USA v. Nicholas Maida

Filing

Opinion issued by court as to Appellant Nicholas Maida. 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: 16-16193

Date Filed: 07/18/2017

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-16193
Non-Argument Calendar
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D.C. Docket No. 9:14-cr-80032-WJZ-1

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NICHOLAS MAIDA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(July 18, 2017)
Before MARTIN, JILL PRYOR, and ANDERSON, Circuit Judges.
PER CURIAM:

Case: 16-16193

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Nicholas Maida appeals his 120-month sentence, imposed after he pled
guilty to one count of possession of a firearm and ammunition as a convicted felon,
in violation of 18 U.S.C. § 922(g)(1). In calculating Maida’s guideline range, the
district court determined that he qualified for a base offense level of 24 pursuant to
U.S.S.G. § 2K2.1(a)(2) because he had two prior convictions for “crimes of
violence” as defined in U.S.S.G. § 4B1.2. On appeal, Maida argues that the district
court erred in determining that his prior Florida conviction for aggravated battery
with a deadly weapon qualifies as a “crime of violence.” He asserts that the
offense does not include as an element the use, attempted use, or threatened use of
force.
We review de novo whether a prior conviction qualifies as a crime of
violence under the Sentencing Guidelines. United States v. Estrada, 777 F.3d
1318, 1321 (11th Cir. 2015). The guidelines provide for a base offense level of 24
for a defendant convicted of unlawfully possessing a firearm if the defendant
committed that offense after sustaining at least two felony convictions of either a
crime of violence or a controlled substance offense. U.S.S.G. § 2K2.1(a)(2). The
guidelines that applied when Maida was sentenced defined “crime of violence” as
any offense punishable by imprisonment for a term exceeding on year, that:
(1) has as an element the use, attempted use, or threatened use of
physical force against the person of another, or

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(2) is burglary of a dwelling, arson, extortion, involves the use of
explosives, or otherwise involves conduct that presents a serious
potential risk of physical injury to another.
U.S.S.G. § 4B1.2(a) (amended 2016).
Under Florida law, a person commits aggravated battery when he commits
simple battery along with one of three aggravating factors. Fla. Stat. Ann.
§ 784.045(1). Simple battery is defined as (1) actually and intentionally touching
or striking another person against the will of the other, or (2) intentionally causing
bodily harm to another person. Id. § 784.03(1)(a). Aggravated battery occurs
when a person commits simple battery and (1) intentionally or knowingly causes
great bodily harm, permanent disability, or permanent disfigurement; (2) uses a
deadly weapon; or (3) knew or should have known that the victim was pregnant.
Id. § 784.045(1); Turner v. Warden, Coleman FCI (Medium), 709 F.3d 1328, 1341
(11th Cir. 2013), abrogated on other grounds by Johnson v. United States, 135
S. Ct. 2551 (2015).
As Maida acknowledges, we previously have held that Florida’s aggravated
battery with a deadly weapon statute qualifies as a “violent felony” under the
Armed Career Criminal Act’s (“ACCA”) elements clause, which is worded the
same as the elements clause in U.S.S.G. § 4B1.2(a). Turner, 709 F.3d at 1341.
Furthermore, we recently confirmed that, despite questions regarding its continuing
validity, Turner remains binding precedent in this Circuit. See generally United

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States v. Golden, 854 F.3d 1256 (11th Cir. 2017); see id. at 1256-57 (noting that
Turner controlled the determination of whether a Florida aggravated assault
conviction qualified as a “crime of violence” under U.S.S.G. § 4B1.2 because,
although Turner concerned ACCA’s elements clause, the elements clauses under
ACCA and guidelines are identical).
We continue to be bound to follow Turner unless and until it is overruled or
undermined to the point of abrogation by this Court sitting en banc or by the
Supreme Court; thus, we acknowledge that Maida has preserved this challenge but
do not address it further. See United States v. Brown, 342 F.3d 1245, 1246 (11th
Cir. 2003); see also United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008)
(noting that, although a decision of the Supreme Court may overrule or abrogate
prior panel precedent, such a decision “must be clearly on point” (internal
quotation marks omitted)). We therefore affirm Maida’s sentence.
AFFIRMED.

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