Case: 16-13386   Date Filed: 07/11/2017   Page: 1 of 5


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-13386
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 0:15-cr-60224-WJZ-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                   versus

CALVIN FORD,

                                                         Defendant-Appellant.

                      ________________________

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

                             (July 11, 2017)

Before MARCUS, ROSENBAUM, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Calvin Ford appeals his total 180-month sentence for one count of felon in

possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1), and

one count of possession with intent to distribute a substance containing heroin and

a substance containing 28 grams of cocaine base, in violation of 21 U.S.C.

§§ 841(a)(1), (b)(1)(B)–(C). On appeal, Ford argues that the district court erred by

applying the career offender enhancement in calculating his advisory guidelines

range. Ford argues that the career offender guideline’s residual clause is

unconstitutionally vague in light of Johnson v. United States, 

(2015) (invalidating the residual clause of the Armed Career Criminal Act

(“ACCA”)), and that his Florida burglary of a conveyance with battery conviction

does not qualify under either the elements or the enumerated offenses clauses. In

an issue heading, Ford states that recent the amendments to the Sentencing

Guidelines should apply retroactively to his case, but he raises no arguments in

support of this position.

      We review “de novo whether a defendant’s prior conviction qualifies as a

‘crime of violence’ under the Sentencing Guidelines.” United States v. Harris, 

, 1284 (11th Cir. 2009). A party seeking to raise a claim or issue on

appeal must indicate so plainly and prominently. United States v. Jernigan, 

, 1283 n.8 (11th Cir. 2003) (noting that passing references to an




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argument are insufficient to raise it on appeal). If a party has not done so, we

consider the argument abandoned. 

Sentencing Guidelines, a defendant is designated as a “career

offender” if (1) he was at least 18 years old when he committed the instant offense,

(2) the instant offense was a crime of violence or a controlled substance offense,

and (3) he had at least two prior felony convictions for a crime of violence or a

controlled substance offense. U.S.S.G. § 4B1.1(a). The 2015 Sentencing

Guidelines defined a “crime of violence” as any offense punishable by

imprisonment for a term exceeding one year under state or federal law 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, arson, or extortion, involves use of explosives, or
             otherwise involves conduct that presents a serious potential risk
             of physical injury to another.

U.S.S.G. § 4B1.2(a) (2015). The first prong of this definition is referred to as the

“elements clause,” while the second prong contains the “enumerated offenses

clause” and the “residual clause.” See United States v. Chitwood, 

,

975 (11th Cir. 2012). Amendment 798 to the Sentencing Guidelines amended the

definition of a “crime of violence” under U.S.S.G. § 4B1.2(a)(2). U.S.S.G. App.

C, amend. 798 (Supp. Aug. 1, 2016). The amended version of § 4B1.2(a)(2) no

longer includes the residual clause. 

states that it does not

apply retroactively to sentences imposed prior to August 1, 2016. 

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      The Sentencing Guidelines are advisory rather than mandatory. United

States v. Booker, 

, 245 (2005). However, sentencing courts must still

determine a defendant’s applicable guidelines range under the Sentencing

Guidelines before imposing a sentence. United States v. Kinard, 

,

1297 (11th Cir. 2006).

      We have held that Florida burglary qualifies as a predicate offense under the

residual clause of the crime of violence definition. United States v. Matchett, 

, 1196–97 (11th Cir. 2015) (holding that Florida burglary of an

unoccupied dwelling qualifies as a crime of violence under the residual clause

because it involves conduct that presents a serious potential risk of physical injury

to another); United States v. Matthews, 

, 1275 (11th Cir. 2006)

(holding that Florida third-degree burglary qualified as a predicate offense under

the residual clause of the ACCA’s violent felony definition).

      In Johnson, the Supreme Court held that the residual clause of the ACCA

was unconstitutionally vague because it created uncertainty about (1) how to

evaluate the risks posed by the crime and (2) how much risk it takes for a crime to

qualify as a violent 

–58. Subsequently, in Matchett, we

held that Johnson did not apply to the residual clause of the definition of a crime of

violence under the Sentencing 

. We determined that

Johnson was limited by its own terms to “criminal statutes that define[d] elements


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of a crime or fixed punishments.” 

held that the Sentencing

Guidelines were not subject to challenges based on vagueness. 

v.

United States, the Supreme Court confirmed our holding in Matchett by also

holding that the advisory Sentencing Guidelines are not subject to vagueness

challenges and that the residual clause contained in § 4B1.2(a)(2) of the Guidelines

was not void. Beckles v. United States, __ U.S. __, 

, 895 (2017).

        As an initial matter, Ford abandoned any argument that Amendment 798

should apply retroactively to his sentence. 

n.8.

        The district court did not err in sentencing Ford as a career offender. Ford

does not argue on appeal that his 2013 Florida conviction for burglary of a

conveyance with battery does not qualify as a crime of violence under the

Guidelines’ residual clause; instead, he argues only that the residual clause is void

for vagueness, and that argument is foreclosed by binding precedent from both this

Court and the Supreme Court. 

; 

.

        Accordingly, we affirm Ford’s 180-month sentence.

        AFFIRMED.




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