USA v. Dorothy Pearl Smith

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 19-10946
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DOROTHY PEARL SMITH,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 3:17-cr-00246-BJD-JBT-1
____________________
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2 Opinion of the Court 19-10946
Before R OSENBAUM , NEWSOM , and B LACK , Circuit Judges.
PER CURIAM:
Dorothy Smith appeals her 96-month sentence imposed af-
ter pleading guilty to being a felon in possession of a firearm, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Smith pleaded guilty
to possessing a firearm after being convicted of at least one felony,
including three convictions for aggravated assault, resulting in her
classification as an armed career criminal under the Armed Career
Criminal Act (ACCA), 18 U.S.C. § 924(e). Smith asserts her prior
Florida aggravated assault convictions do not qualify as violent fel-
onies under the ACCA’s elements clause. Specifically, she con-
tends the Florida aggravated assault statute criminalized reckless
conduct, and thus the least culpable conduct criminalized was
broader than the language of the ACCA’s elements clause.1
We recently rejected this argument in
Somers v. United
States, No. 19-11484, 2023 WL 3067033 (11th Cir. Apr. 25, 2023).
After the Supreme Court held in
Borden v. United States, 141 S. Ct.
1817, 1829-30 n.6 (2021), “that offenses that can be committed with
a
mens rea of recklessness do not satisfy the elements clause of the
1 The ACCA defines a “violent felony” as “any crime punishable by imprison-
ment for a term exceeding one year . . . that . . . has as an element the use,
attempted use, or threatened use of physical force against the person of an-
other[.]” 18 U.S.C. § 924(e)(2)(B). “This definition is often referred to as the
‘elements clause.’”
Somers v. United States, No. 19-11484, 2023 WL 3067033,
at *3 (11th Cir. Apr. 25, 2023).
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19-10946 Opinion of the Court 3
ACCA,”
Somers, 2023 WL 3067033, at *4, this Court certified ques-
tions to the Florida Supreme Court regarding the
mens rea re-
quired for a Florida aggravated assault conviction,
id. at *2. The
Florida Supreme Court held the Florida aggravated assault statute
demands the specific intent to direct a threat at another person and
therefore cannot be violated by a reckless act.
Somers v. United
States, 355 So. 3d 887, 891 (Fla. 2022). Based on the Florida Su-
preme Court’s answer to our certified questions that aggravated
assault under Florida law requires a
mens rea of at least knowing
conduct, we held aggravated assault under Florida law qualifies as
an ACCA predicate offense under
Borden.
Somers, 2023 WL
3067033, at *1.
After review,2 we affirm Smith’s sentence. Smith’s argu-
ment is foreclosed by our precedent in
Somers. The district court
did not err in classifying Smith as an armed career criminal because
Smith’s Florida aggravated assault convictions qualify as violent fel-
onies.
AFFIRMED.
2 “We review
de novo whether a defendant’s prior convictions qualify as vi-
olent felonies under the ACCA.”
United States v. Hill, 799 F.3d 1318, 1321
(11th Cir. 2015).
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