[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-13249

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

LARRY LYNN GARY, 

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 2:20-cr-00124-JLB-MRM-1

____________________

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Before WILSON, LUCK, and HULL, Circuit Judges.

PER CURIAM:

Larry Lynn Gary appeals his 180-month sentence for being 

a felon in possession of a firearm and ammunition, in violation of 

18 U.S.C. §§ 922(g)(1) and 924(e). On appeal, Gary argues that his 

sentence was erroneously enhanced because his prior conviction 

for aggravated assault under Florida law does not qualify as a 

violent felony under the Armed Career Criminal Act (“ACCA”), 18 

U.S.C. § 924(e). After careful review of the record, we affirm 

Gary’s 180-month sentence.

I. BACKGROUND

A. Offense Conduct

On August 6, 2020, law enforcement officers conducted a 

traffic stop on a Buick sedan because a search of the motor vehicle 

database records revealed that the Buick’s license plate was 

expired. Defendant Gary was the front passenger in that Buick 

sedan.

Officers asked the driver and Gary to exit the vehicle so that 

a canine officer could perform a free air sniff of the vehicle. Gary 

removed a small, single-strap, blue satchel from around his neck 

and chest and placed the satchel on the rear floorboard behind the 

center console.

Gary then exited the vehicle and fled the area on foot, 

initiating a foot pursuit. While fleeing, Gary dropped a cellphone 

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and a cigarette pack. A canine officer assisted in the chase and 

located Gary, who was hiding in bushes.

Officers searched the area and seized the cigarette pack 

which contained a small blue plastic baggie containing 0.5 grams of 

MDMA. During a search of Gary’s satchel, officers seized (1) a 

firearm loaded with ammunition, (2) a clear plastic baggie 

containing 6.4 grams of fentanyl, (3) a red baggie containing 1.1 

grams of MDMA, and (4) a small digital scale.

B. Indictment and Guilty Plea

In October 2020, a federal grand jury indicted Gary for 

unlawful possession of a firearm and ammunition by a convicted 

felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). In May 

2021, Gary pleaded guilty.

C. Presentence Investigation Report (“PSR”)

Gary’s PSR assigned him a base offense level of 24 pursuant 

to U.S.S.G. § 2K2.1(a)(2). The PSR added four levels under 

U.S.S.G. § 2K2.1(b)(6)(B) for Gary’s possession of “a firearm and 

ammunition while facilitating, or potentially facilitating, further 

felonies of Trafficking Fentanyl (4 grams or more) and Possession 

of MDMA/Controlled Substance.” Gary’s adjusted offense level 

was 28.

The PSR increased Gary’s offense level from 28 to 33 under 

U.S.S.G. § 4B1.4(b)(3)(B) because it concluded that Gary qualified 

as an armed career criminal under the ACCA and U.S.S.G. 

§ 4B1.4(a). Relevant for our purposes, one of the necessary 

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predicate offenses for the ACCA enhancement and the § 4B1.4 

offense-level increase was a 2016 Florida conviction for aggravated 

assault with intent to commit a felony.

Finally, the PSR reduced Gary’s offense level by three under 

U.S.S.G. § 3E1.1(a) and (b) for acceptance of responsibility. This 

yielded a total offense level of 30.

With a total offense level of 30 and a criminal history 

category of IV, Gary’s advisory guidelines range was 135 to 168

months’ imprisonment. The mandatory minimum sentence for a 

defendant classified as an armed career criminal under the ACCA 

is 15 years’ imprisonment. See 18 U.S.C. § 924(e)(1). Accordingly, 

the PSR recommended an advisory guidelines term of 180 months’ 

imprisonment.

D. Sentencing and Appeal

Before and at sentencing, Gary argued that he was not an 

armed career criminal under the ACCA and objected to the 

application of the § 4B1.4 offense-level increase. The district court 

overruled those objections, adopted the calculations in the PSR,

and sentenced Gary to 180 months’ imprisonment, followed by 

three years of supervised release. Gary timely appealed.

II. DISCUSSION

In this direct appeal, Gary does not challenge his guilty plea 

or his conviction. Rather, Gary challenges his sentence and the 

district court’s determination that he qualified as an armed career 

criminal under the ACCA. 

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Gary argues that his sentence was erroneously enhanced 

because his prior conviction for aggravated assault under Florida 

law does not qualify as a violent felony under the ACCA. We 

review de novo whether a defendant’s prior conviction qualifies as 

a crime of violence for purposes of the ACCA. United States v. 

Deshazior, 882 F.3d 1352, 1354 (11th Cir. 2018).

The ACCA requires a 15-year minimum prison sentence for 

a defendant who possesses a firearm, in violation of 18 U.S.C. 

§ 922(g), and has three or more prior convictions for a violent 

felony or a serious drug offense. 18 U.S.C. § 924(e)(1). The 

ACCA’s elements clause in 18 U.S.C. § 924(e)(2)(B)(i) defines a

“violent felony” as any crime punishable by more than one year in 

prison that “has as an element the use, attempted use, or 

threatened use of physical force” against another person. Id.

§ 924(e)(2)(B)(i). A defendant subject to the ACCA’s enhanced 

sentence is likewise deemed an armed career criminal under the 

Sentencing Guidelines. See U.S.S.G. § 4B1.4(a).

To determine whether a defendant’s prior conviction 

qualifies as a violent felony for purposes of an ACCA enhancement, 

courts employ a “categorical approach,” in which they look “only 

to the statutory definitions of the prior offenses” rather than the 

underlying facts of the prior conviction. Shular v. United States, 589

U.S. ----, 140 S. Ct. 779, 783 (2020) (quotation marks omitted). If 

the least serious conduct criminalized by the statute does not 

necessarily involve “the use, attempted use, or threatened use of 

physical force,” then the statute of conviction does not 

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categorically match the federal standard and does not qualify as an 

ACCA predicate offense. Borden v. United States, 593 U.S. ----, 141 S. 

Ct. 1817, 1822 (2021). 

In Fla. Stat. § 784.011(1), Florida defines a simple “assault” as 

an “intentional, unlawful threat by word or act to do violence to 

the person of another, coupled with an apparent ability to do so, 

and doing some act which creates a well-founded fear in such other 

person that such violence is imminent.” Fla. Stat. § 784.011(1). In 

turn, Florida defines an “aggravated assault” as “an assault” that is 

committed either:

(a) [w]ith a deadly weapon without intent to kill; or 

(b) [w]ith the intent to commit a felony.

Id. § 784.021(1). So the first element of an aggravated assault under 

§ 784.021(1) is an “assault,” which is defined in § 784.011(1).

In Borden v. United States, the Supreme Court held that a 

criminal offense that requires only a mens rea of recklessness 

cannot qualify as a “violent felony” under the ACCA. 593 U.S. at -

---, 141 S. Ct. at 1829–30 & n.6 (plurality opinion); 593 U.S. at ----, 

141 S. Ct. at 1835 (Thomas, J., concurring). 

In light of Borden, this Court certified questions to the 

Florida Supreme Court in defendant Somers’s pending appeal to 

this Court where Somers was previously convicted of aggravated 

assault under § 784.021(1). See Somers v. United States, 15 F.4th 1049, 

1051, 1056 (11th Cir. 2021) (“Somers I”). This Court certified 

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questions regarding the mens rea required for a Florida simple 

assault offense under § 784.011(1). See id. at 1056.

The Florida Supreme Court held that, based on the plain 

language of Florida’s assault statute—§ 784.011(1)—an “assault”

offense under Florida law requires a mens rea of at least knowing 

conduct and “an intentional threat to do violence to another 

person.” See Somers v. United States, 355 So. 3d 887, 891–93 (Fla. 

2022) (“Somers II”). In other words, assault under § 784.011(1) 

demands the intent to direct a threat at another person and 

therefore cannot be violated by a reckless act. Id.

Thereafter, this Court addressed whether defendant 

Somers’s Florida conviction for aggravated assault with a deadly 

weapon under § 784.021(1)(a) qualifies as a violent felony under the 

elements clause of the ACCA. See Somers v. United States, 66 F.4th 

890, 892 (11th Cir. 2023) (“Somers III”). With the benefit of the 

Florida Supreme Court’s answer to the mens rea required for a 

simple assault offense, this Court held that an aggravated assault

conviction under § 784.021(1) “cannot be committed with a mens 

rea of recklessness,” “requires knowing conduct,” and “therefore 

qualifies as a ‘violent felony’ under the ACCA.” See id. at 893–94. 

In conclusion, this Court held “that aggravated assault under 

Florida law categorically qualifies as a ‘violent felony’ under the 

ACCA’s elements clause.” Id. at 896.

Gary argues that the Florida Supreme Court’s decision in 

Somers II does not resolve the issue in his case because that court

addressed only simple assault under § 784.011(1), not aggravated 

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assault under § 784.021(1)—which is the crime that enhanced his 

sentence.

Gary ignores that the first element of an aggravated assault 

crime under § 784.021(1) is an “assault,” as defined by § 784.011(1). 

Indeed, in Somers II, the Florida Supreme Court reasoned that 

simple assault always requires the intentional threat to do violence

and therefore cannot be accomplished via a reckless act. 355 So. 3d 

at 891; see also Somers III, 66 F.4th at 896 (“The Florida Supreme 

Court has told us unambiguously that assault under Florida law 

requires a mens rea of at least knowing conduct; it cannot be 

committed recklessly.”).

Under Florida law, as shown above, the definition of an 

aggravated assault crime incorporates the definition of simple 

assault. See Fla. Stat. § 784.021(1) (defining aggravated assault as 

“an assault” either “(a) [w]ith a deadly weapon without intent to 

kill; or (b) [w]ith an intent to commit a felony” (emphasis added)). 

So it does not matter which condition—either with a deadly 

weapon under § 784.021(1)(a) or intent to commit a felony under 

§ 784.021(1)(b)—transforms a simple assault into an aggravated 

assault because the mens rea for the underlying simple assault is 

sufficient to meet Borden’s requirement that the crime be 

committed with intent. See Somers III, 66 F.4th at 894–96.

In sum, Gary’s aggravated assault conviction under Fla. Stat. 

§ 784.021(1)(b) categorically qualifies as a violent felony under the 

ACCA because, as our precedent in Somers III confirmed, Florida’s 

aggravated assault statute requires an intentional threat to use 

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violence against another person, regardless of whether it is

committed under § 784.021(1)(a) or (b). See id. at 892, 894, 896. 

Therefore, Gary has the requisite three predicate offenses under 

the ACCA, and the district court did not err in sentencing him as 

an armed career criminal. We thus affirm Gary’s 180-month 

sentence.

AFFIRMED.

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