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                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-15935
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:16-cr-20094-RNS-1

UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,


                                   versus


DESMOND SHOTWELL,

                                                          Defendant-Appellant.

                      ________________________

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

                            (September 13, 2017)

Before ROSENBAUM, JILL PRYOR, and DUBINA, Circuit Judges.

PER CURIAM:
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      Appellant Desmond Shotwell appeals his 180-month sentence, imposed after

pleading guilty to one count of possession of a firearm and ammunition by a

convicted felon, pursuant to 18 U.S.C. §§ 922(g)(1) and 924(e). He argues that the

district court erred by sentencing him as an armed career criminal based on three

Florida robbery convictions. Specifically, Shotwell contends that the Florida

robbery conviction does not qualify under the Armed Career Criminal Act’s

(“ACCA”) elements clause because violent force is not required to commit robbery

when it can be committed with minimal force. Thus, he argues that because

Florida’s robbery statute requires less than the Supreme Court’s definition of

violent force, the statute is broader than the generic offense.

      We review de novo the district court’s conclusion that a particular offense

constitutes a “violent felony” under 18 U.S.C. § 924(e). United States v.

Wilkerson, 

, 1325 (11th Cir. 2002).

      Under the ACCA, any person who violates 18 U.S.C. § 922(g), and has 3

previous convictions for a violent felony or a serious drug offense, is subject to a

mandatory minimum sentence of 15 years’ imprisonment. 18 U.S.C. § 924(e)(1).

The ACCA defines the term “violent felony” as any crime punishable by a term of

imprisonment 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



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             (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 first prong of this definition is sometimes referred

to as the “elements clause,” while the second prong contains the “enumerated

crimes” and, finally, what is commonly called the “residual clause.” United States

v. Owens, 

, 968 (11th Cir. 2012).

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

unconstitutionally vague because it creates uncertainty about how to evaluate the

risks posed by a crime and how much risk it takes to qualify as a violent felony.

Johnson v. United States, 

, 2557-58, 2563 (2015). The Supreme

Court clarified that, in holding that the residual clause is void, it did not call into

question the application of the elements clause and the enumerated crimes of the

ACCA’s definition of a violent felony. 

      In 1922, the Florida Supreme Court stated that the distinction between

robbery and larceny was the addition to mere taking, of a contemporaneous or

precedent force, violence, or of an inducement of fear for one’s physical safety.

Montsdoca v. State, 

, 159 (1922). It stated that “[t]here can be no

robbery without violence, and there can be no larceny with it. It is violence that

makes robbery an offense of greater atrocity than larceny.” 

the

Florida Supreme Court determined that any degree of force would suffice to


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convert larceny into a robbery. McCloud v. State, 

, 258-59 (Fla.

1976). It stated that “[w]here no force [wa]s exerted upon the victim’s person, as

in the case of a pickpocket, only a larceny [wa]s committed.” 

It

determined that because evidence at trial indicated that McCloud had gained

possession of his victim’s purse not by stealth, but by exerting physical force to

extract it from her grasp, the evidence was adequate to support a verdict of

robbery. 

Supreme Court called the incident a “purse-snatching

episode.” 

n.5. Subsequently, a Florida appellate court upheld a Florida

robbery conviction in 1986, stating that the facts of this case, “unlike picking a

pocket or snatching a purse without any force or violence, show sufficient force, be

it ever so little, to support robbery.” Santiago v. State, 

, 976 (Fla.

Dist. Ct. App. 1986) (citing 

).

      Our court stated that prior to 1997, Florida’s intermediate appellate courts

were divided as to whether a sudden snatching amounted to robbery under Fla.

Stat. Ann. § 812.13. See United States v. Welch, 

, 1311 & n.29 (11th

Cir. 2012) (citing cases from Florida’s First, Second, Third, and Fifth Districts).

In 1997, the Florida Supreme Court held that mere snatching of property did not

amount to robbery under § 812.13 unless the perpetrator employed force greater

than that necessary simply to remove the property from the person. Robinson v.

State, 

, 886 (Fla. 1997). The Florida Supreme Court stated that


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“[i]n accord with our decision in McCloud,” we determined that “in order for the

snatching of property from another to amount to robbery, the perpetrator must

employ more than the force necessary to remove the property from the person.”

court explained that the Florida robbery statute required

“resistance by the victim that is overcome by the physical force of the offender.”

our court addressed whether a 2001 Florida attempted-robbery

conviction qualified as a crime of violence under the elements clause of the career-

offender provision of the Sentencing Guidelines. United States v. Lockley, 

, 1240 (11th Cir. 2011); see also United States v. Alexander, 

, 1253 (11th Cir. 2010) (providing that “[c]onsidering whether a crime is a

violent felony under the ACCA is similar to considering whether a conviction

qualifies as a crime of violence under U.S.S.G. § 4B1.2(a) because the definitions

for both terms are virtually identical”) (quoting United States v. Taylor, 

, 1113 (11th Cir. 2007)). We determined that Lockley’s 2001 Florida

attempted-robbery conviction categorically constituted a crime of violence under

the elements clause of the career-offender guideline. 

,

1244-45. See also United States v. Dowd, 

, 1255 (11th Cir. 2006)

(holding “without difficulty” that a 1974 conviction for Florida armed robbery was




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“undeniably a conviction for a violent felony” under the ACCA’s elements clause)

(emphasis added).

      Post-Johnson, our court relied on Lockley to determine that a 1997 Florida

robbery conviction constituted a violent felony under the ACCA. See United

States v. Seabrooks, 

, 1338-41 (11th Cir. 2016); 

(Baldock, J. concurring); 

, 1350-51 (Martin, J. concurring). Although

all three judges on the panel agreed on the ultimate result with respect to

Seabrooks’s 1997 armed robbery conviction, their reasoning differed, and they

disagreed about the continuing validity of Dowd and whether Lockley’s holding

applied to pre-1997 Florida robbery convictions. 

The narrowest

ground on which the members of the panel in Seabrooks agreed was that, under

Lockley, post-Robinson, Florida armed robbery convictions categorically qualify as

violent felonies under the ACCA’s elements clause. See 

(Baldock, J., concurring); 

(Martin, J., concurring).

      However, in Fritts, this court clarified that, under Dowd alone, a pre-

Robinson Florida armed robbery conviction qualifies as an ACCA violent felony

under the elements clause. United States v. Fritts, 

, 940 (11th Cir.

2016). We further determined that Lockley, Robinson, and other Florida Supreme

Court law supported the qualification of Florida armed robbery as a violent felony.

In response to Fritts’s argument that before the Florida Supreme


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Court’s 1997 decision in Robinson, only the slightest force was sufficient to

convict a defendant of Florida robbery, we pointed out that the Robinson court had

made clear that the § 812.13 robbery statute had never included a theft or taking by

mere snatching because snatching was theft only and did not involve the degree of

physical force needed to sustain a robbery conviction under § 812.13(1). 

We then cited Robinson, McCloud, and Montsdoca in support of that

proposition. 

We have reiterated that a defendant’s prior convictions

for armed robbery qualified as ACCA predicates under the elements clause. See

United States v. Burke, ___ F.3d ___, 

*4 (11th Cir. July 19,

2017) (citing Fritts); In re Thomas, 

, 1349 (11th Cir. 2016) (citing

Dowd); In re Moore, 

, 1271 (11th Cir. 2016) (citing Dowd and

Thomas).

      Thus, pursuant to our precedents, a Florida armed robbery conviction

qualifies as an ACCA violent felony under the elements clause. Hence, following

our precedents, we conclude that the district court did not err by sentencing

Shotwell as an armed career criminal based on his three Florida robbery

convictions. Florida’s robbery statute has always required violence beyond mere

snatching, and, therefore, has as an element the use, attempted use, or threatened

use of physical force against the person of another and qualifies as a violent felony




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under the elements clause of the ACCA. Accordingly, we affirm Shotwell’s 180-

month sentence.

      AFFIRMED.




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