Case: 18-10749   Date Filed: 06/11/2020   Page: 1 of 7



                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 18-10749
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 2:17-cr-00049-SPC-CM-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

JOVON ANTOINE MCCLURES,

                                                          Defendant-Appellant.

                       ________________________

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

                              (June 11, 2020)

Before WILLIAM PRYOR, Chief Judge, JILL PRYOR, and TJOFLAT, Circuit
Judges.

PER CURIAM:
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      Jovon McClures pled guilty to being a felon in possession of a firearm and

ammunition. McClures now challenges his 180-month sentence, arguing that the

enhancement to his sentence pursuant to the Armed Career Criminal Act

(“ACCA”), 18 U.S.C. § 924(e), was improper for three reasons. First, he argues

that his conviction for robbery under Fla. Stat. § 812.13(1) is not a “violent felony”

under the ACCA because he was convicted before Robinson v. State, 

(Fla. 1997), clarified the amount of force required to commit a robbery under

Florida law. Second, he argues that the robbery should not qualify as a previous

conviction under the ACCA because he was sentenced as a youthful offender.

Finally, he argues that his convictions for delivery of a controlled substance under

Fla. Stat. § 893.13 are not “serious drug offenses” under the ACCA because the

offenses did not require knowledge of the substance’s illegality. After

consideration, we reject McClures’s arguments and affirm his sentence.

                                          I.

      We first turn to McClures’s argument that his conviction for robbery under

Fla. Stat. § 812.13(1) is not a “violent felony” under the ACCA. We review de

novo whether a prior conviction is a predicate offense within the meaning of the

ACCA. United States v. James, 

, 1153 (11th Cir. 2005), overruled

on other grounds by Johnson v. United States, 

(2015).




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      Under the ACCA, a defendant convicted under 18 U.S.C. § 922(g) is subject

to a mandatory minimum 180-month sentence if he has 3 prior convictions for a

“violent felony” or “serious drug offense.” 18 U.S.C. § 924(e)(1). The ACCA

defines a “violent felony” as any crime punishable by an imprisonment term

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

      (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).

      To determine whether a prior conviction is a violent felony under the

“elements” clause, § 924(e)(2)(B)(i), we scrutinize the elements of the statute

under which the defendant was convicted. See United States v. Jones, 

, 1328 (11th Cir. 2018). If the statute requires the government to prove the

use, attempted use, or threatened use of physical force as an element of the offense,

then violation of the statute categorically constitutes a violent felony.

In making this determination, a court must consider the least culpable conduct

under the statute, regardless of the actual underlying facts of the defendant’s prior

conviction.

In this case, because we are reviewing state criminal

statutes, we are bound by the Florida Supreme Court’s interpretation of the



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offenses. Johnson v. United States, 

, 138, 

, 1269

(2010).

      In Florida, robbery is defined as follows:

      the taking of money or other property which may be the subject of larceny
      from the person or custody of another, with intent to either permanently or
      temporarily deprive the person or the owner of the money or other property,
      when in the course of the taking there is the use of force, violence, assault, or
      putting in fear.

Fla. Stat. § 812.13(1).

          In 1997, the Florida Supreme Court held in Robinson v. State that mere

snatching of property did not amount to robbery under § 812.13(1) unless the theft

included “resistance by the victim that is overcome by the physical force of the

offender.” 

, 886 (Fla. 1997). In Stokeling v. United States, the

Supreme Court concluded that, under that definition, Florida robbery qualifies as a

violent felony under the ACCA’s elements clause. 

, 550 (2019).

The Stokeling decision served to affirm the previous reasoning of this Circuit in

United States v. Fritts. 

(11th Cir. 2016). In Fritts, this Court

concluded that both pre- and post-Robinson Florida robbery convictions equally

qualify as violent felonies under the ACCA’s elements clause.

In

support of that holding, we reasoned that, in Robinson, the Florida Supreme Court




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was interpreting “what [the robbery] statute always meant,” rather than announcing

a new interpretation.1

       Putting these cases together, § 812.13(1), the Florida robbery statute, has

“always”2 required “resistance by the victim that is overcome by the physical force

of the offender,”3 and because that requirement qualifies robbery as a violent

felony under the ACCA, 4 we reject McClures’s argument that his pre-1997

Florida robbery conviction was not categorically a violent felony. He is not

entitled to relief on this ground.

                                                II.

       We next turn to McClures’s argument that, because he was sentenced as a

youthful offender, his robbery conviction does not qualify as a predicate offense

under the ACCA. In United States v. Wilks, we held that a defendant’s Florida

youthful offender convictions may qualify as ACCA predicate offenses. 
464 F.3d

1240
, 1243 (11th Cir. 2006). Thus, McClures’s argument is without merit.


       1  We noted that the Florida Supreme Court had clearly stated as early as 1922 that violent
force is required for a defendant to commit robbery in Florida.
 

McClures suggests
that viewing Robinson as a mere clarification of the robbery statute is specious, citing a variety
of pre-1997 robbery convictions that seemingly did not require the amount of force that
Robinson mandated. McClures has presented a compelling case that perhaps these pre-1997
robbery convictions were adjudicated incorrectly. But since our inquiry into whether a crime is
categorically violent focuses on the statutory definition of the crime, rather than any particular
factual scenario underlying a conviction, we cannot use the facts supporting these convictions to
overrule what the Florida Supreme Court has said the statute actually meant at the time. 
Jones,
906 F.3d at 1328
.
        2
          
Fritts, 841 F.3d at 943
.
        3
          
Robinson, 692 So. 2d at 886
.
        4 
Stokeling, 139 S. Ct. at 550
.



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Though McClures argues that Wilks was wrongly decided, it is still binding

precedent in this Circuit under our prior panel precedent rule, and we must adhere

to it. See United States v. Steele, 
147 F.3d 1316
, 1317–18 (11th Cir. 1998) (en

banc). McClures is not entitled to relief on this ground.

                                           III.

      Finally, we turn to McClures’s argument that his two convictions under Fla.

Stat. § 893.13 do not qualify as “serious drug offenses” under the ACCA.

McClures acknowledges that he did not raise this objection below. Where a party

failed to object to an alleged error in the district court, we review for plain error.

United States v. Vandergrift, 
754 F.3d 1303
, 1307 (11th Cir. 2014). To show plain

error, the challenging party must show that (1) the district court made an error

(2) that is plain (3) that has affected the party’s substantial rights.
 Id. If those
three prongs are met, we may exercise our discretion to correct the error if it

“seriously affect[s] the fairness, integrity, or public reputation of judicial

proceedings.”
 Id. (internal quotations 
omitted).

      The ACCA defines a “serious drug offense,” in relevant part, as “an offense

under State law, involving manufacturing, distributing, or possessing with intent to

manufacture or distribute, a controlled substance . . . for which a maximum term of

imprisonment of ten years or more is prescribed by law.” 18 U.S.C.

§ 924(e)(2)(A)(ii).


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      Florida law punishes the sale, manufacture, delivery, or possession with

intent to sell, manufacture, or deliver cocaine as a second-degree felony. See Fla.

Stat. §§ 893.03(2)(a), 893.13(1)(a). Second-degree felonies are punishable by up

to 15 years’ imprisonment.
 Id. § 775.082(3)(d). 
In United States v. Smith, we held

that a violation of § 893.13(1) is a serious drug offense under the ACCA. 
775 F.3d

1262
, 1268 (11th Cir. 2014). The Supreme Court agreed with our judgment.

Shular v. United States, 
140 S. Ct. 779
, 784–85 (2020). In Shular, the Court held

that state drug offenses qualify as serious drug offenses under the ACCA if the

offense conduct satisfies the definition listed in § 924(e)(2)(A)(ii), which §

893.13(1)(a) does.
 Id. at 782.
      McClures’s argument that Fla. Stat. § 893.13(1)(a) should not be considered

a serious drug offense under the ACCA is now foreclosed by both the Supreme

Court and our precedent. See 
Shular, 140 S. Ct. at 782
; 
Smith, 775 F.3d at 1268
.

Thus, the District Court did not plainly err in finding that McClures’s two

convictions under § 893.13(1)(a) were predicate offenses under the ACCA.

                                          IV.

      For all of the above reasons, McClures’s sentence is affirmed.

      AFFIRMED.




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