[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 14-12294

Non-Argument Calendar

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D.C. Docket No. 1:13-cr-20858-MGC-1

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee

 Cross Appellant,

 versus

TYWAN HILL, 

 Defendant-Appellant

 Cross Appellee.

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Appeals from the United States District Court

for the Southern District of Florida

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(August 26, 2015)

Before HULL, WILSON, and ROSENBAUM, Circuit Judges.

PER CURIAM: 

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Tywan Hill was found guilty of being a convicted felon in possession of a 

firearm in violation of 18 U.S.C. § 922(g)(1). Hill appeals his conviction,

contending that the jury instruction for constructive possession should have 

included the term “knowingly,” and the district court’s denial of his request to 

modify the instructions to reflect such was an abuse of its discretion. The 

government cross-appeals the district court’s refusal to enhance Hill’s term of 

imprisonment pursuant to the Armed Career Criminal Act (ACCA). It contends 

that Hill’s prior convictions for battery on a law enforcement officer, in violation 

of Florida Statutes sections 784.03 and 784.07(2)(b), and resisting an officer with 

violence, in violation of Florida Statutes section 843.01, constitute violent felonies 

under the ACCA, see 18 U.S.C. § 924(e)(1). 

 After review of the parties’ briefs and the record on appeal, we conclude 

that the district court did not abuse its discretion in denying Hill’s request to 

modify the jury instruction for constructive possession, and thus affirm Hill’s 

conviction. However, because we conclude that Hill’s prior Florida conviction for 

resisting an officer with violence constitutes a violent felony under the ACCA, we 

vacate Hill’s sentence and remand to the district court for further proceedings 

consistent with this opinion.

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I.

In contending that the district court abused its discretion in denying his 

request to modify the jury instruction, Hill argues that the jury instruction given for 

constructive possession, which did not include the term “knowingly,” seriously 

impaired his defense. Hill avers that without inclusion of the term “knowingly,” 

the jury was permitted to conclude that Hill could have constructive possession of

the firearm without actually knowing that the firearm was in the passenger 

compartment of the car he was alleged to have been driving.

The district court’s refusal to submit a defendant’s requested jury instruction

is reviewed for an abuse of discretion. United States v. Dominguez, 661 F.3d 1051, 

1071 (11th Cir. 2011). Under this standard, a court’s decision will not be disturbed 

if it falls within a range of possible conclusions that do not constitute a clear error 

of judgment. United States v. Lopez, 649 F.3d 1222, 1236 (11th Cir. 2011). We 

consider three factors when determining whether the district court’s refusal to give 

a requested jury instruction warrants reversal: “(1) whether the requested 

instruction is a substantially correct statement of the law; (2) whether the jury 

charge given addressed the requested instruction; and (3) whether the failure to 

give the requested instruction seriously impaired the defendant’s ability to present 

an effective defense.” Dominguez, 661 F.3d at 1071 (internal quotation marks 

omitted).

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In order to be convicted under § 922(g)(1), a defendant must be a convicted 

felon that knowingly possesses a firearm that is “in or affecting interstate 

commerce.” See 18 U.S.C. § 922(g)(1); see also United States v. Beckles, 565 F.3d 

832, 841 (11th Cir. 2009). “Possession of a firearm may be either actual or 

constructive.” United States v. Perez, 661 F.3d 568, 576 (11th Cir. 2011) (per 

curiam). A defendant is in constructive possession of a firearm when the 

defendant does not actually possess the firearm “but instead knowingly has the 

power or right, and intention to exercise dominion and control over the firearm.” 

Id. Jury instructions that imply knowledge or an awareness of the object possessed 

when defining constructive possession, substantially cover the requirement that a 

defendant knowingly possess a firearm—the use of such an instruction does not 

constitute reversible error. See United States v. Winchester, 916 F.2d 601, 605 

(11th Cir. 1990).

Hill’s proposed jury instruction was an accurate statement of the law, but the 

instruction given by the district court adequately covered Hill’s proposed 

instruction. See Dominguez, 661 F.3d at 1071. Furthermore, the district court’s 

instruction on the elements of the crime stated that it must be proved beyond a 

reasonable doubt that Hill knowingly possessed a firearm. Finally, the definition 

of constructive possession given to the jury impliedly required that Hill knowingly 

possess the firearm. See Winchester, 916 F.2d at 605. Thus, the district court did 

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not abuse its discretion in denying Hill’s request to modify the jury instruction to 

include the word “knowingly,” and therefore, we affirm Hill’s conviction.

II.

On cross-appeal, the government argues that the district court erred in 

concluding that Hill’s prior felony convictions in Florida for battery on a law 

enforcement officer and resisting an officer with violence do not constitute violent 

felonies under the ACCA. The government contends that both convictions 

constitute violent felonies under the ACCA’s residual clause pursuant to this 

Court’s well-established binding precedent.

We review de novo whether a defendant’s prior convictions qualify as 

violent felonies under the ACCA. United States v. Petite, 703 F.3d 1290, 1292 

(11th Cir. 2013). The ACCA provides that a defendant who violates 18 U.S.C. 

§ 922(g) and has three prior convictions for a violent felony or serious drug offense 

is subject to a fifteen-year statutory minimum sentence. See § 924(e)(1). The last 

clause of § 924(e)(2)(B)(ii) of the ACCA, commonly referred to as the “residual 

clause,” enumerates crimes that present “a serious potential risk of physical injury 

to another.” Petite, 703 F.3d at 1293–94 (internal quotation marks omitted). 

The Supreme Court recently held that the residual clause of the ACCA was 

unconstitutionally vague. See Johnson v. United States, 576 U.S. __, 135 S. Ct. 

2551, 2557–58 (2015). The Supreme Court, however, did “not call into question 

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application of the Act to the four enumerated offenses, or the remainder of the 

[ACCA’s] definitions of a violent felony.” Id. at __, 135 S. Ct. at 2563. Thus, by 

holding in Johnson that the ACCA’s residual clause is unconstitutional, the 

Supreme Court necessarily abrogated this Court’s prior binding precedent, which 

held that these two Florida felony convictions qualified as predicate offenses under 

the residual clause of the ACCA.1

 Consequently, Johnson forecloses the 

government’s argument on appeal that Hill’s prior Florida felony convictions for 

battery on a law enforcement officer and resisting an officer with violence are 

violent felonies under the ACCA’s residual clause. 

As previously mentioned, in Johnson the Supreme Court expressly limited 

its holding to the ACCA’s residual clause, leaving undisturbed “the remainder of 

the [ACCA’s] definitions of a violent felony,” which would include the ACCA’s 

definition of a violent felony under its elements clause. Id. Section 924(e)(2)(B)(i)

of the ACCA is often referred to as the “elements clause.” See Petite, 703 F.3d at 

1293. Section 924(e)(2)(B)(i) defines a violent felony as a crime that is punishable 

 1 We acknowledge that we have previously held that battery on a law enforcement 

officer, in violation of Florida Statutes sections 784.03 and 784.07(2)(b), and resisting an officer

with violence, in violation of Florida Statutes section 843.01, qualified as violent felonies under 

the ACCA’s residual clause. See, e.g., Turner v. Warden Coleman FCI (Medium), 709 F.3d 

1328, 1340 (11th Cir. 2013) (Florida battery on a law enforcement officer conviction qualifies as 

a violent felony under the ACCA’s residual clause.); United States v. Nix, 628 F.3d 1341, 1342 

(11th Cir. 2010) (per curiam) (Resisting an officer with violence under Florida law is a violent 

felony under the ACCA’s residual clause.). But, we are no longer bound by this precedent after 

Johnson. See, e.g., United States v. Vega-Castillo, 540 F.3d 1235, 1236 (11th Cir. 2008) (per 

curiam).

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by more than one year in prison that “has as an element the use, attempted use, or 

threatened use of physical force against the person of another.” 18 U.S.C. 

§ 924(e)(2)(B)(i).

To determine whether an offense is a violent felony under the ACCA, we 

use a categorical approach, looking at “the fact of conviction and the statutory 

definition of the prior offense.” See Petite, 703 F.3d at 1294 (internal quotation 

marks omitted). The phrase “physical force” in the context of the statutory 

definition of “violent felony” means “force capable of causing physical pain or 

injury to another person.” Johnson, 559 U.S. at 140, 130 S. Ct. at 1271. While the 

meaning of “physical force” is a question of federal law, federal courts are bound 

by a state supreme court’s interpretation of state law, including its determination of 

the elements of the underlying state offense. See id. at 138, 130 S. Ct. at 1269. 

“[A]bsent a decision from the state supreme court on an issue of state law, we are 

bound to follow decisions of the state’s intermediate appellate courts unless there 

is some persuasive indication that the highest court of the state would decide the 

issue differently.” McMahan v. Toto, 311 F.3d 1077, 1080 (11th Cir. 2002).

In Florida, any person who “knowingly and willfully resists, obstructs, or 

opposes any officer . . . in the lawful execution of any legal duty, by offering or 

doing violence to the person of such officer,” is guilty of resisting an officer with 

violence—a third degree felony. See Fla. Stat. § 843.01. Florida’s intermediary 

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courts have held that violence is a necessary element of the offense. See Rawlings 

v. State, 976 So. 2d 1179, 1181 (Fla. Dist. Ct. App. 2008) (“[V]iolence is a 

necessary element of the offense [of resisting an officer with violence].”); see also

Walker v. State, 965 So. 2d 1281, 1284 (Fla. Dist. Ct. App. 2007) (“[R]esisting 

arrest with violence is a felony that involves the use or threat of physical force or 

violence . . . .”) (quoting Watson v. State, 749 So. 2d 556, 556 (Fla. Dist. Ct. App. 

2000))). 

In looking to the decisions of Florida’s intermediary courts before, we have 

held that a prior conviction for resisting an officer with violence categorically 

qualifies as a violent felony under the elements clause of the ACCA. See United 

States v. Romo-Villalobos, 674 F.3d 1246, 1251 (11th Cir. 2012) (per curiam)

(concluding that a conviction under section 843.01 “is sufficient for liability under 

the first prong of the ACCA” (internal quotation marks omitted)). Therefore, we 

conclude that the district court erred in finding that Hill’s Florida conviction for 

resisting an officer with violence under section 843.01 did not constitute a violent 

felony under the ACCA.2

 2 The government concedes that Hill’s Florida conviction for battery on a law 

enforcement officer under Florida Statutes sections 784.03 and 784.07(2)(b) does not 

categorically constitute a violent felony under the elements clause of the ACCA pursuant to 

Supreme Court precedent. See Johnson v. United States, 559 U.S. 133, 136–37, 140–42, 130 S. 

Ct. 1265, 1269, 1271–72 (2010) (concluding that a Florida conviction for battery under section 

784.03 is not categorically a violent felony because the elements of the offense are in the 

disjunctive and the prosecution can prove a battery in one of three ways: that the defendant (1) 

intentionally caused bodily harm, (2) intentionally struck the victim, or merely (3) actually and 

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III.

Based on the foregoing, we affirm Hill’s conviction, but vacate his sentence 

given the district court’s error in finding that Hill’s prior felony conviction for 

resisting an officer with violence did not constitute a violent felony under the 

ACCA. 

On remand and prior to resentencing Hill, the district court must also

determine whether any of Hill’s previous drug convictions constitute “serious drug

offenses” under the ACCA. See 18 U.S.C. § 924(e)(2)(A)(ii). In response to Hill’s 

objections to the presentence investigation report, the government contended that 

Hill’s 1999 cocaine sale/delivery conviction, in violation of Florida Statutes 

section 893.13(1)(a)(1), and his 2008 cocaine trafficking conviction, in violation of 

Florida Statutes section 893.135(1)(b)(1), were ACCA-qualifying “serious drug 

offenses.” At sentencing, the district court did not address whether Hill’s prior 

drug convictions were serious drug offenses. As such, the government’s brief 

declined to address Hill’s drug convictions “in the first instance on appeal” and 

relied primarily on Hill’s other convictions and the residual clause. Given the 

intervening decision of the Supreme Court in Johnson that overrules the Supreme 

 

intentionally touched the victim). In Johnson, the Supreme Court added that “nothing in the 

record of Johnson’s 2003 battery conviction permitted the District Court to conclude that it 

rested upon anything more than the least of these acts,” which is merely touching the victim. 

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Court’s prior decisions about the same residual clause,

3 we direct the district court 

to allow the parties on remand to raise and brief whether any of Hill’s prior 

convictions nevertheless support the ACCA enhancement under the two other 

provisions of the ACCA. 

Finally, we acknowledge the existence of a clerical error in the judgment, 

which states that Hill pleaded guilty to the indictment. Hill was, in fact, convicted 

by a jury after trial. We may sua sponte raise the issue of clerical errors in the 

judgment and remand with instructions that the district court correct the errors. 

See United States v. Anderton, 136 F.3d 747, 751 (11th Cir. 1998) (per curiam)

(remanding with directions to the district court to correct the clerical errors). 

Accordingly, the district court should correct the clerical error contained in the 

judgment after resentencing. 

AFFIRMED in part, VACATED and REMANDED in part.

 3 The Supreme Court twice upheld the ACCA’s residual clause before holding it 

unconstitutionally vague. Compare James v. United States, 550 U.S. 192, 127 S. Ct. 1586 

(2007), and Sykes v. United States, 564 U.S. __, 131 S. Ct. 2267 (2011), with Johnson, 576 U.S. 

at __, 135 S. Ct. at 2557-58. 

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