USA v. Bacari McCarthren, No. 13-13523 (11th Cir. 2017)
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Case: 13-13523 Date Filed: 12/20/2017 Page: 1 of 4 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 13-13523 Non-Argument Calendar ________________________ D.C. Docket No. 7:12-cr-00036-HL-TQL-1 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus BACARI MCCARTHREN, Defendant - Appellant. ________________________ Appeal from the United States District Court for the Middle District of Georgia ________________________ (December 20, 2017) ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES Before MARTIN, ROSENBAUM, and JILL PRYOR Circuit Judges. PER CURIAM: Case: 13-13523 Date Filed: 12/20/2017 Page: 2 of 4 Bacari McCarthren’s petition for rehearing is GRANTED. We substitute the following opinion for our original opinion. Bacari McCarthren pled guilty in 2013 to possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a). The district court sentenced him to the statutory maximum penalty for that offense, 20 years of imprisonment, after applying the career-offender enhancement under the United States Sentencing Guidelines. See U.S.S.G. § 4B1.1. We affirmed McCarthren’s convictions and sentence on direct appeal after his counsel filed a no-merit brief pursuant to Anders v. California, 386 U.S. 738 (1967). See United States v. McCarthren, 575 Fed. App’x 873 (11th Cir. 2014). McCarthren then petitioned for a writ of certiorari from the Supreme Court. While his petition was pending, the Supreme Court decided Johnson v. United States, 576 U.S. __, 135 S. Ct. 2551 (2015). After Johnson, the Solicitor General of the United States filed a memorandum with the Supreme Court stating the government’s view that “the appropriate disposition is to grant certiorari, vacate the judgment of the court of appeals, and remand the case for further consideration in light of Johnson.” The Supreme Court followed the Solicitor General’s concession, granted the petition, vacated our judgment, and remanded. McCarthren v. United States, 136 S. Ct. 332 (2015) (mem.). 2 Case: 13-13523 Date Filed: 12/20/2017 Page: 3 of 4 On remand, the government filed a motion to dismiss arguing that McCarthren’s appeal is barred by the sentence-appeal waiver in his plea agreement. The government, however, waived its right to assert the sentenceappeal waiver by filing a memorandum with the Supreme Court recommending that the Court GVR the case. See United States v. Story, 439 F.3d 226, 231 (5th Cir. 2006) (holding that appeal waivers are governed by contract law and can be waived); Cf. Burgess v. United States, 874 F.3d 1292, 1299–1300 (11th Cir. 2017) (characterizing a collateral-action waiver as an affirmative defense). We therefore reach the merits of McCarthren’s appeal. He contends that the district court improperly applied the career-offender enhancement based in part on a prior Florida conviction for aggravated assault, see Fla. Stat. § 784.021. In Turner v. Warden Coleman FCI (Medium), this Court held that Florida aggravated assault qualifies as a “crime of violence” for purposes of the elements clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2). 709 F.3d 1328, 1337–38 (11th Cir. 2013). McCarthren says that our decision in Turner has been abrogated by the Supreme Court’s decision in Mathis v. United States, 136 S. Ct. 2243 (2016), and that, under Mathis, Florida aggravated assault is not a “crime of violence” for purposes of the career-offender enhancement. See U.S.S.G. § 4B1.2. Although “some members of our court have questioned the continuing validity of Turner,” we remain bound to follow it. United States v. Golden, 854 F.3d 1256, 1257 (11th 3 Case: 13-13523 Date Filed: 12/20/2017 Page: 4 of 4 Cir. 2017) (per curiam); see id. (Jill Pryor, J., concurring in result) (explaining “why Turner’s holding was in tension with prior binding precedent and why, in light of intervening Supreme Court decisions, Turner should be overruled”). Because we are bound to follow Turner, McCarthren’s sentence is AFFIRMED. 4
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