USA v. Kenneth Conde

Filing

Opinion issued by court as to Appellant Kenneth Roy Conde. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 16-11876

Date Filed: 04/26/2017

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-11876
Non-Argument Calendar
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D.C. Docket No. 9:15-cr-80002-KLR-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KENNETH ROY CONDE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
________________________
(April 26, 2017)
Before TJOFLAT, WILSON, and WILLIAM PRYOR, Circuit Judges.
PER CURIAM:

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Kenneth Roy Conde appeals his 204-month sentence, imposed after he
pleaded guilty to one count of possession of a firearm and ammunition by a
convicted felon, pursuant to 18 U.S.C. §§ 922(g)(1) and 924(e). Conde argues that
the district court erred by sentencing him as an armed career criminal based on his
three 1992 Florida robbery convictions under Fla. Stat. § 812.13.
We review de novo the district court’s conclusion that a particular offense
constitutes a “violent felony” under 18 U.S.C. § 924(e). United States v.
Wilkerson, 286 F.3d 1324, 1325 (11th Cir. 2002) (per curiam).
Under the Armed Career Criminal Act (ACCA), any person who violates 18
U.S.C. § 922(g) and has three prior convictions for a violent felony or a serious
drug offense, is subject to a mandatory minimum sentence of 15 years’
imprisonment. 18 U.S.C. § 924(e)(1). The ACCA defines the term “violent
felony” 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.

18 U.S.C. § 924(e)(2)(B). The first prong of this definition is sometimes referred
to as the “elements clause,” while the second prong contains the “enumerated

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crimes” and, finally, what is commonly called the “residual clause.” United States
v. Owens, 672 F.3d 966, 968 (11th Cir. 2012).
In 1997, the Florida Supreme Court held that, in order for the snatching of
property from another to amount to robbery, “the perpetrator must employ more
than the force necessary to remove the property from the person.” Robinson v.
State, 692 So. 2d 883, 886 (Fla. 1997). The Court explained that the Florida
robbery statute requires “resistance by the victim that is overcome by the physical
force of the offender.” Id.
In United States v. Lockley, we addressed whether a 2001 Florida
attempted-robbery conviction qualified as a crime of violence under the elements
clause of the career-offender provision of the Sentencing Guidelines. 632 F.3d
1238, 1240 (11th Cir. 2011); see also United States v. Alexander, 609 F.3d 1250,
1253 (11th Cir. 2010) (providing that “[c]onsidering whether a crime is a “violent
felony” under the ACCA is similar to considering whether a conviction qualifies as
a crime of violence under U.S.S.G. § 4B1.2(a) because the definitions for both
terms are virtually identical.” (internal quotation marks omitted)). We determined
that the conviction categorically constituted a crime of violence under the clause.
Id. at 1246.
In Dowd, we held that a 1974 conviction for Florida armed robbery was
“undeniably a conviction for a violent felony” under the ACCA’s elements clause.
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United States v. Dowd, 451 F.3d 1244, 1255 (11th Cir. 2006). We reached this
conclusion “without difficulty” and cited only the ACCA’s elements clause. Id.
In Seabrooks, we relied on Lockley to determine that a 1997 Florida robbery
conviction constituted a violent felony under the ACCA. See United States v.
Seabrooks, 839 F.3d 1326, 1338–41 (11th Cir. 2016); id. at 1346 (Baldock, J.
concurring); id. at 1346, 1350–51 (Martin, J. concurring). The narrowest ground
on which we agreed in Seabrooks was that, under Lockley, post-Robinson Florida
armed robbery convictions categorically qualify as violent felonies under the
ACCA’s elements clause. See id. at 1340; id. at 1346 (Baldock, J., concurring); id.
at 1352 (Martin, J., concurring).
However, in United States v. Fritts, we concluded that, under Dowd alone, a
pre-Robinson Florida armed robbery conviction qualifies as an ACCA violent
felony under the elements clause. 841 F.3d 937, 940 (11th Cir. 2016). We further
determined that Lockley, Robinson, and other Florida Supreme Court law
supported the qualification of Florida armed robbery as a violent felony. Id. at
940–44. In response to the defendant’s argument that, before the Florida Supreme
Court’s 1997 decision in Robinson, only the slightest force was sufficient to
convict a defendant of Florida robbery, we pointed out that the Robinson Court had
made clear that the § 812.13 robbery statute had never included a theft or taking by
mere snatching because snatching was theft only and did not involve the force
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needed to sustain a robbery conviction under § 812.13(1). Id. at 942–43. In other
words, Florida robbery has always required the “substantial degree of force”
required by the ACCA’s elements clause. See Johnson v. United States, 559 U.S.
133, 140, 130 S. Ct. 1265, 1271 (2010).
The district court did not err by sentencing Conde as an armed career
criminal based on his three 1992 Florida robbery convictions because Florida’s
robbery statute has always required violence beyond mere snatching, and,
therefore, has as an element the use, attempted use, or threatened use of physical
force against the person of another and qualifies as a violent felony under the
elements clause of the ACCA. Accordingly, we affirm.
AFFIRMED.

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