United States v. Omar Miller

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[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

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No. 23-11911 ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus OMAR MALIK MILLER,

Defendant-Appellant.

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Appeal from the United States District Court for the Middle District of Georgia D.C. Docket No. 1:22-cr-00011-LAG-TQL-1 ____________________

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commentary is inconsistent with the Guidelines themselves. Dupree, 57 F.4th at 1274. So we turn to Section 4B1.2(a) for its def- inition of a “crime of violence.” Section 4B1.2(a) defines a “crime of violence” as “any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that” either (1) “has as an element the use, at- tempted use, or threatened use of physical force against the person of another; or” (2) “is murder, voluntary manslaughter, kidnap- ping, aggravated assault, a forcible sex offense, robbery, arson, ex- tortion, 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). The second clause, called the enumerated-offenses clause, includes “aggravated assault” in the list of offenses that are crimes of violence. Id. § 4B1.2(a)(2). So the Sentencing Guidelines con- sider Miller’s prior offenses for aggravated assault to be crimes of violence if the elements of Georgia’s aggravated-assault crime “roughly correspond[]” to those of the Sentencing Guidelines’ ag- gravated-assault crime. Morales-Alonso, 878 F.3d at 1314–15. Miller argues the two aggravated-assault crimes do not roughly correspond to each other. Specifically, he contends a per- son can commit an aggravated assault under Georgia law “with a general intent mens rea, while generic federal aggravated assault re- quires a more exacting mens rea.” In other words, Miller suggests Georgia’s aggravated-assault statute criminalizes more conduct than does the aggravated-assault crime for which the Sentencing

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Guidelines increase an offender’s sentence. So he claims it is possi- ble that one could commit an aggravated assault under Georgia law without committing an aggravated assault as the Sentencing Guidelines contemplate that offense. And that, according to Miller, means his sentence cannot stand. See Morales-Alonso, 878 F.3d at 1315 (explaining “a conviction only constitutes a crime of violence under the enumerated offenses clause . . . if the elements of the statute of conviction are the same as, or narrower than, the generic version of the enumerated offense”). B. But we squarely rejected Miller’s argument in Hicks. 100 F.4th at 1299. We did so for three reasons, each of which directly refutes the points Miller now raises on appeal. First, we explained that “Georgia aggravated assault with a deadly weapon qualifies as a crime of violence under the enumer- ated offenses clause because it has ‘substantially the same’ elements as” does the Sentencing Guidelines’ “generic aggravated assault.” Id. at 1299 (quoting Morales-Alonso, 878 F.3d at 1320). We had al- ready concluded as much in Morales-Alonso. To be sure, Morales- Alonso interpreted the enumerated-offense clause in Section 2L1.2 of the Guidelines, not Section 4B1.2(a)(2), which was at issue in Hicks (and is at issue here). But “[a]bsent indications to the contrary in the commentary, we interpret the same language used in two provisions of the Sentencing Guidelines consistently.” Id. (citing United States v. Martinez, 964 F.3d 1329, 1333–36, 1334 n.² (11th Cir. 2020)). And nothing in the Guidelines suggested “that the two

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enumerated offenses clauses—both listing aggravated assault— should be read differently.” Id. In fact, both used “nearly identical language.” Id. So Morales-Alonso compelled us to conclude that Georgia’s aggravated assault with a deadly weapon qualifies as a “crime of violence” under Section 4B1.2(a)(2). Id. Second, we addressed Hicks’s argument that Morales-Alonso should not apply because “Georgia aggravated assault with a deadly weapon is categorically broader than generic aggravated as- sault,” id.—the same argument Miller makes here. We rejected it, explaining that our prior precedent rule foreclosed Hicks’s argu- ment. We highlighted that Morales-Alonso could not have held that Georgia aggravated assault with a deadly weapon qualifies as a crime of violence without concluding “Georgia aggravated assault with a deadly weapon is not categorically broader” than the Sen- tencing Guidelines’ “generic aggravated assault.” Id. Because that conclusion was necessary to our prior decision, we explained, it “constitute[d] a holding that binds future panels” and thus fore- closed Hicks’s argument. Id. (citing United States v. Gillis, 938 F.3d 1181, 1198 (11th Cir. 2019)); United States v. Kaley, 579 F.3d 1246, 1253 n.10 (11th Cir. 2009) (explaining a holding is what is “neces- sary to the result reached” and cannot be “discarded without im- pairing the foundations of the holding”). We also recognized that Morales-Alonso did not consider the specific mens-rea argument Hicks made—again, the same one that Miller makes here. Hicks, 100 F.4th at 1299. But as we pointed out, our prior-precedent rule does not include an exception for

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arguments our prior panels purportedly “failed to consider.” Id. at 1300 (quoting Gills, 938 F.3d at 1198). We have “categorically re- jected an overlooked reason or argument exception to the prior- panel-precedent rule,” In re Lambrix, 776 F.3d 789, 794 (11th Cir. 2015), and refused to consider attempts to impugn a prior panel’s decision based on “a perceived defect in” its “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)). So we concluded that Hicks’s contention that Georgia’s ag- gravated-assault-with-a-deadly-weapon offense is broader than the Guidelines’ generic aggravated-assault offense could not escape our prior precedent’s conclusion to the contrary. Hicks, 100 F.4th at 1299–1300. Third, we rejected Hicks’s argument that United States v. Jackson, 55 F.4th 846 (11th Cir. 2022), aff’d sub nom. Brown v. United States, 602 U.S. 101 (2024), and United States v. Penn, 63 F.4th 1305, 1310-11 (11th Cir. 2023), allow us to depart from our prior-prece- dent rule. Miller repeats that argument here, too. We illustrated that Jackson and Penn were “materially different” and did “not ap- ply” to our interpretation of the Sentencing Guidelines. Hicks, 100 F.4th at 1300. Jackson addressed whether a defendant’s Florida cocaine-re- lated convictions were “serious drug offenses” under the Armed Career Criminal Act (“ACCA”). 55 F.4th at 850–51. We concluded that ACCA’s definition of a “serious drug offense” covered Jack- son’s prior convictions but, in the process, id. at 861–62, rejected

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the government’s argument that our prior precedent foreclosed the defendant’s challenge, id. at 854. As we explained, ACCA’s def- inition of a “serious drug offense” includes multiple parts, and our prior precedent “did not address” the parts of the statutory defini- tion that were at issue in Jackson. Id. at 854; Hicks, 100 F.4th at 1300–01. Simply, no prior holding bound the Jackson panel. That posture recurred in Penn: A defendant challenged the conclusion that his Florida drug-related convictions qualified as a “serious drug offense” under ACCA, and the government con- tended that our prior precedent foreclosed the defendant’s argu- ment. 63 F.4th at 1310–11. We again rejected the government’s invocation of our prior-precedent rule because our prior precedent simply did not “answer[] the question Penn . . . asked us to re- solve.” Id. at 1311. Just as in Jackson, no prior holdings bound us. That was not the case in Hicks. In contrast to the defendants’ arguments in Jackson and Penn—which also concerned the defini- tion of a “serious drug offense,” not the definition of a “crime of violence”—Hicks’s position ran headlong into established prece- dent. Morales-Alonso “explicitly concluded that O.C.G.A. § 16-5- 21(a)(2) ‘contains substantially the same elements as generic aggra- vated assault’ and qualified as a ‘crime of violence.’” Hicks, 110 F.4th at 1301 (quoting Morales-Alonso, 878 F.3d at 1317, 1320). So accepting Hicks’s mens rea argument would “necessarily [have] mean[t] that the panel in Morales-Alonso was wrong.” Id. Our prior- precedent rule thus forbade us from accepting Hicks’s overbreadth argument. Id. (citing Gillis, 938 F.3d at 1198).

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The same goes for Miller, but doubly so. If we were to ac- cept Miller’s argument, we would undermine not only Morales- Alonso but also Hicks. Whatever the merits of Hicks’s reasoning, our prior precedent now requires that we follow it. Gills, 938 F.3d at 1198; In re Lambrix, 776 F.3d 789, 794; GTE Corp., 236 F.3d at 1301–03. At bottom, Hicks holds that convictions under Georgia law for aggravated assault with a deadly weapon serve as predicates for Section “2K2.1(a)(2)’s increased base offense level of 24” when calculating the advisory sentencing range under the Guidelines. 100 F.4th at 1301. When we apply that principle to Miller’s conviction, it is clear the district court did not err in calculating the guidelines range for his sentence by starting from a base offense level of 24. Miller pled guilty to knowingly possessing a firearm as a felon. Before committing that offense, he sustained two convictions for aggra- vated assault with a deadly weapon under Georgia law.1 And

1 Miller argues that these convictions should not be used as crime-of-violence offenses because the government failed to submit documentation required by Shepard v. United States, 544 U.S. 13 (2005), to show with certainty the elements on which his convictions rested. We have since held that undisputed state- ments in a PSI qualify under Shepard as a suitable basis for evaluating whether a defendant’s prior offenses merit imposing a sentencing enhancement. United States v. McCloud, 818 F.3d 591, 596, 599 (11th Cir. 2016). Here, the undisputed statements in the PSI support the conclusion that Miller committed the first offense with a knife and the second with a gun. Though the PSI could have been clearer in specifying which portion of the statute Miller was convicted under, it is still sufficient to show Miller was convicted of aggravated assault with a deadly weapon (a knife and a gun, respectively).

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according to Hicks, Georgia aggravated assault with a deadly weapon is a “crime of violence.” Id. Those three facts fulfill Sec- tion’s 2K2.1(a)(2) conditions to apply an increased base level of 24 in calculating Miller’s advisory guidelines range. See U.S.S.G. §§ 2K2.1(a)(2), 4B1.2(a)(2). II. For these reasons, we affirm Miller’s sentence of 84 months of imprisonment followed by a 3-year term of supervised release. AFFIRMED.

Footnotes

[2] Opinion of the Court 23-11911 Before ROSENBAUM, LAGOA, and WILSON, Circuit Judges. PER CURIAM: A grand jury indicted Defendant Omar Miller, a convicted felon, for knowingly possessing a firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2). Miller pled guilty to that sole count in the indictment against him. And the district court sentenced Miller to

[84] months of imprisonment followed by a 3-year term of super- vised release. The district court did so, in part, because the United States Sentencing Guidelines assign a base offense level of 24 for an of- fense involving the possession of a firearm by a convicted felon if the defendant committed any part of the instant offense after sus- taining at least two prior felony convictions for a “crime of vio- lence.” U.S. SENT’G GUIDELINES MANUAL § 2K2.1(a)(2) cmt. n.1 (U.S. SENT. COMM’N 2023) [hereinafter U.S.S.G.]. Before Miller’s instant offense, Georgia juries twice convicted him of aggravated assault with a deadly weapon in violation of O.C.G.A. § 16-5- 21(a)(2). The district court, over Miller’s objection, held that Geor- gia’s crime of aggravated assault with a deadly weapon qualifies as a “crime of violence,” as Section 4B1.2(a) of the Sentencing Guide- lines defines the term. Miller timely appealed his sentence. On appeal, Miller argues the district court erred in conclud- ing that his prior convictions qualify as a crime of violence under the Sentencing Guidelines. We review de novo interpretations and applications of the Sentencing Guidelines. United States v. Dupree, 57 F.4th 1269, 1272 (11th Cir. 2023) (en banc). And that means we 23-11911 Opinion of the Court 3 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). But we agree with the district court that Georgia’s crime of aggravated assault with a deadly weapon is a crime of violence as the Sentencing Guidelines define that term. Controlling precedent compels us to do so. See United States v. Morales-Alonso, 878 F.3d 1311, 1320 (11th Cir. 2018) (holding Georgia aggravated assault conviction qualifies as a crime of violence under Section 2L1.2 of the Sentencing Guidelines); United States v. Hicks, 100 F.4th 1295, 1299–1301 (11th Cir. 2024) (concluding Georgia’s crime of “aggra- vated assault with a deadly weapon qualifies as a crime of violence” under Section 4b1.2(a)(2) of the Sentencing Guidelines). We thus affirm Miller’s sentence. I. We first recount the relevant Sentencing Guidelines and then explain how Hicks compels us to affirm Miller’s sentence. A. As we previewed, Section 2K2.1(a)(2) provides for a base of- fense level of 24 if a convicted felon-in-possession sustained at least two prior felony convictions for crimes of violence. Section 2K2.1(a)(2)’s commentary defines “crime of violence” by cross-ref- erence to other parts of the Sentencing Guidelines: Section 4B1.2(a) and Application Note 1 of the Commentary to Section 4B1.2. See U.S.S.G. § 4B1.2(b) cmt. n.1. And we generally follow the Sentenc- ing Commission’s commentary to the Guidelines unless the