From Casetext: Smarter Legal Research

United States v. Fitzgerald

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
Nov 28, 2018
No. 17-15285 (11th Cir. Nov. 28, 2018)

Summary

affirming an armed-career-criminal sentence and holding that, under Turner, Florida aggravated battery remains a violent felony

Summary of this case from United States v. Somers

Opinion

No. 17-15285

11-28-2018

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DEMETRIUS DEVON FITZGERALD, a.k.a. Demtemoivs D. Fitzgerald, a.k.a. Fat Mimi, Defendant-Appellant.


[DO NOT PUBLISH] Non-Argument Calendar D.C. Docket No. 9:17-cr-80042-RLR-1 Appeal from the United States District Court for the Southern District of Florida Before TJOFLAT, NEWSOM, and EDMONSON, Circuit Judges. PER CURIAM:

Demetrius Fitzgerald appeals his 240-month total sentence for being a felon in possession of a firearm, possessing with intent to distribute oxycodone, marijuana, and alprazolam, and possessing multiple firearms in furtherance of a drug trafficking crime. Fitzgerald argues that the district court erred in treating him as an armed career criminal and a career offender because his Florida aggravated battery with a deadly weapon and resisting arrest with violence convictions were not predicate offenses under the elements clause of the Armed Career Criminal Act ("ACCA") and the career-offender guideline.

We review de novo whether a prior conviction qualifies as a violent felony under the ACCA or a crime of violence under the career-offender guideline. United States v. Seabrooks, 839 F.3d 1326, 1338 (11th Cir. 2016) (ACCA), cert. denied, 137 S. Ct. 2265 (2017); United States v. Vail-Bailon, 868 F.3d 1293, 1296 (11th Cir. 2017) (en banc) (career offender), cert. denied, 138 S. Ct. 2620 (2018). We apply the same analysis for both ACCA violent felonies and crimes of violence under the sentencing guidelines, as they are "virtually identical." United States v. Rainey, 362 F.3d 733, 734 (11th Cir. 2004).

A defendant who violates 18 U.S.C. § 922(g) and has at least 3 earlier convictions for violent felonies or serious drug offenses is subject to an enhanced statutory sentence of 15 years to life imprisonment. 18 U.S.C. § 924(e)(1). To qualify as a career offender a defendant must have at least two prior felony convictions for a crime of violence or a controlled substance offense. U.S.S.G. § 4B1.1(a)(3). Under the elements clauses in the ACCA and career-offender guidelines, an offense is a violent felony or a crime of violence if it "has as an element the use, attempted use, or threatened use of physical force against the person of another." 18 U.S.C. § 924(e)(2)(B); U.S.S.G. § 4B1.2(a).

In United States v. Romo-Villalobos, we concluded that a Florida conviction for resisting arrest with violence constituted a crime of violence under the elements clause of the career-offender guideline. 674 F.3d 1246, 1249 (11th Cir. 2012). In United States v. Hill, we reaffirmed our holding in Romo-Villalobos after the Supreme Court's decision in Johnson v. United States, 135 S. Ct. 2551 (2015). 799 F.3d 1318, 1322-23 (11th Cir. 2015); see also United States v. Joyner, 882 F.3d 1369, 1378 (11th Cir. 2018), petition for cert. filed, (U.S. May 23, 2018) (No. 17-9128). In Turner v. Warden Coleman FCI, we concluded that a Florida conviction for aggravated battery with a deadly weapon satisfied the elements clause of the ACCA. 709 F.3d 1328, 1341 (11th Cir. 2013). We have reaffirmed our holding in Turner after Johnson. United States v. Golden, 854 F.3d 1256, 1257 (11th Cir. 2017); In re Hires, 825 F.3d 1297, 1301 (11th Cir. 2016).

Under the prior precedent rule, we are bound by a prior binding precedent "unless and until it is overruled" by this Court en banc or by the Supreme Court. United States v. Vega-Castillo, 540 F.3d 1235, 1236 (11th Cir. 2008) (quotation marks omitted).

Here, the district court properly sentenced Fitzgerald as an armed career criminal and a career offender because his four total prior Florida convictions for aggravated battery with a deadly weapon and resisting arrest with violence are violent felonies and crimes of violence in the light of our prior precedent. See Hill, 799 F.3d at 1322 (resisting arrest with violence); Turner, 709 F.3d at 1341 (aggravated battery with a deadly weapon).

AFFIRMED.


Summaries of

United States v. Fitzgerald

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
Nov 28, 2018
No. 17-15285 (11th Cir. Nov. 28, 2018)

affirming an armed-career-criminal sentence and holding that, under Turner, Florida aggravated battery remains a violent felony

Summary of this case from United States v. Somers
Case details for

United States v. Fitzgerald

Case Details

Full title:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DEMETRIUS DEVON…

Court:UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

Date published: Nov 28, 2018

Citations

No. 17-15285 (11th Cir. Nov. 28, 2018)

Citing Cases

United States v. Somers

Turner's holding did not survive Johnson in other respects, but Turner's holding on aggravated assault was…

Green v. United States

This holding has been affirmed after the Supreme Court's decision in Johnson v. United States, 135 S. Ct.…