Somers v. United States

15 F.4th 1049

Fred SOMERS, Petitioner - Appellant,

v.UNITED STATES of America, Respondent - Appellee.

No. 19-11484

United States Court of Appeals, Eleventh Circuit.

September 28, 2021

Randolph Patterson Murrell, Federal Public Defender's Office, Tallahassee, FL, Megan Saillant, Federal Public Defender's Office, Gainesville, FL, for Petitioner-Appellant.

Jordane E. Learn, Michael J. Harwin, U.S. Attorney's Office, Tallahassee, FL, Robert G. Davies, U.S. Attorney, U.S. Attorney's Office, Northern District of Florida, Pensacola, FL, Karen E. Rhew-Miller, Law Office of Karen E. Rhew-Miller, Fernandina Beach, FL, for Respondent-Appellee.

Before JILL PRYOR, ANDERSON and MARCUS, Circuit Judges.

ON PETITION FOR REHEARING

MARCUS, Circuit Judge:

In Somers v. United States, 799 F. App'x 691 (11th Cir. 2020) (" Somers I"), issued on January 14, 2020, we affirmed the district court's denial of appellant Fred Somers's 28 U.S.C. § 2255 motion to vacate his sentence. We held that Somers's Florida aggravated assault conviction, see Fla. Stat. § 784.021, qualified as a violent felony under the Armed Career Criminal Act's ("ACCA") elements clause, 18 U.S.C. § 924(e)(2)(B)(i). After Somers filed a petition for rehearing, we held issuance of the mandate in abeyance pending the Supreme Court's decision in Borden v. United States, ––– U.S. ––––, 141 S. Ct. 1817, 210 L.Ed.2d 63 (2021). After Borden was decided, we asked the parties for further briefing about its effect on Somers I and on the precedent on which we relied, Turner v. Warden Coleman FCI, 709 F.3d 1328, 1337–38 (11th Cir. 2013), abrogated on other grounds by Johnson v. United States, 576 U.S. 591, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). In supplemental briefing, Somers claims that the ACCA's elements clause applies only to specific-intent crimes, and that Florida aggravated assault is not a specific-intent crime. Though the Florida aggravated assault statute does not use the phrase "specific intent," the government in substance argues that the specific intent to threaten another is an element of Florida aggravated assault. To facilitate full consideration of these questions, we grant the petition for rehearing, vacate our previous opinion and judgment in Somers I, substitute this opinion in its place, and certify to the Florida Supreme Court two related questions about the nature of the Florida assault statutes.

I.

Because the facts and procedural setting have not changed since our initial opinion in this case, we reproduce the portions describing them in their entirety:

Under the ACCA, a defendant convicted of being a felon in possession of a firearm who has three or more prior convictions for a "violent felony" or "serious drug offense" faces a mandatory minimum 15-year sentence. 18 U.S.C. § 924(e)(1). The ACCA defines a 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 referred to as the "elements clause," while the second prong contains the "enumerated crimes" and "residual clause." United States v. Owens, 672 F.3d 966, 968 (11th Cir. 2012). In Johnson [ ] the Supreme Court struck down the residual clause as unconstitutionally vague. [576 U.S. at 595–602, 135 S.Ct. 2551.] In holding that the residual clause was void, the Supreme Court clarified that it did not call into question the application of the elements clause. Id. at [604–05, 135 S.Ct. 2551]. It later held that Johnson announced a new substantive rule that applied retroactively to cases on collateral review. Welch v. United States, 578 U.S. 120, 136 S. Ct. 1257, 1265, 194 L.Ed.2d 387 (2016).

To qualify as a violent felony under the ACCA's elements clause, a conviction must have as an element the use, attempted use, or threatened use of physical force against the person of another. 18 U.S.C. § 924(e)(2)(B)(i). We employ the categorical approach to determine whether a conviction necessarily requires the use or threatened use of physical force, looking only at the required elements of a defendant's prior offenses, and not to the particular facts underlying those convictions. United States v. Jones, 906 F.3d 1325, 1328 (11th Cir. 2018), cert. denied, ––– U.S. ––––, 139 S. Ct. 1202, 203 L.Ed.2d 228 (2019). A crime is categorically a violent felony under the elements clause if even the least of the culpable conduct criminalized by the statute would fall within the ACCA definition. Id.

In Florida, an aggravated assault is an assault (a) with a deadly weapon without intent to kill, or (b) with an intent to commit a felony. Fla. Stat. § 784.021. An assault is defined as an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent. Fla. Stat. § 784.011.

In 2013, we held that a movant's Florida conviction for aggravated assault qualified as a violent felony under the ACCA's elements clause. Turner, 709 F.3d [at 1337–38], abrogated on othergrounds byJohnson, [576 U.S. 591, 135 S.Ct. 2551]. We reasoned, first, that aggravated assault, by its definitional terms, necessar[il]y included an assault, which is an intentional and unlawful threat "to do violence" to the person of another. Id. at 1338. We further concluded that aggravated assault necessarily included as an element the "threatened use of physical force against the person of another." Id.

In United States v. Golden, we affirmed the defendant's sentence because Turner, as binding precedent, foreclosed the argument that his conviction for aggravated assault was not a violent felony. 854 F.3d 1256, 1256–57 (11th Cir. 2017) ; see also [ United States v. ] Deshazior, 882 F.3d 1352, 1355 [(11th Cir. 2018)] (holding that a defendant's argument that Florida aggravated assault is not a violent felony for purposes of the ACCA is foreclosed by Turner ). We said in Golden that, even if Turner was flawed, that did not give a later panel authority to disregard it. Golden, 854 F.3d at 1257.

Somers I, 799 F. App'x at 692–93. In Somers I, we followed Turner and Golden to hold that Florida aggravated assault was a violent felony under the ACCA elements clause and, therefore, we affirmed the district court's decision to rely on this conviction as one of three necessary violent felony predicates to support the application of the ACCA's fifteen-year mandatory minimum to Somers's sentence. Id. at 693. According to the Presentence Investigation Report in this case, without the ACCA mandatory minimum, Somers's sentencing guidelines range would have been 130 to 162 months.

II.

Recently, in Borden, the Supreme Court clarified the meaning of the phrase "against the person of another" as used in the ACCA elements clause. We've described Borden this way:

In Borden, the Supreme Court held that the phrase "use ... against the person of another" in the ACCA's elements clause "sets out a mens rea requirement -- of purposeful or knowing conduct." Borden, 141 S. Ct. at 1828, 1829 n.6 (plurality opinion). The elements clause "demands that the perpetrator direct his action at, or target, another individual." Id. at 1825. A crime that can be committed with a mens rea of mere recklessness therefore cannot qualify as a crime of violence under the elements clause -- "[r]eckless conduct is not aimed in [the] prescribed manner." Id.; see also id. at 1833 (" ‘[A]gainst the person of another,’ when modifying the ‘use of physical force,’ introduces that action's conscious object. So it excludes conduct, like recklessness, that is not directed or targeted at another.") (citation omitted).

United States v. Carter, 7 F.4th 1039, 1045 (11th Cir. 2021). Borden held that Tennessee reckless aggravated assault, which can be accomplished with a mens rea of recklessness, was not a violent felony under the elements clause. 141 S. Ct. at 1822, 1825.

In supplemental briefing, Somers characterizes Borden as having held that to meet the elements clause definition of violent felony, an offense must require more than general intent in the sense of a mere "intent to commit the act." See 1 Wayne R. LaFave, Substantive Criminal Law § 5.2(e) (3d ed. Oct. 2020 update) (In "the most common usage," "general intent is only the intention to make the bodily movement which constitutes the act which the crime requires." (internal quotation marks omitted)). According to Somers, Borden holds that the elements clause requires specific intent. Specific intent is most commonly understood as "designat[ing] a special mental element which is required above and beyond any mental state required with respect to the actus reus of the crime." LaFave, supra, § 5.2(e).

Notably, the Borden plurality did not use the phrase "specific intent," as Somers suggests. Rather, the Borden plurality held that the elements-clause phrase "against the person of another" requires that the subject of the verb that phrase is modifying -- either the "use, attempted use, or threatened use of force" -- not only use, attempt, or threaten force volitionally, but also "direct his action at, or target, another individual." 141 S. Ct. at 1825 ; see also 18 U.S.C. § 924(e)(2)(B)(i) (defining "violent felony" as a crime punishable by more than one year that "has as an element the use, attempted use, or threatened use of physical force against the person of another"). Put another way, the elements clause requires both the general intent to volitionally take the action of using, attempting to use, or threating to use force and something more: that the defendant direct the action at a target, namely another person. Specific...