Case: 18-10030 Date Filed: 10/05/2018 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-10030 Non-Argument Calendar ________________________
D.C. Docket No. 8:17-cr-00381-SCB-JSS-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
GERALD PATMON,
Defendant - Appellant. ________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(October 5, 2018)
Before WILSON, ROSENBAUM, and JULIE CARNES, Circuit Judges.
PER CURIAM:
Gerald Patmon appeals his sentence of 90 months of imprisonment after
pleading guilty to possession of a firearm by a convicted felon, in violation of 18 Case: 18-10030 Date Filed: 10/05/2018 Page: 2 of 7
U.S.C. § 922(g)(1). In calculating Patmon’s guideline range, the district court
applied an enhanced base offense level under § 2K2.1(a)(2) of the Sentencing
Guidelines, based on prior convictions for a crime of violence (Georgia aggravated
assault) and a controlled-substance offense (Florida delivery of cannabis). Patmon
argues that his Georgia aggravated-assault conviction does not qualify as a crime
of violence for purposes of this enhancement. He concedes that this argument is
foreclosed by our decision in United States v. Morales-Alonso, 878 F.3d 1311
(11th Cir. 2018), but he believes that Morales-Alonso was wrongly decided and
wishes to preserve the issue for further review.
We review de novo whether a defendant’s prior conviction qualifies as a
crime of violence under the Sentencing Guidelines. United States v. Palomino
Garcia, 606 F.3d 1317, 1326 (11th Cir. 2010).
Under § 2K2.1, the guideline covering gun-possession offenses, an enhanced
base offense level of 24 applies if the defendant has at least two prior felony
convictions for either a crime of violence or a controlled-substance offense.
U.S.S.G. § 2K2.1(a)(2). Section 2K2.1 takes its definition of “crime of violence”
from § 4B1.2, id. § 2K2.1, cmt. n.1, which defines the term as an offense that
either (1) “has as an element the use, attempted use, or threatened use of physical
force against the person of another” (the “elements” clause), or (2) is one of several
2 Case: 18-10030 Date Filed: 10/05/2018 Page: 3 of 7
listed offenses, including “aggravated assault” (the “enumerated-offenses” clause).
U.S.S.G. § 4B1.2(a).
When Patmon was convicted of aggravated assault in 2014, Georgia law
defined the crime as an “assault” committed
(1) With intent to murder, to rape, or to rob;
(2) With a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury;
(3) With any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in strangulation; or
(4) [Against a] person or persons without legal justification by discharging a firearm from within a motor vehicle toward a person or persons.
O.C.G.A. § 16-15-21(a).1
We have held that this statute is “divisible”—that is, it defines multiple
crimes by listing elements in the alternative—meaning courts can look to certain
judicial records, known as Shepard documents,2 to determine which of the four
aggravators Patmon committed. See Morales-Alonso, 878 F.3d at 1316
1 For the sake of consistency, we cite to the current version of the statute, which is substantively identical to the 2014 version. The difference is that the four aggravators under the 2014 version were found in subsection (b), rather than subsection (a). That marked a change from the pre-2014 version of the statute, which listed the aggravators under subsection (a). In 2017, the statute was amended to again list the aggravators under subsection (a). For consistency with the pre-2014 and post-2017 versions of the statute, then, we cite to the aggravators as if they were listed under subsection (a). 2 Shepard v. United States, 544 U.S. 13 (2005). 3 Case: 18-10030 Date Filed: 10/05/2018 Page: 4 of 7
(“O.C.G.A. § 16-5-21(a) clearly is divisible as to the aggravator component of the
statute.”). Patmon concedes that he was convicted of aggravated assault with a
deadly or dangerous object under § 16-5-21(a)(2).
In Patmon’s view, a conviction under § 16-5-21(a)(2) does not qualify as a
crime of violence under either the elements clause or the enumerated-offenses
clause. He asserts that § 16-5-21(a)(2) fails under the elements clause because a
defendant can be convicted without proof of intent to use, threaten, or attempt to
use physical force. Rather, all the state must prove is that the defendant intended
the acts that caused another to reasonably apprehend violent injury. It also fails
under the enumerated-offenses clause, according to Patmon, because both the mens
rea element and the “deadly object” element are broader than the generic version
of aggravated assault.
As Patmon acknowledges, however, his challenge fails in light of Morales-
Alonso. In that case, we addressed whether Georgia aggravated assault qualified as
a crime of violence under U.S.S.G. § 2L1.2, which, like § 4B1.2, defines the term
in part by listing several offenses, including “aggravated assault.” Morales-
Alonso, 878 F.3d at 1314–15. Compare U.S.S.G. § 2L1.2, cmt. n.1(B)(iii), with
U.S.S.G. § 4B1.2(a)(2). We explained that “a conviction only constitutes a crime
of violence under the enumerated offenses clause . . . if the elements of the statute
4 Case: 18-10030 Date Filed: 10/05/2018 Page: 5 of 7
of conviction are the same as, or narrower than, the generic version of the
enumerated offense.” Morales-Alonso, 878 F.3d at 1315.
Undertaking that analysis, we first determined that generic aggravated
assault had two elements: (1) a “criminal assault” that (2) is “accompanied by
either ‘the intent to cause serious bodily injury to the victim or the use of a deadly
weapon.’” Id. (quoting Palomino Garcia, 606 F.3d at 1332). We then turned to
Georgia’s aggravated-assault statute, concluding that the “aggravator component”
of § 16-5-21(a) is “divisible.” Id. at 1316. We therefore applied the modified
categorical approach and determined that Morales-Alonso was convicted of
aggravated assault with a deadly object under § 16-5-21(a)(2). Id. at 1316–17.
We then compared the elements of aggravated assault with a deadly object
under § 16-5-21(a)(2) with generic aggravated assault, holding that subsection
(a)(2) contains substantially the same elements as generic aggravated assault. Id.
at 1317–20. We found that § 16-5-21(a)(2), like generic aggravated assault,
required proof of an assault accompanied by the use of a deadly weapon. Id. at
1318. And we rejected Morales-Alonso’s argument that the “deadly object”
element of the Georgia statute was broader than the generic version. Id. at 1319.
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Case: 18-10030 Date Filed: 10/05/2018 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-10030 Non-Argument Calendar ________________________
D.C. Docket No. 8:17-cr-00381-SCB-JSS-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
GERALD PATMON,
Defendant - Appellant. ________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(October 5, 2018)
Before WILSON, ROSENBAUM, and JULIE CARNES, Circuit Judges.
PER CURIAM:
Gerald Patmon appeals his sentence of 90 months of imprisonment after
pleading guilty to possession of a firearm by a convicted felon, in violation of 18 Case: 18-10030 Date Filed: 10/05/2018 Page: 2 of 7
U.S.C. § 922(g)(1). In calculating Patmon’s guideline range, the district court
applied an enhanced base offense level under § 2K2.1(a)(2) of the Sentencing
Guidelines, based on prior convictions for a crime of violence (Georgia aggravated
assault) and a controlled-substance offense (Florida delivery of cannabis). Patmon
argues that his Georgia aggravated-assault conviction does not qualify as a crime
of violence for purposes of this enhancement. He concedes that this argument is
foreclosed by our decision in United States v. Morales-Alonso, 878 F.3d 1311
(11th Cir. 2018), but he believes that Morales-Alonso was wrongly decided and
wishes to preserve the issue for further review.
We review de novo whether a defendant’s prior conviction qualifies as a
crime of violence under the Sentencing Guidelines. United States v. Palomino
Garcia, 606 F.3d 1317, 1326 (11th Cir. 2010).
Under § 2K2.1, the guideline covering gun-possession offenses, an enhanced
base offense level of 24 applies if the defendant has at least two prior felony
convictions for either a crime of violence or a controlled-substance offense.
U.S.S.G. § 2K2.1(a)(2). Section 2K2.1 takes its definition of “crime of violence”
from § 4B1.2, id. § 2K2.1, cmt. n.1, which defines the term as an offense that
either (1) “has as an element the use, attempted use, or threatened use of physical
force against the person of another” (the “elements” clause), or (2) is one of several
2 Case: 18-10030 Date Filed: 10/05/2018 Page: 3 of 7
listed offenses, including “aggravated assault” (the “enumerated-offenses” clause).
U.S.S.G. § 4B1.2(a).
When Patmon was convicted of aggravated assault in 2014, Georgia law
defined the crime as an “assault” committed
(1) With intent to murder, to rape, or to rob;
(2) With a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury;
(3) With any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in strangulation; or
(4) [Against a] person or persons without legal justification by discharging a firearm from within a motor vehicle toward a person or persons.
O.C.G.A. § 16-15-21(a).1
We have held that this statute is “divisible”—that is, it defines multiple
crimes by listing elements in the alternative—meaning courts can look to certain
judicial records, known as Shepard documents,2 to determine which of the four
aggravators Patmon committed. See Morales-Alonso, 878 F.3d at 1316
1 For the sake of consistency, we cite to the current version of the statute, which is substantively identical to the 2014 version. The difference is that the four aggravators under the 2014 version were found in subsection (b), rather than subsection (a). That marked a change from the pre-2014 version of the statute, which listed the aggravators under subsection (a). In 2017, the statute was amended to again list the aggravators under subsection (a). For consistency with the pre-2014 and post-2017 versions of the statute, then, we cite to the aggravators as if they were listed under subsection (a). 2 Shepard v. United States, 544 U.S. 13 (2005). 3 Case: 18-10030 Date Filed: 10/05/2018 Page: 4 of 7
(“O.C.G.A. § 16-5-21(a) clearly is divisible as to the aggravator component of the
statute.”). Patmon concedes that he was convicted of aggravated assault with a
deadly or dangerous object under § 16-5-21(a)(2).
In Patmon’s view, a conviction under § 16-5-21(a)(2) does not qualify as a
crime of violence under either the elements clause or the enumerated-offenses
clause. He asserts that § 16-5-21(a)(2) fails under the elements clause because a
defendant can be convicted without proof of intent to use, threaten, or attempt to
use physical force. Rather, all the state must prove is that the defendant intended
the acts that caused another to reasonably apprehend violent injury. It also fails
under the enumerated-offenses clause, according to Patmon, because both the mens
rea element and the “deadly object” element are broader than the generic version
of aggravated assault.
As Patmon acknowledges, however, his challenge fails in light of Morales-
Alonso. In that case, we addressed whether Georgia aggravated assault qualified as
a crime of violence under U.S.S.G. § 2L1.2, which, like § 4B1.2, defines the term
in part by listing several offenses, including “aggravated assault.” Morales-
Alonso, 878 F.3d at 1314–15. Compare U.S.S.G. § 2L1.2, cmt. n.1(B)(iii), with
U.S.S.G. § 4B1.2(a)(2). We explained that “a conviction only constitutes a crime
of violence under the enumerated offenses clause . . . if the elements of the statute
4 Case: 18-10030 Date Filed: 10/05/2018 Page: 5 of 7
of conviction are the same as, or narrower than, the generic version of the
enumerated offense.” Morales-Alonso, 878 F.3d at 1315.
Undertaking that analysis, we first determined that generic aggravated
assault had two elements: (1) a “criminal assault” that (2) is “accompanied by
either ‘the intent to cause serious bodily injury to the victim or the use of a deadly
weapon.’” Id. (quoting Palomino Garcia, 606 F.3d at 1332). We then turned to
Georgia’s aggravated-assault statute, concluding that the “aggravator component”
of § 16-5-21(a) is “divisible.” Id. at 1316. We therefore applied the modified
categorical approach and determined that Morales-Alonso was convicted of
aggravated assault with a deadly object under § 16-5-21(a)(2). Id. at 1316–17.
We then compared the elements of aggravated assault with a deadly object
under § 16-5-21(a)(2) with generic aggravated assault, holding that subsection
(a)(2) contains substantially the same elements as generic aggravated assault. Id.
at 1317–20. We found that § 16-5-21(a)(2), like generic aggravated assault,
required proof of an assault accompanied by the use of a deadly weapon. Id. at
1318. And we rejected Morales-Alonso’s argument that the “deadly object”
element of the Georgia statute was broader than the generic version. Id. at 1319.
We explained that the statute did not plausibly “encompass[] the use of an object
that happens to cause injury in a particular case, regardless of the manner in which
the object is used and even if injury is unlikely.” Id. Concluding that the elements
5 Case: 18-10030 Date Filed: 10/05/2018 Page: 6 of 7
of § 16-5-21(a)(2) sufficiently matched the elements of generic aggravated assault,
we held that a conviction under § 16-5-21(a)(2) qualifies as a crime of violence
under the enumerated-offenses clause. Id. at 1320.
Though Morales-Alonso concerned § 2L1.2 of the Sentencing Guidelines, its
analysis extends to § 4B1.2. This is so because both § 2L1.2 and § 4B1.2 define
“crime of violence” by listing the generic offense of “aggravated assault.” See
United States v. Lockley, 632 F.3d 1238, 1242 (11th Cir. 2011) (“Where . . . the
Guidelines specifically designate a certain offense as a ‘crime of violence,’ we
compare the elements of the crime of conviction to the generic form of the offense
. . . .”). Thus, our determination in Morales-Alonso that Georgia aggravated
assault under § 16-5-21(a)(2) qualifies as a “crime of violence” under § 2L1.2
means that it also qualifies as a “crime of violence” under § 4B1.2. And because it
qualifies as a crime of violence under § 4B1.2, the district court properly relied on
Patmon’s conviction under § 16-5-21(a)(2) to apply the enhanced base offense
level under § 2K2.1(a)(2).
Patmon argues that Morales-Alonso was wrongly decided, but, as he
acknowledges, we are bound by that decision here. See United States v. Vega-
Castillo, 540 F.3d 1235, 1236 (11th Cir. 2008) (prior panel decisions are binding
unless and until they are overruled by the Supreme Court or this Court en banc).
The fact that Morales-Alonso did not address his argument that the mens rea
6 Case: 18-10030 Date Filed: 10/05/2018 Page: 7 of 7
element is overbroad does not change its binding nature. See United States v. Lee,
886 F.3d 1161, 1163 n.3 (11th Cir. 2018) (“It 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
conclusions.”).
In sum, Patmon’s Georgia aggravated-assault conviction under O.C.G.A.
§ 16-5-21(a)(2) qualifies as a crime of violence under § 4B1.2’s enumerated-
offenses clause. This conviction, along with his prior conviction for delivery of
cocaine, which he does not dispute is a controlled-substance offense, supported the
district court’s application of the enhanced base offense level under § 2K2.1(a)(2).
Therefore, we need not and do not address whether § 16-5-21(a)(2) qualifies under
the elements clause. We affirm Patmon’s sentence.
AFFIRMED.