United States v. Arthur Lasheryl Morgan

USCA11 Case: 22-11934 Document: 28-1 Date Filed: 08/08/2023 Page: 1 of 3

[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit ____________________

No. 22-11934

Non-Argument Calendar ____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee, versus ARTHUR LASHERYL MORGAN, a.k.a. Tarrance Pace,

Defendant-Appellant. ____________________

Appeal from the United States District Court for the Southern District of Florida

D.C. Docket No. 1:21-cr-20542-CMA-1

USCA11 Case: 22-11934 Document: 28-1 Date Filed: 08/08/2023 Page: 2 of 3 2 Opinion of the Court 22-11934

____________________

Before ROSENBAUM, JILL PRYOR, and BLACK, Circuit Judges.

PER CURIAM:

Arthur Morgan appeals his 42-month sentence for posses- sion of ammunition as a convicted felon, asserting the district court improperly calculated his base offense level based on a determina- tion that his prior Florida conviction for aggravated assault with a firearm was a crime of violence. The Government responds by moving for summary affirmance, contending this Court has held that Florida aggravated assault is a crime of violence.

After review, 1 we grant the Government’s motion for sum- mary affirmance because it has met its burden of showing its posi- tion is clearly correct as a matter of law. See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969) 2 (explaining summary disposition is appropriate where “the position of one of the parties is clearly right as a matter of law so that there can be no substantial question as to the outcome of the case, or where, as is more fre- quently the case, the appeal is frivolous”). We recently held that Florida aggravated assault cannot be committed recklessly and thus

USCA11 Case: 22-11934 Document: 28-1 Date Filed: 08/08/2023 Page: 3 of 3 22-11934 Opinion of the Court 3 qualifies as a violent felony under the elements clause of the ACCA. Somers v. United States, 66 F.4th 890, 894-96 (11th Cir. 2023) (holding Florida aggravated assault categorically qualifies as a violent felony under the ACCA’s elements clause because aggravated assault re- quires a mens rea of at least knowledge and not recklessness). Be- cause the elements clause in the ACCA’s definition of violent fel- ony is virtually identical to the elements clause in the definition of a crime of violence in the Guidelines, we also rely on Somers for the proposition that Florida aggravated assault is a crime of violence under the elements clause in U.S.S.G. § 4B1.2(a). See United States v. Ochoa, 941 F.3d 1074, 1107 (11th Cir. 2019) (stating because the elements clauses in the definitions of “crime of violence” in § 4B1.2 and “violent felony” in the ACCA are “virtually identical,” we look to decisions applying the ACCA for guidance in considering whether an offense qualifies as a crime of violence under the Guidelines, and vice versa).

Accordingly, because the Government’s position is clearly correct as a matter of law, we GRANT the Government’s motion for summary affirmance. Groendyke Transp., Inc., 406 F.2d at 1162.

AFFIRMED.