Case: 17-12999   Date Filed: 07/27/2020   Page: 1 of 7



                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-12999
                        Non-Argument Calendar
                      ________________________

                D.C. Docket Nos. 4:16-cv-00368-RH-CAS,
                       4:13-cr-00103-RH-CAS-1


MICHAEL TOWNSEND ANTHONY,

                                                        Petitioner - Appellant,

                                 versus


UNITED STATES OF AMERICA,

                                                       Respondent - Appellee.

                      ________________________

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

                             (July 27, 2020)

Before WILSON, MARTIN, and ROSENBAUM, Circuit Judges.

PER CURIAM:
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      Michael Anthony is a federal prisoner serving a 188-month sentence for

being a felon in possession of a firearm. Anthony’s sentence was longer because

of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). After the

Supreme Court issued Johnson v. United States, 576 U.S. ___, 

(2015), Anthony moved to vacate, set aside, or correct his sentence under 28

U.S.C. § 2255, arguing that his ACCA sentence was invalid. The district court

denied his motion, but granted a certificate of appealability. After careful review,

we affirm. We also grant Anthony’s counsel’s motion to withdraw and deny

Anthony’s request for appointment of new counsel.

                                          I.

      In 2014, Anthony pled guilty to one count of being a felon in possession of a

firearm in violation of 18 U.S.C. § 922(g). According to the pre-sentence

investigation report (“PSR”), Anthony had previously been convicted in Florida’s

Leon County Circuit Court of, among other crimes, two counts of armed robbery

and three counts of attempted armed robbery in 1993 and one count of aggravated

assault on a law enforcement officer in 2001. The ACCA requires that any person

who violates 18 U.S.C. § 922(g) and has three prior convictions for violent felonies

or serious drug offenses be subject to a mandatory minimum sentence of 15-years

imprisonment. 18 U.S.C. § 924(e)(1). Based on his prior convictions, the PSR




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said Anthony was subject to the 15-year mandatory minimum sentence under

ACCA.

      At the sentencing hearing, the district court adopted the portions of the PSR

related to Anthony’s prior convictions. The Court found that he was subject to

ACCA’s mandatory 15-year sentence and imposed a sentence of 188 months. On

direct appeal, we affirmed the district court’s rulings on certain evidentiary issues

and on the application of the Sentencing Guidelines. United States v. Anthony,

609 F. App’x 987, 989–90 (11th Cir. 2015) (per curiam) (unpublished).

      After the Supreme Court issued Johnson, Anthony moved to vacate his

sentence under 28 U.S.C. § 2255. He argued that his prior convictions did not

make him eligible for an ACCA sentence. Specifically, Anthony claimed his

Florida convictions for armed robbery, attempted armed robbery, and aggravated

assault qualified as ACCA predicates only under the statute’s residual clause,

which was found unconstitutional in Johnson. The district court denied his motion,

stating that under circuit precedent Anthony’s prior convictions qualified as violent

felonies under ACCA’s elements clause, § 924(e)(2)(b)(i), which Johnson did not

disturb. This appeal followed.

                                          II.

       Anthony’s counsel says we should reverse the district court because

Anthony’s prior conviction for Florida aggravated assault does not qualify as an


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ACCA predicate offense. Counsel acknowledges, however, that this argument

conflicts with binding circuit precedent. In Turner v. Warden Coleman FCI

(Medium), 

(11th Cir. 2013), abrogated on other grounds by

, this Court held that Florida aggravated assault

qualifies as a violent felony under ACCA’s elements clause.

Anthony says Turner was wrongly decided and should be reconsidered. But under

our Court’s prior panel precedent rule, we are bound by decisions of this Court

until they are “overruled or undermined to the point of abrogation by the Supreme

Court or by this court sitting en banc.” United States v. Archer, 

,

1352 (11th Cir. 2008); see also Smith v. GTE Corp., 

, 1303 (11th

Cir. 2001) (“[W]e categorically reject any exception to the prior panel precedent

rule based upon a perceived defect in the prior panel’s reasoning or analysis as it

relates to the law in existence at that time.”). We must therefore follow Turner.

See United States v. Golden, 

, 1257 (11th Cir. 2017) (per curiam)

(Jill Pryor, J., concurring in the result) (applying Turner as required by the prior

precedent rule despite apparent errors in Turner’s reasoning).

                                          III.

      Anthony’s counsel initially argued before the district court that his prior

convictions for Florida armed robbery and Florida attempted armed robbery in the

Leon County Circuit Court, a court within Florida’s First District, also do not


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qualify as ACCA predicate offenses. Counsel acknowledged on appeal, however,

that United States v. Fritts, 

, 941 (11th Cir. 2016), foreclosed this

argument.

      After the parties finished briefing this appeal, the Supreme Court granted

certiorari in Stokeling v. United States to resolve the same question Anthony’s

brief raised. See 

(Mem.). In response, we held Anthony’s appeal

in abeyance pending the Court’s decision. The Supreme Court has since decided

Stokeling, holding that Florida robbery qualifies as a violent felony under ACCA’s

elements clause. 586 U.S. __, 

, 555 (2019).

      In light of Stokeling, Anthony’s counsel submitted supplemental briefing on

his behalf, conceding his Florida armed robbery and Florida attempted armed

robbery convictions are ACCA predicate offenses. Later, though, counsel filed a

motion to withdraw, explaining that Anthony did not agree that Stokeling

foreclosed his argument.

      We asked Anthony to respond to his counsel’s motion to withdraw and

requested he raise any issues relevant to the district court’s denial of his § 2255

motion. Anthony responded by arguing only that his prior Florida robbery

convictions do not qualify as violent felonies under the ACCA because they

occurred before the Florida Supreme Court’s opinion in Robinson v. State, 

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2d 883 (Fla. 1997). He asked this Court to appoint new counsel to brief this issue

on his behalf.

      We then held his appeal in abeyance pending issuance of the mandate in

Welch v. United States, 

(11th Cir. 2020) (per curiam), which

presented issues similar to those raised by Anthony. The mandate in Welch issued

on June 29, 2020. Welch v. United States, Case No. 14-15733, ECF No. 114. We

now conclude that we need not appoint new counsel to more fully brief Anthony’s

argument because it is without merit.

      As counsel acknowledged in the brief first submitted in this case, Anthony’s

argument is squarely foreclosed by prior panel precedent. See 

–44 (holding pre-Robinson Florida robbery convictions qualify as predicate

violent felonies under the ACCA). Stokeling did not abrogate or overrule—and

indeed supports—our prior precedent. And Welch reaffirmed that we remain

bound to hold that § 812.13 “has always required force sufficient to overcome a

victim’s resistance.” 

. This is so even if that leads us to

the “absurd result” of affirming ACCA enhancements based on pre-Robinson

convictions in Florida districts which affirmed robbery convictions predicated on

force too slight to satisfy the ACCA’s elements clause.

(Rosenbaum, J. concurring).




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       Because of the conflict between Anthony and his counsel, we grant

counsel’s motion to withdraw. And because we have already addressed the only

additional argument Anthony wishes to raise on appeal—an argument that is

squarely foreclosed by this Court’s precedent and therefore meritless—we deny his

request for appointment of new counsel.

                                            IV.

       The district court’s denial of Anthony’s § 2255 motion is AFFIRMED. 1

Anthony’s counsel’s motion to withdraw is GRANTED, and Anthony’s request

for substitute counsel is DENIED.




       1
      We need not address the government’s alternative argument that Anthony qualifies for
an ACCA sentence even without his prior aggravated assault conviction.
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