FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

DECEMBER 2, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-11602

Non-Argument Calendar

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D. C. Docket No. 08-00054-CR-ORL-31-KRS

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ANTHONY GRANT JACKSON,

a.k.a. Anthony Brant Jackson,

a.k.a. Anthony Jackson,

Defendant-Appellant.

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Appeal from the United States District Court

for the Middle District of Florida

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(December 2, 2009)

Before BARKETT, HULL and MARCUS, Circuit Judges.

PER CURIAM:

Anthony Grant Jackson appeals from his 180-month sentence following his

guilty plea to possession of a firearm by a convicted felon. Prior to the instant
arrest, Jackson had been convicted of several crimes -- including possession and

delivery of cocaine; robbery with a firearm, burglary of a dwelling, and aggravated

battery, all arising from a single incident and arrest; and resisting an officer with

violence, in violation of Fla. Stat. § 843.01 -- and was classified as an “armed

career criminal,” under the Armed Career Criminal Act’s (“ACCA”), 18 U.S.C. §

924(e)(1). On appeal, Jackson argues that: (1) “resisting an officer with violence,”

as defined by the Florida statute under which he was convicted, and as interpreted

by the Florida Supreme Court, does not qualify as a violent felony within the

meaning of the ACCA; and (2) the application of 18 U.S.C. § 924(e) is

unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000). After

thorough review, we affirm.

We review de novo a district court’s determination that a particular

conviction is a “violent felony” within the meaning of the ACCA. United States v.

Canty, 570 F.3d 1251, 1254-55 (11th Cir. 2009). We also review de novo claims

that a sentence violates Apprendi. United States v. Clay, 376 F.3d 1296, 1300

(11th Cir. 2004). “This [C]ourt will review de novo appeals alleging error in an

indictment under Apprendi, but we will reverse only for harmful error.” Id.

First, we are unpersuaded by Jackson’s argument that “resisting an officer

with violence,” as defined by the Florida statute under which he was convicted,

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and as interpreted by the Florida Supreme Court, does not qualify as a violent

felony within the meaning of the ACCA. The ACCA mandates a minimum term of

15 years’ imprisonment for anyone who is convicted of possessing a firearm after

having been convicted of a felony, in violation of 18 U.S.C. § 922(g), and who has

three previous convictions for a violent felony and/or a serious drug offense. It

defines a violent felony, in relevant part, as:

[A]ny crime punishable by imprisonment for a 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).

We use a “categorical” approach when determining whether a prior

conviction is a qualifying offense for ACCA enhancement purposes. United States

v. Llanos-Agostadero, 486 F.3d 1194, 1196-97 (11th Cir. 2007). That is, we will

“look no further than the fact of conviction and the statutory definition of the prior

offense” to determine whether a conviction fits the ACCA’s definition of a violent

felony. Id. “In determining whether a crime is a violent felony . . . we examine it

in terms of how the law defines the offense and not in terms of how an individual

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offender might have committed it on a particular occasion.” United States v.

Harrison, 558 F.3d 1280, 1285 (11th Cir. 2009) (quotation and brackets omitted).

The issue of whether the federal ACCA applies to a state-law-defined crime is a

question for federal courts, and state court rulings on the issue are not binding.

United States v. Johnson, 528 F.3d 1318, 1321 (11th Cir. 2008), cert. granted, 129

S.Ct. 1315 (U.S. Feb. 23, 2009).

Florida law provides that resisting an officer with violence is a felony:

“Whoever knowingly and willfully resists, obstructs, or opposes any officer . . . in

the execution of legal process or in the lawful execution of any legal duty, by

offering or doing violence to the person of such officer or legally authorized

person, is guilty of a felony of the third degree . . . .” Fla. Stat. § 843.01. In Frey

v. State, 708 So.2d 918, 920 (Fla. 1998), the Florida Supreme Court held that

resisting an officer with violence does not require a heightened or particularized

intent, “only a general intent to ‘knowingly and willfully’ impede an officer in the

performance of his or her duties.”

The Florida statute defines resisting an officer with violence as “knowingly

and willfully” resisting an officer by “offering or doing violence to the person of

such officer . . . .” Fla. Stat. § 843.01. Nothing in Frey contradicts the statute’s

plain language, which involves the “use, attempted use, or threatened use of

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physical force against the person of another,” as defined to be a predicate violent

felony offense under the ACCA. 18 U.S.C. § 924(e)(2)(B). Under our categorical

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analysis, Jackson’s conviction of resisting an officer with violence therefore

qualifies as a “violent felony” within the meaning of the ACCA, and we need not

turn to a specific factual inquiry. See Llanos-Agostadero, 486 F.3d at 1196-97.

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The district court did not err when it concluded that Jackson’s criminal history

warranted a corresponding sentence enhancement.

We also reject Jackson’s alternative argument that, because he used minimal

force, his crime does not qualify as a violent felony. We have held that a prior

conviction involving only a minimal amount of force can still constitute a violent

felony. See, e.g., Johnson, 528 F.3d at 1321-22 (holding that a Florida conviction

Jackson’s claim that, because the Florida Supreme Court has deemed it a “general intent” 1

crime, Frey, 708 So.2d at 920, resisting an officer with violence is not a violent felony within the

meaning of the ACCA is unpersuasive. Although the United States Supreme Court analyzed a

similar statute and found that “use of force” or a threat to use force requires a “higher degree of

intent than negligent or merely accidental conduct,” the Court did not cast its decision in terms

of “specific” and/or “general” intent. See Leocal v. Ashcroft, 543 U.S. 1, 9 (2004). Thus,

whether or not Frey deemed the crime to be one of “general intent” is irrelevant to the violent

felony inquiry.

Likewise, Jackson’s reliance on State v. Green, 400 So.2d 1322 (Fla. Dist. Ct. App. 2

1981), is misplaced. In Green, an intermediate Florida state court held that a defendant who

“wiggled and struggled” to free himself from handcuffs was not entitled to dismissal of a charge

of resisting an officer with violence. Id. at 1323. The court reasoned that the ambiguous

description of the defendant’s actions “prevent[ed] a determination by the trial court that [the

defendant]’s conduct was or was not, as a matter of law, with violence.” Id. The issue before us

however, does not involve an analysis of Jackson’s specific conduct. See Harrison, 558 F.3d at

1284. Instead, we only examine “how the law defines the offense,” and not “how an individual

offender might have committed it on a particular occasion.” Id. at 1285 (quotation omitted).

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for battery was a violent felony, which may be committed by “intentional

touching”); United States v. Young, 527 F.3d 1274, 1278 (11th Cir. 2008) (holding

that battery of a child involving bodily fluids was a violent felony within the

meaning of the ACCA). Indeed, Jackson acknowledges our prior holdings.

Although the Supreme Court has granted certiorari in Johnson, 129 S.Ct. 1315

(U.S. Feb. 23, 2009), pending a decision, it remains the law of this circuit.

We likewise find no merit in Jackson’s claim that the application of 18

U.S.C. § 924(e) is unconstitutional. In Almendarez-Torres v. United States, 523

U.S. 224, 226-27 (1998), the Supreme Court held that the factual issue of whether

a defendant has been convicted of an “aggravated felony” for sentencingenhancement purposes is not a constitutional “element of the offense,” and it is not

required to be alleged in the indictment. We are bound by that decision, and we

have rejected the argument that Almendarez-Torres is undermined by the Supreme

Court’s later holding in Apprendi. United States v. Greer, 440 F.3d 1267, 1273-74

(11th Cir. 2006).

Jackson concedes that our previous holdings reject his argument. Although

he argues that the Supreme Court appears to be ready to reconsider the issue, we

have cautioned against such reasoning as the basis for an appeal: “The problem

with lower courts basing decisions on predictions that the Supreme Court will

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overturn one of its own decisions is that the Supreme Court has repeatedly told us

not to do it.” Id. at 1275. Accordingly, the district court did not err, and we

affirm.

AFFIRMED.

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