USA v. Steven Jackson


Opinion issued by court as to Appellant USA in 16-17173, 16-17334. Decision: Vacated and Remanded. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link [16-17173, 16-17334]--[Edited 11/28/2017 by JRP]

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Case: 16-17173 Date Filed: 11/27/2017 Page: 1 of 3 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 16-17173 Non-Argument Calendar ________________________ D.C. Docket No. 1:94-cr-00041-UU-1 UNITED STATES OF AMERICA, Plaintiff-Appellant, versus STEVEN JACKSON, Defendant-Appellee. ________________________ No. 16-17334 Non-Argument Calendar ________________________ D.C. Docket Nos. 1:16-cv-22649-UU; 1:94-cr-00041-UU-1 STEVEN JACKSON, Petitioner-Appellee, versus UNITED STATES OF AMERICA, Respondent-Appellant. Case: 16-17173 Date Filed: 11/27/2017 Page: 2 of 3 ________________________ Appeals from the United States District Court for the Southern District of Florida ________________________ (November 27, 2017) Before HULL, WILLIAM PRYOR and JULIE CARNES, Circuit Judges. PER CURIAM: The United States appeals the judgment that vacated Steven Jackson’s sentence to 360 months of imprisonment under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1), and resentenced him to 324 months of imprisonment. 28 U.S.C. § 2255. The district court ruled that Jackson lacked sufficient predicate offenses to be sentenced as an armed career offender because, in the wake of Johnson v. United States, 135 S. Ct. 2551 (2015), and Welch v. United States, 136 S. Ct. 1257 (2016), his conviction in 1976 for robbery with a firearm, Fla. Stat. § 812.13 (1974), was not a “violent felony,” 18 U.S.C. § 924(e)(2)(B). Based on our recent decision in United States v. Fritts, 841 F.3d 937 (11th Cir. 2016), cert. denied, 137 S. Ct. 2264 (2017), we vacate Jackson’s reduced sentence and remand for the district court to reinstate his original sentence of 360 months of imprisonment. The district court erred by granting Jackson’s motion to vacate. We have held repeatedly that a conviction in Florida for robbery, Fla. Stat. § 812.13, 2 Case: 16-17173 Date Filed: 11/27/2017 Page: 3 of 3 qualifies categorically as a violent felony under the elements clause of the Act. Fritts, 841 F.3d at 939–42 (discussing United States v. Dowd, 451 F.3d 1244 (11th Cir. 2006), and United States v. Lockley, 632 F.3d 1238 (11th Cir. 2011)); United States v. Seabrooks, 839 F.3d 1326, 1338–45 (11th Cir. 2016). It makes no difference that Jackson was convicted under the 1974 statute instead of the 1987 statute that we considered in Fritts. Both statutes require that the offender take property “by force, violence, assault, or putting in fear.” See Fla. Stat. § 812.13(1) (1974); id. § 812.13(1) (1987); see also Seabrooks, 839 F.3d at 1339 (“the robbery statute has included the requirement of ‘force, violence, assault, or putting in fear’ from the 1970’s to the present”). Jackson’s offense “requires [as an element] both ‘resistance by the victim’ and ‘physical force by the offender’ that overcomes that resistance.” Fritts, 841 F.3d at 943 (quoting Robinson v. State, 692 So.2d 883, 886 (Fla. 1997)); see also Lockley, 632 F.3d at 1245. Fritts “is the law of this Circuit[ and] . . . bind[s] all subsequent panels unless and until the . . . holding is overruled by the Court sitting en banc or by the Supreme Court.” Seabrooks, 839 F.3d at 1341 (quoting Smith v. GTE Corp., 236 F.3d 1292, 1300 n.8 (11th Cir. 2001)). We VACATE Jackson’s reduced sentence of 324 months of imprisonment and REMAND for the district court to reinstate Jackson’s original sentence of 360 months of imprisonment. 3

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