USA v. Christopher Pinkston

FOR PUBLICATION
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13391
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHRISTOPHER C. PINKSTON,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:21-cr-20194-WPD-1
____________________
Before WILLIAM PRYOR , Chief Judge, and B RASHER and ABUDU, Cir-
cuit Judges.
WILLIAM PRYOR , Chief Judge:
This appeal requires us to decide whether a serial bank rob-
ber is a career offender under the United States Sentencing Guide-
lines. After Christopher Pinkston had been convicted of federal
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2 Opinion of the Court 21-13391
bank robbery, see 18 U.S.C. § 2113(a), and Florida aggravated as-
sault, see F LA . S TAT. § 784.021, he robbed two more banks and
pleaded guilty to additional charges of federal bank robbery. The
district court enhanced Pinkston’s sentence under the career-of-
fender guideline because it determined that his convictions for
bank robbery and aggravated assault were “crime[s] of violence.”
We affirm.
I. BACKGROUND
In February 2021, Christopher Pinkston entered a bank in
Miami and handed a teller a note that read, “I need 30,000 Dollars
or everybody[’]s Dead.” The teller gave Pinkston $1,000. Three
weeks later, Pinkston entered a different bank and handed a teller
a note that read, “This is a robbery I need 30,000 make it quick.”
The teller gave Pinkston $24,900. Pinkston later confessed that he
“robbed those white people” and would “continue robbing them
white people.” He pleaded guilty to two counts of bank robbery in
violation of section 2113(a).
A probation officer prepared a presentence investigation re-
port. The report opined that Pinkston was a career offender under
section 4B1.1 of the Sentencing Guidelines because he “was at least
18 years-old at the time of the instant offense,” “the instant offense
is a felony crime of violence,” and he had prior convictions for fed-
eral bank robbery and Florida aggravated assault that also consti-
tuted “crime[s] of violence.” The report explained that Pinkston’s
status as a career offender produced a guideline imprisonment
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21-13391 Opinion of the Court 3
range of 151 to 188 months. See United States Sentencing Guide-
lines Manual ch. 5, pt. A (Nov. 2018). Absent the career-offender
enhancement, Pinkston’s guideline range would have been 70 to
87 months. See id.
The district court agreed that Pinkston was a career of-
fender. It questioned how bank robbery could be a non-violent
crime. And it referenced “prior decisions” of our Court concluding
that “aggravated assault is a predicate crime for an armed career
criminal and career offender.” The district court agreed with the
report that the guideline range was 151 to 188 months and sen-
tenced Pinkston to 160 months of imprisonment.
II. STANDARD OF REVIEW
We review de novo whether convictions qualify as crimes of
violence under the Sentencing Guidelines. United States v. Burke,
863 F.3d 1355, 1358 (11th Cir. 2017).
III. DISCUSSION
Pinkston is a career offender under the guidelines if he “was
at least eighteen years old at the time [he] committed” his current
federal offense, the offense “is a felony that is either a crime of vio-
lence or a controlled substance offense,” and he “has at least two
prior felony convictions of either a crime of violence or a con-
trolled substance offense.” U.S.S.G. § 4B1.1(a). “Crime of violence”
means “any [felony] offense under federal or state law” that falls
into one of two categories. Id. § 4B1.2(a). The first category, de-
scribed in the elements clause, includes offenses that “ha[ve] as an
element the use, attempted use, or threatened use of physical force
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4 Opinion of the Court 21-13391
against the person of another.” Id. § 4B1.2(a)(1). The second cate-
gory, described in the enumerated crimes clause, includes a list of
specific offenses like “robbery” and “aggravated assault.” Id.
§ 4B1.2(a)(2).
We apply the “categorical approach” to classify a conviction
for sentencing a career offender. United States v. Rowe, 143 F.4th
1318, 1322 (11th Cir. 2025). This approach requires us to identify
“the least culpable conduct that can sustain a conviction.” Id. If the
least culpable conduct involves sufficient force, the conviction sat-
isfies the elements clause. United States v. Brooks, 112 F.4th 937, 945
(11th Cir. 2024). If the least culpable conduct matches or exceeds
the “generic form” of an enumerated offense, the conviction satis-
fies the enumerated crimes clause. United States v. Harrison, 56 F.4th
1325, 1336 (11th Cir. 2023).
We divide our discussion of Pinkston’s convictions into two
parts. We first explain that federal bank robbery is a crime of vio-
lence under the career-offender guideline. We then explain that
Florida aggravated assault is also a crime of violence under the ca-
reer-offender guideline.
A. Federal Bank Robbery Is a Crime of Violence.
A person commits federal bank robbery under sec-
tion 2113(a) if he uses “force and violence” or “intimidation” to
“take[] . . . from the person or presence of another” any “property
or money or any other thing of value” that “belong[s] to . . . or [is]
in the care, custody, control, management, or possession” of “any
bank, credit union, or any savings and loan association.” 18 U.S.C.
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21-13391 Opinion of the Court 5
§ 2113(a); United States v. Armstrong, 122 F.4th 1278, 1288 (11th Cir.
2024), cert. denied, 146 S. Ct. 613 (2025). Federal bank robbery is a
crime of violence under both the elements clause and the enumer-
ated crimes clause of the career-offender guideline. We discuss
each clause in turn.
1. Federal Bank Robbery Is a Crime of Violence
under the Elements Clause.
We held a decade ago that federal bank robbery is a crime of
violence under a statutory “use-of-force clause” applicable to of-
fenses that “‘ha[ve] as an element the use, attempted use, or threat-
ened use of physical force against the person or property of an-
other.’” In re Sams, 830 F.3d 1234, 1237–39 (11th Cir. 2016) (quoting
18 U.S.C. § 924(c)(3)(A)). The elements clause, under the career-of-
fender guideline, is identical except that it does not include the use
of force or threatened force against “property.” See U.S.S.G.
§ 4B1.2(a)(1). This distinction, although material in some contexts,
makes no difference for Pinkston because the “force and violence”
or “intimidation” required to commit federal bank robbery applies
only to “person[s].” 18 U.S.C. § 2113(a). Consistent with the plain
meaning of the text, “[o]ur . . . definition of intimidation” under
section 2113(a) requires “conduct from which a reasonable person
could infer a threat of bodily harm.” Armstrong, 122 F.4th at 1288
(emphasis added) (citation modified).
Pinkston does not dispute this analysis. He contends instead
that Borden v. United States, 141 S. Ct. 1817 (2021), abrogated our
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6 Opinion of the Court 21-13391
precedents. Borden held that the elements clause of the Armed Ca-
reer Criminal Act excludes “offenses criminalizing reckless con-
duct.” Id. at 1825 (plurality opinion); id. at 1834–35 (Thomas, J.,
concurring in the judgment). And that clause is “virtually identical”
to the elements clause of the career-offender guideline. United
States v. Ochoa, 941 F.3d 1074, 1107 (11th Cir. 2019).
Borden does not help Pinkston because federal bank robbery
has a mens rea element of knowledge, not recklessness. In Carter v.
United States, the Supreme Court considered the elements of bank
robbery under section 2113(a). See 530 U.S. 255, 267–68 (2000). The
Court defined the actus reus of the crime as “the taking of property
of another by force and violence or intimidation.” Id. at 268. It
treated “taking money” and “using force” or intimidation as two
distinct “acts” necessary for the commission of the crime. Id. And
it held that the mens rea was “knowledge with respect to the actus
reus.” Id. In other words, federal bank robbery requires, at a mini-
mum, knowing intimidation. See United States v. Carr, 946 F.3d 598,
605 & n.7 (D.C. Cir. 2020) (joining seven circuits in holding that
“the federal bank robbery statute . . . requir[es] the defendant to
know his actions were objectively intimidating”).
Pinkston insists that Carter does not help the government be-
cause the Supreme Court described section 2113(a) as a “general
intent” crime. 530 U.S. at 268 (emphasis omitted). Pinkston main-
tains that this description matters because, in his view, Borden held
that the elements clause “requires a specific intent to direct harm
at a specific individual.” We disagree.
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21-13391 Opinion of the Court 7
Borden “did not use the phrase ‘specific intent.’” Somers v.
United States, 15 F.4th 1049, 1053 (11th Cir. 2021). And it acknowl-
edged that an offense can satisfy the elements clause when the of-
fense requires “‘knowing conduct.’” Id. (quoting Borden, 141 S. Ct.
at 1828). Federal bank robbery clears that bar because it requires
knowing intimidation.
Pinkston also misunderstands our decision in United States v.
Kelley, 412 F.3d 1240 (11th Cir. 2005), as supporting his argument.
We explained in Kelley that “a defendant can be convicted under
section 2113(a) even if he did not intend for an act to be intimidat-
ing.” Id. at 1244. We also explained that “intimidation occurs when
an ordinary person in the teller’s position reasonably could infer a
threat of bodily harm from the defendant’s acts.” Id. (citation mod-
ified). But neither statement endorses Pinkston’s position that rob-
bery under section 2113(a) has “a low-level mens rea standard . . .
on par with recklessness.”
A defendant can know an act is intimidating without intend-
ing for it to have that effect. See Borden, 141 S. Ct. at 1823 (plurality
opinion) (comparing purpose and knowledge). And the objective
standard we use to determine “[w]hether a particular act constitutes
intimidation” does not conflict with Carter’s requirement that the
intimidation be knowing. Kelley, 412 F.3d at 1244 (emphasis added).
To the extent our pattern jury instructions fail to reflect this re-
quirement, see Eleventh Circuit Pattern Jury Instructions, Criminal
Cases O76.1 (2025), the pattern instructions “are not binding” and
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8 Opinion of the Court 21-13391
should be revised to align with controlling caselaw. United States v.
Dohan, 508 F.3d 989, 994 (11th Cir. 2007).
Pinkston’s final argument misunderstands the import of
Counterman v. Colorado, 143 S. Ct. 2106 (2023). As he reads that de-
cision, the Supreme Court held that all crimes “rely[ing] on threats-
based criminal conduct have a mens rea element of recklessness.”
But Counterman held only that crimes prohibiting “[t]rue threats”
must have a minimum mens rea of recklessness to avoid chilling
speech protected by the First Amendment. Id. at 2111–13. It did not
hold that crimes requiring more than recklessness now have a lesser
mens rea.
2. Federal Bank Robbery Is Also a Crime of Violence
under the Enumerated Crimes Clause.
Even if federal bank robbery had a mens rea of recklessness,
it still would be a crime of violence. Borden’s exclusion of reckless
crimes applies only to the “elements clause.” Borden, 141 S. Ct. at
1829 n.6 (plurality opinion); id. at 1835 (Thomas, J., concurring in
the judgment). And we held in Sams that federal bank robbery con-
victions “categorically count as crimes of violence under the
[g]uidelines’ enumerated crimes clause.” 830 F.3d at 1240–41. Alt-
hough the version of the guidelines applicable in Sams mentioned
“robbery” only in a comment, see id. at 1241 (citing U.S.S.G. § 4B1.2
cmt. n.1 (Nov. 2015)), the version applicable here includes “rob-
bery” in the text, see U.S.S.G. § 4B1.2(a)(2) (Nov. 2018). Sams con-
trols our interpretation of that text.
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21-13391 Opinion of the Court 9
Pinkston contends that a 2016 amendment to the guidelines
abrogated Sams. But the amendment did no such thing. The
amended text lists robbery as an enumerated crime. U.S.S.G.
§ 4B1.2(a)(2) (Aug. 2016 supplement). And the Sentencing Com-
mission stated in its “Reason[s] for Amendment” that the
“amended guideline . . . continues to rely on existing case law for
purposes of defining” robbery. Id. app. C, amend. 798. The amend-
ment endorses, not abrogates, our prior holding.
Pinkston also argues that we can ignore Sams “because it
was a product of [our] abbreviated proceedings [for] evaluating a
second/subsequent motion to vacate a sentence.” But we have “al-
ready held that our prior-panel-precedent rule applies with equal
force . . . to prior panel decisions published in the context of appli-
cations to file second or successive petitions.” United States v. St.
Hubert, 909 F.3d 335, 345 (11th Cir. 2018), abrogated on other grounds
by United States v. Taylor, 142 S. Ct. 2015 (2022). So federal bank
robbery still qualifies as a crime of violence under the enumerated
crimes clause. Sams, 830 F.3d at 1241.
B. Florida Aggravated Assault Is a Crime of Violence.
Florida defines aggravated assault as an “assault” with “an
intent to commit a felony” or with “a deadly weapon without in-
tent to kill.” F LA . S TAT. § 784.021(1). The assault element has three
components. It requires “an intentional, unlawful threat by word
or act to do violence to the person of another, coupled with an ap-
parent ability to do so, and doing some act which creates a well-
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10 Opinion of the Court 21-13391
founded fear in such other person that such violence is imminent.”
Id. § 784.011(1).
We have long held that Florida aggravated assault consti-
tutes a “violent felony” under the elements clause of the Armed
Career Criminal Act because it “include[s] as an element” the
“threatened use of physical force against the person of another.”
Turner v. Warden Coleman FCI (Medium), 709 F.3d 1328, 1338 (11th
Cir. 2013) (citation modified), abrogated on other grounds by Johnson
v. United States, 576 U.S. 591 (2015). We extended that holding to
the “identical . . . elements clause of [guideline] 4B1.2(a)(1).” United
States v. Golden, 854 F.3d 1256, 1257 (11th Cir. 2017). And we later
held that Borden had not overruled these precedents. See Somers v.
United States, 66 F.4th 890, 892–93 (11th Cir. 2023). We concluded
that Borden did not apply because the Supreme Court of Florida
“ha[d] told us . . . based on the plain language of the Florida [as-
sault] statute . . . [that] assault under Florida law require[d] a mens
rea of at least knowing conduct and ‘an intentional threat to do vi-
olence to another person.’” Id. at 894–95 (quoting Somers v. United
States, 355 So. 3d 887, 891 (Fla. 2022)).
Pinkston concedes that Florida aggravated assault is now a
crime of violence. But he argues that assault offenders did not com-
mit a crime of violence if they committed their offense before the
Supreme Court of Florida held in 2022 that the mens rea for assault
requires more than recklessness. We rejected this argument in Som-
ers and recently rejected it again in the immigration context. See
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21-13391 Opinion of the Court 11
Senatus v. U.S. Att’y Gen., No. 24-10514, slip op. at 4–5, 10–11 (11th
Cir. June 8, 2026). We reach the same result here.
The defendant in Somers had sustained his assault conviction
by November 2012. See 66 F.4th at 892. When the Supreme Court
of Florida clarified the mens rea during the pendency of his federal
appeal, he invoked “earlier decisions of Florida’s intermediate [ap-
pellate] courts” that suggested “aggravated assault can be commit-
ted recklessly.” Id. at 895–96. We declined to follow those decisions
because the state supreme court had “told us unambiguously” how
to interpret Florida’s assault statute. Id. at 896. And we reasoned
that when a court of last resort “‘interprets a statute,’” it ordinarily
“‘tells us what that statute always meant.’” Id. (alteration adopted)
(quoting United States v. Fritts, 841 F.3d 937, 943 (11th Cir. 2016));
accord Senatus, slip op. at 10; Rivers v. Roadway Express, Inc., 511 U.S.
298, 312–13 (1994)).
Pinkston urges us to revisit Somers in the light of Brown v.
United States, 144 S. Ct. 1195 (2024). But Brown confirmed what we
had already held: the recidivist sentencing enhancements in the
Armed Career Criminal Act and the Sentencing Guidelines require
a “backward-looking examination” of “the law as it was when the
defendant violated it.” See id. at 1204 (citation modified) (discussing
the Act); United States v. Dubois, 94 F.4th 1284, 1298 (11th Cir. 2024)
(discussing the guidelines), vacated, 145 S. Ct. 1041, reinstated, 139
F.4th 887 (11th Cir. 2025). We performed this backward-looking
inquiry in Somers by asking what the controlling statutes “always
meant.” 66 F.4th at 896 (citation modified).
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12 Opinion of the Court 21-13391
Brown did not foreclose that approach. To the contrary, the
Supreme Court explained long before Brown that “it is not accurate
to say” its interpretive decisions “change[] the law,” Rivers, 511 U.S.
at 313 n.12 (citation modified), because “[a] judicial construction of
a statute is an authoritative statement of what the statute meant
before as well as after the decision of the case giving rise to that
construction,” id. at 312–13. Brown had no occasion to apply this
principle because the case involved a “subsequent statutory
amendment” to the federal drug schedules. 144 S. Ct. at 1201, 1204.
And statutes, unlike judicial decisions, “operate only prospec-
tively.” Rivers, 511 U.S. at 311–12 (citation modified). Absent Su-
preme Court precedent eliminating this fundamental distinction,
Somers controls.
In any event, Pinkston would fare no better under his pre-
ferred, though flawed, approach. If Pinkston had his way, we
would “consult the elements of the aggravated assault crime as un-
derstood” by the Florida intermediate appellate courts “when he
was convicted.” Pinkston received his aggravated assault convic-
tion in Miami-Dade County, where the Third District Court of Ap-
peal governs. Florida trial courts are “bound to follow” appellate
decisions in the district where they are located. Nader v. Fla. Dep’t
of Highway Safety & Motor Vehicles, 87 So. 3d 712, 724 (Fla. 2012)
(citation modified). And the Third District held, even at the time of
Pinkston’s conviction, that aggravated assault requires proof of
more than recklessness. See, e.g., State v. Conroy, 118 So. 3d 305, 312
n.10 (Fla. Dist. Ct. App. 2013); Lavin v. State, 754 So. 2d 784, 787
(Fla. Dist. Ct. App. 2000). Nothing changed for Pinkston when the
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21-13391 Opinion of the Court 13
Supreme Court of Florida later confirmed that recklessness is insuf-
ficient. See Somers, 355 So. 3d at 891. He would remain a career of-
fender either way.
IV. CONCLUSION
We AFFIRM Pinkston’s sentence.
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21-13391 WILLIAM PRYOR , C.J., Concurring 1
WILLIAM PRYOR , Chief Judge, Concurring:
The panel opinion explains why we are bound by Somers v.
United States to conclude that Florida aggravated assault is a crime
of violence under the Sentencing Guidelines. See 66 F.4th 890 (11th
Cir. 2023). One of our sister circuits has expressly disagreed with
Somers. See United States v. Anderson, 99 F.4th 1106, 1112 (7th Cir.
2024). And three other circuits have reached incompatible conclu-
sions. See United States v. Cornette, 932 F.3d 204, 214 (4th Cir. 2019);
United States v. Vickers, 967 F.3d 480, 486 (5th Cir. 2020), vacated and
remanded on other grounds, 141 S. Ct. 2783 (2021); United States v.
Roblero-Ramirez, 716 F.3d 1122, 1127 (8th Cir. 2013). I write sepa-
rately to explain why our sister circuits are wrong.
Somers and its detractors all acknowledge that backward-
looking recidivist enhancements require courts to determine the
elements of a predicate offense based on “the law as it was when
the defendant violated it.” Brown v. United States, 144 S. Ct. 1195,
1204 (2024); see, e.g., Somers, 66 F.4th at 896; Cornette, 932 F.3d at
214. To comply with that requirement in Somers, we certified to the
Supreme Court of Florida two questions about the mens rea appli-
cable to the defendant’s aggravated assault offense. Somers v. United
States, 15 F.4th 1049, 1056 (11th Cir. 2021). The Supreme Court of
Florida accepted certification, recited the defendant’s criminal his-
tory, and told us unequivocally that assault in Florida “requires at
least knowing conduct.” Somers v. United States, 355 So. 3d 887, 888–
89, 892 (Fla. 2022). We then applied that controlling pronounce-
ment to hold that the defendant had been convicted under a statute
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2 WILLIAM PRYOR , C.J., Concurring 21-13391
that has as an element the knowing threat of force. Somers, 66 F.4th
at 894–96.
Other circuits would have taken a different approach. In
their view, the backward-looking nature of recidivist enhance-
ments requires a federal court to ignore a decision from a state
court of last resort when the decision postdates the defendant’s
predicate offense. See Vickers, 967 F.3d at 486; Cornette, 932 F.3d at
214; Roblero-Ramirez, 716 F.3d at 1127. They are wrong.
Any methodology for determining state law that declines to
apply the “most recent pronouncement” from a state’s highest
court is necessarily suspect. Butler v. Gualtieri, 41 F.4th 1329, 1335
(11th Cir. 2022). Indeed, the Supreme Court held in Johnson v.
United States, a case involving a recidivist much like Somers, that it
was “bound” by a state supreme court’s decision that postdated the
defendant’s prior conviction by four years. 559 U.S. 133, 135–38
(2010). At no point did the Supreme Court ever suggest it was nec-
essary to consider state precedents decided earlier. The Court in-
stead consulted the latest state precedent, consistent with settled
practice when federal courts review questions of state law.
The contrary practice endorsed by our sister circuits misun-
derstands the categorical approach. We evaluate a predicate of-
fense under that approach by determining the least culpable con-
duct prohibited by the statute of conviction. See, e.g., Descamps v.
United States, 570 U.S. 254, 261 (2013); Taylor v. United States, 495
U.S. 575, 600 (1990). This inquiry is legal, not factual, because it
focuses on the statutory “elements” of a crime. Mathis v. United
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21-13391 WILLIAM PRYOR , C.J., Concurring 3
States, 579 U.S. 500, 504 (2016). State courts of last resort tell us
what those elements are. Johnson, 559 U.S. at 138. And their deci-
sions ordinarily tell us what the elements “always” were from en-
actment—notwithstanding prior inconsistent interpretations. Som-
ers, 66 F.4th at 896 (citation modified); accord Rivers v. Roadway Ex-
press, Inc., 511 U.S. 298, 312–13 (1994); Aspilaire v. U.S. Att’y Gen.,
992 F.3d 1248, 1256 (11th Cir. 2021).
Sometimes a conviction conflicts with controlling state prec-
edent. A trial court might misstate controlling precedent in its jury
instructions. Or an intermediate appellate court might misconstrue
a statute before a later decision clarifies the proper construction.
But those are errors of state law for state courts to correct. Just as
federal courts may not grant habeas relief “for errors of state law,”
Estelle v. McGuire, 502 U.S. 62, 67 (1991) (citation modified), federal
sentencing courts may not look behind a defective state conviction.
The career-offender guideline and related sentencing enhance-
ments turn on the “fact of a prior conviction” alone. Descamps, 570
U.S. at 269 (citation modified); see United States Sentencing Guide-
lines Manual § 4B1.1(a) (Nov. 2018); 18 U.S.C. § 924(e)(1).
A hypothetical illustrates this point. Suppose a trial court er-
roneously instructs a jury that a state crime requires recklessness
when the statute requires knowledge. If the jury finds the defend-
ant guilty, he may challenge his conviction on direct appeal or seek
state collateral review. But the defendant may not raise the instruc-
tional issue when his crime resurfaces as a recidivist predicate in a
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4 WILLIAM PRYOR , C.J., Concurring 21-13391
federal sentencing proceeding. The Supreme Court so held a dec-
ade ago when it explained that the “modified categorical approach”
permits sentencing courts to consult jury instructions only “when
a statute lists multiple, alternative elements.” Descamps, 570 U.S. at
261–64. Any consideration of the jury instructions outside those
narrow parameters shifts the focus from permissible examination
of “the law,” Brown, 144 S. Ct. at 1204, to forbidden exploration of
“the particular facts” underlying a defendant’s conviction, Taylor,
495 U.S. at 600. The same problem surfaces when federal sentenc-
ing courts consult interpretive decisions that were never “the law”
because they misinterpreted a statute from the outset. See Rivers,
511 U.S. at 312–13 & n.12.
To be sure, some states oddly reject the notion that judicial
constructions of a statute establish what the statute always meant.
Florida appears to be one such state. See State v. Barnum, 921 So. 2d
513, 524 (Fla. 2005) (explaining that “the reversal of a district court
interpretation of a statute . . . necessarily changes the law as it ex-
isted at the time of a defendant’s conviction”). So there are at least
some cases where a defendant convicted of a Florida offense might
be able to establish that the law applicable to his conviction differed
from the law as the Supreme Court of Florida later explained it.
The Seventh Circuit has faulted us for “not address[ing]” this
nuance in Somers. See Anderson, 99 F.4th at 1112. But we did not
need to do so. The certification opinion we invoked in Somers
“ma[de] clear” that the Supreme Court of Florida knew we “sought
its guidance on the elements of Florida’s aggravated assault statute
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21-13391 WILLIAM PRYOR , C.J., Concurring 5
because the Government sought to enhance . . . Somers’s sentence
on the basis of such a conviction.” Id. at 1114 (Ripple, J., dissenting).
The Supreme Court of Florida “therefore understood that [we]
needed to know the scope of the Florida aggravated assault statute
at the time . . . Somers was convicted of the predicate offense.” Id.
And it told us the answer to that question “unambiguously.” Som-
ers, 66 F.4th at 896. We gave its ruling the appropriate level of re-
spect when we followed the “definitive[] answer[]” we received.
Mathis, 579 U.S. at 517.
We should give similar respect to controlling state prece-
dents in future sentencing appeals. Doing so will often require us
to apply precedents that postdate a defendant’s conviction. Noth-
ing in federal law counsels otherwise.
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21-13391 ABUDU, J., Concurring 1
ABUDU, Circuit Judge, Concurring:
Because the governing Florida district court of appeal where
Pinkston was convicted of aggravated assault required a specific in-
tent mens rea at the time he was convicted, the district court’s sen-
tencing enhancement was proper. I write separately to express con-
cern with allowing a defendant’s prior conviction to be upgraded
to a qualifying crime of violence based on subsequent and contrary
judicial decisions.
The Supreme Court has held that qualifying crimes of vio-
lence must have a mens rea of at least knowledge; mere recklessness
is insufficient.1 Borden v. United States, 593 U.S. 420, 429 (2021).
Moreover, the prior conviction must have qualified as a crime of
violence at the time the defendant committed it. McNeill v. United
States, 563 U.S. 816, 821–22 (2011) (“[W]hen determining whether
a defendant was convicted of a ‘violent felony,’ we have turned to
the version of state law that the defendant was actually convicted
of violating.”). That is because courts assess the application of re-
cidivist sentencing schemes by performing a backward-looking in-
quiry at the time of federal sentencing. Id.; Brown v. United States,
602 U.S. 101, 111–12 (2024). They do so because recidivist enhance-
ments concern a defendant’s culpability at the time of the offense,
1 Although Borden concerned “violent crimes” in the context of the Armed Ca-
reer Criminal Act (“ACCA”), we consistently have interpreted the meaning of
a “violent crime” to be the same as a “crime of violence” under the Career
Offender Enhancement. United States v. Archer, 531 F.3d 1347, 1352 (11th Cir.
2008).
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2 ABUDU, J., Concurring 21-13391
not future developments in the law. See Brown, 602 U.S. at 115 (dis-
cussing and quoting McNeill, 563 U.S. at 822, as rejecting an alterna-
tive conclusion as “absurd”). Our sister circuits agree that a defend-
ant’s culpability turns on the law at the time the defendant was con-
victed. See United States v. Cornette, 932 F.3d 204, 214 (4th Cir. 2019)
(explaining “we must defer to the interpretation of the statute em-
ployed by Georgia courts at the time of [the defendant]’s convic-
tion”); United States v. Vickers, 967 F.3d 480, 486 (5th Cir. 2020) (“We
consider only the state law as it existed at the time of [the defend-
ant]’s 1982 murder conviction.”), vacated and remanded on other
grounds, 141 S. Ct. 2783 (2021) (mem.); United States v. Roblero-
Ramirez, 716 F.3d 1122, 1127 (8th Cir. 2013) (“[W]e cannot conclude
[the defendant]’s Nebraska manslaughter conviction, as inter-
preted by the Nebraska Supreme Court at the time, equates to the
generic federal crime of manslaughter.”); United States v. Anderson
99 F.4th 1106, 1111 (7th Cir. 2024) (“As an initial matter, [the defend-
ant] is correct that we look to the law at the time of the offense to
determine whether a crime is a violent felony.”).
The potential consequences of not doing so provide a valid
reason for this approach which the Supreme Court and our sister
circuits have adopted. For example, in Florida, the decisions of the
district courts of appeals are binding when the Florida Supreme
Court has not issued a ruling on an issue. Pardo v. State, 596 So. 2d
665, 667 (Fla. 1992) (“[I]f the district court of the district in which
the trial court is located has decided the issue, the trial court is
bound to follow it.”). If a defendant was convicted of aggravated
assault based on a theory of recklessness in a district that required
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21-13391 ABUDU, J., Concurring 3
only reckless conduct, the state would not have been required to
prove knowledge, and any defense based on lack of knowledge
would have been foreclosed. See id. Nor could he have successfully
challenged the jury instructions that informed the jury that reck-
lessness was all the state needed to prove. See id. Under those cir-
cumstances, the defendant’s conviction would not have been suffi-
cient to qualify as a predicate offense under Borden because culpa-
bility was based on a showing of recklessness. 593 U.S. at 429. De-
spite not exhibiting the behavior that the recidivist provisions tar-
geted (knowing conduct), his crime could later be deemed a quali-
fying crime of violence, even though he never met the requisite
standard; he would “face[] a punishment that the law c[ould] not
impose upon him” at the time of his conviction. Schriro v. Summer-
lin, 542 U.S. 348, 352 (2004).
We should, therefore, give further consideration to an ap-
proach which is consistent with our sister circuits, assessing
whether a defendant committed a qualifying crime of violence by
looking to the law at the time of his conviction instead of asking
whether, in light of new decisional law, the offense now qualifies
as a crime of violence and should be retroactively applied to en-
hance his sentence. Such an outcome perhaps presents serious due
process and equal protection concerns.
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