[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 13

- 13809 Non

- Argument Calendar

________________________ D.C. Docket No. 8:11

- cr - 00530

- VMC

- TBM

- 1

UNITED STATES OF AMERICA, Plaintiff

- Appellee.

versus DANIEL ARROYO, a.k.a. King Tweet, Defendant

- Appellant.

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

________________________ ( January 7, 2016 ) Before HULL , MARCUS and WILLIAM PRY OR , Circuit Judges. ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES Case: 13-13809 Date Filed: 01/07/2016 Page: 1 of 82 PER CURIAM: In United States v. Arroyo , 562 F. App’x 889 ( 11 th Cir. 2015), we affirmed Daniel Arroyo’s sentence to 15 years of imprisonment under the Armed Career Criminal Act for possessing a firearm and ammunition as a felon

. See 18 U.S.C. §§ 922(g)(1), 924(e). The Supreme Court vacated our judgment and remanded the case to us for further consideration in the light of Johnson v. United States , 576 U.S. ____, 135 S. Ct. 2551 (2015) , wh ich held that the residual clause of the Act was unconstitutionally vague . Id. at 2563. We asked the parties to file supplemental letter briefs addressing how Johnson affects Arroyo’s cas e. Arroyo
argues, an d the government concedes, that Arroyo’s sentence was erroneous ly enhanced using his prior convictions for battery on a law enforcement officer, Fla. Stat. §§ 784.03(1)(a), 784.07(2), and for discharge of a firearm from a vehicle, id

. § 790.15, because they no longer qualify as violent felonies under the residual clause of th e Act. W e vacate our judgment that affirm ed Arroyo’s sentence as an armed career criminal a nd remand for resentencing

. I. PROCEDURAL HISTORY Arroyo pleaded guilty , without the benefit of a plea agreement, to possessing a firearm and ammunition as a felon , after having been c onvicted of three crimes in Florida courts that were punishable by more than one year of imprisonment

. 18
U

. S

. C . §§ 2, 922(g)(1), 924(e). Arroy o’s presentence investigation report classified

Case: 13-13809 Date Filed: 01/07/2016 Page: 2 of 83 him as an armed career criminal based on his prior conviction for the robbery of Randall Aybar, Fla. Stat. § 812.13(1), (2)(A), and the three p rior convictions listed in his indictment for the attempted murder and aggravated battery of Pedro Colon, id. §§ 784.05, 782.04, 777.04, 784.045 ; battery of a law enforcement officer, id. §§ 784.03(1)(a), 784.07(2) ; and discharging a firearm from a n occupied vehicle, id. § 790.15. Arroyo’s classification as an armed career criminal increased his sentencing
range. Arroyo had a base offense level of 24, United States Sentencing Guidelines Manual § 2K2.1(a)(2) (Nov. 2012), that was increased by two points for his use or
possess ion a firearm or ammunition in connection with another felony offense, id. § 2K2.1(b)(4)(A), and a criminal history category of V based on a criminal history score of 10, which included two points for a misdemeanor conviction for loitering. Arroyo’s presentence report raised hi s base of fense level from 26 to 33 under the armed career criminal guideline, id. § 4B1.4, and reduced that level by three points for his acceptance of responsibility, id. § 3E1.1(a), (b), which resulted in a sentencing range between 151 and 188 months of imprisonment. But Arroyo had a statutory minimum sentence of 15 years under the Act, 18 U.S.C. § 924(e), which made his sentencing range be tween 180 and 188 months of imprisonment,
U

. S

. S

. G

. § 5G1.1(b).

Case: 13-13809 Date Filed: 01/07/2016 Page: 3 of 84 The d istrict court disposed of Arroyo ’s two object ions to the use of his prior convictions as predicate offenses under the Act and sentenced Arroyo to 188 months of imprisonment

. First, the district court r ejected Arroyo’s argument that his prior convictions for battery of a law enforcement officer and discharging a firearm were not “ violent felonies

. ” Second, the district court agreed with Arroyo that his convictions for robbery and for attempted murder constituted a simultaneous offense because “there [was] no information within the Shepard

approved documents establishing time or location” to show “there’s a gap in time and place between the two . . . crimes

. ” The district court made its ruling after holding two evidentiary hearings on the issue, and reviewin g a packet of documents consisting of the charging documents, docket sheets, judgments, plea forms, and bills of particular for Arroyo’s robbery and attempted murder offense. Arroyo appealed and challenged the calculation of his sentence on three grounds, two of which we rejected and one of which we found meritorious. Arroyo , 562 F . App’x 889. First, we conclud ed that A rroyo ’s challenges to his prior convictions for battery of a law enforcement officer and discharging a firear m were foreclosed by our decisions i n Turner v. Warden Coleman FCI (Medium) , 709 F.3d 1328 , 1338

– 39 ( 11 th Cir

. 2013 ) , and United States v. Alexander , 609 F.3d 1250 , 1258

– 59 ( 11 th Cir

. 2010 ) , that the offenses qualified as violent felon ies under the residual clause of the Act

. Arroyo , 562 F . App’x at 890. Second, we

Case: 13-13809 Date Filed: 01/07/2016 Page: 4 of 85 concluded that Arroyo ’s argument that the residual clause of the Act was void for
vagueness was foreclosed by our decision in United States v. Weeks , 711 F.3d 1255, 1262 (11 th Cir. 2013). Arroyo , 562 F. App’x at 890. B ut , based on the concession of the government that the district court plainly erred by adding two points to Arroyo’ s criminal history for the offense of loitering, we vacated Arroyo’s sentence and r emanded with in structions for the district court to

“ re sentence him at the correct criminal history level of IV and the corresponding advisory guideline range of 180 months.” Id. at 890

– 91. Arroyo filed a petition for a writ of certiorari. While Arroyo’s petition was pending, the Supreme Court held in Johnson , 135 S. Ct. at 2563 , that the residual clause was unconstitutionally vague . Later, t he Court granted Arroyo’s petition, vacated our judgment, and remanded his case for reconsideration.
II. DISCUSSION The parties agree that Arroyo is entitled to a new sentencing hearing at which he is sentenced using a reduced criminal history category of IV , but they disagree about what other sentencing decisions the district court may make

. Arroyo requests that we “remand for resentencing without the ACCA and for recalculation of the sentencing guidelines under [sections] 2K2.1 and 4A1.1(e)” and a rgues that,

“ [b]ecause the discharging

- a - firearm and [battery of a law enforcement officer] offenses are not violent felonies, they are also not crimes of violence under the

Case: 13-13809 Date Filed: 01/07/2016 Page: 5 of 86 guidelines.” The government argues for a “full resentencing” during which the district court reassess es whether to enhance Arroyo’s sentence under the Act. Alternatively, the government argues that the district court should be allowed to determine “whether any of [Arroyo’s] previous crimes are ‘crimes of violence’ under [section] 4B1.2(a) for purposes of assigning a new base

- offense level under 2K2.1”; “whether [Arroyo’s] criminal history category . . . [of] IV . . . underrepresents his true history”; what would constitute a reasonable sentence “under 18 U.S.C. 3553(a)” ; and whether to impose a variance

. We reject the argument of the government that A rroyo can be sentenced as an armed career criminal

. Arroyo’s prior conviction for battery of a law enforcement officer does not qualify a s a violent felony

. In Johnson v. United States , 559 U.S. 133, 141

- 42, 130 S. Ct. 1265, 1272 (2010), the Supreme Court held that a conviction in a Florida court of battery of an officer does not qualify as “violent offense” under the elements clause of the Act . T he recent decision of the Court in Johnson , 135 S. Ct. at 2563, “ forecloses

. . . the argument

. . . that [a] pri or Florida felony conviction [] for battery on a law enforcement officer . . . [is a] violent felon [y] under the ACCA’ s residual clause , ” United States v. Hill , 799 F.3d 1318, 1322 & n.1 (11th Cir. 2015)

. And w e will not disturb the finding of the district court that Arroyo’s convictions for robbery and attempted murder were not

“ committed on occasions different from one another

. ” See 18 U.S.C. § 924(e)(1).

Case: 13-13809 Date Filed: 01/07/2016 Page: 6 of 87 The government was given a full and fair opportunity, over the course of two evidentiary hearings, to submit evidence and arguments in support of its position that Arroyo’s convictions for robbery and attempted murder were distinct offenses,

a nd the govern ment did not appeal the finding that the offenses were temporally in distinguishable

. See United States v. Canty , 570 F.3d 1251, 1257 (11th Cir. 2009) (A “ remand for further findings is inappropriate when the issue was before the court and the parties had an opportunity to introduce relevant evidence .”); United States v. Alred , 144 F.3d 1405, 1422 (11th Cir. 1998)

. Because the government ha s to produce three prior felony convictions to enhance Arroyo’s sentence under the Act, see 18 U.S.C. § 924(e) , w e need not address whether his prior conviction for discharging a firearm constitutes a violent felony. To sentence a defendant as an armed career criminal, the government must prove that three prior felony convictions qualify as “violent felonies.” Id. The dist rict court sentenced Arroyo under the Act based on his prior convictions in Florida courts for robbery/attempted murder, battery of a law enforcement officer, and discharging a firearm from an occupied vehicle. In the wake of Johnson , the government cannot prove that Arroyo’s prior conviction for battery of a law enforcement officer is a “violent felony

. ” Arroyo cannot be sentenced as an armed career criminal. On remand, the district court must determine an appropriate sentencing
rang e for Arroyo under the Sentencing Guidelines. “ [ W ] hen a criminal sentence is

Case: 13-13809 Date Filed: 01/07/2016 Page: 7 of 88 vacated, it becomes void in its entirety; the sent ence

— including any enhancements

—has “been wholly nullified and the slate wiped clean.” United
States v. Stinson , 97 F.3d 466, 469 (11th Cir. 1996)

. The upshot is that, “when a sentence is vacated and the case is remanded for resentencing, the district court is free to reconstruct the sentence utilizing any of the sentence components.” Id.
I II . CONCLUSION
We VACATE our judgment affirming Arroyo’s sentence under the Armed Career Criminal Act, and we REMAND for resentencing

.

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