[ DO NOT PUBLISH] 

## In the 

# United States Court of Appeals For the Eleventh Circuit

____________________
No. 22

- 11934

Non

- Argument Calendar

____________________
UNITED STATES OF AMERICA,
Plaintiff

- Appellee,

versus
ARTHUR LASHERYL MORGAN, a.k.a. Tarrance Pace,

Defendant

- Appellant.

____________________ Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:21

- cr

- 20542

- CMA

- 1 USCA11 Case: 22-11934 Document: 28-1 Date Filed: 08/08/2023 Page: 1 of 32 Opinion of the Court 22

- 11934

____________________
Before R OSENBAUM , J ILL P RYOR , and B LACK , Circuit Judges.

PER CURIAM: Arthur Morgan appeals his 42

- month sentence for possession of ammunition as a convicted felon, a ssert ing the district courtimproperly calculated his base offense level based on a determination that his prior F lorida conviction for aggravated assault with a firearm was a crime of violence. The G overnment responds by moving for summary affirmance, contend ing this Court has held that Florida aggravated assault is a crime of violence. After review, 1 w e grant th e Government’s motion for summary affirma n ce because it has met its burden of showing its position is clearly correct as a matter of law. See Groendyke Transp., Inc.
v. Davis , 406 F.2d 1158, 1162 (5th Cir. 1969) 2 (explaining s ummary disposition is approp riate where “the position of one of the parties is clearly right as a matter of law so that there can be no substantialquestion as to the outcome of the case, or where, as is more frequently the case, the appeal is frivolous” )

. We recently held that Flor ida aggravated assault cannot be committed recklessly and thus

1 We review de novo whether a defendant’s prior conviction qualifies as a crime of violence under the Guidelines. United States v. Palomino Garcia , 606 F.3d 1317, 1326 (11th Cir. 2010).

2 In Bonner v. City of Prichard , 661 F.2d 1206, 1209 (11th Cir. 1981) ( en banc ), this Co urt adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to close of business on September 30, 1981. USCA11 Case: 22-11934 Document: 28-1 Date Filed: 08/08/2023 Page: 2 of 322

- 11934 Opinion of the Court 3
qualifies as a violent felony under the elements clause of the ACCA. Somers v. United States , 66 F.4th 890, 894

- 96 (11th Cir. 2023) (holding Florida aggravated assault categorically qualifies as a violent felony under the ACCA’s elements clause because aggravated assault requires a mens rea of at least knowledge and not recklessness )

. Because the elements clause in the ACCA’s definition of violent felony is virtually ide ntical to the elements clause in the definition of

a crime of violence in the Guidelines, we also rely on Somers for the proposition that Florida aggravated assault is a crime of violence under the elements clause in U.S.S.G. § 4B1.2(a). See United States v. Ochoa , 941 F.3d 1074, 1107 (11th Cir. 2019) (stating b ecause the elements clauses in the definitions of “crime of violence” in § 4B1.2 and “violent felony” in the ACCA are “virtually identical,” we look to decisions applying the ACCA for guidance in co nsidering whether an offense qualifies as a crime of violence under the Guidelines, and vice versa )

. Accordingly, because the G overnment’s position is clearly correct as a matter of law, we GRANT the G overnment’s motion for summary affirmance. Groendyke Transp., Inc. , 406 F.2d at 1162.

AFFIRMED. USCA11 Case: 22-11934 Document: 28-1 Date Filed: 08/08/2023 Page: 3 of 3