USA v. Sanchez Marquitte Hicks

[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-10280
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SANCHEZ MARQUITTE HICKS,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:21-cr-00074-TWT-LTW-1
____________________
USCA11 Case: 23-10280 Document: 30-1 Date Filed: 04/30/2024 Page: 1 of 14

-- 1 of 14 --

2 Opinion of the Court 23-10280
Before NEWSOM , ANDERSON, and H ULL , Circuit Judges.
H ULL , Circuit Judge:
After pleading guilty, Sanchez Hicks appeals his sentence of
96 months’ imprisonment for two counts of possession of a
firearm by a felon. On appeal, Hicks argues that his two prior
Georgia convictions for aggravated assault with a deadly weapon
do not qualify as a “crime of violence” under U.S.S.G. § 2K2.1(a)(2),
which references the crime-of-violence definition in U.S.S.G.
§ 4B1.2(a), and thus the district court erred in calculating his base
offense level.
In United States v. Morales-Alonso, 878 F.3d 1311, 1313-20 (11th
Cir. 2018), this Court held that a Georgia conviction for aggravated
assault with a deadly weapon qualifies as a “crime of violence”
under U.S.S.G. § 2L1.2, which uses a crime-of-violence definition
contained in its commentary. The Morales-Alonso Court held that
Georgia’s aggravated assault with a deadly weapon crime contains
substantially the same elements as generic aggravated assault. Id.
at 1317, 1320.
Both § 4B1.2(a) and § 2L1.2’s commentary contain
enumerated offenses clauses that use materially identical language
to define a “crime of violence” as a list of offenses, and “aggravated
assault” appears in both lists. For the reasons explained herein, we
conclude that Hicks’s challenge to his base offense level fails.
USCA11 Case: 23-10280 Document: 30-1 Date Filed: 04/30/2024 Page: 2 of 14

-- 2 of 14 --

23-10280 Opinion of the Court 3
I. BACKGROUND
A grand jury indicted Hicks on two counts of possession of
a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1)
and 924(a)(2). Count One charged that Hicks possessed a firearm
on May 26, 2017, and Count Two charged that he possessed a
firearm on January 25, 2019. Hicks entered a non-negotiated plea
of guilty to both counts.
At sentencing, Hicks did not dispute that he had two
Georgia aggravated assault convictions from 2009 and 2015. The
2009 conviction was for assaulting two persons “with a deadly
weapon, to wit: a handgun” by shooting them. The 2015
conviction was for “an assault upon [a] person . . . with a handgun”
during an attempted armed robbery.
Given these two Georgia aggravated assault convictions, the
presentence investigation report (“PSI”) recommended a base
offense level of 24 pursuant to U.S.S.G. § 2K2.1(a)(2). Under
§ 2K2.1(a)(2), a base offense level of 24 applies when the defendant
committed his firearm offense after two felony convictions for a
“crime of violence” as defined in § 4B1.2(a), which includes
“aggravated assault.” See U.S.S.G. §§ 2K2.1(a)(2) & cmt. n.1,
4B1.2(a)(2). Hicks objected to the PSI’s base offense level of 24,
arguing that his two Georgia convictions were not “crimes of
violence.” Hicks maintained that Morales-Alonso did not foreclose
his particular challenge.
The district court overruled Hicks’s objection to
§ 2K2.1(a)(2)’s base offense level, finding it was bound by our
USCA11 Case: 23-10280 Document: 30-1 Date Filed: 04/30/2024 Page: 3 of 14

-- 3 of 14 --

4 Opinion of the Court 23-10280
Morales-Alonso holding that a Georgia conviction for aggravated
assault with a deadly weapon qualifies as a crime of violence. After
making adjustments not relevant to this appeal, the district court
calculated a total offense level of 23, which with Hicks’s criminal
history category of VI, yielded an advisory guidelines range of 92
to 115 months’ imprisonment. The district court imposed a 96-
month sentence on each felon-firearm conviction, to be served
concurrently.
II. DISCUSSION
A. Standard of Review
We review de novo the interpretation and application of the
Sentencing Guidelines. United States v. Dupree, 57 F.4th 1269, 1272
(11th Cir. 2023) (en banc). We also review de novo whether an
offense is a “crime of violence” within the meaning of the
Sentencing Guidelines. United States v. Harrison, 56 F.4th 1325, 1330
(11th Cir. 2023).
B. Crime of Violence Under § 2K2.1(a)(2)
The Sentencing Guidelines assign a base offense level of 24
for an offense involving the possession of a firearm and/or
ammunition by a convicted felon if the defendant committed the
instant offense after sustaining at least two felony convictions for a
“crime of violence.” U.S.S.G. § 2K2.1(a)(2). Section 2K2.1 cross
references U.S.S.G. § 4B1.2(a) for the definition of a “crime of
violence.” U.S.S.G. § 2K2.1, cmt. n.1.
USCA11 Case: 23-10280 Document: 30-1 Date Filed: 04/30/2024 Page: 4 of 14

-- 4 of 14 --

23-10280 Opinion of the Court 5
In turn, § 4B1.2(a) defines “crime of violence” as follows:
(a) CRIME OF VIOLENCE.—The term “crime of
violence” means any offense under federal or state
law, punishable by imprisonment for a term
exceeding one year, that—
(1) has as an element the use, attempted use, or
threatened use of physical force against the
person of another; or
(2) is murder, voluntary manslaughter,
kidnapping, aravated assault, a forcible sex
offense, robbery, arson, extortion, or the use or
unlawful possession of a firearm described in
26 U.S.C. § 5845(a) or explosive material as
defined in 18 U.S.C. § 841(c).
U.S.S.G. § 4B1.2(a) (emphasis added). The second clause, referred
to as an enumerated offenses clause, includes “aggravated assault”
in the list of offenses that are crimes of violence. Id. § 4B1.2(a)(2).
C. Morales-Alonso
In Morales-Alonso, this Court squarely addressed a Georgia
conviction for aggravated assault with a deadly weapon under
O.C.G.A. § 16-5-21(a)(2). 878 F.3d at 1313-20. Morales-Alonso
involved the definition of crime of violence applicable to U.S.S.G.
§ 2L1.2 (2015). Id. at 1313 & n.2.
Like § 4B1.2(a)(2), § 2L1.2’s definition of “crime of
violence,” found in its commentary, contained an enumerated
offenses clause, stating as follows:
USCA11 Case: 23-10280 Document: 30-1 Date Filed: 04/30/2024 Page: 5 of 14

-- 5 of 14 --

6 Opinion of the Court 23-10280
“Crime of violence” means any of the following
offenses under federal, state, or local law: murder,
manslaughter, kidnapping, aravated assault, forcible
sex offenses (including where consent to the conduct
is not given or is not legally valid, such as where
consent to the conduct is involuntary, incompetent,
or coerced), statutory rape, sexual abuse of a minor,
robbery, arson, extortion, extortionate extension of
credit, burglary of a dwelling, or any other offense
under federal, state, or local law that has as an
element the use, attempted use, or threatened use of
physical force against the person of another.
U.S.S.G. § 2L1.2, cmt. n.1(B)(iii) (2015) (emphasis added); see
Morales-Alonso, 878 F.3d at 1314. While Morales-Alonso addressed
the enumerated offenses clause applicable to § 2L1.2, not the one
found in § 4B1.2(a)(2), both clauses use materially identical
language to define “crime of violence” as a list of offenses, and
both lists include the offense of “aggravated assault.” Compare
U.S.S.G. § 2L1.2, cmt. n.1(B)(iii) (2015), with id. § 4B1.2(a)(2).
In Morales-Alonso, this Court held that a Georgia conviction
for aggravated assault with a deadly weapon under O.C.G.A. § 16-
5-21(a)(2) qualified as a crime of violence under the enumerated
offenses clause in § 2L1.2’s definition of “crime of violence.” 878
F.3d at 1313-20. Applying our prior decision in United States v.
Palomino Garcia, 606 F.3d 1317 (11th Cir. 2010), the Morales-Alonso
Court explained that generic aggravated assault has two essential
elements: (1) a criminal assault (2) that is accompanied by either
USCA11 Case: 23-10280 Document: 30-1 Date Filed: 04/30/2024 Page: 6 of 14

-- 6 of 14 --

23-10280 Opinion of the Court 7
the intent to cause serious bodily injury to the victim or the use of
a deadly weapon. Id. at 1315.
The Morales-Alonso Court then looked to Georgia’s
aggravated assault statute, O.C.G.A. § 16-5-21(a)(2), and concluded
that (1) it was divisible as to its aggravator component, and (2) the
defendant was convicted of the version of aggravated assault that
involved the use of a deadly weapon. Id. at 1316-17. Next, the
Court determined that O.C.G.A. § 16-5-21(a)(2) was not further
divisible, so its essential elements were “(1) an assault, (2) that is
committed ‘[w]ith a deadly weapon or with any object, device, or
instrument which, when used offensively against a person, is likely
to or actually does result in serious bodily injury.’” Id. at 1317.
Comparing those elements to the elements of generic
aggravated assault, the Morales-Alonso Court “conclude[d] that
Georgia aggravated assault with a deadly weapon or other
qualifying ‘object, device, or instrument’ in violation of O.C.G.A.
§ 16-5-21(a)(2) contains substantially the same elements as generic
aggravated assault.” Id. The Court rejected the defendant’s
argument that the Georgia statute was categorically broader than
the generic offense because it also encompassed assault “with an
‘object, device, or instrument’ that is ‘likely to or actually does
result in serious bodily injury.’” Id. at 1317-20. The Court held that
Georgia aggravated assault under O.C.G.A. § 16-5-21(a)(2)
“satisfies the enumerated offenses clause” of § 2L1.2. See generally
id. at 1313-20.
USCA11 Case: 23-10280 Document: 30-1 Date Filed: 04/30/2024 Page: 7 of 14

-- 7 of 14 --

8 Opinion of the Court 23-10280
D. Hicks’s Claim
Hicks argues that a Georgia conviction for aggravated
assault with a deadly weapon does not qualify as a “crime of
violence” under the enumerated offenses clause in § 4B1.2(a)(2).
Specifically, Hicks contends that the Georgia offense requires a
mens rea of only recklessness, whereas generic aggravated assault
requires a mens rea of “extreme indifference to human life,” which
Hicks terms “extreme indifference recklessness.” Hicks’s challenge
is that the Georgia offense is categorically broader than the generic
offense. Hicks’s claim fails for several reasons.
First, our Court’s holding in Morales-Alonso forecloses
Hicks’s claim. The Morales-Alonso Court held that Georgia
aggravated assault with a deadly weapon qualifies as a crime of
violence under the enumerated offenses clause because it has
“substantially the same” elements as generic aggravated assault. Id.
at 1320. As already noted, the enumerated offenses clauses for
U.S.S.G. § 2L1.2 and § 4B1.2(a)(2) use nearly identical language to
define “crime of violence” as a list of offenses and “aggravated
assault” appears in both lists. Compare U.S.S.G. § 2L1.2, cmt.
n.1(B)(iii), with id. § 4B1.2(a)(2).
Absent indications to the contrary in the commentary, we
interpret the same language used in two provisions of the
Sentencing Guidelines consistently. United States v. Martinez, 964
F.3d 1329, 1333-36, 1334 n.2 (11th Cir. 2020) (interpreting the
phrase “another felony offense” of drug trafficking in
§ 2K2.1(b)(6)(B) as consistent with the phrase “drug trafficking
USCA11 Case: 23-10280 Document: 30-1 Date Filed: 04/30/2024 Page: 8 of 14

-- 8 of 14 --

23-10280 Opinion of the Court 9
offense” defined in the commentary to § 2L1.2). Nothing in the
two guideline provisions or their commentary suggest that the two
enumerated offenses clauses—both listing aggravated assault—
should be read differently here. Accordingly, we are bound by
Morales-Alonso’s holding. See United States v. Archer, 531 F.3d 1347,
1352 (11th Cir. 2008) (stating that under this Court’s prior panel
precedent rule, a prior panel’s holding binds subsequent panels
“unless and until it is overruled or undermined to the point of
abrogation by the Supreme Court or by this court sitting en banc”).
Second, we recognize that Hicks contends that our prior
panel precedent rule “has no role to play here” because the Morales-
Alonso Court did not address his specific argument about the
different mens rea elements for Georgia and generic aggravated
assault. Morales-Alonso’s conclusion that Georgia aggravated
assault with a deadly weapon is not categorically broader than
generic aggravated assault was necessary to our Court’s decision,
and therefore constitutes a holding that binds future panels. See
United States v. Gillis, 938 F.3d 1181, 1198 (11th Cir. 2019); see also
United States v. Kaley, 579 F.3d 1246, 1253 n.10 (11th Cir. 2009)
(explaining that the holding is what “was necessary to the result
reached” and could not be “discarded without impairing the
foundations of the holding”).
Hicks’s challenge, essentially, is that Georgia aggravated
assault with a deadly weapon is categorically broader than generic
aggravated assault for a reason or argument that the Morales-Alonso
panel failed to consider. But “there is no exception to the [prior
USCA11 Case: 23-10280 Document: 30-1 Date Filed: 04/30/2024 Page: 9 of 14

-- 9 of 14 --

10 Opinion of the Court 23-10280
panel precedent] rule where the prior panel failed to consider
arguments raised before a later panel.” Gillis, 938 F.3d at 1198.
Indeed, this Court has “categorically rejected an overlooked reason
or argument exception to the prior-panel-precedent rule.” In re
Lambrix, 776 F.3d 789, 794 (11th Cir. 2015). Nor is there an
exception to the rule based on “a perceived defect in the prior
panel’s reasoning or analysis as it relates to the law in existence at
that time.” Gillis, 938 F.3d at 1198 (quoting Smith v. GTE Corp., 236
F.3d 1292, 1301-03 (11th Cir. 2001)).
Third, Hicks relies on United States v. Jackson, 55 F.4th 846
(11th Cir. 2022), cert. granted, 143 S. Ct. 2457 (U.S. May 15, 2023),1
not for what it holds but for the fact that it declined to apply our
prior panel precedent rule. We explain why Jackson is materially
different and does not apply here.
In Jackson, this Court addressed whether the defendant’s
Florida cocaine-related convictions were “serious drug offenses”
under the Armed Career Criminal Act (“ACCA”). 55 F.4th at 850-
51. The ACCA defines a “serious drug offense,” in part, as “an
offense under State law, involving manufacturing, distributing, or
possessing with intent to manufacture or distribute, a controlled
substance (as defined in section 102 of the Controlled Substances Act (21
1 The grant of certiorari in Jackson is not about our prior panel precedent rule.
The question in Jackson is whether the “serious drug offense” definition in the
ACCA “incorporates the federal drug schedules that were in effect at the time
of the federal firearm offense . . . or . . . at the time of the prior state drug
offense (as the Eleventh Circuit held below).” Jackson v. United States, No. 22-
6640 (Question Presented Report).
USCA11 Case: 23-10280 Document: 30-1 Date Filed: 04/30/2024 Page: 10 of 14

-- 10 of 14 --

23-10280 Opinion of the Court 11
U.S.C. [§] 802)), for which a maximum term of imprisonment of ten
years or more is prescribed by law.” 18 U.S.C. § 924(e)(2)(A)(ii)
(emphasis added). Prior to Jackson, our Court held that this
statutory “serious drug offense” definition requires only that the
state offense “involve” the conduct of “manufacturing,
distributing, or possessing with intent to manufacture or
distribute” and does not require a generic-offense matching
exercise. See United States v. Xavier Smith, 983 F.3d 1213, 1222-23
(11th Cir. 2020). Our Court also held that a “serious drug offense”
has no mens rea requirement as to the illicit nature of the drug. See
United States v. Travis Smith, 775 F.3d 1262, 1267-68 (11th Cir. 2014).
In contrast, the wholly separate question in Jackson involved
the meaning of the statutory language “as defined in section 102 of
the Controlled Substances Act.” 55 F.4th at 853. Specifically, the
question was whether this statutory part of the “serious drug
offense” definition “incorporates the version of the controlled-
substances schedules in effect when the defendant was convicted
of his prior state drug offenses or the version in effect when he
committed his present firearm offense.” Id.
In answering that question, the Jackson Court rejected the
government’s argument that our prior ACCA precedent in Xavier
Smith and Travis Smith foreclosed the defendant’s challenge. Id. at
852-54. The Court explained that those precedents construed a
different part of the ACCA’s “serious drug offense” definition—
whether the offense was one “involving manufacturing,
distributing, or possessing with intent to manufacture or
USCA11 Case: 23-10280 Document: 30-1 Date Filed: 04/30/2024 Page: 11 of 14

-- 11 of 14 --

12 Opinion of the Court 23-10280
distribute”—and thus did not express a binding holding as to the
other part of the “serious drug offense” definition that required the
state offense to involve “a controlled substance (as defined in
section 102 of the Controlled Substances Act (21 U.S.C. [§] 802).”
Id. at 853-54.
The Jackson Court observed that “[a]t best” those prior
decisions “assumed that this part of the [ACCA’s] ‘serious drug
offense’ definition and [the Florida drug statute] encompass the
same universe of substances,” but that “assumptions are not
holdings.” Id. at 853-54 (quotation marks omitted). Jackson
acknowledged that this Court has “categorically rejected an
overlooked reason or argument exception to the prior-panel-
precedent rule.” Id. at 853 (quotation marks omitted). But the
Jackson Court pointed out that the question now was about what
version of the federal controlled substances schedules the ACCA’s
“serious drug offense” definition incorporates. Id. Thus, the
Jackson Court concluded it was not bound by our earlier decisions
because they “did not address the question this appeal presents.”
Id. at 854; see also United States v. Penn, 63 F.4th 1305, 1310-11 (11th
Cir. 2023) (citing Jackson and reiterating that those same ACCA
precedents did not foreclose the defendant’s specific challenge to
whether a particular Florida drug conviction qualified as a “serious
drug offense” because it was not “presented and decided” in those
precedents).
Notably too, both Jackson and Penn involved the definition of
“serious drug offense.” What’s more, neither Jackson nor Penn
USCA11 Case: 23-10280 Document: 30-1 Date Filed: 04/30/2024 Page: 12 of 14

-- 12 of 14 --

23-10280 Opinion of the Court 13
involved an enumerated offenses clause that defined a “crime of
violence” and listed aggravated assault as a crime of violence.
Simply put, Jackson is materially different from this case.
Unlike in Jackson, the prior panel precedent rule applies here.
In Morales-Alonso, the defendant claimed the Georgia statute was
categorically broader than the generic offense and focused on the
types of weapons that could be used to commit a Georgia
aggravated assault with a deadly weapon under O.C.G.A. § 16-5-
21(a)(2). 878 F.3d at 1317-20. But in rejecting the defendant’s
overbreadth argument, the Morales-Alonso Court did not limit its
holding to that element or assume that the other elements of the
generic and Georgia offenses were the same. Instead, the Morales-
Alonso Court explicitly concluded that O.C.G.A. § 16-5-21(a)(2)
“contains substantially the same elements as generic aggravated
assault” and qualified as a “crime of violence.” Id. at 1317, 1320.
Thus, Hicks’s argument about the mens rea element, if accepted,
would necessarily mean that the panel in Morales-Alonso was wrong
in concluding that Georgia aggravated assault “contains
substantially the same elements as generic aggravated assault” and
thus is not categorically overbroad for purposes of the enumerated
offenses clause. Therefore, Hicks’s overbreadth argument is
foreclosed by Morales-Alonso. See Gillis, 938 F.3d at 1198.
For these reasons, the district court correctly concluded it
was bound by Morales-Alonso and properly applied U.S.S.G.
§ 2K2.1(a)(2)’s increased base offense level of 24 in calculating
USCA11 Case: 23-10280 Document: 30-1 Date Filed: 04/30/2024 Page: 13 of 14

-- 13 of 14 --

14 Opinion of the Court 23-10280
Hicks’s advisory guidelines range. We affirm Hicks’s 96-month
total sentence.
AFFIRMED.
USCA11 Case: 23-10280 Document: 30-1 Date Filed: 04/30/2024 Page: 14 of 14

-- 14 of 14 --