Case: 13-13523    Date Filed: 12/20/2017   Page: 1 of 4


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-13523
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 7:12-cr-00036-HL-TQL-1



UNITED STATES OF AMERICA,

                                                            Plaintiff - Appellee,

                                   versus


BACARI MCCARTHREN,

                                                         Defendant - Appellant.

                      ________________________

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

                            (December 20, 2017)

                  ON REMAND FROM THE
            SUPREME COURT OF THE UNITED STATES

Before MARTIN, ROSENBAUM, and JILL PRYOR Circuit Judges.

PER CURIAM:
              Case: 13-13523     Date Filed: 12/20/2017   Page: 2 of 4


      Bacari McCarthren’s petition for rehearing is GRANTED. We substitute

the following opinion for our original opinion.

      Bacari McCarthren pled guilty in 2013 to possession with intent to distribute

cocaine, in violation of 21 U.S.C. § 841(a). The district court sentenced him to the

statutory maximum penalty for that offense, 20 years of imprisonment, after

applying the career-offender enhancement under the United States Sentencing

Guidelines. See U.S.S.G. § 4B1.1. We affirmed McCarthren’s convictions and

sentence on direct appeal after his counsel filed a no-merit brief pursuant to Anders

v. California, 

(1967). See United States v. McCarthren, 575 Fed.

App’x 873 (11th Cir. 2014).

      McCarthren then petitioned for a writ of certiorari from the Supreme Court.

While his petition was pending, the Supreme Court decided Johnson v. United

States, 576 U.S. __, 

(2015). After Johnson, the Solicitor General

of the United States filed a memorandum with the Supreme Court stating the

government’s view that “the appropriate disposition is to grant certiorari, vacate

the judgment of the court of appeals, and remand the case for further consideration

in light of Johnson.” The Supreme Court followed the Solicitor General’s

concession, granted the petition, vacated our judgment, and remanded.

McCarthren v. United States, 

(2015) (mem.).




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      On remand, the government filed a motion to dismiss arguing that

McCarthren’s appeal is barred by the sentence-appeal waiver in his plea

agreement. The government, however, waived its right to assert the sentence-

appeal waiver by filing a memorandum with the Supreme Court recommending

that the Court GVR the case. See United States v. Story, 

, 231 (5th

Cir. 2006) (holding that appeal waivers are governed by contract law and can be

waived); Cf. Burgess v. United States, 

, 1299–1300 (11th Cir. 2017)

(characterizing a collateral-action waiver as an affirmative defense).

      We therefore reach the merits of McCarthren’s appeal. He contends that the

district court improperly applied the career-offender enhancement based in part on

a prior Florida conviction for aggravated assault, see Fla. Stat. § 784.021. In

Turner v. Warden Coleman FCI (Medium), this Court held that Florida aggravated

assault qualifies as a “crime of violence” for purposes of the elements clause of the

Armed Career Criminal Act, 18 U.S.C. § 924(e)(2). 

, 1337–38 (11th

Cir. 2013). McCarthren says that our decision in Turner has been abrogated by the

Supreme Court’s decision in Mathis v. United States, 

(2016), and

that, under Mathis, Florida aggravated assault is not a “crime of violence” for

purposes of the career-offender enhancement. See U.S.S.G. § 4B1.2. Although

“some members of our court have questioned the continuing validity of Turner,”

we remain bound to follow it. United States v. Golden, 

, 1257 (11th

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Cir. 2017) (per curiam); see 

J., concurring in result) (explaining

“why Turner’s holding was in tension with prior binding precedent and why, in

light of intervening Supreme Court decisions, Turner should be overruled”).

Because we are bound to follow Turner, McCarthren’s sentence is

      AFFIRMED.




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