USA v. Waymon Bryant, Jr.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12018
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WAYMON BRYANT, JR.,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 4:20-cr-00019-LMM-WEJ-1
____________________
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2 Opinion of the Court 22-12018
Before L AGOA , BRASHER , and E DMONDSON, Circuit Judges.
PER CURIAM:
Waymon Bryant appeals his 84-month sentence imposed af-
ter Bryant pleaded guilty to possession of a firearm by a convicted
felon, in violation of 18 U.S.C. § 922(g)(1). No reversible error has
been shown; we affirm.
Before Bryant’s sentencing, a probation officer prepared a
Presentence Investigation Report (“PSI”). According to the PSI,
Bryant had two prior felony convictions that constituted “crimes of
violence” within the meaning of the Sentencing Guidelines: a 2003
Georgia conviction for armed robbery and a 2018 Georgia convic-
tion for aggravated assault. Based on these convictions, the PSI --
pursuant to U.S.S.G. § 2K2.1(a)(2) -- assigned a base-offense level of
24. Bryant’s resulting advisory guideline range was calculated as
100 to 120 months’ imprisonment.
In his sentencing memorandum and at the sentencing hear-
ing, Bryant argued that his 2018 Georgia aggravated-assault convic-
tion -- a violation of O.C.G.A. § 16-5-21(a)(2) -- did not qualify as a
“crime of violence” under the Sentencing Guidelines.1 Relying on
the Supreme Court’s decision in Borden v. United States, 141 S. Ct.
1817 (2021), Bryant argued chiefly that his conviction for Georgia
1 That Bryant’s 2003 armed-robbery conviction constitutes a “crime of vio-
lence” is undisputed.
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22-12018 Opinion of the Court 3
aggravated assault was no crime of violence because that offense
could be committed with a mens rea of recklessness.
The district court overruled Bryant’s objection. The district
court concluded -- in the light of our decision in United States v. Mo-
rales-Alonso, 878 F.3d 1311 (11th Cir. 2018) -- that Bryant’s 2018 ag-
gravated-assault conviction qualified as a crime of violence. The
district court then imposed a below-guidelines sentence of 84
months.
On appeal, Bryant reasserts his argument challenging the
designation of his 2018 Georgia aggravated-assault conviction as a
crime of violence. “We review de novo whether a defendant’s prior
conviction qualifies as a ‘crime of violence’ under the Sentencing
Guidelines.” United States v. Palomino Garcia, 606 F.3d 1317, 1326
(11th Cir. 2010).
Under the Guidelines, a defendant who commits an offense
involving the unlawful possession of a firearm is assigned a base-
offense level of 24 if he committed the offense after sustaining at
least two felony convictions for a “crime of violence.” See U.S.S.G.
§ 2K2.1(a)(2). For purposes of section 2K2.1, the term “crime of
violence” means a federal or state offense punishable by more than
one year that satisfies one of the clauses in section 4B1.2(a). See id.
comment. (n.1) (adopting the definition of “crime of violence” set
forth in section 4B1.2(a)); U.S.S.G. § 4B1.2(a). The “elements
clause” defines “crime of violence” as an offense that “has as an
element the use, attempted use, or threatened use of physical force
against the person of another.” See U.S.S.G. § 4B1.2(a)(1). The
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4 Opinion of the Court 22-12018
“enumerated-offenses clause” contains a list of offenses that qualify
as crimes of violence, including “aggravated assault.” Id. §
4B1.2(a)(2). For purposes of this appeal, we need only consider the
enumerated-offenses clause.
Bryant’s argument on appeal is foreclosed by our decision in
Morales-Alonso. In Morales-Alonso, we concluded that Georgia ag-
gravated assault under O.C.G.A. § 16-5-21(a)(2) constitutes a
“crime of violence” under the enumerated-offenses clause of
U.S.S.G. § 2L1.2: a clause that lists “aggravated assault” among the
offenses defined as a crime of violence. See Morales-Alonso, 878 F.3d
at 1317, 1320 (examining language in the 2015 Sentencing Guide-
lines). In reaching that conclusion, we explained “that the elements
of aggravated assault in violation of O.C.G.A. § 16-5-21(a)(2) are
substantially the same as the elements of generic aggravated as-
sault . . ..” Id. at 1320.
Although Morales-Alonso dealt with a different guidelines
provision than the provision involved in this case, both section
2L1.2 and section 4B1.2 define the term “crime of violence” to in-
clude “aggravated assault” in its list of enumerated offenses. Com-
pare U.S.S.G. § 2L1.2 comment. (n.2), with id. § 4B1.2(a)(2). No ma-
terial difference exists between these two definitions: our decision
in Morales-Alonso steers the outcome of this appeal.
Bryant acknowledges that his argument on appeal is fore-
closed by this Court’s precedent. Nevertheless, Bryant contends
that recent decisions in Borden v. United States, 141 S. Ct. 1817 (2021),
United States v. Carter, 7 F.4th 1039 (2021), and United States v. Moss,
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22-12018 Opinion of the Court 5
920 F.3d 752 (11th Cir. 2019), mandate a conclusion in this case that
Georgia aggravated assault constitutes no “crime of violence” be-
cause it can be committed with a mens rea of recklessness. We dis-
agree.
Under our prior-panel-precedent rule, we are bound by a
prior panel’s decision “unless and until it is overruled or under-
mined to the point of abrogation by the Supreme Court or by this
court sitting en banc.” United States v. Archer, 531 F.3d 1347, 1352
(11th Cir. 2008). “While an intervening decision of the Supreme
Court can overrule the decision of a prior panel of our court, the
Supreme Court decision must be clearly on point.” Id.
Nothing in Borden or in our decisions in Moss and Carter in-
dicates that our decision in Morales-Alonso has been overruled or
undermined to the point of abrogation. Those dissimilar decisions
dealt only with whether an offense constitutes a “violent felony”
under the elements clause of the Armed Career Criminal Act
(“ACCA”) -- not whether an offense constitutes a “crime of vio-
lence” under the enumerated-offenses clause of section 4B1.2. See
Borden, 141 S. Ct. at 1834 (concluding that a criminal offense with a
mens rea of recklessness does not qualify as a “violent felony” under
the ACCA’s elements clause); Carter, 7 F.4th at 1041, 1045 (conclud-
ing -- in the light of Borden and Moss -- that a conviction under
O.C.G.A. § 16-5-21(a)(2) did not qualify as a “violent felony” under
the ACCA’s elements clause); Moss, 920 F.3d at 754, 758, opinion re-
instated, 4 F.4th 1292 (11th Cir. 2021) (en banc) (concluding that a
Georgia conviction for aggravated assault under O.C.G.A. § 16-5-
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6 Opinion of the Court 22-12018
21(a)(2) does not qualify as a “violent felony” under the ACCA’s el-
ements clause because the offense can be committed with a mens
rea of recklessness). And -- unlike section 4B1.2’s enumerated-of-
fenses clause -- the ACCA’s enumerated-offenses clause does not list
“aggravated assault” among the offenses that constitute a violent
felony. Compare 18 U.S.C. § 924(e)(2)(B)(ii), with U.S.S.G. § 4B1.2(a).
That the opinion in Morales-Alonso never addressed expressly the
mens rea argument now asserted by Bryant is immaterial: the Mo-
rales-Alonso decision remains binding law. See In re Lambrix, 776 F.3d
789, 794 (11th Cir. 2015) (noting that “a prior panel precedent can-
not be circumvented or ignored on the basis of arguments not
made to or considered by the prior panel”).
The district court committed no error in concluding -- based
on our decision in Morales-Alonso -- that Bryant’s 2018 Georgia ag-
gravated-assault conviction constituted a “crime of violence” un-
der section 4B1.2’s enumerated-offenses clause. Because Bryant
had two prior felony convictions for a crime of violence, the district
court applied properly a base-offense level of 24, under section
2K1.2(a)(2).
AFFIRMED.
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