[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 16

- 16193 Non

- Argument Calendar

________________________ D.C. Docket No. 9:14

- cr - 80032

- WJZ

- 1

UNITED STATES OF AMERICA, Plaintiff

- Appellee,

versus NICHOLAS MAIDA, Defendant

- Appellant.

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

________________________ (July 18, 2017) Before MARTIN , JILL PRYOR , and ANDERSON, Circuit J udges.
PER CURIAM:

Case: 16-16193 Date Filed: 07/18/2017 Page: 1 of 42 Nicholas Maida appeals his 120

- month sentence, imposed after he pled guilty to one count of possession of a firearm and ammunition as a convicted felon , in violation of 18 U.S.C. § 922(g)(1). In calculating Maida’s guideline range, the district court determined that he qualified for a base offense level of 24 pursuant to U.S.S.G. § 2K2.1(a)(2) because he had two prior convictions for “crimes of violence” as defined in U.S.S.G. § 4B1.2. On appeal, Maida argues that the district
court er red in determining that his prior Florida conviction for aggravated battery with a deadly weapon qualifies as a “crime of violence.” He asserts that the offense does not include as an element the use, attempted use, or threatened use of force. We review de novo whether a prior conviction qualifies as a crime of violence under the Sentencing Guidelines. United States v. Estrada , 777 F.3 d 1318, 1321 (11th Cir. 2015). The g uidelines provide for a base offense level of 24 for a defendant convicted of unlawfully possessing a firearm if the defendant committed that offense after sustaining at least two felony convictions of either a crime of violence or a controlled substance offense. U.S.S.G. § 2K2.1(a)(2). The guidelines that applied when Maida w as sentenced defined “crime of violence” as any offense punishable by imprisonment for a term exceeding on year, that: (1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or Case: 16-16193 Date Filed: 07/18/2017 Page: 2 of 43 (2) is burglary of a dwelling, arson, extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. U.S.S.G. § 4B1.2(a) (amended 2016)

. Under Florida law, a person commits aggravated battery wh en he commits simple battery along with one of three aggravat ing factors. Fla. Stat. Ann. § 784.045(1). Simple battery is defined as (1) actually and intentionally touching or striking another person against the will of the other, or (2) intentionally ca using bodily harm to another person. Id . § 784.03(1)(a). Aggravated battery occurs when a person commits simple battery and (1) intentionally or knowingly causes great bodily harm, permanent disability, or permanent disfigurement; (2) uses a deadly weapo n; or (3) knew or should have known that the victim was pregnant. Id. § 784.045(1); Turner v. Warden, Coleman FCI (Medium) , 709 F.3d 1328, 1341 (11th Cir. 2013), abrogated on other grounds by Johnson v. United States , 135
S. Ct. 2551 (2015). As Maida ack nowledges, we previously have held that Florida’s aggravated battery with a deadly weapon statute qualifies as a “violent felony” under the Armed Career Criminal Act’s (“ACCA”) elements clause , which is worded the

same as the elements clause in U.S.S.G. § 4B1.2(a)

. Turner , 709 F.3d at 1341. Furthermore, we recently confirmed that , despite questions regarding its continuing validity, Turner remains binding precedent in this Circuit. See generally United

Case: 16-16193 Date Filed: 07/18/2017 Page: 3 of 44 States v. Golden , 854 F.3d 1256 (11th Cir. 2017) ; se e id

. at 1256

- 57 (noting that
Turner controlled the determination of whether a Florida aggravated assault conviction qualified as a “crime of violence” under U.S.S.G. § 4B1.2 because, although Turner concerned ACCA ’s elements clause , the elements clause s under ACCA and g uidelines are identical )

. We continue to be bound to follow Turner unless and until it is overruled or undermined to the point of abrogation by this Court sitting en banc or by the Supreme Court ; thus , we acknowledge that Maida has prese rved this challenge but do not address it further. See United States v. Brown , 342 F.3d 1245, 1246 (11th Cir. 2003); see also United States v. Archer , 531 F.3d 1347, 1352 (11th Cir. 2008) (noting that, although a decision of the Supreme Court may overrule or abrogate prior panel precedent, such a decision “must be clearly on point” (internal quotation marks omitted)). We therefore affirm Maida’s sentence. AFFIRMED. Case: 16-16193 Date Filed: 07/18/2017 Page: 4 of 4