USCA11 Case: 19-11484    Date Filed: 09/28/2021   Page: 1 of 13



                                                                        [PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 19-11484
                             Non-Argument Calendar
                           ________________________

         D.C. Docket Nos. 4:16-cv-00017-RH-MJF; 4:12-cr-00006-RH-MJF-1



FRED SOMERS,

                                                  Petitioner - Appellant,

versus

UNITED STATES OF AMERICA,

                                                  Respondent - Appellee.

                           ________________________

                    Appeal from the United States District Court
                        for the Northern District of Florida
                          ________________________

                       ON PETITION FOR REHEARING

                               (September 28, 2021)

Before JILL PRYOR, ANDERSON and MARCUS, Circuit Judges.

MARCUS, Circuit Judge:
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      In Somers v. United States, 

 (11th Cir. 2020) (“Somers I”),

issued on January 14, 2020, we affirmed the district court’s denial of appellant

Fred Somers’s 

 motion to vacate his sentence. We held that

Somers’s Florida aggravated assault conviction, see 

, qualified

as a violent felony under the Armed Career Criminal Act’s (“ACCA”) elements

clause, 

(e)(2)(B)(i). After Somers filed a petition for rehearing, we

held issuance of the mandate in abeyance pending the Supreme Court’s decision in

Borden v. United States, 

 (2021). After Borden was decided, we

asked the parties for further briefing about its effect on Somers I and on the

precedent on which we relied, Turner v. Warden Coleman FCI, 

,

1337–38 (11th Cir. 2013), abrogated on other grounds by Johnson v. United States,

 (2015). In supplemental briefing, Somers claims that the ACCA’s

elements clause applies only to specific-intent crimes, and that Florida aggravated

assault is not a specific-intent crime. Though the Florida aggravated assault statute

does not use the phrase “specific intent,” the government in substance argues that

the specific intent to threaten another is an element of Florida aggravated assault.

To facilitate full consideration of these questions, we grant the petition for

rehearing, vacate our previous opinion and judgment in Somers I, substitute this

opinion in its place, and certify to the Florida Supreme Court two related questions

about the nature of the Florida assault statutes.


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                                          I.

      Because the facts and procedural setting have not changed since our initial

opinion in this case, we reproduce the portions describing them in their entirety:

            Under the ACCA, a defendant convicted of being a felon in
      possession of a firearm who has three or more prior convictions for a
      “violent felony” or “serious drug offense” faces a mandatory
      minimum 15-year sentence. 

(e)(1). The ACCA
      defines a violent felony as any crime punishable by a term of
      imprisonment exceeding one year that:
             (i) has as an element the use, attempted use, or threatened
             use of physical force against the person of another; or

             (ii) is burglary, arson, or extortion, involves use of
             explosives, or otherwise involves conduct that presents a
             serious potential risk of physical injury to another.
      

(e)(2)(B). The first prong of this definition is referred
      to as the “elements clause,” while the second prong contains the
      “enumerated crimes” and “residual clause.” United States v. Owens,
      

 (11th Cir. 2012). In Johnson [] the Supreme Court
      struck down the residual clause as unconstitutionally vague. [576
      U.S. at 595–602.] In holding that the residual clause was void, the
      Supreme Court clarified that it did not call into question the
      application of the elements clause. 

 at [604–05]. It later held that
      Johnson announced a new substantive rule that applied retroactively
      to cases on collateral review. Welch v. United States, 

 (2016).
             To qualify as a violent felony under the ACCA’s elements
      clause, a conviction must have as an element the use, attempted use,
      or threatened use of physical force against the person of another. 

(e)(2)(B)(i). We employ the categorical approach to
      determine whether a conviction necessarily requires the use or
      threatened use of physical force, looking only at the required elements
      of a defendant’s prior offenses, and not to the particular facts

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      underlying those convictions. United States v. Jones, 

 (11th Cir. 2018), cert. denied, 

 (2019). A crime
      is categorically a violent felony under the elements clause if even the
      least of the culpable conduct criminalized by the statute would fall
      within the ACCA definition. Id.
              In Florida, an aggravated assault is an assault (a) with a deadly
      weapon without intent to kill, or (b) with an intent to commit a felony
      . 

. An assault is defined as an intentional,
      unlawful threat by word or act to do violence to the person of another,
      coupled with an apparent ability to do so, and doing some act which
      creates a well-founded fear in such other person that such violence is
      imminent. 

.
             In 2013, we held that a movant’s Florida conviction for
      aggravated assault qualified as a violent felony under the ACCA’s
      elements clause. Turner, 709 F.3d [at 1337–38], abrogated on other
      grounds by Johnson, [

]. We reasoned, first, that
      aggravated assault, by its definitional terms, necessar[il]y included an
      assault, which is an intentional and unlawful threat “to do violence” to
      the person of another. Id. at 1338. We further concluded that
      aggravated assault necessarily included as an element the “threatened
      use of physical force against the person of another.” Id.
             In United States v. Golden, we affirmed the defendant’s
      sentence because Turner, as binding precedent, foreclosed the
      argument that his conviction for aggravated assault was not a violent
      felony. 

, 1256–57 (11th Cir. 2017); see also [United
      States v.] Deshazior, 

 (holding that a defendant’s
      argument that Florida aggravated assault is not a violent felony for
      purposes of the ACCA is foreclosed by Turner). We said in Golden
      that, even if Turner was flawed, that did not give a later panel
      authority to disregard it. Golden, 

.

Somers I, 799 F. App’x at 692–93. In Somers I, we followed Turner and Golden

to hold that Florida aggravated assault was a violent felony under the ACCA

elements clause and, therefore, we affirmed the district court’s decision to rely on


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this conviction as one of three necessary violent felony predicates to support the

application of the ACCA’s fifteen-year mandatory minimum to Somers’s sentence.

Id. at 693. According to the Presentence Investigation Report in this case, without

the ACCA mandatory minimum, Somers’s sentencing guidelines range would have

been 130 to 162 months.


                                         II.

      Recently, in Borden, the Supreme Court clarified the meaning of the phrase

“against the person of another” as used in the ACCA elements clause. We’ve

described Borden this way:

      In Borden, the Supreme Court held that the phrase “use . . . against the
      person of another” in the ACCA’s elements clause “sets out a mens
      rea requirement -- of purposeful or knowing conduct.” Borden, 

, 1829 n.6 (plurality opinion). The elements clause
      “demands that the perpetrator direct his action at, or target, another
      individual.” 

. A crime that can be committed with a mens
      rea of mere recklessness therefore cannot qualify as a crime of
      violence under the elements clause -- “[r]eckless conduct is not aimed
      in [the] prescribed manner.” Id.; see also 

 (“‘[A]gainst the
      person of another,’ when modifying the ‘use of physical force,’
      introduces that action’s conscious object. So it excludes conduct, like
      recklessness, that is not directed or targeted at another.”) (citation
      omitted).

United States v. Carter, 

 (11th Cir. 2021). Borden held that

Tennessee reckless aggravated assault, which can be accomplished with a mens rea




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of recklessness, was not a violent felony under the elements clause. 131 S. Ct. at

1822, 1825.

      In supplemental briefing, Somers characterizes Borden as having held that to

meet the elements clause definition of violent felony, an offense must require more

than general intent in the sense of a mere “intent to commit the act.” See 1 Wayne

R. LaFave, Substantive Criminal Law § 5.2(e) (3d ed. Oct. 2020 update) (In “the

most common usage,” “general intent is only the intention to make the bodily

movement which constitutes the act which the crime requires.” (internal quotation

marks omitted)). According to Somers, Borden holds that the elements clause

requires specific intent. Specific intent is most commonly understood as

“designat[ing] a special mental element which is required above and beyond any

mental state required with respect to the actus reus of the crime.” LaFave, supra, §

5.2(e).

      Notably, the Borden plurality did not use the phrase “specific intent,” as

Somers suggests. Rather, the Borden plurality held that the elements-clause phrase

“against the person of another” requires that the subject of the verb that phrase is

modifying -- either the “use, attempted use, or threatened use of force” -- not only

use, attempt, or threaten force volitionally, but also “direct his action at, or target,

another individual.” 

; see also 

(e)(2)(B)(i)

(defining “violent felony” as a crime punishable by more than one year that “has as


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an element the use, attempted use, or threatened use of physical force against the

person of another”). Put another way, the elements clause requires both the

general intent to volitionally take the action of using, attempting to use, or

threating to use force and something more: that the defendant direct the action at a

target, namely another person. Specific intent to direct action at another satisfies

this latter requirement, as does “knowing conduct.” Borden, 

(holding that the elements clause’s “against the person of another” phrase “sets out

a mens rea requirement -- of purposeful or knowing conduct”).1

       Thus, if Florida aggravated assault requires a mens rea of specific intent to

use, attempt to use, or threaten to use physical force against the person of another,

then Florida aggravated assault qualifies as an ACCA violent felony predicate and

Somers’s ACCA-enhanced sentence must stand. If not, Somers would be entitled



1
  Justice Thomas concurred in the judgment on the ground that the phrase “use of physical force,”
all by itself without any assistance from the “against” phrase, “has a well-understood meaning
applying only to intentional acts designed to cause harm.” Borden, 

 (Thomas,
J., concurring in the judgment) (internal quotation marks and citation omitted). “[W]e determine
the holding of split decisions . . . by looking to the ‘narrowest grounds’ of agreement among the
members of the Court who concurred in the judgment.” Reprod. Health Servs. v. Strange, 

, 1259 n.6 (11th Cir. 2021) (citing Marks v. United States, 

 (1977)). Both
Justice Thomas and the members of the plurality agreed that the elements clause requires more
than general intent in the sense of a mere volitional act. See Borden, 

 (Thomas,
J., concurring in the judgment) (the elements clause extends only to crimes that involve
“intentional acts designed to cause harm”) (emphasis added); 

 at 1829 n.6 (plurality opinion)
(“Four Justices think that the ‘use’ phrase, as modified by the ‘against’ phrase, in ACCA’s
elements clause excludes reckless conduct. [Justice Thomas] thinks, consistent with his previously
stated view, that the ‘use’ phrase alone accomplishes that result. And that makes five to answer
the question presented. Q: Does the elements clause exclude reckless conduct? A: Yes, it does.”)
(citation omitted).
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to re-sentencing. Florida aggravated assault incorporates the Florida simple assault

statute, the text of which lays out three elements of assault: (1) “an intentional,

unlawful threat by word or act to do violence to the person of another,” (2) that is

“coupled with an apparent ability to do so,” and (3) “doing some act which creates

a well-founded fear in such other person that such violence is imminent.” 

. The most natural reading of the first element’s text requires the specific

intent to threaten another person with violence: it defines assault as “an intentional

. . . . threat . . . to do violence to the person of another.” Indeed, Turner (and by

proxy, Golden and Somers I) relied on this text to hold that Florida aggravated

assault always includes a threat to use physical force against the person of another

and therefore meets the elements clause definition of “violent felony.” Of course,

in determining the elements of a state crime for federal sentencing purposes, we

are “bound by [state] courts’ determination and construction of the substantive

elements of [the] state offense.” United States v. Rosales-Bruno, 

 (11th Cir. 2012) (emphasis added). “[A]bsent a decision from the state

supreme court on an issue of state law, we are bound to follow decisions of the

state’s intermediate appellate courts unless there is some persuasive indication that

the highest court of the state would decide the issue differently.” United States v.

Hill, 

 (11th Cir. 2015).




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       The Florida Supreme Court has not answered the question of whether

Florida aggravated assault requires specific intent, or something just like it (e.g.,

“purposeful or knowing conduct,” Borden, 

). Panel decisions

from each of Florida’s intermediate appellate courts seem to support the plain

reading of the text; they have confirmed, in words or substance, that a specific

intent to threaten another person is indeed a necessary element of simple assault.

See, e.g., Swift v. State, 

 (Fla. 2d DCA 2008) (reversing

aggravated assault on a law enforcement 2 officer conviction because the evidence

“did not tend to establish that [the defendant] had a specific intent to threaten [the

officer]”); Denard v. State, 

 (Fla. 5th DCA 2010) (reversing

aggravated assault conviction because “the evidence [did] not establish that [the

defendant] had the specific intent to threaten” the victim); J.S. v. State, 

 (Fla. 4th DCA 2017) (“The issue in this case is focused on the first

element [of assault]: did the appellant intend to threaten the victim? In this case,

there is no evidence that appellant verbally ‘threatened’ the victim. The case

therefore rises or falls on whether there was an overt act that the [defendant]

intentionally threatened the victim.”); Williams v. State, 

 (Fla.

1st DCA 2018) (“[T]he first question [for an aggravated assault conviction] is



2
 This offense, like the general aggravated assault statute, incorporates simple assault. See Swift,

.
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whether a reasonable jury could have concluded from the evidence that Williams

intentionally and unlawfully threatened Dixon and Byrd ‘by word or act.’”); State

v. Conroy, 

, 312 n.10 (Fla. 3d DCA 2013) (“Because attempted first

degree murder and aggravated assault are each a specific intent crime, the requisite

intent must be directed toward a specific victim . . . .”).

      Thus, in Swift, Florida’s Second District Court of Appeal reversed an

aggravated assault on a law enforcement officer conviction for backing an SUV

toward a police officer because the state “was unable to establish that [the

defendant] knew that [the victim officer] had run behind the SUV during the

minimal amount of time that elapsed” before the defendant put his SUV in reverse.

. Since the state could not prove that the defendant knew the

officer was standing behind his car, it could not prove that the defendant

specifically intended to threaten the officer by reversing the car. 

 And in J.S.,

the Fourth District Court of Appeal held that an assault had not been proven

because “no evidence was introduced that would support a finding that the

appellant intentionally threatened the victim.” 

. See also Benitez

v. State, 

 (Fla. 4th DCA 2005) (reversing aggravated assault on

a law enforcement officer conviction because “the defendant’s act of placing his

hand behind his back, while alarming to the deputy, [was] not substantial,

competent evidence the defendant intentionally and unlawfully threatened the


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deputy”); Pinkney v. State, 

, 577 n.3 (Fla. 2d DCA 2011)

(concluding that Swift’s “reasoning” -- reversing a conviction because there was

insufficient evidence that the defendant “had intentionally threatened the officer” --

“is ultimately correct”). If these decisions correctly state the elements of Florida

simple assault, the offense requires the specific intent to direct a threat of violence

at the person of another and therefore satisfies Borden’s interpretation of the

ACCA elements clause.

      However, some intermediate Florida appellate courts have explicated

Florida’s law of aggravated assault in a different way. Thus, in Kelly v. State

Florida’s Fifth District Court of Appeal upheld an aggravated assault conviction

for shooting into an occupied vehicle because the evidence established that the

defendant knew the victim was in the car and that the defendant’s “actions . . .

involved criminal conduct directed toward a victim.” 

 (Fla. 5th

DCA), rev. denied, 

 (Fla. 1990). Along the way, the court

explained its ruling in this way:

      Aggravated assault is a crime of intent. Where, as here, there is no
      proof of an intentional assault on the victim, that proof may be
      supplied by proof of conduct equivalent to culpable negligence, Green
      v. State, 

 (Fla. 4th DCA 1975), or by proof of willful
      and reckless disregard for the safety of others. Dupree v. State, 

 (Fla. 2d DCA 1975).

In LaValley v. State, 

 (Fla. 5th DCA 1994), the Fifth District

Court of Appeal relied upon Kelly to again state that “‘willful and reckless
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disregard for the safety of others’ could substitute for proof of intentional assault

on the victim.” To the extent Kelly and LaValley hold that aggravated assault can

be proven without evidence of an intentional threat to do violence to another, they

suggest that Florida’s aggravated assault statute could not meet the ACCA

elements clause’s definition of violent felony.

       Thus, as we see it, there is a split in Florida authority on the mens rea

required by the Florida assault statutes.3 This issue controls the resolution of

Somers’s case and may affect others similarly situated, so we respectfully seek the

guidance of the Florida Supreme Court on this pivotal question. See United States

v. Conage, 

 (11th Cir. 2020) (“[T]his Court has found

certification to the Florida Supreme Court warranted where an appeal ‘depends on

resolution of questions of unsettled Florida law’ that ‘will affect many other

cases.’”) (citation omitted). “The certification procedure is ‘a valuable tool’ that

‘helps save time, energy, and resources and produces authoritative answers to

novel or unsettled questions of state law.’” 

 (citation omitted). “Florida’s



3
  In State v. Hackley, 

 (Fla. 2012), the Florida Supreme Court held that a conviction
for burglary of a conveyance with an assault met the definition of Florida’s prison release
reoffender statute, which extends to “[a]ny felony that involves the use or threat of physical force
or violence against an individual.” 

(9)(a)1(o) (2006). The Court reasoned that
“assault is a felony that necessarily involves the ‘threat by word or act to do violence to the person
of another’” and noted that an assault “by definition . . . always includes the threat to do violence.”
Hackley, 

. While the statutory definition at issue in Hackley is similar to the
ACCA elements clause before us today, Hackley relied on the “plain language” of the assault
statute and did not definitively answer whether assault requires a specific intent. See 

.
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constitution expressly provides for certification to the Florida Supreme Court of

state law questions that are ‘determinative of the cause and for which there is no

controlling precedent of the supreme court of Florida.’” 

 (quoting Fla. Const.

art. V, § 3(b)(6)); see also 

; Fla. R. App. P. 9.150.

      Accordingly, we certify to the Florida Supreme Court the following

questions of law:

      1. Does the first element of assault as defined in 

(1) -- “an intentional, unlawful threat by word or act to do
      violence to the person of another” -- require specific intent?

      2. If not, what is the mens rea required to prove that element of the
      statute?

“Our statement of the certified questions is merely suggestive and is not meant to

limit the inquiry of the Florida Supreme Court.” Conage, 

 (“As

this Court has explained many times, ‘the particular phrasing used in the certified

question[s] is not to restrict the Supreme Court’s consideration of the problems

involved and the issues as the Supreme Court perceives them to be in its analysis

of the record certified in this case.’”) (citation omitted).

OPINION AND JUDGMENT VACATED AND QUESTIONS CERTIFIED.




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