USA v. Kenneth Harris

Filing

Opinion issued by court as to Appellant Kenneth L. Harris. 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: 16-17552

Date Filed: 11/28/2017

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-17552
Non-Argument Calendar
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D.C. Docket No. 6:11-cr-00206-GAP-GJK-1

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KENNETH L. HARRIS,
a.k.a. Kenneth Leander Harris,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(November 28, 2017)
Before ED CARNES, Chief Judge, MARTIN, and JILL PRYOR, Circuit Judges.
PER CURIAM:

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A jury convicted Kenneth Harris of three counts of Hobbs Act robbery, in
violation of 18 U.S.C. § 1951(a) and (b), three counts of using and carrying a
firearm during those Hobbs Act robberies, in violation of 18 U.S.C.
§ 924(c)(1)(A), and one count of possession of a firearm by a convicted felon, in
violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e)(1). The district court
sentenced him to 188 months each on the Hobbs Act robbery convictions, to run
concurrently; 84, 300, and 300 months on the § 924(c)(1)(A) convictions, to run
consecutively; and 180 months on the firearm possession conviction under the
Armed Career Criminal Act, to run concurrently with the Hobbs Act robbery
sentences. Harris appeals that 872-month sentence.
Harris first contends that his § 924(c)(1)(A) convictions must be vacated
because his companion Hobbs Act robbery convictions do not qualify as “crime[s]
of violence” under § 924(c)(1)(A). See 18 U.S.C. § 924(c)(1)(A) (providing that
any person who uses or carries a firearm “during and in relation to any crime of
violence” is subject to certain mandatory minimums). Binding precedent
forecloses that argument. See Smith v. GTE Corp., 236 F.3d 1292, 1300 n.8 (11th
Cir. 2001) (“[Under the] prior panel precedent rule of this Circuit, the holding of
the first panel to address an issue is the law of this Circuit, thereby binding all
subsequent panels unless and until the first panel’s holding is overruled by the
Court sitting en banc or by the Supreme Court.”). Harris was convicted of
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committing Hobbs Act robbery “by means of actual and threatened force, violence,
and fear of injury,” and as a result his “companion conviction[s] for Hobbs Act
robbery . . . clearly qualif[y] as . . . ‘crime[s] of violence’ under the use-of-forceclause in § 924(c)(3)(A).” In re Fleur, 824 F.3d 1337, 1340–41 (11th Cir. 2016);
see 18 U.S.C. § 924(c)(3)(A) (defining a “crime of violence” as a felony having
“as an element the use, attempted use, or threatened use of physical force against
the person or property of another”). Harris’s argument that In re Fleur is not
binding because it involved an application to file a second or successive petition
under 28 U.S.C. § 2255 fails because we have held that “our prior-panel-precedent
rule applies with equal force as to prior panel decisions published in the context of
applications to file second or successive petitions.” In re Lambrix, 776 F.3d 789,
794 (11th Cir. 2015).
Harris also contends that the district court erred in sentencing him as an
armed career criminal based on three 1991 Florida felony convictions for robbery
with a firearm. Binding precedent also forecloses that argument. At the time of
his convictions, Florida law defined “robbery” as the “taking of money or other
property which may be the subject of larceny from the person or custody of
another when in the course of the taking there is the use of force, violence, assault,
or putting in fear.” Fla. Stat. § 812.13(1), (2)(a) (1987). We have held that a
conviction for armed robbery under that statute “categorically qualifies as a violent
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felony under the ACCA’s elements clause.” United States v. Fritts, 841 F.3d 937,
942 (11th Cir. 2016). Harris argues that Fritts is wrong, but the prior panel
precedent rule “is not dependent upon a subsequent panel’s appraisal of the initial
decision’s correctness,” and he cites no en banc or Supreme Court decision
overruling Fritts. Smith, 236 F.3d at 1300 n.8, 1301–02 (quotation marks omitted).
As a result, the district court correctly determined that Harris’s three Florida armed
robbery convictions are qualifying ACCA felonies.
AFFIRMED.

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