[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 16-17106

Non-Argument Calendar

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D.C. Docket Nos. 9:16-cv-81080-JIC,

9:05-cr-80090-JIC-1

LAVELL PHILLIPS, 

 Petitioner-Appellant, 

versus

UNITED STATES OF AMERICA, 

 Respondent-Appellee.

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Appeal from the United States District Court

for the Southern District of Florida

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(November 7, 2018)

Before JILL PRYOR, FAY, and JULIE CARNES, Circuit Judges.

PER CURIAM: 

Petitioner Lavell Phillips appeals the denial of his 28 U.S.C. § 2255 motion, 

in which he challenged his enhanced sentence based on the Supreme Court’s 

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decision in Johnson v. United States, 576 U.S. ___, 135 S. Ct. 2551 (2015). On 

appeal, Petitioner contends his convictions for Florida attempted first-degree 

murder are not violent felonies under the Armed Career Criminal Act (“ACCA”)

because attempted first-degree murder does not have as an element the use, 

attempted use, or threatened use of physical force. After careful review, we affirm.

I. BACKGROUND

In 2004, a grand jury returned an indictment charging Petitioner with being a 

felon in possession of ammunition, in violation of 18 U.S.C. § 922(g). Following a 

trial, a jury found Petitioner guilty. 

Petitioner’s Presentence Investigation Report (“PSR”) indicated that he was 

subject to a sentencing enhancement under the ACCA and referred to three prior 

convictions for attempted first-degree murder, one conviction for armed robbery, 

and one conviction for aggravated battery. Defendant did not object to the armed 

career criminal enhancement. The district court adopted the PSR and sentenced 

Petitioner to 204 months’ imprisonment. We subsequently affirmed Petitioner’s 

conviction. United States v. Phillips, 202 F. App’x 442 (11th Cir. 2006).

On June 23, 2016, Petitioner, proceeding through counsel, filed a § 2255 

motion, arguing he was no longer an armed career criminal because none of the 

above-referenced prior convictions qualified as violent felonies in light of Johnson. 

A magistrate judge issued a report and recommendation recommending that 

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Petitioner’s § 2255 motion be dismissed or denied. Petitioner did not object to the 

report and recommendation. The district court adopted the report and 

recommendation, dismissed Petitioner’s § 2255 motion as untimely, and, in the 

alternative, denied Petitioner’s § 2255 motion on the merits. Petitioner appealed, 

and a judge of this Court granted a certificate of appealability on the issue of 

whether Petitioner’s convictions for Florida attempted first-degree murder qualify 

as violent felonies after Johnson. 

II. DISCUSSION

“We review de novo constitutional sentencing issues, including the issue of 

whether a prior conviction qualifies as a ‘violent felony’ under the ACCA.” 

United States v. Joyner, 882 F.3d 1369, 1377 (11th Cir.), petition for cert. filed

(U.S. May 23, 2018) (No. 17-9128). 

Generally, a defendant who violates 18 U.S.C. § 922(g) may receive a 

maximum sentence of ten years. 18 U.S.C. § 924(a)(2). But under the ACCA, a 

defendant who violates § 922(g) and has three prior convictions for a violent 

felony, a serious drug offense, or both, is subject to a mandatory minimum 

sentence of fifteen years. 18 U.S.C. § 924(e)(1). The ACCA defines a violent 

felony as any crime punishable by imprisonment for a term exceeding one year 

that:

(i) has as an element the use, attempted use, or threatened use of 

physical force against the person of another; or

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(ii) is burglary, arson, or extortion, involves use of explosives, or 

otherwise involves conduct that presents a serious potential risk of 

physical injury to another.

18 U.S.C. § 924(e)(2)(B). Subsection (i) is referred to as the “elements clause,” 

while subsection (ii) contains the “enumerated crimes” and the “residual clause.” 

United States v. Seabrooks, 839 F.3d 1326, 1338 (11th Cir. 2016). In 2015, the 

Supreme Court held that the residual clause is unconstitutionally vague. Johnson, 

576 U.S. at ___, 135 S. Ct. at 2557–58, 2563. Accordingly, a defendant may only 

be sentenced as an armed career criminal if he has three prior convictions for 

serious drug offenses, enumerated offenses, or crimes that meet the elements 

clause.

The only issue in this case is whether attempted first-degree murder under 

Florida law qualifies as a violent felony post-Johnson. Attempted first-degree 

murder clearly is not an enumerated offense; it is not burglary, arson, or extortion, 

and it (generally) does not involve the use of explosives. The question, then, is 

whether attempted first-degree murder is a violent felony under the elements 

clause. 

We recently answered this question in the affirmative. Hylor v. United 

States, 896 F.3d 1219, 1221 (11th Cir. 2018). Specifically, we concluded “Florida 

attempted first-degree murder is a violent felony because it requires the attempted 

use of physical force that is capable of causing pain or injury.” Id. We flatly 

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rejected one of the arguments Petitioner raises on appeal—that attempted firstdegree murder can be committed without the use, attempted use, or threatened use

of force if, for example, the defendant poisoned the victim. Id. at 1222–23. Our 

precedent makes clear that poisoning is a violent felony under the elements clause. 

Id. at 1223 (citing United States v. Deshazior, 882 F.3d 1352 (11th Cir.), petition 

for cert. filed (U.S. May 1, 2018) (No. 17-8766)). 

Although Petitioner offers other creative examples of ways in which one 

might attempt to murder another person—by the use of radiation, infectious 

disease, or toxic substances, or by tampering with medication—he has not 

provided any Florida cases in which a defendant was convicted of attempted firstdegree murder for such actions. See United States v. St. Hubert, 883 F.3d 1319, 

1332 (11th Cir. 2018) (“[A] defendant must at least point to his own case or other 

cases in which the courts in fact did apply the statute in the manner for which he 

argues.” (alterations and quotations omitted)). And in any event, Hylor dictates the 

result in this case, regardless of whether the Hylor Court considered every 

argument Petitioner now raises on appeal. See Tippitt v. Reliance Standard Life 

Ins. Co., 457 F.3d 1227, 1234 (11th Cir. 2006) (“[A] prior panel precedent cannot 

be circumvented or ignored on the basis of arguments not made to or considered by 

the prior panel.”). 

Accordingly, the denial of Petitioner’s § 2255 motion is AFFIRMED.

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