United States v. Tavares Jemario Hunter

• Court: Court of Appeals for the Eleventh Circuit
• Decided: September 12, 2018
• Docket: 17-15206
• Status: Unpublished

Opinion

Case: 17-15206 Date Filed: 09/12/2018 Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-15206 Non-Argument Calendar ________________________

D.C. Docket No. 9:17-cr-80130-DMM-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TAVARIS JEMARIO HUNTER,

Defendant-Appellant.

________________________

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

(September 12, 2018)

Before MARTIN, BRANCH, and FAY, Circuit Judges.

PER CURIAM: Case: 17-15206 Date Filed: 09/12/2018 Page: 2 of 5

Tavaris Jemario Hunter appeals his 180-month mandatory minimum

sentence after he pled guilty to being a felon in possession of a firearm. He argues

the district court erred in sentencing him under the Armed Career Criminal Act

(“ACCA”) because his previous Florida convictions for robbery and aggravated

assault were not “violent felonies,” and his Florida felony convictions for sale of

cocaine and possession of cocaine with intent to sell were not “serious drug

offenses.” After careful review, we affirm.

I.

Hunter pled guilty to one count of being a felon in possession of a firearm,

in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). A probation officer prepared

a Presentence Investigation Report (“PSR”), which found Hunter qualified as an

armed career criminal based on four convictions for violent felonies or serious

drug offenses. Those convictions were for Florida crimes of robbery, sale of

cocaine, possession of cocaine with intent to sell, and aggravated battery.

Hunter objected to his classification as an armed career criminal, arguing

that his convictions for Florida robbery and aggravated battery did not qualify as

violent felonies under ACCA. He also argued that his two drugs convictions

should not qualify as ACCA predicates because the relevant Florida statutes lacked

mens rea requirements. Hunter acknowledged his objections were foreclosed by

binding precedent in the Eleventh Circuit.

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At sentencing, the district court overruled Hunter’s objections and sentenced

Hunter to a mandatory minimum 180-month term of imprisonment. This appeal

followed.

II.

We review de novo whether a particular conviction qualifies as a violent

felony or a serious drug offense under ACCA. United States v. Hill, 799 F.3d

1318, 1321 (11th Cir. 2015) (per curiam); United States v. Robinson, 583 F.3d

1292, 1294 (11th Cir. 2009) (per curiam).

ACCA provides for a sentence of no less than fifteen years for a defendant

who violates § 922(g) and has three or more prior convictions for a “violent

felony” or a “serious drug offense.” 18 U.S.C. § 924(e)(1). The term “serious

drug offense” includes “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.” Id. § 924(e)(2)(A)(ii). A “violent felony” is defined 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[.]

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Id. § 924(e)(2)(B). The first part of this definition is known as the “elements

clause.” See Mays v. United States, 817 F.3d 728, 730–31 (11th Cir. 2016) (per

curiam). The second part of this definition contains both the “enumerated offenses

clause” and the “residual clause.” Id. In Johnson v. United States, the Supreme

Court held that ACCA’s residual clause was unconstitutionally vague. 576 U.S.

___, 135 S. Ct. 2551, 2563 (2015). But Johnson did not affect the status of

convictions qualifying under the elements or enumerated offenses clauses, or as

serious drug offenses.

Under the prior precedent rule, we are bound by our prior decisions unless

and until they are overruled by the Supreme Court or this Court sitting en banc.

United States v. Brown, 342 F.3d 1245, 1246 (11th Cir. 2003). This Court has

previously held that a conviction for robbery under Florida Statute § 812.13(1) is a

violent felony under ACCA’s elements clause. See United States v. Fritts, 841

F.3d 937, 940 (11th Cir. 2016). This Court has also said a conviction for

aggravated battery under Florida Statute § 784.045 qualifies as a violent felony

under the elements clause. Turner v. Warden Coleman FCI (Medium), 709 F.3d

1328, 1341 (11th Cir. 2013), abrogated on other grounds by Johnson, 135 S. Ct.

2551. And we have held that the sale of and possession with intent to sell cocaine,

in violation of Florida Statute § 893.13(1), are serious drug offenses even in the

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absence of a mens rea requirement. United States v. Smith, 775 F.3d 1262, 1268

(11th Cir. 2014).

The district court did not err in sentencing Hunter under ACCA because

binding precedent in this Court says that his convictions for Florida aggravated

battery and robbery qualify as violent felonies under the elements clause, and his

convictions for sale of cocaine and possession with intent to sell cocaine qualify as

serious drug offenses. Even setting aside Hunter’s conviction for Florida robbery, 1

Hunter has three convictions that qualify as ACCA predicate offenses.

AFFIRMED.

1 As Hunter points out, the Supreme Court granted certiorari on another case presenting whether Florida robbery qualifies as a violent felony under ACCA. See United States v. Stokeling, 684 F. App’x 870 (11th Cir. 2017), cert. granted, 138 S. Ct. 1438 (Apr. 2, 2018) (No. 17-5554). 5