[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 17

- 10818 Non

- Argument Calendar

________________________ D.C. Docket No. 2:00

- cr - 14057

- DLG

- 1

UNITED STATES OF AMERICA, Plaintiff

- Appellee,

versus BENNIE WILEY, Defendant

- Appellant.

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

________________________ (A u gust 16, 2017) Before WILSON , JORDAN, and ROSENBAUM , Circuit Judges. PER CURIAM:

Case: 17-10818 Date Filed: 08/16/2017 Page: 1 of 52 Bennie Wile y appeals the district court’s revocation of his supervised release for committing armed trespassing, under Fla. Stat. § 810.08(2)(c). On appeal, Wiley argues that he did not commit armed trespassing because his girlfriend Ashley Tate consented to him bei ng there, and because his folding knife, an approximately three

- inch blade , was not a “dangerous weapon” for purposes of § 810.08(2)(c). After a careful review of the record and the parties’ briefs, we affirm.
I.

“ We

. . . review a district court’s revocation of supervised release for an abuse of discretion. ” United States v. Velasquez Velasquez , 524 F.3d 1248, 1252 (11th Cir. 2008) (per curiam) . The district court may revoke a defendant’s term of supervised release if it “ finds by a preponderance of the evidence that the defendant violated a condition of [ his ] supervised release. ” 18 U.S.C. § 3583(e)(3). We review a district court’s factual findings for clear error. United States v. Almand , 992 F.2d 316, 318 (11th Cir. 1993). Further, a distric t court’s choice between two permissible views of the evidence cannot be clear error. United States v. Ndiaye , 434 F.3d 1270, 1305 (11th Cir. 2006). S ubstantial deference is afforded to a factfinder’s credibility determinations. See United States

v. McP hee , 33 6 F.3d 12 69 , 1 275 (11th Cir. 20 03 ).

Case: 17-10818 Date Filed: 08/16/2017 Page: 2 of 53 II. In determining whether a violation of Florida state law occurred, federal
courts are “ bound by Florida courts’ determination and construction of the substantive elements of that state offense. ” See United States v. Rosales

- Bruno , 676 F.3d 1017, 1021 (11th Cir. 2012). Under Florida law, a defen dant commits armed trespassing when he, while armed with a “firearm or other dangerous weapon,” willfully enters or remains in a structure without authorization or, having been authorized to enter, is warned to depart a nd refuses to do so. Fla. Stat

. § 810.08(1), (2)(c); Mitchell v. State , 698 So. 2d 555, 559 (Fla. Dist. Ct. App. 1997). Florida law recognizes consent as an affirmative defense to trespassing.
See Ha ugabrook v. State , 827 So. 2d 1065, 1069 (Fla. Dist. Ct. App. 2002). However, consent may be revoked through an “actual communication,” and a defendant who remains after consent has been revoked is a trespasser. S ee S mith v.
State , 778 So. 2d 329, 330

– 31 (Fla. Dist. Ct. App. 2000). Moreover, although Florida’s armed

- trespassing statute does not define the term “dangerous weapon ,” we may look to several other instruments to glean its meaning. See Fla. Stat . § 810.08. The standard Florida jury instruction for armed trespassing defines a “dangerous weapon” as “any weapon that, taking into account the manner in which it is used, is likely to produce death or great bodily harm.” Fla. Std. Jury Ins r. (Crim.). 13.3 Trespass . And t he d efinition section of the

Case: 17-10818 Date Filed: 08/16/2017 Page: 3 of 54 weapons and firearms chapter of Florida’s criminal code defines a “weapon” as “any dirk, knife, metallic knuckles, slungshot, billie, tear gas gun, chemical weapon or device, or other deadly weapon except a firearm or a common pock etknife, plastic knife, or blunt

- bladed table knife.” F la. Stat . § 790.001(13) (emphasis added) . I n L.B. v. State , the Florida Supreme Court interpreted § 790.001(13) in connection with a 1951 opinion from the Attorney General of Florida, which stated t hat a “common pocketknife” was a pocketknife with a blade of four inches or less, to determine that the under

- four

- inch

- bladed folding knife at issue in that case was a “common pocketknife.” 700 So. 2d 370, 371, 373 (Fla. 1997) . However, the Fifth Distri ct Court of Appeal has determined that the rule in
L.B. does not apply when the pocketknife is in the open position. See Porter v.
State , 798 So. 2d 855, 856 (Fla. Dist. Ct. App. 2001); see also Walls v. State , 730 So. 2d 294, 295 (Fla. Dist. Ct. App. 199 9) (stating that, to the extent L.B. established a per se rule, the rule only applied where the defendant established that his knife was four inches or less and in the folded position). Further, the Fifth District Court of Appeal has determined that, even where a pocketknife may otherwise fall within the “common pocketknife” exception, the rule in L.B. does not apply and the pocketknife may qualify as a “deadly weapon” where the pocketknife was used as a weapon. Martin v. State , 747 So. 2d 474, 474 (Fla. Dist. Ct. App. 1999).

Case: 17-10818 Date Filed: 08/16/2017 Page: 4 of 55 III. Here, t he district court did not clearly err in determin ing that Wiley was a trespasser. Tate’s testimony showed that, even though Wiley initially was welcome at her house, she twice told him to leave her house and he remained after being asked to leave. Tate revoked her consent, and by remaining after that revocation, Wiley was trespassing. S ee S mith , 778 So. 2d at 330

– 31. The fact that he refused to leave and stayed in the house o vernight has no bearing on the fact that Tate revoked her consent. Furthermore, t he district court did not clearly err in determining that Wiley’s folding knife was a “d angerous weapon ” and that it did not fall within the “common pocketknife ” exception. Wiley wielded the knife at Tate when it was in the open position in an attempt to scare and confine her. Moreover, the knife cut Tate when she tried to take it from Wiley . Thus the “common pocketknife” exception established in L.B. is not applicable. Se e Porter , 798 So. 2d at 856; Martin , 747 So. 2d at 474. And because the court’ s view of this evidence is a permissible one, it cannot be deemed clear error. See Ndiaye , 434 F.3d at 130 5. AFFIRMED. Case: 17-10818 Date Filed: 08/16/2017 Page: 5 of 5