United States v. Carl Golden

• Court: Court of Appeals for the Eleventh Circuit
• Decided: August 26, 2019
• Docket: 18-14868
• Status: Unpublished

Opinion

Case: 18-14868 Date Filed: 08/26/2019 Page: 1 of 6

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-14868 Non-Argument Calendar ________________________

D.C. Docket No. 8:18-cr-00118-SCB-SPF-1

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

CARL GOLDEN,

Defendant - Appellant.

________________________

Appeal from the United States District Court for the Middle District of Florida ________________________

(August 26, 2019)

Before TJOFLAT, JORDAN, and NEWSOM, Circuit Judges.

PER CURIAM: Case: 18-14868 Date Filed: 08/26/2019 Page: 2 of 6

Carl Golden appeals his 180-month enhanced sentence under the Armed

Career Criminal Act (ACCA) for being a felon in possession of a firearm in

violation of 18 U.S.C. §§ 922(g)(1) and 924(e). While he recognizes that his

arguments are foreclosed by our precedent, Golden nevertheless asserts (1) that his

prior convictions for robbery under Florida Statute § 812.13 and aggravated assault

under Florida Statute § 784.021 don’t constitute “violent felonies” under the

ACCA, and (2) that his convictions for delivery and sale of controlled substances

under Florida Statute § 893.13 don’t constitute “serious drug offenses” under the

ACCA. After careful review, we affirm.

I

As to his “violent felony” convictions, Golden contends (1) that the Florida

robbery statute at the time of his conviction—which was prior to the Florida

Supreme Court’s decision in Robinson v. State, 692 So. 2d 883, 886 (Fla. 1997)

(holding that robbery required resistance and overpowering of a victim)—doesn’t

meet the minimal amount of force required to constitute a “violent felony” under

the ACCA, and (2) that the Florida aggravated-assault statute allows for a lesser

mens rea—i.e., recklessness—than is required under the ACCA.

We review de novo whether a prior conviction is a violent felony under the

ACCA. United States v. Seabrooks, 839 F.3d 1326, 1338 (11th Cir. 2016).

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Unfortunately for Golden, both of his “violent felony” arguments are

directly foreclosed by our precedent. We have held that a pre-Robinson felony

conviction for robbery under Florida Statute § 812.13(1) constitutes a “violent

felony” under the ACCA’s elements clause. United States v. Fritts, 841 F.3d 937,

941 (11th Cir. 2016). As the Fritts Court explained, rather than announcing a new

rule of law, Robinson simply stated what the statute “always meant”—i.e., that the

Florida robbery statute never included a theft by mere snatching, but rather had

always required the use of force. Id. at 942–43. The Supreme Court’s decision in

Stokeling v. United States—which considered pre- and post-Robinson periods

together in concluding that Florida robbery qualifies as a “violent felony”—

supports this conclusion. 139 S. Ct. 544, 550–55 (2019).

We have also held that an aggravated assault conviction under Florida

Statute § 784.021 constitutes a “violent felony” under the ACCA’s elements

clause. Turner v. Warden Coleman FCI (Medium), 709 F.3d 1328, 1337–39 (11th

Cir. 2013). Moreover, we have specifically rejected the argument that Florida’s

aggravated assault statute fails as a predicate offense under the ACCA because it

could be accomplished with a mens rea of recklessness. United States v.

Deshazior, 882 F.3d 1352, 1355 (11th Cir. 2018), cert. denied, 139 S. Ct. 1255

(2019) (citing Turner, 709 F.3d at 1337–38).

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So in short, the district court correctly followed our precedent in

concluding that Golden’s Florida robbery and aggravated-assault convictions

constitute “violent felonies” under the ACCA. Fritts, 841 F.3d at 944;

Turner, 709 F.3d at 1341.

II

As to his convictions for delivery and sale of a controlled substance under

Florida Statute § 893.13, Golden asserts that they don’t constitute “serious drug

offenses” under the ACCA because (1) these offenses were presumably committed

through mere purchase, and (2) they lack the necessary renumeration element to

qualify under the ACCA.

Although we generally review de novo the question whether a prior

conviction is a predicate offense under the ACCA, Seabrooks, 839 F.3d

at 1338, we review objections or arguments not raised in the district court

for plain error. United States v. Weeks, 711 F.3d 1255, 1261 (11th Cir.

2013) (per curiam). To prevail under the plainerror standard, an appellant

must show, among other things, that an error occurred and that the error was

plain. United States v. Ramirez-Flores, 743 F.3d 816, 822 (11th Cir. 2014).

If a statute fails to specifically resolve an issue, there can be no plain error

without precedent from the Supreme Court or this Court directly resolving it.

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United States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003) (per

curiam).

Again, Golden’s arguments are squarely foreclosed by our precedent. We

have held that violations of Florida Statute § 893.13(1) constitute “serious

drug offenses” under the ACCA, even in the absence of a mens rea

requirement. United States v. Smith, 775 F.3d 1262, 1268 (11th Cir. 2014).

Furthermore, Golden’s remuneration argument isn’t supported by a

plain reading of the statutory language. Although the Supreme Court held in

Moncrieffe v. Holder, 569 U.S. 184, 193–94 (2013), that a conviction under

a Georgia statute prohibiting possession of marijuana with intent to

distribute—and that doesn’t require remuneration—isn’t necessarily an

“aggravated felony” under the Immigration and Nationality Act (INA), the

ACCA’s definition of “serious drug offense” differs from the INA’s

definition of “aggravated felony” in that the ACCA requires only “an

offense under State law,” punishable by at least 10 years in prison, involving

the “manufacturing, distributing, or possessing with intent to manufacture or

distribute, a controlled substance.” 18 U.S.C. § 924(e)(2)(A)(ii). Florida’s

delivery-of-cocaine statute, under which Golden was convicted, satisfies this

definition as a state offense punishable by up to 15 years that prohibits the

sale, manufacture, delivery, or possession with intent to sell, manufacture, or

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deliver cocaine. See Fla. Stat. §§ 893.03, 893.13(1)(a) (2019). And in any

event, even if Golden could prove that the district court’s decision was in

error, he couldn’t demonstrate plain error because there is no binding

precedent from this Court contradicting the district court’s conclusion. See

Ramirez-Flores, 743 F.3d at 822; Lejarde-Rada, 319 F.3d at 1291.

* * *

For the foregoing reasons, Golden’s sentence is affirmed.

AFFIRMED.