[DO NOT PUBLISH]


                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT            FILED
                             ________________________ U.S. COURT OF APPEALS
                                                                     ELEVENTH CIRCUIT
                                    No. 09-12024                     DECEMBER 16, 2010
                              ________________________                   JOHN LEY
                                                                          CLERK
                          D. C. Docket No. 08-80113-CR-KLR

UNITED STATES OF AMERICA,


                                                                        Plaintiff-Appellee,

                                           versus

CHRISTOPHER C. HAYES,

                                                                     Defendant-Appellant.


                              ________________________

                      Appeal from the United States District Court
                          for the Southern District of Florida
                            _________________________

                                   (December 16, 2010)

                         ON PETITION FOR REHEARING

Before BARKETT and MARCUS, Circuit Judges, and HOOD,* District Judge.


       *
       Honorable Joseph M. Hood, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
PER CURIAM:

      Upon consideration of Defendant-Appellant’s petition for panel rehearing,

we vacate the prior opinion in this case, issued on August 24, 2010, and substitute

the following opinion in its place. In this opinion, we replace an incorrect reference

in the first paragraph of our original opinion to “possession of marijuana with

intent to distribute” with “aggravated battery.” We do not change the opinion in

any other respect. Accordingly, Defendant-Appellant’s petition for panel rehearing

is granted.

      Christopher Hayes appeals the enhanced sentence he received pursuant to

the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1), which imposes

a mandatory minimum of fifteen years’ imprisonment on an offender convicted of

being a felon in possession of a firearm, see 18 U.S.C. § 922(g)(1), when that

offender has three prior convictions “for a violent felony or a serious drug

offense,” 

Hayes does not dispute that his criminal record contains

two qualifying felonies -- attempted burglary of a dwelling and aggravated battery

-- but argues that his convictions for “knowingly and willfully resist[ing] . . . an[]

officer . . . in the lawful execution of a[] legal duty, by offering or doing violence

to the person of such officer,” Fla. Stat. § 843.01, and for battery on a law

enforcement officer, Fla. Stat. §§ 784.03 & 784.07, are not “violent felonies” of the



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kind that trigger ACCA’s mandatory minimum for armed career criminals.

      As an initial matter, the Supreme Court recently held that the Florida crime

of battery on a law enforcement officer is not a qualifying crime under ACCA,

Johnson v. United States, -- U.S. --, 

, 1271-72 (2010), rev’g United

States v. Johnson, 

(11th Cir. 2008), and so we must decide only

whether Hayes’s conviction for resisting an arresting officer with violence is a

“violent felony” for purposes of ACCA. The statute defines a “violent felony” as

“any crime punishable by imprisonment for a term exceeding one year” that

      (i) has as an element the use, attempted use, or threatened use of
      physical force against the person of another; or

      (ii) is burglary, arson, or extortion, involves use of explosives, or
      otherwise involves conduct that presents a serious potential risk of
      physical injury to another.

18 U.S.C. § 924(e)(2)(B).      The government argues that the Florida crime of

resisting an arresting officer with violence is a “violent felony” under either

statutory subsection. We have no occasion to consider today whether the crime

falls within subsection (B)(i), because we are satisfied that it falls well within the

residual clause contained in subsection (B)(ii). Accordingly, we conclude that the

district court did not error in enhancing Hayes’s sentence pursuant to ACCA.

      To determine whether a prior felony conviction falls within ACCA’s

residual clause, we interpret the crime of conviction using a categorical approach,

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“read[ing] the face of the relevant statute itself to discern the crime as it is

ordinarily committed.” United States v. Harris, 

, 1227 (11th Cir.

2010) (quotations, citation marks, and original alterations omitted).           We ask

whether the crime is “similar in kind and in degree to the enumerated crimes”

listed in subsection (B)(ii), namely, burglary, arson, and extortion. 

To that end, we ask whether the conduct inherent in the commission of

the crime is “purposeful, violent and aggressive,” Begay v. United States, 

, 146 (2008), “or, whether it is a more passive crime of inaction, such as

the failure to report to a penal institution or driving under the influence of alcohol,”

(citation omitted).

      Florida’s resisting arrest statute provides that “[w]hoever knowingly and

willfully resists, obstructs, or opposes any officer . . . in the lawful execution of

any legal duty, by offering or doing violence to the person of such officer or

legally authorized person, is guilty of a felony of the third degree.” Fla. Stat. §

843.01. This offense falls squarely within ACCA’s residual clause.

      In this kind of case, we rely on “our own common-sense analysis of whether

this conduct poses a serious potential risk of physical injury.” United States v.

Alexander, 

, 1257 (11th Cir. 2010).             Common sense tells us

emphatically that “[t]he act of resisting arrest poses a threat of direct confrontation



                                           4
between a police officer and the subject of the arrest, creating the potential for

serious physical injury to the officer and others.” United States v. Wardrick, 

, 455 (4th Cir. 2003).

       Furthermore, the plain language of the statute reveals that the Florida crime

of resisting arrest with violence is “purposeful, violent, and aggressive.” 

. Commission of the crime requires, by its own terms, that the

defendant have knowingly and willfully resisted, obstructed, or opposed an officer

by offering or doing violence to the person of that officer. Fla. Stat. § 843.01.

This crime thus shares with the other crimes enumerated in subsection (B)(ii) the

element of purposeful violence and aggression.1

       We have no difficulty concluding that one who commits the crime of

resisting arrest by knowingly and willfully offering or doing violence to an

arresting officer has committed a “violent felony” for purposes of ACCA, and that

such a person is properly subject to ACCA’s fifteen-year mandatory minimum

sentence as an “armed career criminal.” Cf. United States v. Almenas, 

           Inasmuch as the statute plainly requires that the defendant have acted knowingly and
willfully, we reject Hayes’s argument that § 843.01 is a strict liability offense that cannot qualify
as a predicate felony under ACCA. Cf. United States v. Harris, 

, 1224 (11th Cir.
2010) (acknowledging “the holding of Begay v. United States, 

, 143 (2008), that
strict liability crimes are not ‘roughly similar’ to burglary, arson, extortion, or an offense
involving the use of explosives and therefore do not come within the residual clause”). We add
that the Florida Supreme Court has characterized the statute as a general intent crime, not a strict
liability crime. See Frey v. State, 

, 921 (Fla. 1998).

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27, 33-35 (1st Cir. 2009); 

.

      AFFIRMED.




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