from the United States District Court for the Southern
District of Florida D.C. Docket No. 1:15-cr-20970-DMM-1
JORDAN and JILL PRYOR, Circuit Judges, and REEVES, [*] District Judge.
REEVES, District Judge:
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.
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)).
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.
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
(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
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.
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)).