Bobby Gene Kilgore v. USA

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-13689
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D. C. Docket Nos. 8:10-cv-01973-SCB-MAP; 8:06-cr-00199-SCB-MSS-2
BOBBY GENE KILGORE,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
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Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 21, 2013)
Before MARTIN and ANDERSON, Circuit Judges, and VINSON,* District Judge.
PER CURIAM:
__________________
* Honorable C. Roger Vinson, United States District Judge for the Northern District of Florida,
sitting by designation.
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Bobby Gene Kilgore appeals the district court=s dismissal of his ' 2255
petition for being untimely. The district court dismissed his motion because neither
this Court nor the Supreme Court had held that Johnson v. United States, 559 U.S.
133, 130 S. Ct. 1265 (2010), applied retroactively, and Kilgore=s petition was only
timely if either had so held. On appeal, the Government agrees with Kilgore that
Johnson should apply retroactively but argues that there are other reasons to affirm.
We address only one of these reasons, and agree with the Government that the
judgment of the district court should be affirmed.1
I. FACTS AND PROCEDURAL HISTORY
1 @We may affirm the decision of the district court on any ground that finds support
in the record ....@ United States v. Campa, 529 F.3d 980, 998 (11th Cir. 2008).
Kilgore was indicted for distributing, and aiding and abetting in the
distribution of, cocaine base, and he pleaded guilty. The Probation Office classified
Kilgore as a career offender under U.S.S.G. ' 4B1.1 based on his convictions for
battery on a law enforcement officer and possession of cocaine with intent to sell or
deliver. The enhancement raised his base offense level from 30 to 34, although this
was reduced by three for acceptance of responsibility. Kilgore=s applicable
guidelines range was 188-235 months and the court sentenced him to 188 months=
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imprisonment. Without the four-level career offender enhancement and factoring in
Kilgore=s three-level reduction for acceptance of responsibility, the applicable
advisory guidelines range would have been 130-162 months. His conviction
became final on November 20, 2007.
Almost three years later, Kilgore filed this ' 2255 petition pro se, alleging that
the district court erroneously classified and sentenced him as a career offender in
light of the intervening Supreme Court decision in Johnson. In Johnson, the Court
held that convictions for battery on a law enforcement officer under Florida law are
not categorically a Aviolent felony@ for purposes of the elements clause of the Armed
Career Criminal Act (AACCA@), 18 U.S.C. ' 924(e).2 559 U.S. at __, 130 S. Ct. at
1272. The district court denied Kilgore=s motion as untimely, stating that neither
the Supreme Court nor this Court had held that Johnson applied retroactively.
Kilgore filed a motion for reconsideration on April 15, 2011, and the district court
denied it on June 8, 2012. Kilgore appealed and this court granted his Certificate of
Appealability (ACOA@) on the issue of timeliness only.
2 When determining whether an offense is a crime of violence under ' 4B1.1, Awe
also rely on cases interpreting the residual clause of the Armed Career Criminal Act [ACCA], 18
U.S.C. ' 924(e), because the ' 4B1.2 definition of >crime of violence= and ACCA=s definition of
>violent felony= are substantially the same.@ United States v. Chitwood, 676 F.3d 971, 975 n.2
(11th Cir. 2012).
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II. DISCUSSION
The COA in this case asks AWhether the district court erred in finding that
Mr. Kilgore=s 28 U.S.C. ' 2255 motion to vacate was untimely filed?@ Kilgore
urges this Court to hold that Johnson is retroactively applicable on collateral review,
arguing that if it is, his petition was timely. That is, although Kilgore filed his '
2255 petition almost three years after his conviction became final, his petition would
nevertheless be timely if he could qualify for the delayed commencement of the
statute of limitations pursuant to ' 2255(f)(3).3 Thus, if Johnson is retroactive, and
if Johnson provides the relevant rule governing Kilgore=s status as a career offender,
then Kilgore would have been entitled to relief. On appeal, the Government
concedes that Johnson is retroactive, so we can assume arguendo that it is.
However, contrary to Kilgore=s argument, Johnson does not provide the relevant rule
governing whether or not Kilgore is a career offender.
3 Section 2255(f)(3) provides:
(f) A 1-year period of limitation shall apply to a motion under this
section. The limitation period shall run from the latest of--
. . .
(3) the date on which the right asserted was initially recognized by
the Supreme Court, if that right has been newly recognized by the
Supreme Court and made retroactively applicable to cases on
collateral review; . . .
28 U.S.C. ' 2255(f).
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At his initial sentencing, the district court determined that Kilgore=s battery on
a law enforcement officer was a crime of violence for the purposes of U.S.S.G.
'4B1.1. The Court in Johnson held that battery on a law enforcement officer was
not categorically a crime of violence under the elements clause of the ACCA. The
Court instructed that the type of Aphysical force@ required under the ACCA=s
elements clause is Aviolent forceCthat is, force capable of causing physical pain or
injury to another person.@ Id. at __, 130 S. Ct. at 1271 (holding that simple
batteryCthe actual and intentional touching of anotherCdoes not constitute a
predicate offense because the ACCA requires Aviolent force,@ not merely offensive
contact). However, the Supreme Court in Johnson did not reach the issue of
whether Johnson=s offense was a crime of violence under the modified categorical
approach to the elements clause or under the residual clause.
A panel of this Court, however, has reached those reserved issues.
Turner v. Warden Coleman FCI (Medium), 709 F.3d 1328 (11th Cir. 2013).
In Turner, we observed that the Court in Johnson Aexpressly noted that it had no
occasion to examine the offense using the modified categorical approach . . . nor did
it have reason to review the statute under the residual clause.@ Id. at 1339.
Johnson=s sole holdingCthat Florida=s battery on a law enforcement officer is not
categorically a crime of violence under the elements clauseCdid not govern the
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Turner case. Addressing the issues reserved in Johnson, the Turner panel first
applied the modified categorical approach. Examining the undisputed facts in the
PSR, the panel noted that Turner had fled from the officers, resisting arrest, and
pushed one deputy against a wall. The panel held that this qualified as a crime of
violence under the modified categorical approach. Id. at 1340.
Alternatively, the Turner panel also held that Turner=s battery on a law
enforcement officer qualified as a crime of violence under the residual clause,
because of the risk of physical injury to another when a person commits battery on a
law enforcement officer while resisting arrest.
We conclude that Turner=s alternate holdingCthat Florida=s offense of battery
on a law enforcement officer is a crime of violence under the residual
clauseCcontrols this case. The undisputed facts as set forth in Kilgore=s PSR state
that Kilgore took flight upon being spotted prowling in a residential area and refused
to identify himself. When he was caught by the officers, he physically resisted
arrest. As we held in Turner: Afew crimes present a greater >potential risk of
physical injury to another= than battery on a law enforcement officer, which
necessarily involves an unwanted touching ofCand physical confrontation withCan
officer of the law.@ Id. (quoting ' 924(e) and citing Sykes v. United States, __ U.S.
__, __, 131 S. Ct. 2267, 2273 (2011)). Our holding in Turner applies with equal
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force in the instant case:
because the risk of serious physical injury attendant to battery on a law
enforcement officer renders the crime a potential hotbed of melee and
violence, it easily qualifies as a violent felony under the ACCA=s
residual clause.
Id. at 1341.
As in Turner, the Supreme Court=s holding in Johnson does not provide the
relevant rule governing Kilgore=s status as a career offender. Rather, the relevant
rule governing Kilgore=s status as a career offender is Turner=s alternative holding
with respect to the residual clause. His battery on a law enforcement officer while
physically resisting arrest creates the serious risk of physical injury that Aeasily
qualifies as a violent felony under the . . . residual clause.@ Id.
On this basis, we affirm the judgment of the district court.
AFFIRMED.3
3 The pending Motion to Vacate the COA is DENIED.
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