Case: 12-14187   Date Filed: 08/05/2013   Page: 1 of 9




                                                            [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                No. 12-14187
                            Non-Argument Calendar
                          ________________________

                  D.C. Docket No. 8:11-cr-00178-JDW-MAP-1



UNITED STATES OF AMERICA,

                                                         Plaintiff-Appellee,

                                    versus

DEVON TURNER,
a.k.a. Devante Turner,

                                                         Defendant-Appellant.

                          ________________________

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

                               (August 5, 2013)

Before DUBINA, MARCUS and KRAVITCH, Circuit Judges.

PER CURIAM:
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      Appellant Devon Turner appeals his 110-month sentence for three counts of

being a felon in possession of firearms and ammunition, in violation of 18 U.S.C.

§ 922(g)(1), imposed after the district court determined that Turner had two prior

“crimes of violence” as defined by the career offender guidelines. On appeal,

Turner argues, and the government agrees, that the district court plainly erred in

counting as a crime of violence Turner’s sexual battery of a minor conviction,

under Florida law. See Fla. Stat. § 800.04(3) (1994). As additional error, Turner

argues that the district court should not have counted his prior first-degree burglary

conviction as a crime of violence because the residual clause of the career offender

guidelines is unconstitutionally vague.

      Ordinarily, we review de novo whether a particular conviction is a crime of

violence under the career offender provisions of the Sentencing Guidelines.

United States v. Lockley, 

, 1240 (11th Cir.), cert. denied, 

 (2011). However, we “consider sentence objections raised for the first time on

appeal under the plain error doctrine to avoid manifest injustice.” United States v.

Hansley, 

, 715 (11th Cir. 1995) (internal quotation marks omitted).

      “For the Court to correct plain error: (1) there must be error; (2) the error

must be plain; and (3) the error must affect substantial rights.” United States v.

Stevenson, 

, 1294 (11th Cir. 1995). If the first three conditions are

met, we may exercise our discretion to “notice a forfeited error, but only if (4) the


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error seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” United States v. Rodriguez, 

, 1298 (11th Cir. 2005)

(internal quotation marks omitted). “‘Plain’ is synonymous with ‘clear’ or,

equivalently, ‘obvious.’” United States v. Olano, 

, 734, 

, 1777 (1993). For an error to affect substantial rights, it “must have affected

the outcome of the district court proceedings.” Id. at 734, 113 S. Ct. at 1778.

      Under the career offender guidelines, an offense “can be a crime of violence

if it fits within one of three categories.” United States v. Chitwood, 

,

975 (11th Cir.), cert. denied, 

 (2012). The first category covers

offenses under the “elements clause,” which have “as an element the use,

attempted use, or threatened use” of violent physical force against another.

U.S.S.G. § 4B1.2(a)(1); see United States v. Harris, 

, 1225 (11th

Cir. 2010) (equating “physical force” with “violent force,” pursuant to Johnson v.

United States, 

, 140‒41, 

, 1271 (2010)). The second

category covers the offenses listed in the enumerated crimes clause: burglary of a

dwelling, arson, extortion, and crimes involving the use of explosives. U.S.S.G.

§ 4B1.2(a)(2). The third category covers the “residual clause” crimes that

“otherwise involve[] conduct that presents a serious potential risk of physical

injury to another.” Id. (alteration added). Because the Armed Career Criminal Act

(ACCA) provides a definition for “violent felony” that is “virtually identical” to


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the definition of a crime of violence under the career offender guidelines, we have

indicated that “decisions about one apply to the other.” Gilbert v. United States,

, 1309 n.16 (11th Cir. 2011) (en banc), cert. denied, 

(2012).

      We utilize two different approaches in determining whether a crime falls

within the elements clause or the residual clause: the categorical and the modified

categorical approaches. Chitwood, 676 F.3d at 975–76. Under the categorical

approach to the residual clause, we first focus on whether the offense at issue

inherently “poses a serious potential risk of physical injury that is similar in kind

and in degree to the risks posed by the enumerated crimes.” United States v.

Owens, 

, 968–69 (11th Cir. 2012) (internal quotation marks omitted).

Then, we ask “whether the conduct at issue in the statute is purposeful, violent and

aggressive” or is instead “a more passive crime of inaction.” Chitwood, 676 F.3d

at 978 (internal quotation marks omitted); see id. at 978–79 (holding that the

inquiry into whether conduct is “purposeful, violent and aggressive” is limited to

strict liability, negligence, and recklessness offenses).

      We use the modified categorical approach to the residual clause “when the

law under which a defendant has been convicted contains different statutory

phrases—some of which [qualify as crimes of violence] and some of which do

not.” United States v. Pantle, 

, 1175 (11th Cir.), cert. denied, 132 S.


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Ct. 1091 (2012) (internal quotation marks omitted) (alteration in original). The

modified categorical approach permits us to look to the specific facts of a

defendant’s conviction. Id. at 1175‒76; see also Johnson, 559 U.S. at 145, 130 S.

Ct. at 1273 (further noting that “the absence of records” often frustrates this

inquiry). When applying the modified categorical approach, sentencing courts are

“generally limited to examining the statutory definition, charging document,

written plea agreement, transcript of plea colloquy, and any explicit factual finding

by the trial judge to which the defendant assented.” Shepard v. United States, 

, 16, 

, 1257 (2005); see Pantle, 637 F.3d at 1175.

      The statute and subsection under which Turner was convicted prohibits

sexual battery upon any child under the age of 16. Fla. Stat. § 800.04(3) (1994).

“‘Sexual battery’ means oral, anal, or vaginal penetration by, or union with, the

sexual organ of another or the anal or vaginal penetration of another by any other

object . . . .” Fla. Stat. § 794.011(1)(h) (1994). Section 800.04(3) is a strict

liability offense; therefore, consent is irrelevant and not a defense. Fla. Stat.

§ 800.04 (1994); State v. Sorakrai, 

, 295 (Fla. Dist. Ct. App. 1989)

(“It is our judgment that conduct violative of section 800.04 carries with it the

same concept of ‘strict liability’ that has traditionally characterized ‘statutory

rape.’”).

      In Harris, we held that a conviction under Fla. Stat. § 800.04(3) (1996),


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identical to the version under which Turner was convicted, is not categorically a

violent felony under the ACCA’s residual clause. Harris, 608 F.3d at 1233. The

government has conceded in its brief that a violation of this state law is not a crime

of violence under the ACCA’s elements clause.

      Turner concedes that, because he never objected to the district court’s

guideline calculation, his arguments on appeal should be reviewed for plain error.

Because the district court did not articulate a basis for its implicit decision that

Turner’s § 800.04(3) conviction is a crime of violence, we review Turner’s

conviction under each of the three aforementioned analysis categories. See

Chitwood, 676 F.3d at 975.

      We conclude from the record that the district court plainly erred in treating

Turner’s conviction under § 800.04(3) as a crime of violence under the elements

clause of the career offender guidelines because violent force is not an element of

the offense. Like the statutory rape offense in Owens, a violation of § 800.04(3)

requires physical contact, but it does “not require, as an element, the use of violent

physical force against the victim.” See Owens, 672 F.3d. at 970–71. The elements

the government must establish are the age of the offender, that sexual intercourse

occurred, and that the victim was too young to give legal consent. Compare Fla.

Stat. § 800.04(4) (1994) (prohibiting anyone from “engag[ing] in sexual activity”

with a person between 12 and 16 years of age), with, e.g., Fla. Stat.


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§ 794.011(4)(a)–(b) (1994) (criminalizing sexual battery of nonminors that is

achieved by physical overpowering or threat of violence). Unlike Florida statute

§ 794.011(4)(a)–(b), § 800.04(3) is violated by mere physical contact, not physical

force, and “the merest touching” or “the slightest penetration” does not show the

kind of physical force required for a crime of violence. See Owens, 672 F.3d at

971. Further, the government concedes that a violation of § 800.04(3) is not a

crime of violence under the elements clause. Accordingly, it was plain error to

treat Turner’s Florida conviction under § 800.04(3) as a crime of violence under

the elements clause of the career offender guidelines.

      Because Turner’s offense is not an enumerated crime of violence, see

U.S.S.G. § 4B1.2(a)(2), his conviction may only support a career offender

enhancement if it fits within U.S.S.G. § 4B1.2(a)(2)’s residual clause, under either

the categorical or the modified categorical approach.

      Under the categorical approach to the residual clause, we conclude that to

treat Turner’s Florida conviction under § 800.04(3) as a crime of violence was also

plainly erroneous. See Harris, 608 F.3d at 1233. Although a violation of

§ 800.04(3) “involves conduct that presents a serious potential risk of physical

injury to another,” the statute “covers a wide array of conduct” and not all such

conduct qualifies as a crime of violence. See id. at 1229, 1232 (explaining that

§ 800.04(3) “criminaliz[es] conduct in respect to which the offender need not have


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had any criminal intent at all”). Accordingly, “a violation of Florida statute

§ 800.04(3) generally—without further specifics—is not a crime of violence”

under the residual clause of the career offender guidelines. See id. at 1233.

      As for the modified categorical approach to the residual clause, the

government concedes that it “presented no evidence at sentencing regarding the

facts of Turner’s conviction” to show that Turner’s offense qualified as a crime of

violence. Without the government’s introduction of Shepard-approved documents,

it was plain error to conclude that Turner’s Florida conviction under § 800.04(3)

was a crime of violence under the residual clause. United States v. Dunlap, 

, 967 (11th Cir. 2002) (holding that “the lack of evidentiary foundation for

the application of [a guideline enhancement] is error; [and] it is plain”).

      Although the district court plainly erred in treating Turner’s Fla. Stat.

§ 800.04(3) conviction as a crime of violence, we will not vacate his sentence

unless the error affected his substantial rights. See Rodriguez, 398 F.3d at 1298.

Here, without the career offender enhancement, Turner’s guideline range would be

reduced by four offense levels. Turner’s imposed sentence of 110 months is at the

low end of the incorrect guideline range, and there is a reasonable probability that

the district court would have sentenced him differently if the correct offense level

had been used. See United States v. Bennett, 

, 835 (11th Cir. 2006)

(vacating and remanding sentence because district court plainly erred in using a


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total offense level of 32 instead of 31). Accordingly, we conclude that the plain

error affected Turner’s substantial rights, and, and for that reason, we must vacate

his sentence and remand for resentencing.

      Turner asserts, for the first time on appeal and to preserve the argument

pending a potential Supreme Court decision, that the residual clause in the career

offender guidelines is unconstitutionally vague. Accordingly, Turner argues, his

first-degree burglary conviction should not be treated as a crime of violence. This

argument is unavailing. The Supreme Court has held that the violent felony

residual clause in the ACCA “states an intelligible principle and provides guidance

that allows a person to conform his or her conduct to the law.” United States v.

Sykes, ___ U.S. ___, ___, 

, 2277 (2011) (internal quotation marks

omitted). This Court has subsequently determined that Sykes “appears to foreclose

a conclusion, . . . that the residual clause is unconstitutionally vague.” Chitwood,

676 F.3d at 978 n.3. Thus, we conclude that the district court did not plainly err in

treating Turner’s Florida burglary conviction as a crime of violence under the

career offender guidelines.

      For the aforementioned reasons, we vacate Turner’s sentence and remand

this case to the district court for resentencing consistent with this opinion.

      VACATED and REMANDED.




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