the Court’s

application of the three strikes statute.

A.

A defendant qualifies as a career offender under U.S.S.G.

§ 4B1.1 if

(1) the defendant was at least eighteen years old at the

time the defendant committed the instant offense of

conviction; (2) the instant offense of conviction is a

felony that is either a crime of violence or a controlled

substance offense; and (3) the defendant has at least

two prior felony convictions of either a crime of vio-

lence or a controlled substance offense.

U.S.S.G. § 4B1.1(a).

Lynch argues that his convictions for aggravated assault

with a deadly weapon and aggravated battery on a law enforce-

ment officer with a deadly weapon do not qualify as crimes of vio-

lence under the Guideline. For purposes of the Guideline, the term

“crime of violence” means any offense under federal or state law,

punishable by imprisonment for more than one year, that

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

threatened use of physical force against the person of

another, or

(2) is murder, voluntary manslaughter, kidnapping,

aggravated assault, a forcible sex offense, robbery, ar-

son, extortion, or the use or unlawful possession of a

firearm . . . or explosive material.

Id. § 4B1.2(a).

Further, under the ACCA, a defendant convicted of unlaw-

ful possession of a firearm by a convicted felon, in violation of 18

U.S.C. § 922(g), is subject to a mandatory minimum sentence of

fifteen years if he has three prior felony convictions for “a violent

felony or a serious drug offense.” 18 U.S.C. § 924(e)(1).

As with the career offender enhancement, Lynch argues that

his Florida convictions for aggravated assault with a deadly weapon

and aggravated battery on a law enforcement officer with a deadly

weapon do not qualify as violent felonies under the ACCA. 4 The

ACCA defines the term “violent felony” as any crime punishable by

a term of imprisonment exceeding one year that “(i) has as an ele-

ment the use, attempted use, or threatened use of physical force

against the person of another; or (ii) is burglary, arson, or extortion,

[or] involves use of explosives.” Id. § 924(e)(2)(B). In addition, the

Supreme Court recently held that “[o]ffenses with a mens rea of

4 Again, Lynch does not contest that his robbery conviction qualifies as a vio-

lent felony under the ACCA.

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10 Opinion of the Court 16-12638

recklessness do not qualify as violent felonies under ACCA.” Bor-

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

Because the career offender Guideline’s elements clause in

§ 4B1.2(a)(1) is identical to the ACCA’s elements clause in

§ 924(e)(2)(B)(i), cases decided under the ACCA’s elements clause

are binding for the career offender Guideline’s elements clause, and

vice versa—i.e., what constitutes a “violent felony” under the

ACCA’s elements clause also constitutes a “crime of violence” un-

der the career offender Guideline’s elements clause. United States v.

Golden, 854 F.3d 1256, 1256–57 (11th Cir. 2017) (per curiam).

1.

Lynch’s prior conviction for aggravated assault under Flor-

ida law is a crime of violence under both the career offender en-

hancement and the ACCA. In light of Borden, we recently asked

the Supreme Court of Florida whether Fla. Stat. § 784.011(1)—

Florida’s assault statute—required specific intent. Somers v. United

States, 15 F.4th 1049, 1056 (11th Cir. 2021). The Supreme Court of

Florida responded that “the first element of Florida’s assault stat-

ute, § 784.011(1), required not just the general intent to volitionally

take the action of threatening to do violence, but also that the actor

direct the threat at a target, namely another person.” Somers v.

United States, 355 So. 3d 887, 892–93 (Fla. 2022). Upon receiving the

Supreme Court of Florida’s answer to our question, we held that

“aggravated assault under Florida law categorically qualifies as a

‘violent felony’ under the ACCA’s elements clause.” Somers v.

United States, 66 F.4th 890, 896 (11th Cir. 2023). Our most recent

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decision in Somers, therefore, forecloses Lynch’s argument as to his

aggravated assault conviction.

2.

Turning to Lynch’s conviction for aggravated battery on a

law enforcement officer with a deadly weapon, according to Flor-

ida law, a person commits aggravated battery when, in the com-

mission of a battery, he or she (1) “intentionally or knowingly

causes great bodily harm, permanent disability, or permanent dis-

figurement”; or (2) “uses a deadly weapon.” Fla. Stat.

§ 784.045(1)(a). A person can also commit aggravated battery in

Florida by committing a battery against a person who was “preg-

nant at the time of the offense and the offender knew or should

have known that the victim was pregnant.” Id. at § 784.045(1)(b).

Use of the modified categorical approach is appropriate

when a statute is divisible, as is Fla. Stat. § 784.045. See Descamps v.

United States, 133 S. Ct. 2276, 2281 (2013). A divisible statute is one

that “sets out one or more elements of the offense in the alterna-

tive.” Id. If one of the alternatives qualifies under ACCA, but an-

other does not, “the modified categorical approach permits sen-

tencing courts to consult a limited class of documents . . . to deter-

mine which alternative formed the basis of the defendant’s prior

conviction.” Id. In Lynch’s case, the judgment for his prior aggra-

vated battery conviction shows he was convicted of aggravated

battery on a law enforcement officer with a deadly weapon. This

means Lynch was convicted under § 784.045(1)(a).

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12 Opinion of the Court 16-12638

Using the modified categorical approach, we have consist-

ently held that aggravated battery as set out in Fla. Stat.

§ 784.045(1)(a) qualifies as a crime of violence under the ACCA’s

elements clause. Turner v. Warden Coleman FCI (Medium), 709 F.3d

1328, 1341–42 (11th Cir. 2013), abrogated on other grounds by United

States v. Hill, 799 F.3d 1319, 1321 n.1 (11th Cir. 2015); see also United

States v. Vereen, 920 F.3d 1300, 1313–14 (11th Cir. 2019); In re Rogers,

825 F.3d 1335, 1341 (11th Cir. 2016). While we have not specifically

addressed Florida’s aggravated battery statute in light of Borden, we

have previously held that aggravated battery under § 784.045 is a

specific intent crime. United States v. Vail-Bailon, 868 F.3d 1293, 1299

(11th Cir. 2017) (en banc).

Lynch argues that “[b]ecause the least of the criminalized

acts of Aggravated Battery with a Deadly Weapon is an unwanted

touching while carrying a deadly weapon . . . and this does not in-

volve the use of ‘violent force,’” his prior conviction for aggravated

battery cannot serve as a predicate offense under either the career

offender enhancement or the ACCA. But Turner’s holding—that,

using the modified categorical approach, aggravated battery under

Fla. Stat. § 784.045(1)(a) qualifies as a crime of violence under

ACCA’s elements clause—has never been abrogated. As such, we

are bound by it under the prior panel precedent rule “unless and

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

an opinion of the Supreme Court or of this Court sitting en banc.”

United States v. Gillis, 938 F.3d 1181, 1198 (11th Cir. 2019) (per cu-

riam). The prior panel rule applies regardless of whether we be-

lieve “the prior panel’s opinion to be correct, and there is no

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16-12638 Opinion of the Court 13

exception to the rule where the prior panel failed to consider argu-

ments raised before a later panel.” Id. The District Court is also

bound by our precedent and could not have erred—plainly or oth-

erwise—in applying it; rather than telling the District Court that

aggravated battery under § 784.045(1)(a) didn’t qualify as a crime

of violence, our precedent told the District Court that it did. And

since aggravated battery qualifies as a violent felony under the

ACCA, it qualifies as a crime of violence under the career offender

enhancement. See Golden, 854 F.3d at 1256–57.

Accordingly, because our binding precedent dictates that

Lynch’s convictions for aggravated assault with a deadly weapon

and aggravated battery on a law enforcement officer with a deadly

weapon qualify as predicate offenses under both the career of-

fender enhancement and the ACCA, Lynch had the requisite num-

ber of predicate offenses for each enhancement. 5 The District

Court did not plainly err in applying either the career offender en-

hancement or the ACCA, and his sentence is affirmed in that re-

spect.

B.

Lynch also argues for the first time on appeal that he incor-

rectly received life sentences under the federal “three strikes” law

5 The convictions that qualify Lynch for both the career offender enhancement

and the ACCA are: (1) aggravated assault with a deadly weapon; (2) aggra-

vated battery of a law enforcement officer with a deadly weapon; and (3) rob-

bery. Only two of those convictions needed to qualify for the career offender

enhancement to apply.

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14 Opinion of the Court 16-12638

in 18 U.S.C. § 3559(c)(1). The relevant convictions serving as

“strikes” are Lynch’s previous convictions for robbery (“strike

one”), aggravated battery on a law enforcement officer with a

deadly weapon (“strike two”), and his convictions for Hobbs Act

robbery, conspiracy to commit Hobbs Act robbery, and discharging

and brandishing a firearm in furtherance of a crime of violence

(each a separate “strike three” supporting a separate life sentence).

Lynch only challenges the validity of strikes one and two, not strike

three. That is, Lynch argues that his convictions for robbery and

aggravated battery on a law enforcement officer with a deadly

weapon do not qualify as serious violent felonies under the federal

“three strikes” law in 18 U.S.C. § 3559(c)(1). 6

Under the “three strikes” statute, a defendant receives a

mandatory sentence of life imprisonment if he is convicted of a

serious violent felony after having been previously convicted on

separate occasions of two or more such felonies. Id.

§ 3559(c)(1)(A)(i). The statute defines a “serious violent felony” in

two parts. First, it enumerates several offenses that plainly consti-

tute serious violent felonies, one of which is robbery. Id.

6 The Government listed Lynch’s conviction for aggravated assault as a predi-

cate serious violent felony as well. On appeal, Lynch argued that his aggra-

vated assault conviction could not serve as a strike for the same reasons that

his aggravated battery conviction could not serve as a strike. Because the Gov-

ernment conceded that Lynch’s conviction for aggravated assault did not qual-

ify as a serious violent felony under the “three strikes” law, we need not ad-

dress that argument.

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§ 3559(c)(2)(F)(i). Second, it provides that a “serious violent felony”

is also

any other offense punishable by a maximum term of

imprisonment of 10 years or more that has as an ele-

ment the use, attempted use, or threatened use of physical

force against the person of another or that, by its nature,

involves a substantial risk that physical force against

the person of another may be used in the course of

committing the offense.

Id. § 3559(c)(2)(F)(ii) (emphasis added). Like § 924(c) and the career

offender enhancement, the three strikes law can be divided into an

elements clause and a residual clause at § 3559(c)(2)(F)(ii), with an

additional “enumerated offenses” clause at § 3559(c)(2)(F)(i).

1.

Lynch’s Florida robbery conviction qualifies as a serious fel-

ony under the enumerated offenses clause. Lynch nonetheless ar-

gues that his robbery conviction does not qualify as a “serious vio-

lent felony” by operation of the affirmative defense provision in

§ 3559(c)(3)(A). Under that provision, a robbery conviction does

not constitute a “strike,” despite its enumeration as a “serious vio-

lent felony” in § 3559(c)(2)(F)(i), if the defendant can prove by clear

and convincing evidence that “no firearm or other dangerous

weapon was used in the offense and no threat of use of a firearm

or other dangerous weapon was involved in the offense.” Id.

§ 3559(c)(3)(A); United States v. Gray, 260 F.3d 1267, 1278 (11th Cir.

2001). Lynch argues that his robbery conviction should not qualify

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16 Opinion of the Court 16-12638

as a predicate offense under § 3559 because the PSR does not indi-

cate that Lynch used a dangerous weapon or otherwise threatened

to use such a weapon in connection with the robbery.

But Lynch did not raise this argument in either the District

Court or his initial brief on appeal. That argument first appears in

his reply brief, and a legal claim or argument that is not plainly and

prominently raised in an initial brief before this Court is deemed

forfeited. See United States v. Campbell, 26 F.4th 860, 873 (11th Cir.

2022) (en banc). We thus deem Lynch to have forfeited any chal-

lenge to his sentence based on whether his Florida robbery convic-

tion qualifies as a predicate offense under the three strikes law.

2.

Lynch essentially argues that because his conviction for ag-

gravated battery should not qualify under the elements clause in

the career offender Guideline or the ACCA, it also should not qual-

ify under the elements clause in the three strikes law. And, so the

argument goes, since that conviction does not qualify as serious vi-

olent felony under either the enumerated offenses clause or the el-

ements clause in § 3559(c)(2)(F), it could only qualify under the re-

sidual clause, which Lynch argues is unconstitutional in light of

United States v. Johnson, 135 S. Ct. 2551 (2015), and Sessions v. Dimaya,

138 S. Ct. 1204 (2018). 7

7 Florida aggravated battery is a second-degree felony, Fla. Stat. § 784.045(2),

punishable by up to fifteen years in prison, Fla. Stat. § 775.082. It thus satisfies

the ten-year-sentence requirement in § 3559(c)(2)(F)(ii).

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Even assuming, arguendo, that § 3559(c)(2)(F)(ii)’s residual

clause is unconstitutionally vague, we cannot say that the District

Court plainly erred in finding that Lynch’s conviction for aggra-

vated battery on a law enforcement officer with a deadly weapon

qualified as a “serious violent felony” under its elements clause. An

error cannot be “plain” where there is no precedent from the Su-

preme Court or this Court directly resolving the issue. United States

v. Cabezas-Montano, 949 F.3d 567, 590 (11th Cir. 2020). And no deci-

sion of the Supreme Court or this Court holds that aggravated bat-

tery on a law enforcement officer with a deadly weapon under Flor-

ida law does not qualify as a “serious violent felony” for purposes

of the three strikes statute. While it does not outright hold so, our

precedent actually suggests the opposite. Specifically, Turner held

that Florida aggravated battery is a violent felony under an ele-

ments clause nearly identical to that in § 3559(c)(2)(F)(ii).

The District Court did not plainly err in finding that Lynch’s

robbery and aggravated battery convictions qualified as serious vi-

olent felonies under § 3559, or in imposing mandatory life sen-

tences under the three strikes law.

III.

In sum, Hobbs Act robbery qualifies as a predicate crime of

violence for a §924(c) conviction. Lynch’s convictions for aggra-

vated assault and aggravated battery of a law enforcement officer

with a deadly weapon qualify as predicate offenses under the career

offender enhancement and the ACCA, and the District Court did

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18 Opinion of the Court 16-12638

not plainly err in applying the three strikes statute. For those rea-

sons, both Lynch and Nance’s sentences are affirmed.

AFFIRMED.