[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 13

- 13809 Non

- Argument Calendar

________________________ D.C. Docket No. 8:11

- cr - 00530

- VMC

- TBM

- 1

UNITED STATES OF AMERICA, Plaintiff

- Appellee.

versus DANIEL ARROYO, a.k.a. King Tweet, Defendant

- Appellant.

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

________________________ (A p ril 9, 2014) Before HULL , MARCUS and PRYOR , Circu it Judges. PER CURIAM:

Case: 13-13809 Date Filed: 04/09/2014 Page: 1 of 52 Daniel Arroyo appeals his sentence of 188 months of imprisonment, imposed following his plea of guilty to p ossessin g a firearm and ammunition as a felon

. See 18 U.S.C. § 922(g)(1). Arroyo challenges the enhancement of his sentence under the Armed Career Criminal Act, see id

. § 924(e), and the reasonableness of his sentence. Arroyo also argues , for the first time, that the district court erred by adding two points to hi s criminal history for his prior

sen tence for loitering. The government concedes that the district court plainly erred when it miscalculated Arroyo’s criminal history. Because the district court must recalculate Arroyo’s criminal history, we need not address the reasonableness of his sente nce. We affirm in part, vacate in part, and remand for resentencing. Arroyo challenges the enhancement of his sentence as a career criminal on three grounds that are foreclosed by our precedents

. First, Arroyo argues that his prior convictions for simple battery o f a law enforcement officer and discharging a firearm from a vehicle are not violent felonies, but Arroyo concedes that his arguments are foreclosed by our decisions in Turner v. Warden Coleman FCI (Medium) , 709 F.3d 1328 , 1338

– 39 ( 11 th Cir

. 2013 ) (battery of an officer) , and
U nited S tates v. Alexander , 609 F.3d 1250 , 1258

– 59 ( 11 th Cir

. 2010 ) (discharging a firearm) , that the offenses are categorically violent

. Second, Arroyo argues that the residual clause of the Armed Career Criminal Act, which defines the term “violent felony,” is unconstitutionally vague, but Arroyo concedes that we squarely

Case: 13-13809 Date Filed: 04/09/2014 Page: 2 of 53 rejected that argument in United States v. Weeks , 711 F.3d 1255 , 1262 ( 11 th Cir

. 2013 ). Third, Arroyo argues that an enhancement of his sentence based on facts not found by a jury nor admitted by him violates his rights under the Fifth and Sixth Amendments , but we have held that “ district courts may determine both the existence of prior convictions and the factual nature of those convictions, including whether they were committed on different occasions, so long as they limit themselves to Shepard

- approved documents. ” Id. at 1259

. The district court adhered to that limitation. Arroyo also argues that the classification of his prior conviction for battery of an officer as a predicate offense under the Armed Career Criminal Act violated his rights under the Ex Post Facto and Due Proc ess Clauses of the U.S. Constitution , but t his argument fails . Because the Ex Post Facto Clause does not apply directly to the Judicial Branch and is “inherent in the notion of due process , ”

we consider whether the classification of Arroyo’s crime as a violent felon y operate d as an ex post facto law in violation of his right to due process

. See Rogers v. Tennessee , 532 U.S. 451, 468, 121 S. Ct. 1693, 1703 (2001) ; United States v. Duncan , 400 F.3d 1297, 1307 (11th Cir. 2005). To violate “the ex post fac to principle of fair warning,” the decision of the district court must have been “‘unexpected and indefensible’ by reference to the law which has been expressed prior to the conduct in issue.” Rogers , 532 U.S. at 46 2 , 121 S. Ct. at 170 0. Arroyo

Case: 13-13809 Date Filed: 04/09/2014 Page: 3 of 54 argues that o ur decision in Turner was unexpected in the light of Johnson v. United States , 559 U.S. 133, 130 S. Ct. 1265 (2010), but the Court in Johnson specifically refused to address whether a conviction for simple battery under Florida law constituted a viol ent felony under the residual clause, id. at 145, 130 S. Ct. at 1274.
Turner was not an unjustified and unpredictable break from Johnson , which held that simple b attery does not qualify as a violent felony because the use of physical force i s not an element of the offense , i d. at 137

– 45, 130 S. Ct. at 1269

– 74

. Arroyo argues, and the government concedes, that t he district court plainly erred by add ing two points to Arroyo’s criminal history for his prior conviction for loitering . Th at error was “obvious and clear under current law.” United States v.
Bacon , 598 F.3d 772 , 777 ( 11 th Cir. 2010 ). The Sentencing Guidelines provide that a sentence imposed for the offense of loitering is “ never counted ” when calculating a defendant’s crimina l history. United States Sentencing Guidelines Manual § 4A1.2(c)(2) (Nov. 2012). And the addition of the two additional criminal history points prejudiced Arroyo’s substantive rights. See Bacon , 598 F.3d at 777. Arroyo’s presentence investigation repor t provided that he had 10 criminal history points, which yielded a criminal history category of V and, as an armed career criminal, resulted in a sentencing range between 180 and 188 months of imprisonment

. See U.S.S.G. a pp. G, sentencing table. Had the di strict court excluded Arroyo’s prior sentence for loitering, he would have had eight criminal

Case: 13-13809 Date Filed: 04/09/2014 Page: 4 of 55 history points, a criminal history category of IV, and, because of his status as an armed career offender, a statutorily required minimum sentence of 180 months of imprisonment. See id. § 5G1.1(b); 18 U.S.C. § 924(e) (1)

. Accordingly, we vacate Arroyo ’s sentence and remand to allow the district court to resentence h im at the
correct criminal history level of IV and the corresponding advisory guideline range of 18 0 months. AFFIRMED IN PART, VACATED AND REMANDED IN PART. Case: 13-13809 Date Filed: 04/09/2014 Page: 5 of 5