USA v. Larry Lynn Gary, No. 21-13249 (11th Cir. 2023)
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The Eleventh Circuit affirmed the district court’s ruling sentencing Defendant to 180 months e for being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. Sections 922(g)(1) and 924(e). A federal grand jury indicted Defendant for unlawful possession of a firearm and ammunition by a convicted felon, in violation of 18 U.S.C. Sections 922(g)(1) and 924(e). In May 2021, Defendant pleaded guilty. Defendant’s PSR assigned him a base offense level of 24 pursuant to U.S.S.G. Section 2K2.1(a)(2). Defendant appealed his 180-month sentence arguing that his sentence was erroneously enhanced because his prior conviction for aggravated assault under Florida law does not qualify as a violent felony under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. Section 924(e).
The Eleventh Circuit affirmed. The court reasoned that Defendant’s aggravated assault conviction under Fla. Stat. Section 784.021(1)(b) categorically qualifies as a violent felony under the ACCA because, as our precedent in Somers III confirmed, Florida’s aggravated assault statute requires an intentional threat to use violence against another person, regardless of whether it is committed under Section 784.021(1)(a) or (b). See id. at 892, 894, 896. Therefore, Defendant has the requisite three predicate offenses under the ACCA, and the district court did not err in sentencing him as an armed career criminal.
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