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United States Court of Appeals, Eleventh Circuit.

UNITED STATES of America, Plaintiff-Appellee, v. Tedarel Leshun PRESTON, Defendant-Appellant.

No. 18-12343

Decided: April 17, 2019

Before TJOFLAT, JORDAN, and EDMONDSON, Circuit Judges. Brandy Brentari Galler, U.S. Attorney's Office, West Palm Beach, FL, Carol Herman, Emily M. Smachetti, U.S. Attorney Service - Southern District of Florida, U.S. Attorney Service - SFL, Miami, FL, for Plaintiff - Appellee Michael Caruso, Federal Public Defender, Michael D. Spivack, Federal Public Defender's Office, Fort Lauderdale, FL, Bonnie Phillips-Williams, Federal Public Defender's Office, Miami, FL, for Defendant - Appellant

Tedarel Leshun Preston appeals his 15-year sentence -- which was enhanced under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e) -- imposed after he was found guilty of being a felon in possession of a firearm and ammunition, 18 U.S.C. § 922(g)(1). On appeal, Preston ed AT! argues that the district court erred when it determined that he was an armed career criminal; he says his Florida aggravated-assault conviction should not be an ACCA predicate offense. He argues that Turner v. Warden Coleman FCI ( Medium), 709 F.3d 1328, 1338 (11th Cir. 2013), abrogated on other grounds by Johnson v. United States, ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), should be overruled and that the analysis in Turner has been undermined to the point of abrogation.

We review de novo whether a defendant’s prior convictions qualify as violent felonies under the ACCA. United States v. Hill, 799 F.3d 1318, 1321 (11th Cir. 2015). Under our prior-panel precedent rule, a prior panel’s holding is binding on all subsequent panels unless and until it is overturned or undermined to the point of abrogation by the Supreme Court or by us sitting en banc. United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008) (providing that “[w]hile an intervening decision of the Supreme Court can overrule the decision of a prior panel of our court, the Supreme Court decision must be clearly on point”).

The ACCA provides that a defendant convicted of possession of a firearm by a convicted felon who has three previous convictions for a violent felony or a serious drug offense shall be imprisoned not less than 15 years. 18 U.S.C. § 924(e)(1). “Violent felony” is defined, in relevant part, as a crime punishable by a term of imprisonment exceeding one year that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i). We have stated that, because the definition of “violent felony” under the ACCA is virtually identical to the definition of “crime of violence” used in provisions of the Sentencing Guidelines, case law interpreting the Guidelines definitions is instructive in the ACCA context. See United States v. Hall, 714 F.3d 1270, 1272 (11th Cir. 2013) (comparing ACCA “violent felony” definition to U.S.S.G. § 2K2.1(a)(2), which incorporates identical “crime of violence” definition from U.S.S.G. § 4B1.2(a)); United States v. Vail-Bailon, 868 F.3d 1293, 1298 n.8 (11th Cir. 2017) (en banc), cert. denied, ––– U.S. ––––, 138 S.Ct. 2620, 201 L.Ed.2d 1031 (2018) (comparing ACCA “violent felony” definition to identical “crime of violence” definition from U.S.S.G. § 2L1.2).

In Turner, we held that aggravated assault under Fla. Stat. § 784.021 is a violent felony under the elements clause of the ACCA. Turner, 709 F.3d at 1338. After Johnson, we reaffirmed Turner’s holding in United States v. Golden, 854 F.3d 1256 (11th Cir. 2017), and in United States v. Deshazior, 882 F.3d 1352 (11th Cir. 2018), cert. denied, ––– U.S. ––––, 139 S.Ct. 1255, 203 L.Ed.2d 275 (2019). Specifically, in those cases, we relied upon prior panel precedent in Turner to conclude that aggravated assault under Fla. Stat. § 784.021 is a crime of violence under the identical definition provided in U.S.S.G. § 2K2.1(a)(2), and a violent felony under the ACCA. See Golden, 854 F.3d at 1257 (holding that, “even if Turner is flawed, that does not give us, as a later panel, the authority to disregard it”); Deshazior, 882 F.32 at 1355.

Accordingly, we are bound by our precedent that aggravated assault constitutes a crime of violence under the ACCA, even after Johnson. See Turner, 709 F.3d at 1338; Golden, 854 F.3d at 1257; Deshazior, 882 F.32 at 1355. Therefore, we affirm.



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