USA v. Robert Davis, No. 13-15465 (11th Cir. 2014)
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Case: 13-15465 Date Filed: 07/18/2014 Page: 1 of 3 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 13-15465 Non-Argument Calendar ________________________ D.C. Docket No. 1:11-cr-20678-KMM-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ROBERT DAVIS, a.k.a. Rob, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Southern District of Florida ________________________ (July 18, 2014) Before CARNES, Chief Judge, WILSON and ANDERSON, Circuit Judges. PER CURIAM: Case: 13-15465 Date Filed: 07/18/2014 Page: 2 of 3 Robert Davis appeals his sentence of 535 months imprisonment. He asserts that his prior conviction for fleeing and eluding a law enforcement officer, in violation of Florida Statute § 316.1935(2), is not a crime of violence under United States Sentencing Guidelines § 4B1.2(a). He contends that because that prior conviction is not a crime of violence under U.S.S.G. § 4B1.2(a) the district court erred in treating him as a career offender under U.S.S.G. § 4B1.1(a). We review de novo whether a prior conviction constitutes a crime of violence under the sentencing guidelines. United States v. Cortes-Salazar, 682 F.3d 953, 954 (11th Cir. 2012). Our recent decision in United States v. Smith forecloses Davis appeal. See 742 F.3d 949 (11th Cir. 2014). In Smith we concluded that fleeing and eluding a law enforcement officer under Florida Statute § 316.1935(2) is categorically a violent felony under the residual clause of the Armed Career Criminal Act. Id. at 952 53; 18 U.S.C. § 924(e)(2)(B)(ii). We have repeatedly read the definition of a violent felony under § 924(e) of the Armed Career Criminal Act as virtually identical to the definition of a crime of violence under U.S.S.G. § 4B1.2. United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008); compare 18 U.S.C. § 924(e)(2)(B)(ii) ( violent felony means any crime punishable by a year of imprisonment, that involves burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of 2 Case: 13-15465 Date Filed: 07/18/2014 Page: 3 of 3 physical injury to another ) with U.S.S.G. § 4B1.2(a)(2) (a crime of violence includes a crime punishable by a year of imprisonment that includes burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another ). Having already concluded that fleeing and eluding a law enforcement under Florida Statute § 316.1935(2) is categorically a violent felony under the ACCA, we also conclude that it is categorically a crime of violence under the virtually identical definition found in U.S.S.G. § 4B1.2(a). The district court correctly found that Davis is a career offender under U.S.S.G. § 4B1.1(a). AFFIRMED. 3
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