[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 16-16193

Non-Argument Calendar

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D.C. Docket No. 9:14-cr-80032-WJZ-1

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

 versus

NICHOLAS MAIDA, 

 Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

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(July 18, 2017)

Before MARTIN, JILL PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM: 

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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 erred 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.3d 

1318, 1321 (11th Cir. 2015). The guidelines 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 was 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

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(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 when he commits 

simple battery along with one of three aggravating 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 causing 

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 weapon; 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 acknowledges, 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 

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States v. Golden, 854 F.3d 1256 (11th Cir. 2017); see 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 clauses under 

ACCA and guidelines 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 preserved 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.

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