Appeals from the United States District Court for the
Southern District of Florida D.C. Docket Nos.
MARTIN, JORDAN, and GINSBURG, [*] Circuit Judges.
Armed Career Criminal Act, 18 U.S.C. § 924(e), imposes a
15-year minimum sentence on a defendant who is convicted of
violating 18 U.S.C. § 922(g) (possession of a firearm by
a convicted felon) and has three prior convictions for a
"violent felony" or "serious drug
offense." The ACCA defines a "violent felony"
as any crime punishable by imprisonment greater than one year
(i) has as an element the use, attempted use, or threatened
use of physical force against the person of another [elements
(ii) is burglary, arson, or extortion, involves use of
explosives [enumerated clause], or otherwise involves conduct
that presents a serious potential risk of physical injury to
another [residual clause].
§ 924(e)(2)(B). In 2015, the Supreme Court held that the
ACCA's residual clause was unconstitutionally vague.
See Johnson v. United States, 135 S.Ct. 2551, 2557-
60 (2015). The following year, the Court held that
Johnson applied retroactively on collateral review.
See Welch v. United States, 136 S.Ct. 1257, 1268
Lee was convicted in 2010 of being a felon in possession of a
firearm and sentenced to 15 years in prison under the ACCA.
In June of 2016, Mr. Lee filed a motion to vacate his
criminal sentence under 28 U.S.C. § 2255 in light of
Johnson and Welch. Mr. Lee argued that,
because the residual clause could not be used to characterize
a prior conviction as a violent felony, he no longer had
three predicate violent felony or serious drug offense
convictions. As a result, he did not qualify as an armed
career criminal, and he could not be subject to an
August of 2016, the district court granted Mr. Lee's
motion and vacated his 15-year sentence, and on October 5,
2016, it re-sentenced Mr. Lee to 85 months in prison. The
government appealed, arguing that Mr. Lee's prior
convictions still qualify as ACCA violent felonies.
to his federal conviction in 2010, Mr. Lee had three
convictions for Florida robbery (two in 1988 and one in 1999)
and one conviction for the sale, purchase, or delivery of
cocaine. In order for Mr. Lee to qualify as an armed career
criminal, then, at least two of his Florida robbery
convictions must qualify as violent felonies.
the ACCA's residual clause is no longer valid, and
robbery is not an enumerated offense, Florida robbery must
qualify under the ACCA's "elements clause" in
order for it to be a violent felony. That, in turn, requires
Florida robbery to have "the use, attempted use, or
threatened use of physical force" as an element of the
crime. See § 924(e)(2)(B)(i). Mr. Lee argues
that (1) Florida robbery does not satisfy this test, and,
therefore, is never a violent felony; and (2) pre-1997
Florida robbery convictions do not satisfy this test, even if
later ones do.
district court agreed with the second of these arguments. It
concluded that at least two of Mr. Lee's Florida robbery
convictions did not constitute violent felonies, and
accordingly vacated Mr. Lee's ACCA-enhanced sentence.
for Mr. Lee, both of his arguments are now foreclosed by our
precedents, and we are therefore required to reverse the
district court's vacatur of his 15-year ACCA sentence.
Under our prior panel precedent rule, "the holding of
the first panel to address an issue is the law of this
Circuit, thereby binding all subsequent panels unless and
until the first panel's holding is overruled by the Court
sitting en banc or by the Supreme Court." Smith v.
GTE Corp., 236 F.3d 1292, 1300 n.8 (11th Cir.
2006, we held, albeit in a single sentence unsupported by any
legal analysis, that Florida robbery is "undeniably . .
. a violent felony, " and in so doing we cited to the
ACCA's elements clause. See United States v.
Dowd, 451 F.3d 1244, 1255 (11th Cir. 2006) (involving a
1974/pre-Robinson robbery conviction). In 2011, we
held that Florida robbery qualified as a crime of violence
under the elements clause of § 4B1.2(a)(1) of the
Sentencing Guidelines. See United States v. Lockley,
632 F.3d 1238, 1245 (11th Cir. 2011). As in Dowd,
our discussion of the elements clause in Lockley was
brief and conclusory, and the panel did not analyze Florida
case law. See id. at 1244 (stating "we can
conceive of no means by which a defendant could cause such
fear absent a threat to the victim's person").
Unlike Dowd, Lockley involved a
2001/post-Robinson robbery conviction.
argues that Dowd is no longer good law. He contends
that later Supreme Court cases have provided a detailed
analytical framework for courts to use in determining whether
a particular state conviction qualifies as a violent felony.
See Curtis Johnson v. United States, 559 U.S. 133
(2010); Moncrieffe v. Holder, 133 S.Ct. 1678 (2013);
Descamps v. United States, 133 S.Ct. 2276 (2013);
Mathis v. United States, 136 S.Ct. 2243 (2016).
Because Dowd pre-dated these cases, and because the
panel in Dowd performed no legal analysis
whatsoever, much less the analysis he says is commanded by
the Supreme Court, Mr. Lee argues that the holding in
Dowd has been abrogated. Mr. Lee also asserts that
pre-Robinson convictions for Florida robbery do not
qualify as violent felonies, which would mean, in his case,
that Lockley does not bind us.
Lee's arguments have some force. See, e.g., United
States v. Seabrooks, 839 F.3d 1326, 1346-52 (11th Cir.
2016) (Martin, J. concurring in the judgment). Were we free
to evaluate them anew, we might well agree with him. But we
have recently rejected both of Mr. Lee's arguments.
October of 2016, two months after the district court vacated
Mr. Lee's sentence (and subsequent to each of the Supreme
Court cases cited by Mr. Lee), we held in Seabrooks
that Lockley remained binding precedent, and that a
post-Robinson conviction for Florida robbery
remained a violent felony under the ACCA's elements
clause. See id. at 1338. The Seabrooks
panel disagreed about whether Dowd remained binding
precedent, and about whether pre-Robinson Florida
robbery convictions qualified as convictions for a violent