Case: 17-12999 Date Filed: 07/27/2020 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-12999 Non-Argument Calendar ________________________
D.C. Docket Nos. 4:16-cv-00368-RH-CAS, 4:13-cr-00103-RH-CAS-1
MICHAEL TOWNSEND ANTHONY,
Petitioner - Appellant,
versus
UNITED STATES OF AMERICA,
Respondent - Appellee.
________________________
Appeal from the United States District Court for the Northern District of Florida ________________________
(July 27, 2020)
Before WILSON, MARTIN, and ROSENBAUM, Circuit Judges.
PER CURIAM: Case: 17-12999 Date Filed: 07/27/2020 Page: 2 of 7
Michael Anthony is a federal prisoner serving a 188-month sentence for
being a felon in possession of a firearm. Anthony’s sentence was longer because
of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). After the
Supreme Court issued Johnson v. United States, 576 U.S. ___, 135 S. Ct. 2551
(2015), Anthony moved to vacate, set aside, or correct his sentence under 28
U.S.C. § 2255, arguing that his ACCA sentence was invalid. The district court
denied his motion, but granted a certificate of appealability. After careful review,
we affirm. We also grant Anthony’s counsel’s motion to withdraw and deny
Anthony’s request for appointment of new counsel.
I.
In 2014, Anthony pled guilty to one count of being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g). According to the pre-sentence
investigation report (“PSR”), Anthony had previously been convicted in Florida’s
Leon County Circuit Court of, among other crimes, two counts of armed robbery
and three counts of attempted armed robbery in 1993 and one count of aggravated
assault on a law enforcement officer in 2001. The ACCA requires that any person
who violates 18 U.S.C. § 922(g) and has three prior convictions for violent felonies
or serious drug offenses be subject to a mandatory minimum sentence of 15-years
imprisonment. 18 U.S.C. § 924(e)(1). Based on his prior convictions, the PSR
2 Case: 17-12999 Date Filed: 07/27/2020 Page: 3 of 7
said Anthony was subject to the 15-year mandatory minimum sentence under
ACCA.
At the sentencing hearing, the district court adopted the portions of the PSR
related to Anthony’s prior convictions. The Court found that he was subject to
ACCA’s mandatory 15-year sentence and imposed a sentence of 188 months. On
direct appeal, we affirmed the district court’s rulings on certain evidentiary issues
and on the application of the Sentencing Guidelines. United States v. Anthony,
609 F. App’x 987, 989–90 (11th Cir. 2015) (per curiam) (unpublished).
After the Supreme Court issued Johnson, Anthony moved to vacate his
sentence under 28 U.S.C. § 2255. He argued that his prior convictions did not
make him eligible for an ACCA sentence. Specifically, Anthony claimed his
Florida convictions for armed robbery, attempted armed robbery, and aggravated
assault qualified as ACCA predicates only under the statute’s residual clause,
which was found unconstitutional in Johnson. The district court denied his motion,
stating that under circuit precedent Anthony’s prior convictions qualified as violent
felonies under ACCA’s elements clause, § 924(e)(2)(b)(i), which Johnson did not
disturb. This appeal followed.
II.
Anthony’s counsel says we should reverse the district court because
Anthony’s prior conviction for Florida aggravated assault does not qualify as an
3 Case: 17-12999 Date Filed: 07/27/2020 Page: 4 of 7
ACCA predicate offense. Counsel acknowledges, however, that this argument
conflicts with binding circuit precedent. In Turner v. Warden Coleman FCI
(Medium), 709 F.3d 1328 (11th Cir. 2013), abrogated on other grounds by
Johnson, 135 S. Ct. at 2563, this Court held that Florida aggravated assault
qualifies as a violent felony under ACCA’s elements clause. Id. at 1337–38.
Anthony says Turner was wrongly decided and should be reconsidered. But under
our Court’s prior panel precedent rule, we are bound by decisions of this Court
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. Archer, 531 F.3d 1347,
1352 (11th Cir. 2008); see also Smith v. GTE Corp., 236 F.3d 1292, 1303 (11th
Cir. 2001) (“[W]e categorically reject any exception to the prior panel precedent
rule based upon a perceived defect in the prior panel’s reasoning or analysis as it
relates to the law in existence at that time.”). We must therefore follow Turner.
See United States v. Golden, 854 F.3d 1256, 1257 (11th Cir. 2017) (per curiam)
(Jill Pryor, J., concurring in the result) (applying Turner as required by the prior
precedent rule despite apparent errors in Turner’s reasoning).
III.
Anthony’s counsel initially argued before the district court that his prior
convictions for Florida armed robbery and Florida attempted armed robbery in the
Leon County Circuit Court, a court within Florida’s First District, also do not
4 Case: 17-12999 Date Filed: 07/27/2020 Page: 5 of 7
qualify as ACCA predicate offenses. Counsel acknowledged on appeal, however,
that United States v. Fritts, 841 F.3d 937, 941 (11th Cir. 2016), foreclosed this
argument.
After the parties finished briefing this appeal, the Supreme Court granted
certiorari in Stokeling v. United States to resolve the same question Anthony’s
brief raised. See 138 S. Ct. 1438 (Mem.). In response, we held Anthony’s appeal
in abeyance pending the Court’s decision. The Supreme Court has since decided
Stokeling, holding that Florida robbery qualifies as a violent felony under ACCA’s
elements clause. 586 U.S. __, 139 S. Ct. 544, 555 (2019).
In light of Stokeling, Anthony’s counsel submitted supplemental briefing on
his behalf, conceding his Florida armed robbery and Florida attempted armed
robbery convictions are ACCA predicate offenses. Later, though, counsel filed a
motion to withdraw, explaining that Anthony did not agree that Stokeling
foreclosed his argument.
We asked Anthony to respond to his counsel’s motion to withdraw and
requested he raise any issues relevant to the district court’s denial of his § 2255
motion. Anthony responded by arguing only that his prior Florida robbery
convictions do not qualify as violent felonies under the ACCA because they
occurred before the Florida Supreme Court’s opinion in Robinson v. State, 692 So.
5 Case: 17-12999 Date Filed: 07/27/2020 Page: 6 of 7
2d 883 (Fla. 1997).
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Case: 17-12999 Date Filed: 07/27/2020 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-12999 Non-Argument Calendar ________________________
D.C. Docket Nos. 4:16-cv-00368-RH-CAS, 4:13-cr-00103-RH-CAS-1
MICHAEL TOWNSEND ANTHONY,
Petitioner - Appellant,
versus
UNITED STATES OF AMERICA,
Respondent - Appellee.
________________________
Appeal from the United States District Court for the Northern District of Florida ________________________
(July 27, 2020)
Before WILSON, MARTIN, and ROSENBAUM, Circuit Judges.
PER CURIAM: Case: 17-12999 Date Filed: 07/27/2020 Page: 2 of 7
Michael Anthony is a federal prisoner serving a 188-month sentence for
being a felon in possession of a firearm. Anthony’s sentence was longer because
of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). After the
Supreme Court issued Johnson v. United States, 576 U.S. ___, 135 S. Ct. 2551
(2015), Anthony moved to vacate, set aside, or correct his sentence under 28
U.S.C. § 2255, arguing that his ACCA sentence was invalid. The district court
denied his motion, but granted a certificate of appealability. After careful review,
we affirm. We also grant Anthony’s counsel’s motion to withdraw and deny
Anthony’s request for appointment of new counsel.
I.
In 2014, Anthony pled guilty to one count of being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g). According to the pre-sentence
investigation report (“PSR”), Anthony had previously been convicted in Florida’s
Leon County Circuit Court of, among other crimes, two counts of armed robbery
and three counts of attempted armed robbery in 1993 and one count of aggravated
assault on a law enforcement officer in 2001. The ACCA requires that any person
who violates 18 U.S.C. § 922(g) and has three prior convictions for violent felonies
or serious drug offenses be subject to a mandatory minimum sentence of 15-years
imprisonment. 18 U.S.C. § 924(e)(1). Based on his prior convictions, the PSR
2 Case: 17-12999 Date Filed: 07/27/2020 Page: 3 of 7
said Anthony was subject to the 15-year mandatory minimum sentence under
ACCA.
At the sentencing hearing, the district court adopted the portions of the PSR
related to Anthony’s prior convictions. The Court found that he was subject to
ACCA’s mandatory 15-year sentence and imposed a sentence of 188 months. On
direct appeal, we affirmed the district court’s rulings on certain evidentiary issues
and on the application of the Sentencing Guidelines. United States v. Anthony,
609 F. App’x 987, 989–90 (11th Cir. 2015) (per curiam) (unpublished).
After the Supreme Court issued Johnson, Anthony moved to vacate his
sentence under 28 U.S.C. § 2255. He argued that his prior convictions did not
make him eligible for an ACCA sentence. Specifically, Anthony claimed his
Florida convictions for armed robbery, attempted armed robbery, and aggravated
assault qualified as ACCA predicates only under the statute’s residual clause,
which was found unconstitutional in Johnson. The district court denied his motion,
stating that under circuit precedent Anthony’s prior convictions qualified as violent
felonies under ACCA’s elements clause, § 924(e)(2)(b)(i), which Johnson did not
disturb. This appeal followed.
II.
Anthony’s counsel says we should reverse the district court because
Anthony’s prior conviction for Florida aggravated assault does not qualify as an
3 Case: 17-12999 Date Filed: 07/27/2020 Page: 4 of 7
ACCA predicate offense. Counsel acknowledges, however, that this argument
conflicts with binding circuit precedent. In Turner v. Warden Coleman FCI
(Medium), 709 F.3d 1328 (11th Cir. 2013), abrogated on other grounds by
Johnson, 135 S. Ct. at 2563, this Court held that Florida aggravated assault
qualifies as a violent felony under ACCA’s elements clause. Id. at 1337–38.
Anthony says Turner was wrongly decided and should be reconsidered. But under
our Court’s prior panel precedent rule, we are bound by decisions of this Court
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. Archer, 531 F.3d 1347,
1352 (11th Cir. 2008); see also Smith v. GTE Corp., 236 F.3d 1292, 1303 (11th
Cir. 2001) (“[W]e categorically reject any exception to the prior panel precedent
rule based upon a perceived defect in the prior panel’s reasoning or analysis as it
relates to the law in existence at that time.”). We must therefore follow Turner.
See United States v. Golden, 854 F.3d 1256, 1257 (11th Cir. 2017) (per curiam)
(Jill Pryor, J., concurring in the result) (applying Turner as required by the prior
precedent rule despite apparent errors in Turner’s reasoning).
III.
Anthony’s counsel initially argued before the district court that his prior
convictions for Florida armed robbery and Florida attempted armed robbery in the
Leon County Circuit Court, a court within Florida’s First District, also do not
4 Case: 17-12999 Date Filed: 07/27/2020 Page: 5 of 7
qualify as ACCA predicate offenses. Counsel acknowledged on appeal, however,
that United States v. Fritts, 841 F.3d 937, 941 (11th Cir. 2016), foreclosed this
argument.
After the parties finished briefing this appeal, the Supreme Court granted
certiorari in Stokeling v. United States to resolve the same question Anthony’s
brief raised. See 138 S. Ct. 1438 (Mem.). In response, we held Anthony’s appeal
in abeyance pending the Court’s decision. The Supreme Court has since decided
Stokeling, holding that Florida robbery qualifies as a violent felony under ACCA’s
elements clause. 586 U.S. __, 139 S. Ct. 544, 555 (2019).
In light of Stokeling, Anthony’s counsel submitted supplemental briefing on
his behalf, conceding his Florida armed robbery and Florida attempted armed
robbery convictions are ACCA predicate offenses. Later, though, counsel filed a
motion to withdraw, explaining that Anthony did not agree that Stokeling
foreclosed his argument.
We asked Anthony to respond to his counsel’s motion to withdraw and
requested he raise any issues relevant to the district court’s denial of his § 2255
motion. Anthony responded by arguing only that his prior Florida robbery
convictions do not qualify as violent felonies under the ACCA because they
occurred before the Florida Supreme Court’s opinion in Robinson v. State, 692 So.
5 Case: 17-12999 Date Filed: 07/27/2020 Page: 6 of 7
2d 883 (Fla. 1997). He asked this Court to appoint new counsel to brief this issue
on his behalf.
We then held his appeal in abeyance pending issuance of the mandate in
Welch v. United States, 958 F.3d 1093 (11th Cir. 2020) (per curiam), which
presented issues similar to those raised by Anthony. The mandate in Welch issued
on June 29, 2020. Welch v. United States, Case No. 14-15733, ECF No. 114. We
now conclude that we need not appoint new counsel to more fully brief Anthony’s
argument because it is without merit.
As counsel acknowledged in the brief first submitted in this case, Anthony’s
argument is squarely foreclosed by prior panel precedent. See Fritts, 841 F.3d at
939–44 (holding pre-Robinson Florida robbery convictions qualify as predicate
violent felonies under the ACCA). Stokeling did not abrogate or overrule—and
indeed supports—our prior precedent. And Welch reaffirmed that we remain
bound to hold that § 812.13 “has always required force sufficient to overcome a
victim’s resistance.” Welch, 958 F.3d at 1098. This is so even if that leads us to
the “absurd result” of affirming ACCA enhancements based on pre-Robinson
convictions in Florida districts which affirmed robbery convictions predicated on
force too slight to satisfy the ACCA’s elements clause. Id. at 1100–02
(Rosenbaum, J. concurring).
6 Case: 17-12999 Date Filed: 07/27/2020 Page: 7 of 7
Because of the conflict between Anthony and his counsel, we grant
counsel’s motion to withdraw. And because we have already addressed the only
additional argument Anthony wishes to raise on appeal—an argument that is
squarely foreclosed by this Court’s precedent and therefore meritless—we deny his
request for appointment of new counsel.
IV.
The district court’s denial of Anthony’s § 2255 motion is AFFIRMED. 1
Anthony’s counsel’s motion to withdraw is GRANTED, and Anthony’s request
for substitute counsel is DENIED.
1 We need not address the government’s alternative argument that Anthony qualifies for an ACCA sentence even without his prior aggravated assault conviction. 7