United States v. Desmond Shotwell

708 F. App'x 989
CourtCourt of Appeals for the Eleventh Circuit
DecidedSeptember 13, 2017
Docket16-15935 Non-Argument Calendar
StatusUnpublished

This text of 708 F. App'x 989 (United States v. Desmond Shotwell) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Desmond Shotwell, 708 F. App'x 989 (11th Cir. 2017).

Opinion

PER CURIAM:

Appellant Desmond Shotwell appeals his 180-month sentence, imposed after pleading guilty to one count of possession of a firearm and ammunition by a convicted felon, pursuant to 18 U.S.C. §§ 922(g)(1) and 924(e). He argues that the district court erred by sentencing him as an armed career criminal based on three Florida robbery convictions. Specifically, Shotwell contends that the Florida robbery conviction does not qualify under the Armed Career Criminal Act’s (“ACCA”) elements clause because violent force is not required to commit robbery when it can be committed with minimal force. Thus, he argues that because Florida’s robbery statute requires less than the Supreme Court’s definition of violent force, the statute is broader than the generic offense.

We review de novo the district court’s conclusion that a particular offense constitutes a “violent felony” under 18 U.S.C. § 924(e). United States v. Wilkerson, 286 F.3d 1324, 1325 (11th Cir. 2002).

Under the ACCA, any person who violates 18 U.S.C. § 922(g), and has 3 previous convictions for a violent felony or a serious drug offense, is subject to a mandatory minimum sentence of 15 years’ imprisonment. 18 U.S.C. § 924(e)(1). The ACCA defines the term “violent felon/’ as any crime punishable by a term of imprisonment exceeding one year that:

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

18 U.S.C. § 924(e)(2)(B). The first prong of this definition is sometimes referred to as the “elements clause,” while the second prong contains the “enumerated crimes” and, finally, what is commonly called the “residual clause.” United States v. Owens, 672 F.3d 966, 968 (11th Cir. 2012).

In Johnson, the Supreme Court held that the residual clause of the ACCA is unconstitutionally vague because it creates uncertainty about how to evaluate the risks posed by a crime and how much risk it takes to qualify as a violent felony. Johnson v. United States, — U.S. -, 135 S.Ct. 2551, 2557-58, 2563, 192 L.Ed.2d 569 (2015). The Supreme Court clarified that, in holding that the residual clause is void, it did not call into question the application of the elements clause and the enumerated crimes of the ACCA’s definition of a violent felony. Id. at 2563.

In 1922, the Florida Supreme Court stated that the distinction between robbery and larceny was the addition to mere taking, of a contemporaneous or precedent force, violence, or of an inducement of fear for one’s physical safety. Montsdoca v. State, 84 Fla. 82, 93 So. 157, 159 (1922). It stated that “[tjhere can be no robbery without violence, and there can be no larceny with it. It is violence that makes robbery an offense of greater atrocity than larceny.” Id. In 1976, the Florida Supreme Court determined that any degree of force would suffice to convert larceny into a robbery. McCloud v. State, 335 So.2d 257, 258-59 (Fla. 1976). It stated that “[wjhere no force [wa]s exerted upon the victim’s person, as in the case of a pickpocket, only a larceny [wa]s committed.” Id. at 259. It determined that because evidence at trial indicated that McCloud had gained possession of his victim’s purse not by stealth, but by exerting physical force to extract it from her grasp, the evidence was adequate to support a verdict of robbery. Id. The Florida Supreme Court called the incident a “purse-snatching episode.” Id. at 259 n.5. Subsequently, a Florida appellate court upheld a Florida robbery conviction in 1986, stating that the facts of this case, “unlike picking a pocket or snatching a purse without any force or violence, show sufficient force, be it ever so little, to support robbery.” Santiago v. State, 497 So.2d 975, 976 (Fla. Dist. Ct. App. 1986) (citing McCloud, 335 So.2d at 259).

Our court stated that prior to 1997, Florida’s intermediate appellate courts were divided as to whether a sudden snatching amounted to robbery under Fla. Stat. Ann. § 812.13. See United States v. Welch, 683 F.3d 1304, 1311 & n.29 (11th Cir. 2012) (citing cases from Florida’s First, Second, Third, and Fifth Districts). In 1997, the Florida Supreme Court held that mere snatching of property did not amount to robbery under § 812.13 unless the perpetrator employed force greater than that necessary simply to remove the property from the person. Robinson v. State, 692 So.2d 883, 886 (Fla. 1997). The Florida Supreme Court stated that “[i]n accord with our decision in McCloud,” we determined that “in order for the snatching of property from another to amount to robbery, the perpetrator must employ more than the force necessary to remove the property from the person.” Id, The Robinson court explained that the Florida robbery statute required “resistance by the victim that is overcome by the physical force of the offender.” Id.

In Lockley, our court addressed whether a 2001 Florida attempted-robbery conviction qualified as a crime of violence under the elements clause of the career-offender provision of the Sentencing Guidelines. United States v. Lockley, 632 F.3d 1238, 1240 (11th Cir. 2011); see also United States v. Alexander, 609 F.3d 1250, 1253 (11th Cir. 2010) (providing that “[cjonsid-ering whether a crime is a violent felony under the ACCA is similar to considering whether a conviction qualifies as a crime of violence under U.S.S.G. § 4B1.2(a) because the definitions for both terms are virtually identical”) (quoting United States v. Taylor, 489 F.3d 1112, 1113 (11th Cir. 2007)). We determined that Loekley’s 2001 Florida attempted-robbery conviction categorically constituted a crime of violence under the elements clause of the career-offender guideline. Lockley, 632 F.3d at 1240, 1244-45. See also United States v. Dowd, 451 F.3d 1244, 1255 (11th Cir. 2006) (holding “without difficulty” that a 1974 conviction for Florida armed robbery was “undeniably a conviction for a violent felony” under the ACCA’s elements clause) (emphasis added).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Jerome Wilkerson
286 F.3d 1324 (Eleventh Circuit, 2002)
United States v. Robert Earl Dowd
451 F.3d 1244 (Eleventh Circuit, 2006)
United States v. Jason Daniel Taylor
489 F.3d 1112 (Eleventh Circuit, 2007)
United States v. Alexander
609 F.3d 1250 (Eleventh Circuit, 2010)
United States v. Lockley
632 F.3d 1238 (Eleventh Circuit, 2011)
United States v. Owens
672 F.3d 966 (Eleventh Circuit, 2012)
United States v. Gregory Welch
683 F.3d 1304 (Eleventh Circuit, 2012)
Robinson v. State
692 So. 2d 883 (Supreme Court of Florida, 1997)
Santiago v. State
497 So. 2d 975 (District Court of Appeal of Florida, 1986)
McCloud v. State
335 So. 2d 257 (Supreme Court of Florida, 1976)
Johnson v. United States
576 U.S. 591 (Supreme Court, 2015)
In re: Edward Thomas
823 F.3d 1345 (Eleventh Circuit, 2016)
In re: Jasper Moore
830 F.3d 1268 (Eleventh Circuit, 2016)
United States v. Isaac Seabrooks
839 F.3d 1326 (Eleventh Circuit, 2016)
United States v. Derwin Fritts
841 F.3d 937 (Eleventh Circuit, 2016)
United States v. Willie J. Burke, Jr.
863 F.3d 1355 (Eleventh Circuit, 2017)
Montsdoca v. State
93 So. 157 (Supreme Court of Florida, 1922)

Cite This Page — Counsel Stack

Bluebook (online)
708 F. App'x 989, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-desmond-shotwell-ca11-2017.