Santo Castro-Mercedes v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: March 17, 2025
• Docket: 23-12731
• Status: Unpublished

Opinion

USCA11 Case: 23-12731 Document: 28-1 Date Filed: 03/17/2025 Page: 1 of 11

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 23-12731 Non-Argument Calendar ____________________

SANTO ESTEBAN CASTRO-MERCEDES, Petitioner, versus U.S. ATTORNEY GENERAL,

Respondent.

Petition for Review of a Decision of the Board of Immigration Appeals Agency No. A059-233-684 ____________________ USCA11 Case: 23-12731 Document: 28-1 Date Filed: 03/17/2025 Page: 2 of 11

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Before BRASHER, ABUDU, and ANDERSON, Circuit Judges. PER CURIAM: Santo Esteban Castro-Mercedes petitions for review of an order by the Board of Immigration Appeals (“BIA”) affirming a re- moval order entered by an Immigration Judge (“IJ”). Castro-Mer- cedes argues that his prior conviction, under Florida law, for rob- bery, Fla. Stat. § 812.13(2)(c), was not an “aggravated felony” under the Immigration and Nationality Act (“INA”) § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(1)(A)(iii). After careful review, we deny his peti- tion. I. FACTUAL BACKGROUND & PROCEDURAL HISTORY Castro-Mercedes, a native and citizen of the Dominican Re- public, entered the United States in 2010. In November 2021, the Department of Homeland Security served Castro-Mercedes, then a lawful permanent resident, with a notice to appear (“NTA”). The NTA alleged that Castro-Mercedes was removable because he had been convicted of an “aggravated felony,” INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F) (defining “aggravated felony” as, among other things, “a crime of violence (as defined in [18 U.S.C. § 16], but not including a purely political offense) for which the term of imprisonment [is] at least one year”). An IJ ultimately sustained the NTA’s charge of removal on the basis that Castro-Mercedes’s 2017 conviction for Florida strongarm robbery, Fla. Stat. § 812.13(2)(c), was a crime of violence under the INA. Castro-Mercedes administratively appealed the IJ’s decision to the BIA, raising several arguments. Relevant here, he contended USCA11 Case: 23-12731 Document: 28-1 Date Filed: 03/17/2025 Page: 3 of 11

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that Florida strongarm robbery does not qualify as a crime of vio- lence because it does not require force to be directed at another person. In July 2023, the BIA dismissed Castro-Mercedes’s adminis- trative appeal. The BIA agreed with the IJ’s determination that Castro-Mercedes was removable under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), as a noncitizen convicted of an aggra- vated felony crime of violence—namely, strongarm robbery under Florida law, Fla. Stat. § 812.13(2)(c). It noted that this Court has held before that robbery as defined by Florida law was a crime of violence for sentence enhancement purposes, and it agreed that “in order to be found guilty of robbery under the statute, there must be an element of the use, attempted use, or threatened use of phys- ical force.” On this basis, the BIA rejected Castro-Mercedes’s argu- ments and dismissed his appeal. This timely petition for review followed. II. STANDARDS OF REVIEW We review de novo questions of law, including whether a crime qualifies as an aggravated felony under the INA. Cintron v. U.S. Att’y Gen., 882 F.3d 1380, 1383 (11th Cir. 2018); Leger v. U.S. Att’y Gen., 101 F.4th 1295, 1299 (11th Cir. 2024) (“This is a ‘question of law subject to plenary review.’” (quoting Kemokai v. U.S. Att’y Gen., 83 F.4th 886, 891 (11th Cir. 2023))). “We review the BIA’s decision as the final judgment, unless the BIA expressly adopted the IJ’s decision.” Gonzalez v. U.S. Att’y. Gen., 820 F.3d 399, 403 (11th Cir. 2016), abrogated in part on other grounds by Loper Bright Enters. v. USCA11 Case: 23-12731 Document: 28-1 Date Filed: 03/17/2025 Page: 4 of 11

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Raimondo, 144 S. Ct. 2244 (2024). “We do not consider issues that were not reached by the BIA.” Id. In undertaking our review, we “must follow Supreme Court precedent that has ‘direct application’ in a case, even if it appears that the reasoning of the Supreme Court precedent has been re- jected in other cases.” Motorcity of Jacksonville, Ltd. ex rel. Motorcity, Inc. v. Se. Bank N.A., 120 F.3d 1140, 1143 (11th Cir. 1997) (en banc) (quoting Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989)). “Only the Supreme Court has ‘the pre- rogative of overruling its own decisions.’” Id. (quoting Rodriguez De Quijas, 490 U.S. at 484); see also Shalala v. Ill. Council on Long Term Care, Inc., 529 U.S. 1, 18 (2000) (“[The Supreme Court] does not normally overturn, or . . . dramatically limit, earlier authority sub silentio.”). III. DISCUSSION Castro-Mercedes challenges the BIA’s determination that he is removable on the basis his Florida robbery conviction qualifies as an aggravated felony and crime of violence under the INA. 1 He argues that Borden v. United States, 593 U.S. 420 (2021) (plurality opinion), shows that offenses with a mens rea of recklessness do not qualify as a crime of violence because, to be a crime of violence, an offense must be targeted against the person or property of another.

1 The BIA considered several other issues in its opinion, but Castro-Mercedes

does not challenge the BIA’s rulings on those issues on appeal. Thus, any is- sues in those respects are abandoned. See Alkotof v. U.S. Att’y Gen., 106 F.4th 1289, 1295 n.9 (11th Cir. 2024). USCA11 Case: 23-12731 Document: 28-1 Date Filed: 03/17/2025 Page: 5 of 11

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He also highlights that the Supreme Court more recently reasoned, in United States v. Taylor, 596 U.S. 845 (2022), that a “threatened” use of force must be a communicated threat and not merely a risk. He argues that Florida robbery does not qualify under these two cases because it can be accomplished by the alternative means of putting the victim in fear, which requires neither targeting force against an intended victim nor a communicated threat. The BIA erred, he concludes, by failing to consider the precedent of Florida courts establishing this and by failing to address the intervening Su- preme Court precedent of Borden and Taylor. The government argues that Castro-Mercedes’ petition should be denied because recent caselaw has not overturned Stokel- ing v. United States, 586 U.S. 73 (2019), which established that Flor- ida robbery is a qualifying crime of violence. “Any [non-citizen] who is convicted of an aggravated felony at any time after admission is deportable.” INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii). A crime may be an aggravated felony if, inter alia, it is a “crime of violence (as defined in [18 U.S.C. § 16)] . . . for which the term of imprisonment [is] at least one year.” INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F) (footnote omitted). Under 18 U.S.C. § 16, a “‘crime of violence’ means— (a) 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); see also Sessions v. Dimaya, 584 U.S. 148, 157-62, 174-75 (2018) (holding 18 U.S.C. § 16(b) unconstitu- tional). USCA11 Case: 23-12731 Document: 28-1 Date Filed: 03/17/2025 Page: 6 of 11

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Another provision of federal law, the Armed Career Crimi- nal Act (“ACCA”), provides for sentencing enhancements when a defendant has committed three prior “violent felon[ies]” or serious drug offenses committed on different occasions. 18 U.S.C. § 924(e)(1). Similar to § 16, the ACCA’s “elements clause” defines “violent felony” as “any crime punishable by imprisonment for a term exceeding one year . . . that—has as an element the use, at- tempted use, or threatened use of physical force against the person of an- other . . . .” Id. § 924(e)(2)(B)(i) (emphasis added). The “categorical approach” is used to determine whether a state conviction “qualifies as an ‘aggravated felony’ under the INA.” Moncrieffe v. Holder, 569 U.S. 184, 190 (2013). 2 Under the categorical approach, “we examine what the state conviction nec- essarily involved, not the facts underlying the case, [and] we must presume that the conviction ‘rested upon nothing more than the least of the acts’ criminalized, and then determine whether even those acts are encompassed by the generic federal offense.” Id. at

2 We use the “modified categorical approach” when a statute defines multiple

crimes with alternative elements instead of “enumerat[ing] various factual means of committing a single element.” Mathis v. United States, 579 U.S. 500, 505–06 (2016). This kind of statute is called “divisible,” and the modified cate- gorical approach calls for the division of the statute into its separate crimes for separate analysis. Id. Castro-Mercedes does not argue the modified categori- cal approach should apply. Moreover, as we discuss, the Supreme Court in Stokeling addressed this statute and did not use the modified categorical ap- proach. Thus, we do not address the issue further. USCA11 Case: 23-12731 Document: 28-1 Date Filed: 03/17/2025 Page: 7 of 11

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190–91 (alterations adopted) (quoting Johnson v. United States, 559 U.S. 133, 137 (2010)). Under Florida law, robbery is “the taking of money or other property . . . 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). The robbery is a second-degree felony if the of- fender “carried no firearm, deadly weapon, or other weapon . . . .” Id. § 812.13(2)(c). In Stokeling, the Supreme Court “granted certiorari to ad- dress whether the ‘force’ required to commit robbery under Flor- ida law qualifies as ‘physical force’ for purposes of the [ACCA’s] elements clause.” 586 U.S. at 77; see id. at 77-87. After surveying Florida caselaw, the Supreme Court concluded that Florida rob- bery “has as an element the use, attempted use, or threatened use of physical force against the person of another.” Id. at 85-87 (citing Robinson v. State, 692 So. 2d 883 (Fla. 1997)). It accordingly held that completed “[r]obbery under Florida law corresponds to th[e requisite] level of force and therefore qualifies as a ‘violent felony’ under [the] ACCA’s elements clause.” Id. at 87. Thus, the Supreme Court already has held that Florida rob- bery “has as an element the use, attempted use, or threatened use of physical force against the person of another.” Id. at 85-87. Therefore, we conclude that Florida robbery qualifies under the nearly identical language defining a “crime of violence” under the USCA11 Case: 23-12731 Document: 28-1 Date Filed: 03/17/2025 Page: 8 of 11

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INA. Compare 18 U.S.C. § 924(e)(2)(B)(i), with 18 U.S.C. § 16(a). In fact, we have held that “the decisions interpreting” § 924(e)(2)(B)(i) and § 16(a) “apply interchangeably.” Lukaj v. U.S. Att’y Gen., 953 F.3d 1305, 1312 (11th Cir. 2020), overruled in part on other grounds by Santos-Zacaria v. Garland, 598 U.S. 411, 419-23 & n.2 (2023); see also Talamantes-Enriquez v. U.S. Att’y Gen., 12 F.4th 1340, 1347-48 (11th Cir. 2021) (applying cases interpreting the ACCA to decide whether a conviction was for a crime of violence under § 16); United States v. Gonzalez-Lopez, 911 F.2d 542, 546 n.4 (11th Cir. 1990) (same), superseded on other grounds by rule as stated in United States v. Spell, 44 F.3d 936, 939 (11th Cir. 1995). Given that Stokeling has “direct application” here, Motorcity, 120 F.3d at 1143, we remain bound to apply it if it has not been overturned and, as we have explained, this means “[i]t does not matter whether a prior case was wrongly decided . . . whether it failed to consider certain critical issues or arguments . . . or whether it lacked adequate legal analysis to support its conclu- sions,” United States v. Lee, 886 F.3d 1161, 1163 n.3 (11th Cir. 2018). We could only grant Castro-Mercedes’s petition if Stokeling had been overturned or abrogated to the point that we are not bound to follow it. Generally, the only court that can overturn the Su- preme Court’s precedent is the Supreme Court. Motorcity, 120 F.3d at 1143. Still, federal precedent interpreting state law only remains binding on federal courts until state law is changed or the interpre- tation is called into doubt by new decisions of the state supreme court. See World Harvest Church, Inc. v. Guideone Mut. Ins., 586 F.3d 950, 957 (11th Cir. 2009); Hattaway v. McMillian, 903 F.2d 1440, 1445 USCA11 Case: 23-12731 Document: 28-1 Date Filed: 03/17/2025 Page: 9 of 11

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n.5 (11th Cir. 1990) (“Of course, if subsequent decisions of the United States Supreme Court or the Florida courts cast doubt on our in- terpretation of state law, a panel would be free to reinterpret state law in light of the new precedents.” (emphasis in original)). Upon review, we find no basis to conclude that Stokeling has been over- ruled or abrogated to the point that we are not bound to follow it. First, Castro-Mercedes has not shown that Stokeling has been overturned by the Supreme Court. Borden held, in a split decision, that a mens rea of recklessness was not enough to qualify a crime under ACCA’s elements clause.3 See Borden, 593 U.S. at 430–34 (plurality opinion); id. at 445–46 (Thomas, J., concurring in the judgment). Later, in Taylor, the Su- preme Court held that attempted Hobbs Act robbery did not re- quire that “the defendant used, attempted to use, or even threat- ened to use force,” in part because a threatened use of force re- quires a communicative act. Taylor, 596 U.S. at 851–52, 854–57.

3 More specifically, “[b]oth Justice Thomas [who concurred only in the judg-

ment] and the members of the plurality agreed that the elements clause [of the ACCA] requires more than general intent in the sense of a mere volitional act.” Somers v. United States, 15 F.4th 1049, 1053 n.1 (11th Cir. 2021); see also Borden, 593 U.S. at 437 n.6 (plurality opinion) (“Four Justices think that the ‘use’ phrase, as modified by the ‘against’ phrase, in ACCA’s elements clause ex- cludes reckless conduct. One Justice thinks, consistent with his previously stated view, that the ‘use’ phrase alone accomplishes that result. . . . And that makes five to answer the question presented. Q: Does the elements clause exclude reckless conduct? A: Yes, it does.”). USCA11 Case: 23-12731 Document: 28-1 Date Filed: 03/17/2025 Page: 10 of 11

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While Borden and Taylor might sit in tension with Stokeling, the Supreme Court did not state that those cases overturned Stokel- ing. 4 See generally Borden, 593 U.S. at 430-34 (plurality opinion); id. at 445-46 (Thomas, J., concurring in the judgment); Taylor, 596 U.S. at 851-52. That silence strongly suggests that the Supreme Court did not see itself as overruling Stokeling either. See Shalala, 529 U.S. at 18. No other Supreme Court caselaw changes that conclusion, either. Thus, Stokeling has not been overturned by the Supreme Court and we are not at liberty to overturn it ourselves. Motorcity, 120 F.3d at 1143. Second, turning to state law, Castro-Mercedes does not ar- gue that Florida law has changed nor that intervening authority from Florida courts shows that Stokeling is incorrect as a matter of Florida law. See World Harvest Church, 586 F.3d at 957. Moreover, the cases Castro-Mercedes cites all predate Stokeling. Even if these

4 Castro-Mercedes cites unpublished decisions of this Court that address a dis-

tinct question of whether attempted robbery under Florida law is a crime of violence. He is correct that panels of this Court have, in unpublished deci- sions, concluded that Florida attempted robbery crimes are not crimes of vio- lence in light of Taylor and our en banc decision in United States v. Dupree, 57 F.4th 1269 (11th Cir. 2023) (en banc). See, e.g., United States v. Days, 2023 WL 6231058 (11th Cir. 2023) (unpublished); United States v. Metzler, 2023 WL 5746643 (11th Cir. 2023) (unpublished); United States v. Sheely, 2024 WL 4003394 (11th Cir. 2024) (unpublished). But see United States v. Lightsey, 120 F.4th 851, 859-61 (11th Cir. 2024) (concluding that attempted Florida armed robbery is still a crime of violence under the ACCA). However, Stokel- ing did not address attempted robbery under Florida law and, therefore, is still binding on us here. Moreover, these cases do not benefit Castro-Mercedes because he completed the robbery under Florida law. USCA11 Case: 23-12731 Document: 28-1 Date Filed: 03/17/2025 Page: 11 of 11

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pre-Stokeling cases showed that Stokeling was wrong as a matter of Florida law when it was decided, without a ruling to that effect from a Florida Court since it was decided, we are bound to apply Stokeling. Lee, 886 F.3d at 1163 n.3. In sum, Castro-Mercedes’ conviction qualifies as an aggra- vated felony, and we DENY his petition.