United States v. Jonathan Claret

713 F. App'x 863
CourtCourt of Appeals for the Eleventh Circuit
DecidedOctober 31, 2017
Docket16-17291
StatusUnpublished

This text of 713 F. App'x 863 (United States v. Jonathan Claret) 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. Jonathan Claret, 713 F. App'x 863 (11th Cir. 2017).

Opinion

PER CURIAM:

After pleading guilty, Jonathan Claret appeals his 40-month sentence for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Claret’s conviction stems from a video he posted on Instagram showing him shooting an AEL-47 style rifle at a gun range in May 2016. On appeal, Claret argues that the district court erred: (1) in calculating his base offense level of 22, pursuant to U.S.S.G. § 2K2.1(a)(3), because his prior conviction for Florida armed robbery was not a qualifying crime of violence; and (2) in assessing one criminal history point for each of his two prior marijuana possession offenses, for which the state court withheld adjudication. After review, we affirm the district court’s guidelines calculations and Claret’s 40-month sentence.

I. OFFENSE LEVEL UNDER § 2K2.1

Under U.S.S.G. § 2K2.Í, the defendant’s base offense level is 22 if he (1) possessed, inter alia, a semiautomatic firearm capable of accepting a large capacity magazine (2) subsequent to sustaining a felony conviction of a “crime of violence” or a controlled substance offense. U.S.S.G. § 2K2.1(a)(3). The phrase “crime of violence” has the same meaning given to that term in U.S.S.G. § 4B1.2(a). U.S.S.G. § 2K2.1 cmt. n.l. Under the 2015 version of the Sentencing Guidelines, which was the version applied at Claret’s sentencing, § 4B1.2(a) defined “crime of violence” as any felony that:

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

U.S.S.G. § 4B1.2(a) (2015). Section 4B1.2(a)(l) is commonly referred to as the “elements clause” and. § 4B1.2(a)(2) contains the “enumerated offenses” and the “residual clause.” See United States v. Lockley, 632 F.3d 1238, 1240-41 (11th Cir. 2011). In addition to the offenses enumerated in the text of § 4B1.2(a)(2), the commentary identified numerous other offenses, including robbery, that also were included as “crimes of violence.” See U.S.S.G. § 4B1.2 cmt. n.l (2015). Prior to 2016 amendments to § 4B1.2, this Court treated the crimes listed in the commentary the same as the crimes listed in the text of the § 4B1.2(a)(2). See, e.g., Lockley, 632 F.3d at 1242-45 (addressing robbery); United States v. Palomino Garcia, 606 F.3d 1317, 1326-34 (11th Cir. 2010) (addressing aggravated assault).

In August 2016, a few months before Claret’s sentencing, the Sentencing Commission amended U.S.S.G. § 4B1.2(a)’s definition of “crime of violence” in several ways, including eliminating the residual clause and revising the offenses enumerated in the text to include, among others, robbery. See U.S.S.G. app. C, amend. 798. The Sentencing Commission explained that the list of qualifying offenses formerly “set forth in both § 4B1.2(a)(2) and the commentary at Application Note 1,” were moved into the guideline’s text “[f]or easier application.” U.S.S.G. app. C., amend. 789 (Reason for Amendment). The elements clause in § 4B1.2(a)(l), however, remained unchanged, and thus crimes of violence qualifying under the elements clause before the amendment continue to qualify under that clause after the amendment. 1

Prior to sentencing, Claret objected to the Presentence Investigation Report’s (“PSI”) determination that Claret’s base offense level was 22 based on his 2011 Florida conviction for armed robbery. Claret argued that: (1) § 4B1.2(a)(2)’s residual clause in the 2015 version of the Guidelines was unconstitutionally vague in light of the Supreme Court’s recent decision in Johnson v. United States, 576 U.S. -, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), invalidating the identical residual clause in the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii); and (2) Florida armed robbery, Florida Statutes § 812.13(2), was not a crime of violence under § 4B1.2(a)(l)’s elements clause because it did not have as an element the use, attempted use, or threatened use of the kind of “violent force” required by Johnson v. United States, 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) (“Curtis Johnson”).

At the November 2016 sentencing hearing, the district court overruled Claret’s objection to his base offense level. The district court concluded that Claret’s Florida armed robbery conviction constituted a crime of violence under this Court’s binding precedent in United States v. Lockley, 632 F.3d at 1240-41, and United States v. Seabrooks, 839 F.3d 1326, 1340-46 (11th Cir. 2016). Claret acknowledged this Court’s precedent, but stated that he wished to preserve his argument that Sea-brooks was “incorrectly decided under Johnson.”

The district court correctly calculated Claret’s base offense level of 22. It is uncontested that Claret was in possession of a semiautomatic firearm capable of accepting a large capacity magazine (the AK-47 style rifle). Moreover, the district court did not err in determining that Claret’s 2011 Florida armed robbery conviction under Florida Statutes § 812.13(2) qualified as a crime of violence.

Under Florida law, the defendant commits both robbery and armed robbery by taking 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), (2)(a). The only difference between robbery and armed robbery is that, in an armed robbery, the defendant carries “a firearm or other deadly weapon.” See id § 812.13(2)(a).

In Lockley, this Court concluded that Florida robbery, under Florida Statutes § 812.13(1), qualifies as a crime of violence under U.S.S.G. § 4B1.2(a)(l)’s element’s clause. 632 F.3d at 1244-45. Additionally, this Court has repeatedly held that Florida armed robbery, under § 812.13(2), qualifies as a violent felony under the ACCA’s identical elements clause in § 924(e)(2)(B)(ii). See United States v. Fritts, 841 F.3d 937, 940 (11th Cir. 2016); Seabrooks, 839 F.3d at 1340-41; United States v. Dowd, 451 F.3d 1244, 1255 (11th Cir. 2006). 2

There is no merit to Claret’s argument that the application of the prior panel precedent rule in this case violates his due process rights.

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Bluebook (online)
713 F. App'x 863, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-jonathan-claret-ca11-2017.