USA v. Justin B. Lane

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 19-13197
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUSTIN B. LANE,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 3:18-cr-00044-MCR-1
____________________
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2 Opinion of the Court 19-13197
Before J ILL PRYOR , BRANCH, and L UCK , Circuit Judges.
PER C URIAM :
Justin Lane pleaded guilty to mailing threatening communi-
cations and threatening to use weapons of mass destruction. On
appeal, Lane challenges his sentence, arguing that the district court
erred in classifying him as a career offender under the sentencing
guidelines. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
While serving a sentence in state prison, Lane sent two let-
ters to a state attorney’s office. In the first, he wrote: “[W]hy don’t
you inhale this powder and die . . . maybe it is anthrax who
knows—f-ck you die pig.” In the second, he wrote: “F-ck you die,
die, die, ha, ha, ha, anthrax, goodbye.” Each letter contained a
white powdery substance and triggered biothreat protocols at the
state attorney’s office when a secretary opened them. The letters
later tested negative for anthrax.
A grand jury indicted Lane on four counts: two counts of
mailing threatening communications, in violation of 18 U.S.C. sec-
tion 876(c), and two counts of threatening to use a weapon of mass
destruction, in violation of 18 U.S.C. section 2332a. Lane pleaded
guilty to all counts. After he pleaded guilty, the probation office
prepared a presentence investigation report.
The report classified Lane as a career offender under section
4B1.1 of the sentencing guidelines. It reasoned that Lane “was at
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19-13197 Opinion of the Court 3
least [eighteen] years old at the time of the instant offense”; “the
instant offense of conviction [was] a felony that [was] . . . a crime
of violence”; and Lane “ha[d] at least two prior felony convictions
[that were] crime[s] of violence.” “[T]herefore, [Lane was] a career
offender.”
While the career offender enhancement required only two
prior crimes of violence, the presentence investigation report iden-
tified three. The first was for
robbery, under Florida Statutes sec-
tion 812.13, where Lane robbed a convenience store at gunpoint.
The second was for
aggravated battery, under Florida Statutes sec-
tion 784.045, where Lane stabbed two victims multiple times with
a screwdriver. The third was for
mailing threatening letters, under
18 U.S.C. section 876(c), where Lane sent another letter to a differ-
ent state attorney’s office threatening anthrax.
Lane objected to the presentence investigation report, argu-
ing that he had committed only one prior crime of violence and so
the career offender enhancement didn’t apply. He acknowledged
that his robbery conviction was a crime of violence, but he argued
that his convictions for aggravated battery and mailing threatening
letters weren’t. As to aggravated battery, Lane conceded that, in
Turner v. Warden Coleman FCI, 709 F.3d 1328 (11th Cir. 2013),
abrogated on other grounds by Johnson v. United States, 576 U.S.
591 (2015), this court held that a Florida aggravated battery convic-
tion categorically qualified as a violent felony under the Armed Ca-
reer Criminal Act. But, he argued,
Turner (1) was “wrongly de-
cided,” (2) never considered his “specific argument,” and (3) was
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4 Opinion of the Court 19-13197
decided under a different statute. As to mailing threatening letters,
Lane argued that the crime couldn’t qualify as a crime of violence
because it required only recklessness, while crimes of violence
must be intentional.
The district court overruled Lane’s objection to the career
offender enhancement. As to Lane’s aggravated battery convic-
tion, the district court concluded the offense was a crime of vio-
lence and that Lane’s argument to the contrary was “squarely fore-
closed by Eleventh Circuit precedent.” It noted that this court had
“repeatedly held that a conviction for aggravated battery under
[section] 784.045 categorically qualifies as a violent felony” under a
provision of the Armed Career Criminal Act that is “virtually iden-
tical” to the career offender guidelines. As to Lane’s conviction for
mailing threatening letters, the district court followed what it said
was the majority rule across the federal circuits: that the offense
qualifies as a crime of violence. As a result, the district court con-
cluded that he had committed
three crimes of violence—one more
than necessary to apply the enhancement.
At sentencing, the district court applied the career offender
enhancement and calculated Lane’s advisory guidelines range.
Lane’s total offense level was thirty-four. Lane’s criminal history
category was VI. With a total offense level of thirty-four and a
criminal history category of VI, Lane’s advisory guidelines range
was 262 to 327 months’ imprisonment.
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19-13197 Opinion of the Court 5
The district court varied downward and sentenced Lane to
120 months’ imprisonment to be followed by five years of super-
vised release. Lane timely appealed.
STANDARD OF REVIEW
“We review de novo whether a defendant’s prior conviction
qualifies as a crime of violence under the sentencing guidelines.”
United States v. Matthews, 3 F.4th 1286, 1291 (11th Cir. 2021)
(cleaned up) (quoting
United States v. Estrada, 777 F.3d 1318, 1321
(11th Cir. 2015)).
DISCUSSION
A defendant qualifies as a “career offender” under the sen-
tencing guidelines if:
(1) the defendant was at least eighteen years old at the
time the defendant committed the instant offense of
conviction; (2) the instant offense of conviction is a
felony that is either a crime of violence or a controlled
substance offense; and (3) the defendant has at least
two prior felony convictions of either a crime of vio-
lence or a controlled substance offense.
U.S.S.G. § 4B1.1. The parties agree that Lane satisfies the first two
elements because (1) he was at least eighteen years old when he
committed the present crimes and (2) one of his instant offenses
(threatening to use a weapon of mass destruction) is a crime of
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6 Opinion of the Court 19-13197
violence.1 But they disagree on the third element—whether Lane
has been convicted of at least two prior crimes of violence. We
conclude that Lane committed two prior crimes of violence, and
so the district court properly applied the career offender enhance-
ment.
A “crime of violence” is defined to include (among other
things) a felony offense that “has as an element the use, attempted
use, or threatened use of physical force against the person of an-
other.” U.S.S.G. § 4B1.2(a)(1). Courts call this the elements clause.
“The Supreme Court has defined physical force as ‘
violent force—
that is, force capable of causing physical pain or injury to another
person.’”
United States v. Gandy, 917 F.3d 1333, 1339 (11th Cir.
2019) (quoting
Johnson v. United States, 559 U.S. 133, 140 (2010)).
In this case, Lane had at least two prior crimes-of-violence
convictions. U.S.S.G. § 4B1.1 (providing that a defendant must
have “at least two prior felony convictions of either a crime of vio-
lence or a controlled substance offense” to qualify for the career
offender enhancement). First, in Lane’s words, there’s no “dispute
that a Florida robbery is a qualifying offense.” And for good reason:
this court has already held that a “Florida robbery conviction was
1
Cf. United States v. Evans, 478 F.3d 1332, 1342 n.9 (11th Cir. 2007) (noting,
in applying a similar sentencing enhancement, that “threatening to use a
weapon of mass destruction against a person . . . qualifie[s] as a ‘serious violent
felony’”).
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19-13197 Opinion of the Court 7
. . . a crime of violence.”
United States v. Martinez, 964 F.3d 1329,
1333 n.1 (11th Cir. 2020) (cleaned up).
Second, Lane’s aggravated battery conviction under Florida
Statutes section 784.045 (for stabbing two victims multiple times
with a screwdriver) is also a crime of violence. In
Turner, we held
that Florida’s aggravated battery statute was a “violent felony” un-
der the Armed Career Criminal Act. 709 F.3d at 1341. The Act
defines a “violent felony” (for our purposes) in the
exact same way
that the sentencing guidelines define crimes of violence: as any
crime that “has 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 reviewed Florida’s aggravated battery statute,
which provides:
A person commits aggravated battery who, in com-
mitting battery:
1. Intentionally or knowingly causes great bodily
harm, permanent disability, or permanent disfigure-
ment; or
2. Uses a deadly weapon.
Fla. Stat. § 784.045.2 And we held that both of these prongs were
crimes of violence: the first prong “involves the intentional or
2 Florida’s aggravated battery statute also provides that a “person commits ag-
gravated battery if the person who was the victim of the battery was pregnant
at the time of the offense and the offender knew or should have known that
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8 Opinion of the Court 19-13197
knowing causation of great bodily harm, and the other [prong] in-
volves the use of a deadly weapon.”
Turner, 709 F.3d at 1341. “Ei-
ther way,” we said, “the crime has as an element the use, attempted
use, or threatened use of physical force, indeed, violent force.”
Id.
(cleaned up). We could “therefore say without compunction that
[a] conviction for aggravated battery qualifies as a violent felony
for purposes of the [Armed Career Criminal Act].”
Id.
We have repeatedly reaffirmed this holding.
See, e.g.,
United States v. Vereen, 920 F.3d 1300, 1313 (11th Cir. 2019)
(“We’ve held that a Florida aggravated battery conviction qualifies
as a violent felony under the elements clause under either of the
first two alternatives in [section] 784.045.”);
In re Rogers, 825 F.3d
1335, 1341 (11th Cir. 2016) (“We previously have held that a con-
viction under Florida’s aggravated assault statute categorically
qualifies as a violent felony under the [Armed Career Criminal
Act’s] still-valid elements clause.”);
Lukaj v. U.S. Att’y Gen., 953
F.3d 1305, 1312 (11th Cir. 2020) (explaining that the petitioner’s “ar-
gument that [Florida] aggravated battery does not involve physical
force is foreclosed by
Turner and
Vereen”).
These decisions—
Turner,
Vereen,
Rogers, and
Lukaj—
compel our result here. While this case hinges on whether aggra-
vated battery is a “crime of violence” under the sentencing guide-
lines, not a “violent felony” under the Armed Career Criminal Act,
the victim was pregnant.” Fla. Stat. § 784.045(1)(b). Neither side suggests that
this third possible aggravated battery offense is relevant here.
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19-13197 Opinion of the Court 9
the definitions are “virtually identical,” and so “decisions about one
apply to the other.”
Turner, 709 F.3d at 1335 n.4 (cleaned up);
see
also United States v. Dixon, 874 F.3d 678, 680 (11th Cir. 2017) (“In
determining whether a conviction is a ‘crime of violence’ under
[the guidelines] we rely on cases interpreting the definition of ‘vio-
lent felony’ under the Armed Career Criminal Act . . . because the
definitions are substantially the same.”). And so Florida aggravated
battery is a crime of violence under section 4B1.1 of the guidelines.
Lane “acknowledges [that] this [c]ourt [has] previously held
an aggravated battery offense is categorically a crime of violence,”
but nonetheless urges reversal for two reasons. First, Lane argues
that
Turner’s holding—that Florida aggravated battery is a violent
felony—has been “severely undermined” and therefore “abro-
gat[ed]” by
Borden v. United States, 141 S. Ct. 1817 (2021). But
Borden simply held that “[o]ffenses with a
mens rea of recklessness
do not qualify as violent felonies under” the Armed Career Crimi-
nal Act.
Id. at 1834. The Florida aggravated battery statute pun-
ishes only “intentional[]” crimes, so
Borden (which said that
reck-
less crimes are not violent felonies) cannot help.
See Fla. Stat. §§
784.03, 784.045;
see also United States v. Kaley, 579 F.3d 1246, 1255
(11th Cir. 2009) (explaining that “[w]e may disregard the holding of
a prior opinion only where that holding is overruled” by a decision
of the Supreme Court or our en banc court that is “clearly on point”
(cleaned up)).
Second, Lane argues that “
Turner’s analysis . . . was flawed.”
The problem is that, “[e]ven if we thought [
Turner was] wrong,
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the prior panel precedent rule is not dependent upon a subsequent
panel’s appraisal of the initial decision’s correctness.”
Smith v.
GTE Corp., 236 F.3d 1292, 1301–02 (11th Cir. 2001) (quoting
Co-
hen v. Off. Depot, Inc., 204 F.3d 1069, 1076 (11th Cir. 2000));
see
also United States v. Steele, 147 F.3d 1316, 1317–18 (11th Cir. 1998)
(en banc) (“Under our prior precedent rule, a panel cannot overrule
a prior one’s holding even though convinced it is wrong.”). This
argument won’t work either.
* * *
In sum, Lane’s prior convictions for robbery and aggravated
battery were crimes of violence. And so the district court properly
applied the career offender enhancement.
AFFIRMED.
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