[DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                ________________________            FILED
                                                          U.S. COURT OF APPEALS
                                       No. 10-12923         ELEVENTH CIRCUIT
                                   Non-Argument Calendar        APRIL 15, 2011
                                 ________________________        JOHN LEY
                                                                   CLERK
                            D.C. Docket No. 0:09-cr-60327-WJZ-1

UNITED STATES OF AMERICA,

lllllllllllllllllllll                                          Plaintiff-Appellee,

                                            versus

WINEX EUGENE,

lllllllllllllllllllll                                          Defendant-Appellant.

                                 ________________________

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

                                       (April 15, 2011)

Before TJOFLAT, CARNES and KRAVITCH, Circuit Judges.

PER CURIAM:

         Winex Eugene pleaded guilty to distributing 5 grams or more of cocaine, in

violation of 21 U.S.C. § 841(a)(1), carrying a firearm in relation to a drug
trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A), and possessing

firearms and ammunition as a convicted felon, in violation of 18 U.S.C.

§ 922(g)(1). If a person is convicted of a felony controlled substance offense or

felony crime of violence that he committed over the age of 18, like Eugene was,

and he has two prior felony convictions that were either crimes of violence or

controlled substance offenses, he is classified as a career offender under the

sentencing guidelines. U.S.S.G. § 4B1.1(a). The district court determined that

Eugene’s two prior Florida convictions for felony battery and strong arm robbery

were “crimes of violence” under the sentencing guidelines, U.S.S.G. § 4B1.2(a),

and he was classified as a career offender, which increased his guidelines range

from between 188 and 235 months’ imprisonment to between 262 and 327

months’ imprisonment. Eugene was sentenced to 262 months’ imprisonment.

      Eugene appeals from his sentence and asks that we determine whether his

prior Florida felony convictions for battery and strong arm robbery are crimes of

violence under the guidelines.

                                         II.

      As part of his plea agreement, Eugene waived his right to appeal his

conviction and all but three issues related to his sentence. Under the agreement,

Eugene could appeal any sentence imposed above the statutory maximum for the

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offense or as the result of an upward departure or variance from the guidelines.

Eugene could also appeal the trial court’s conclusion that his conviction for felony

battery under Florida state law was a crime of violence under the sentencing

guidelines. Eugene raises that last issue on appeal, but also asks us to decide

whether his Florida conviction for strong arm robbery is a crime of violence. The

government argues that we should not consider the latter issue because Eugene

waived his right to appeal it. We agree.

      We review the validity of a sentencing appeal waiver de novo. United

States v. Johnson, 

, 1066 (11th Cir. 2008). The waiver must be

made knowingly and voluntarily. 

will be valid if the government

can show that the district court specifically questioned the defendant about the

waiver or that the record makes it clear that the defendant understood the

significance of the waiver. 

change-of-plea hearing, the district court asked him if he

understood that he had a right to appeal and that he would waive that right subject

to certain conditions as part of the plea agreement. Eugene responded that he

understood the waiver and its conditions and that he still wished to waive his right

to appeal. He also said that he was waiving his right to appeal voluntarily.




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       Because we conclude that Eugene waived his right to appeal knowingly and

voluntarily, and the question whether his conviction for strong arm robbery is a

crime of violence was not an exception to the waiver, we dismiss that portion of

his appeal. Because Eugene preserved his right to appeal whether Florida’s felony

battery law is a crime of violence under the sentencing guidelines, we now turn to

that issue.

                                          III.

       We review de novo whether a defendant’s earlier conviction is a crime of

violence under the sentencing guidelines. United States v. Harris, 

,

1284 (11th Cir. 2009).

       The sentencing guidelines define a crime of violence as

       any offense, under federal or state law, punishable by imprisonment for a
       term exceeding one year, that (1) has as an element the use, attempted use,
       or threatened use of physical force against the person of another, or (2) is
       burglary of a dwelling, arson, or extortion, involves use of explosive, or
       otherwise involves conduct that presents a serious potential risk of physical
       injury to another.

U.S.S.G. § 4B1.2(a). The district court concluded that Eugene’s Florida

conviction for felony battery was a crime of violence under the guidelines. Under

Florida law, a person is guilty of felony battery if he “(a) actually or intentionally

touches or strikes another person against the will of the other; and (b) causes great



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bodily harm, permanent disability, or permanent disfigurement.” Fla. Stat.

§ 784.041.

      The Supreme Court recently considered whether Florida’s simple battery

statute, Fla. Stat. § 784.03, was a violent felony under the Armed Career Criminal

Act (ACCA), 18 U.S.C. § 924(c). Johnson v. United States, 

, 1268

(2010). Because the definitions of “violent felony” under ACCA and “crime of

violence” under the sentencing guidelines are virtually identical, we consider

cases interpreting one as authority in cases interpreting the other. United States v.

Alexander, 

, 1253 (11th Cir. 2010).

      In Johnson, the Supreme Court concluded that Florida’s simple battery

statute was not necessarily a violent felony because a person could be convicted of

the offense based on any unwanted, intentional physical contact, “no matter how

slight.” 

(quoting State v. Hearns, 

, 218

(Fla. 2007)). After reviewing the plain language of the statute, the Supreme Court

defined “physical force” in the context of ACCA’s definition of “violent felony”

as “violent force—that is, force capable of causing physical pain or injury to

another person.” 

see also United States v. Harris, 

,

1226 (11th Cir. 2010). The Supreme Court reasoned that the minimal contact that




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could result in a simple battery conviction was not “physical force,” and thus not

every conviction for simple battery in Florida was a violent felony under ACCA.

      Although Florida’s felony battery statute contains the same “actually and

intentionally touching” language as the simple battery statute, the felony battery

statute has an additional requirement. Compare Fla. Stat. § 784.041 with 

The felony battery statute also requires that the touching “cause[] great

bodily harm, permanent disability, or permanent disfigurement.” Fla. Stat.

§ 784.041. That language means that each touching that violates the felony

battery statute is not only “capable of causing physical pain or injury to another

person,” 

, it must also actually cause great or

permanent physical harm or injury to another person. See Fla. Stat.§ 784.041.

Thus it is impossible for one to be convicted of felony battery in Florida without

having used “physical force” as defined in Johnson.

      Because it is clear that Florida’s felony battery statute, Fla. Stat.§ 784.041,

requires the use of force capable of causing physical pain or injury to another,

Eugene’s prior conviction under the statute was for a crime of violence. And

because that means Eugene had two prior felony convictions for crimes of

violence, he was appropriately classified as a career offender under the guidelines.

Accordingly, we affirm his sentence.

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DISMISSED IN PART, AFFIRMED IN PART.




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