USA v. Christopher C. Hayes

Filing 920101216


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[D O NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS F O R THE ELEVENTH CIRCUIT FILED _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ U.S. COURT OF APPEALS N o . 09-12024 ________________________ D . C. Docket No. 08-80113-CR-KLR U N IT E D STATES OF AMERICA, ELEVENTH CIRCUIT DECEMBER 16, 2010 JOHN LEY CLERK Plaintiff-Appellee, versus CHRISTOPHER C. HAYES, Defendant-Appellant. ________________________ A p p eal from the United States District Court fo r the Southern District of Florida _________________________ (D ecem b er 16, 2010) O N PETITION FOR REHEARING B efo re BARKETT and MARCUS, Circuit Judges, and HOOD,* District Judge. Honorable Joseph M. Hood, United States District Judge for the Eastern District of Kentucky, sitting by designation. * PER CURIAM: U p o n consideration of Defendant-Appellant's petition for panel rehearing, w e vacate the prior opinion in this case, issued on August 24, 2010, and substitute th e following opinion in its place. In this opinion, we replace an incorrect reference in the first paragraph of our original opinion to "possession of marijuana with in ten t to distribute" with "aggravated battery." We do not change the opinion in an y other respect. Accordingly, Defendant-Appellant's petition for panel rehearing is granted. C h risto p h er Hayes appeals the enhanced sentence he received pursuant to th e Armed Career Criminal Act ("ACCA"), 18 U.S.C. 924(e)(1), which imposes a mandatory minimum of fifteen years' imprisonment on an offender convicted of b ein g a felon in possession of a firearm, see 18 U.S.C. 922(g)(1), when that o ffen d er has three prior convictions "for a violent felony or a serious drug o ffen s e ," id. 924(e)(1). Hayes does not dispute that his criminal record contains tw o qualifying felonies -- attempted burglary of a dwelling and aggravated battery - - but argues that his convictions for "knowingly and willfully resist[ing] . . . an[] o fficer . . . in the lawful execution of a[] legal duty, by offering or doing violence to the person of such officer," Fla. Stat. 843.01, and for battery on a law en fo rcem en t officer, Fla. Stat. 784.03 & 784.07, are not "violent felonies" of the 2 kind that trigger ACCA's mandatory minimum for armed career criminals. As an initial matter, the Supreme Court recently held that the Florida crime o f battery on a law enforcement officer is not a qualifying crime under ACCA, Jo h n so n v. United States, -- U.S. --, 130 S. Ct. 1265, 1271-72 (2010), rev'g United S ta te s v. Johnson, 528 F.3d 1318 (11th Cir. 2008), and so we must decide only w h eth er Hayes's conviction for resisting an arresting officer with violence is a "v io len t felony" for purposes of ACCA. The statute defines a "violent felony" as "an y crime punishable by imprisonment for a term exceeding one year" that (i) has as an element the use, attempted use, or threatened use of p h ysical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or o th erw ise involves conduct that presents a serious potential risk of p h ysical injury to another. 18 U.S.C. 924(e)(2)(B). The government argues that the Florida crime of resistin g an arresting officer with violence is a "violent felony" under either statu to ry subsection. We have no occasion to consider today whether the crime falls within subsection (B)(i), because we are satisfied that it falls well within the resid u al clause contained in subsection (B)(ii). Accordingly, we conclude that the d istrict court did not error in enhancing Hayes's sentence pursuant to ACCA. T o determine whether a prior felony conviction falls within ACCA's resid u al clause, we interpret the crime of conviction using a categorical approach, 3 "read[ing] the face of the relevant statute itself to discern the crime as it is o rd in arily committed." United States v. Harris, 608 F.3d 1222, 1227 (11th Cir. 2 0 1 0 ) (quotations, citation marks, and original alterations omitted). We ask w h eth er the crime is "similar in kind and in degree to the enumerated crimes" listed in subsection (B)(ii), namely, burglary, arson, and extortion. Id. (citation o m itted ). To that end, we ask whether the conduct inherent in the commission of th e crime is "purposeful, violent and aggressive," Begay v. United States, 553 U .S . 137, 146 (2008), "or, whether it is a more passive crime of inaction, such as th e failure to report to a penal institution or driving under the influence of alcohol," Harris, 608 F.3d at 1227 (citation omitted). F lo rid a's resisting arrest statute provides that "[w]hoever knowingly and w illfu lly resists, obstructs, or opposes any officer . . . in the lawful execution of an y legal duty, by offering or doing violence to the person of such officer or leg ally authorized person, is guilty of a felony of the third degree." Fla. Stat. 8 4 3 .0 1 . This offense falls squarely within ACCA's residual clause. In this kind of case, we rely on "our own common-sense analysis of whether th is conduct poses a serious potential risk of physical injury." United States v. A lex an d er, 609 F.3d 1250, 1257 (11th Cir. 2010). Common sense tells us em p h atically that "[t]he act of resisting arrest poses a threat of direct confrontation 4 between a police officer and the subject of the arrest, creating the potential for s e r io u s physical injury to the officer and others." United States v. Wardrick, 350 F .3 d 446, 455 (4th Cir. 2003). Furthermore, the plain language of the statute reveals that the Florida crime o f resisting arrest with violence is "purposeful, violent, and aggressive." Begay, 5 5 3 U.S. at 145. Commission of the crime requires, by its own terms, that the d efen d an t have knowingly and willfully resisted, obstructed, or opposed an officer b y offering or doing violence to the person of that officer. Fla. Stat. 843.01. This crime thus shares with the other crimes enumerated in subsection (B)(ii) the elem en t of purposeful violence and aggression.1 W e have no difficulty concluding that one who commits the crime of re s istin g arrest by knowingly and willfully offering or doing violence to an arrestin g officer has committed a "violent felony" for purposes of ACCA, and that su ch a person is properly subject to ACCA's fifteen-year mandatory minimum sen ten c e as an "armed career criminal." Cf. United States v. Almenas, 553 F.3d Inasmuch as the statute plainly requires that the defendant have acted knowingly and willfully, we reject Hayes's argument that 843.01 is a strict liability offense that cannot qualify as a predicate felony under ACCA. Cf. United States v. Harris, 608 F.3d 1222, 1224 (11th Cir. 2010) (acknowledging "the holding of Begay v. United States, 553 U.S. 137, 143 (2008), that strict liability crimes are not `roughly similar' to burglary, arson, extortion, or an offense involving the use of explosives and therefore do not come within the residual clause"). We add that the Florida Supreme Court has characterized the statute as a general intent crime, not a strict liability crime. See Frey v. State, 708 So. 2d 918, 921 (Fla. 1998). 5 1 27, 33-35 (1st Cir. 2009); Wardrick, 350 F.3d at 455. A F F IR M E D . 6

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