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United States v. Deshazior

United States Court of Appeals, Eleventh Circuit

February 20, 2018

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
EDWIN DESHAZIOR, Defendant-Appellant.

         Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:15-cr-20970-DMM-1

          Before JORDAN and JILL PRYOR, Circuit Judges, and REEVES, [*] District Judge.

          REEVES, District Judge:

          Edwin Deshazior appeals his 180 month sentence following his conviction for being a felon in possession of a firearm. He argues that he should not have received a fifteen-year mandatory minimum sentence under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. §§ 924(e)(1) and 924(e)(2)(B), because he did not have three prior convictions for violent felonies under the act and because his prior felony convictions were not alleged in his indictment. After careful review, we affirm.

         I.

         Miami-Dade police officers found Edwin Deshazior in possession of a Smith & Wesson Model 10-8 revolver and four .38 caliber rounds of ammunition on December 6, 2015. He subsequently pleaded guilty to possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). The Probation Office prepared a Presentence Investigation Report ("PSI") which indicated that Deshazior was subject to a fifteen-year statutory mandatory minimum sentence under the ACCA based on the following prior felony convictions under Florida law: (i) a 1989 conviction for sexual battery (Fla. Stat. § 794.011(3) (1989)); (ii) a 1989 conviction for aggravated assault (Fla. Stat. §§ 784.011, 784.021 (1989)); (iii) a 1993 conviction for attempted sexual battery (Fla. Stat. §§ 794.011(3), 777.011 (1991)); (iv) a 1993 conviction for kidnapping (Fla. Stat. §§ 787.01, 775.087 (1991)); and (v) a 2005 conviction for resisting an officer with violence (Fla. Stat. § 843.01 (2005)).

         Deshazior objected, arguing that his prior convictions did not constitute violent felonies under the ACCA. He further contended that his sentence could not be enhanced based on these prior convictions because they were not alleged in the indictment. The district court overruled Deshazior's objections and sentenced him to serve the statutory mandatory minimum term of 180 months, followed by five years of supervised release. This appeal followed.

         II.

         The ACCA requires that a fifteen-year mandatory minimum sentence be imposed on defendants convicted of felon in possession offenses who also have three prior convictions for violent felonies and/or serious drug offenses. 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 [(the "elements clause")]; or
(ii) is burglary, arson, or extortion, involves use of explosives [(the "enumerated offenses clause")], or otherwise involves conduct that presents a serious potential risk of physical injury to another [(the "residual clause")][.]

18 U.S.C. § 924(e)(2)(B). Sexual battery, aggravated assault, attempted sexual battery, kidnapping, and resisting an officer with violence do not appear in the enumerated offenses clause. And after Johnson v. United States, 135 S.Ct. 2551 (2015), the residual clause no longer applies. As a result, this case turns on whether three of Deshazior's prior felony convictions constitute violent felonies under the ACCA's elements clause. 18 U.S.C. § 924(e)(2)(B)(i).

         We review de novo whether a defendant's prior convictions qualify as violent felonies under the ACCA. United States v. Hill, 799 F.3d 1318, 1321 (11th Cir. 2015) (citing United States v. Petite, 703 F.3d 1290, 1292 (11th Cir. 2013)). Constitutional challenges to a defendant's sentence are also reviewed de novo. United States v. Weeks, 711 F.3d 1255, 1259 (11th Cir. 2013) (citing United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005)).

         A. ...


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