Chad Parchment-Berry v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: December 17, 2018
• Docket: 18-12114
• Status: Unpublished

Opinion

Case: 18-12114 Date Filed: 12/17/2018 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-12114 Non-Argument Calendar ________________________

Agency No. A060-009-810

CHAD PARCHMENT-BERRY,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the Board of Immigration Appeals ________________________

(December 17, 2018)

Before WILSON, NEWSOM, and HULL, Circuit Judges.

PER CURIAM: Case: 18-12114 Date Filed: 12/17/2018 Page: 2 of 4

Chad Parchment-Berry, a native of Jamaica, appeals the final order of the

Board of Immigration Appeals upholding the Immigration Judge’s determination

that he was removable under INA § 237(a)(2)(A)(iii), 8 U.S.C.

§ 1227(a)(2)(A)(iii). Specifically, the IJ concluded that Parchment-Berry was

removable for having committed a “crime of violence,” as defined by 18 U.S.C.

§ 16(a), because of his Florida conviction for robbery with a weapon under Fla.

Stat. § 812.13(1). 1 On appeal, Parchment-Berry argues that his robbery offense is

not a “categorical match” to § 16(a) because it is “overbroad to the federal

definition of a crime of violence.”

Section 16 defines “crime of violence” as “an offense that has as an element

the use, attempted use, or threatened use of physical force against the person or

property of another.” 18 U.S.C. § 16(a). 2 In determining whether a state

conviction is a “crime of violence,” this Court “examine[s] what the state

conviction necessarily involved, not the facts underlying the case” and “must

1 Florida’s robbery statute defines robbery as:

the taking of money or other property which may be the subject of larceny from the person or custody of another, with intent to either permanently or temporarily deprive the person or the owner of the money or other property, when in the course of the taking there is the use of force, violence, assault, or putting in fear. Fla. Stat. § 812.13(1). 2 The Supreme Court recently held that the “residual clause” of the crime of violence definition found in 18 U.S.C. § 16(b) is unconstitutionally vague. See Sessions v. Dimaya, 138 S. Ct. 1204, 1216 (2018).

2 Case: 18-12114 Date Filed: 12/17/2018 Page: 3 of 4

presume that the conviction rested upon [nothing] more than the least of th[e] acts

criminalized.” Moncrieffe v. Holder, 569 U.S. 184, 190–91 (2013) (quotations

omitted).

Parchment-Berry argues that the Florida robbery statute is not a crime of

violence because it does not necessarily involve “the use, attempted use, or

threatened use of physical force.” Specifically, he points to the fact that one can be

convicted for robbery in Florida not just for the “use of force, violence, [or]

assault,” but also for “putting [another] in fear.” The problem with this contention,

however, is what Parchment-Berry calls the “800 pound pink gorilla in the

room”—namely, that we have already held that Fla. Stat. § 812.13(1) is a “crime of

violence” in the context of the Armed Career Criminal Act, 18 U.S.C. § 924(e) and

the U.S. Sentencing Guidelines, U.S.S.G. § 4B1.2(a)(1). See United States v.

Seabrooks, 839 F.3d 1326, 1341 (11th Cir. 2016); United States v. Lockley, 632

F.3d 1238, 1245 (11th Cir. 2011). Because § 16(a)’s definition of “crime of

violence” is essentially identical to the definitions in § 924(e) and § 4B1.2(a)(1),

we conclude—based on Seabrooks and Lockley—that Fla. Stat. § 812.13(1) is a

“crime of violence” within the meaning of § 16(a). See Hernandez v. U.S. Att’y.

Gen., 513 F.3d 1336, 1341 (11th Cir. 2008) (relying on a Guidelines decision to

hold that a Georgia offense is a crime of violence under § 16(a) because the

3 Case: 18-12114 Date Filed: 12/17/2018 Page: 4 of 4

“sentencing enhancement defined the term ‘crime of violence’ just as it is defined

in 18 U.S.C. § 16(a)”).

Parchment-Berry argues that these decisions were incorrect. But that

contention cannot carry the day; those decisions “[are] binding on all subsequent

panels unless and until [they are] 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). See also United States v. Lee, 886

F.3d 1161, 1164–65 (11th Cir. 2018) (holding that Seabrooks and Lockley remain

good law). We are thus compelled to conclude that Parchment-Berry’s robbery

conviction qualified as a crime of violence under 18 U.S.C. § 16(a). Accordingly,

the BIA correctly determined that Parchment-Berry was removable based on his

conviction of an aggravated felony.

PETITION DENIED.