Case: 18-10749 Date Filed: 06/11/2020 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-10749 Non-Argument Calendar ________________________
D.C. Docket No. 2:17-cr-00049-SPC-CM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOVON ANTOINE MCCLURES,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(June 11, 2020)
Before WILLIAM PRYOR, Chief Judge, JILL PRYOR, and TJOFLAT, Circuit Judges.
PER CURIAM: Case: 18-10749 Date Filed: 06/11/2020 Page: 2 of 7
Jovon McClures pled guilty to being a felon in possession of a firearm and
ammunition. McClures now challenges his 180-month sentence, arguing that the
enhancement to his sentence pursuant to the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e), was improper for three reasons. First, he argues
that his conviction for robbery under Fla. Stat. § 812.13(1) is not a “violent felony”
under the ACCA because he was convicted before Robinson v. State, 692 So. 2d
883 (Fla. 1997), clarified the amount of force required to commit a robbery under
Florida law. Second, he argues that the robbery should not qualify as a previous
conviction under the ACCA because he was sentenced as a youthful offender.
Finally, he argues that his convictions for delivery of a controlled substance under
Fla. Stat. § 893.13 are not “serious drug offenses” under the ACCA because the
offenses did not require knowledge of the substance’s illegality. After
consideration, we reject McClures’s arguments and affirm his sentence.
I.
We first turn to McClures’s argument that his conviction for robbery under
Fla. Stat. § 812.13(1) is not a “violent felony” under the ACCA. We review de
novo whether a prior conviction is a predicate offense within the meaning of the
ACCA. United States v. James, 430 F.3d 1150, 1153 (11th Cir. 2005), overruled
on other grounds by Johnson v. United States, 135 S. Ct. 2551 (2015).
2 Case: 18-10749 Date Filed: 06/11/2020 Page: 3 of 7
Under the ACCA, a defendant convicted under 18 U.S.C. § 922(g) is subject
to a mandatory minimum 180-month sentence if he has 3 prior convictions for a
“violent felony” or “serious drug offense.” 18 U.S.C. § 924(e)(1). The ACCA
defines a “violent felony” as any crime punishable by an imprisonment term
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).
To determine whether a prior conviction is a violent felony under the
“elements” clause, § 924(e)(2)(B)(i), we scrutinize the elements of the statute
under which the defendant was convicted. See United States v. Jones, 906 F.3d
1325, 1328 (11th Cir. 2018). If the statute requires the government to prove the
use, attempted use, or threatened use of physical force as an element of the offense,
then violation of the statute categorically constitutes a violent felony. Id. at 1327.
In making this determination, a court must consider the least culpable conduct
under the statute, regardless of the actual underlying facts of the defendant’s prior
conviction. Id. at 1328. In this case, because we are reviewing state criminal
statutes, we are bound by the Florida Supreme Court’s interpretation of the
3 Case: 18-10749 Date Filed: 06/11/2020 Page: 4 of 7
offenses. Johnson v. United States, 559 U.S. 133, 138, 130 S. Ct. 1265, 1269
(2010).
In Florida, robbery is defined as follows:
the taking of money or other property which may be the subject of larceny 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).
In 1997, the Florida Supreme Court held in Robinson v. State that mere
snatching of property did not amount to robbery under § 812.13(1) unless the theft
included “resistance by the victim that is overcome by the physical force of the
offender.” 692 So. 2d 883, 886 (Fla. 1997). In Stokeling v. United States, the
Supreme Court concluded that, under that definition, Florida robbery qualifies as a
violent felony under the ACCA’s elements clause. 139 S. Ct. 544, 550 (2019).
The Stokeling decision served to affirm the previous reasoning of this Circuit in
United States v. Fritts. 841 F.3d 937 (11th Cir. 2016). In Fritts, this Court
concluded that both pre- and post-Robinson Florida robbery convictions equally
qualify as violent felonies under the ACCA’s elements clause. Id. at 942–43. In
support of that holding, we reasoned that, in Robinson, the Florida Supreme Court
4 Case: 18-10749 Date Filed: 06/11/2020 Page: 5 of 7
was interpreting “what [the robbery] statute always meant,” rather than announcing
a new interpretation.1 Id. at 943.
Putting these cases together, § 812.13(1), the Florida robbery statute, has
“always”2 required “resistance by the victim that is overcome by the physical force
of the offender,”3 and because that requirement qualifies robbery as a violent
felony under the ACCA, 4 we reject McClures’s argument that his pre-1997
Florida robbery conviction was not categorically a violent felony. He is not
entitled to relief on this ground.
II.
We next turn to McClures’s argument that, because he was sentenced as a
youthful offender, his robbery conviction does not qualify as a predicate offense
under the ACCA. In United States v. Wilks, we held that a defendant’s Florida
youthful offender convictions may qualify as ACCA predicate offenses. 464 F.3d
1240, 1243 (11th Cir. 2006). Thus, McClures’s argument is without merit.
1 We noted that the Florida Supreme Court had clearly stated as early as 1922 that violent force is required for a defendant to commit robbery in Florida. Id. at 943. McClures suggests that viewing Robinson as a mere clarification of the robbery statute is specious, citing a variety of pre-1997 robbery convictions that seemingly did not require the amount of force that Robinson mandated.
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Case: 18-10749 Date Filed: 06/11/2020 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-10749 Non-Argument Calendar ________________________
D.C. Docket No. 2:17-cr-00049-SPC-CM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOVON ANTOINE MCCLURES,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(June 11, 2020)
Before WILLIAM PRYOR, Chief Judge, JILL PRYOR, and TJOFLAT, Circuit Judges.
PER CURIAM: Case: 18-10749 Date Filed: 06/11/2020 Page: 2 of 7
Jovon McClures pled guilty to being a felon in possession of a firearm and
ammunition. McClures now challenges his 180-month sentence, arguing that the
enhancement to his sentence pursuant to the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e), was improper for three reasons. First, he argues
that his conviction for robbery under Fla. Stat. § 812.13(1) is not a “violent felony”
under the ACCA because he was convicted before Robinson v. State, 692 So. 2d
883 (Fla. 1997), clarified the amount of force required to commit a robbery under
Florida law. Second, he argues that the robbery should not qualify as a previous
conviction under the ACCA because he was sentenced as a youthful offender.
Finally, he argues that his convictions for delivery of a controlled substance under
Fla. Stat. § 893.13 are not “serious drug offenses” under the ACCA because the
offenses did not require knowledge of the substance’s illegality. After
consideration, we reject McClures’s arguments and affirm his sentence.
I.
We first turn to McClures’s argument that his conviction for robbery under
Fla. Stat. § 812.13(1) is not a “violent felony” under the ACCA. We review de
novo whether a prior conviction is a predicate offense within the meaning of the
ACCA. United States v. James, 430 F.3d 1150, 1153 (11th Cir. 2005), overruled
on other grounds by Johnson v. United States, 135 S. Ct. 2551 (2015).
2 Case: 18-10749 Date Filed: 06/11/2020 Page: 3 of 7
Under the ACCA, a defendant convicted under 18 U.S.C. § 922(g) is subject
to a mandatory minimum 180-month sentence if he has 3 prior convictions for a
“violent felony” or “serious drug offense.” 18 U.S.C. § 924(e)(1). The ACCA
defines a “violent felony” as any crime punishable by an imprisonment term
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).
To determine whether a prior conviction is a violent felony under the
“elements” clause, § 924(e)(2)(B)(i), we scrutinize the elements of the statute
under which the defendant was convicted. See United States v. Jones, 906 F.3d
1325, 1328 (11th Cir. 2018). If the statute requires the government to prove the
use, attempted use, or threatened use of physical force as an element of the offense,
then violation of the statute categorically constitutes a violent felony. Id. at 1327.
In making this determination, a court must consider the least culpable conduct
under the statute, regardless of the actual underlying facts of the defendant’s prior
conviction. Id. at 1328. In this case, because we are reviewing state criminal
statutes, we are bound by the Florida Supreme Court’s interpretation of the
3 Case: 18-10749 Date Filed: 06/11/2020 Page: 4 of 7
offenses. Johnson v. United States, 559 U.S. 133, 138, 130 S. Ct. 1265, 1269
(2010).
In Florida, robbery is defined as follows:
the taking of money or other property which may be the subject of larceny 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).
In 1997, the Florida Supreme Court held in Robinson v. State that mere
snatching of property did not amount to robbery under § 812.13(1) unless the theft
included “resistance by the victim that is overcome by the physical force of the
offender.” 692 So. 2d 883, 886 (Fla. 1997). In Stokeling v. United States, the
Supreme Court concluded that, under that definition, Florida robbery qualifies as a
violent felony under the ACCA’s elements clause. 139 S. Ct. 544, 550 (2019).
The Stokeling decision served to affirm the previous reasoning of this Circuit in
United States v. Fritts. 841 F.3d 937 (11th Cir. 2016). In Fritts, this Court
concluded that both pre- and post-Robinson Florida robbery convictions equally
qualify as violent felonies under the ACCA’s elements clause. Id. at 942–43. In
support of that holding, we reasoned that, in Robinson, the Florida Supreme Court
4 Case: 18-10749 Date Filed: 06/11/2020 Page: 5 of 7
was interpreting “what [the robbery] statute always meant,” rather than announcing
a new interpretation.1 Id. at 943.
Putting these cases together, § 812.13(1), the Florida robbery statute, has
“always”2 required “resistance by the victim that is overcome by the physical force
of the offender,”3 and because that requirement qualifies robbery as a violent
felony under the ACCA, 4 we reject McClures’s argument that his pre-1997
Florida robbery conviction was not categorically a violent felony. He is not
entitled to relief on this ground.
II.
We next turn to McClures’s argument that, because he was sentenced as a
youthful offender, his robbery conviction does not qualify as a predicate offense
under the ACCA. In United States v. Wilks, we held that a defendant’s Florida
youthful offender convictions may qualify as ACCA predicate offenses. 464 F.3d
1240, 1243 (11th Cir. 2006). Thus, McClures’s argument is without merit.
1 We noted that the Florida Supreme Court had clearly stated as early as 1922 that violent force is required for a defendant to commit robbery in Florida. Id. at 943. McClures suggests that viewing Robinson as a mere clarification of the robbery statute is specious, citing a variety of pre-1997 robbery convictions that seemingly did not require the amount of force that Robinson mandated. McClures has presented a compelling case that perhaps these pre-1997 robbery convictions were adjudicated incorrectly. But since our inquiry into whether a crime is categorically violent focuses on the statutory definition of the crime, rather than any particular factual scenario underlying a conviction, we cannot use the facts supporting these convictions to overrule what the Florida Supreme Court has said the statute actually meant at the time. Jones, 906 F.3d at 1328. 2 Fritts, 841 F.3d at 943. 3 Robinson, 692 So. 2d at 886. 4 Stokeling, 139 S. Ct. at 550.
5 Case: 18-10749 Date Filed: 06/11/2020 Page: 6 of 7
Though McClures argues that Wilks was wrongly decided, it is still binding
precedent in this Circuit under our prior panel precedent rule, and we must adhere
to it. See United States v. Steele, 147 F.3d 1316, 1317–18 (11th Cir. 1998) (en
banc). McClures is not entitled to relief on this ground.
III.
Finally, we turn to McClures’s argument that his two convictions under Fla.
Stat. § 893.13 do not qualify as “serious drug offenses” under the ACCA.
McClures acknowledges that he did not raise this objection below. Where a party
failed to object to an alleged error in the district court, we review for plain error.
United States v. Vandergrift, 754 F.3d 1303, 1307 (11th Cir. 2014). To show plain
error, the challenging party must show that (1) the district court made an error
(2) that is plain (3) that has affected the party’s substantial rights. Id. If those
three prongs are met, we may exercise our discretion to correct the error if it
“seriously affect[s] the fairness, integrity, or public reputation of judicial
proceedings.” Id. (internal quotations omitted).
The ACCA defines a “serious drug offense,” in relevant part, as “an offense
under State law, involving manufacturing, distributing, or possessing with intent to
manufacture or distribute, a controlled substance . . . for which a maximum term of
imprisonment of ten years or more is prescribed by law.” 18 U.S.C.
§ 924(e)(2)(A)(ii).
6 Case: 18-10749 Date Filed: 06/11/2020 Page: 7 of 7
Florida law punishes the sale, manufacture, delivery, or possession with
intent to sell, manufacture, or deliver cocaine as a second-degree felony. See Fla.
Stat. §§ 893.03(2)(a), 893.13(1)(a). Second-degree felonies are punishable by up
to 15 years’ imprisonment. Id. § 775.082(3)(d). In United States v. Smith, we held
that a violation of § 893.13(1) is a serious drug offense under the ACCA. 775 F.3d
1262, 1268 (11th Cir. 2014). The Supreme Court agreed with our judgment.
Shular v. United States, 140 S. Ct. 779, 784–85 (2020). In Shular, the Court held
that state drug offenses qualify as serious drug offenses under the ACCA if the
offense conduct satisfies the definition listed in § 924(e)(2)(A)(ii), which §
893.13(1)(a) does. Id. at 782.
McClures’s argument that Fla. Stat. § 893.13(1)(a) should not be considered
a serious drug offense under the ACCA is now foreclosed by both the Supreme
Court and our precedent. See Shular, 140 S. Ct. at 782; Smith, 775 F.3d at 1268.
Thus, the District Court did not plainly err in finding that McClures’s two
convictions under § 893.13(1)(a) were predicate offenses under the ACCA.
IV.
For all of the above reasons, McClures’s sentence is affirmed.
AFFIRMED.