USA v. Geno Jackson

Filing

Opinion issued by court as to Appellant Geno T. Jackson. 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: 16-16404

Date Filed: 08/24/2017

Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-16404
Non-Argument Calendar
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D.C. Docket No. 8:06-cr-00077-JDW-TBM-1

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GENO T. JACKSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(August 24, 2017)
Before MARTIN, ROSENBAUM, and ANDERSON, Circuit Judges.
PER CURIAM:

Case: 16-16404

Date Filed: 08/24/2017

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Geno Jackson appeals his 120-month sentence of imprisonment for
possession of a firearm by a convicted felon, imposed after the district court
granted his 28 U.S.C. § 2255 motion, vacated his sentence, and resentenced him
without an enhancement under the Armed Career Criminal Act (“ACCA”). On
appeal, Jackson argues that the district court erred in finding that his prior Florida
conviction for aggravated assault under Fla. Stat. § 784.021 qualified as a “crime
of violence” under U.S.S.G. § 2K2.1(a)(4)(A). As he acknowledges, however, this
argument is foreclosed by binding circuit precedent. 1
Section 2K2.1(a)(4)(A) provides for an enhanced base offense level of 20 if
the defendant committed any part of the offense subsequent to sustaining one
felony conviction for either a “crime of violence” or a “controlled substance
offense.” A “crime of violence” for purposes of § 2K2.1(a)(4)(A) is any offense
under federal or state law, punishable by imprisonment for a term exceeding one
year, that (1) has as an element the use, attempted use, or threatened use of
physical force against the person of another; or (2) is one of a list of enumerated
offenses, including aggravated assault. U.S.S.G. § 4B1.2(a) (Nov. 2016) 2; see
U.S.S.G. § 2K2.1 cmt. n.1 (incorporating § 4B1.2(a)’s definition).

1

The parties dispute whether plain-error review or invited error applies to Jackson’s
current challenge. We need not decide that issue because Jackson’s challenge fails even under
de novo review.
2
Jackson was resentenced using the 2016 version of the Guidelines Manual, which no
longer contains a “residual clause” definition for “crime of violence” in U.S.S.G. § 4B1.2(a).
2

Case: 16-16404

Date Filed: 08/24/2017

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In Turner, we held that a conviction under Florida’s aggravated-assault
statute, Fla. Stat. § 784.021, qualifies as a violent felony under the ACCA. Turner
v. Warden Coleman FCI (Medium), 709 F.3d 1328, 1337–38, 1337 n.5 (11th Cir.
2013), abrogated on other grounds as recognized in United States v. Hill, 799 F.3d
1318, 1321 n.1 (11th Cir. 2015). We held that “a conviction under section 784.021
will always include as an element the . . . threatened use of physical force against
the person of another.” Id. at 1338 (internal quotation marks omitted). That
holding likewise applies to the “elements” clause of § 4B1.2(a)(1), because that
clause is identical to the elements clause of the ACCA. See United States v. Fritts,
841 F.3d 937, 940 (11th Cir. 2016).
Jackson argues that Turner has been undermined to the point of abrogation
by cases like Mathis v. United States, 136 S. Ct. 2243 (2016), and Descamps v.
United States, 133 S. Ct. 2276 (2013), but we have rejected that contention since
Jackson filed his initial brief in this Court. In particular, we held in United States
v. Golden, 854 F.3d 1256, 1256–57 (11th Cir. 2017), petition for cert. filed, (U.S.
June 30, 2017) (No. 17-5050), that Turner remains binding precedent in this
Circuit.

Jackson acknowledges Golden in his reply brief but maintains, for

purposes of further review, that Turner was wrongly decided. “But even if Turner
is flawed, that does not give us, as a later panel, the authority to disregard it.” Id.
at 1257.
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Case: 16-16404

Date Filed: 08/24/2017

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Accordingly, the district court properly found that Jackson’s Florida
conviction for aggravated assault is a “crime of violence” for purposes of
§ 2K2.1(a)(4)(A). We therefore AFFIRM Jackson’s sentence.
AFFIRMED.

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