In the

    United States Court of Appeals
                 For the Seventh Circuit
                    ____________________
No. 21-1325
UNITED STATES OF AMERICA,
                                                  Plaintiff-Appellee,
                                 v.

DENNY R. ANDERSON,
                                              Defendant-Appellant.
                    ____________________

        Appeal from the United States District Court for the
         Southern District of Indiana, Indianapolis Division.
      No. 1:11-CR-00201-001 — Tanya Walton Pratt, Chief Judge.
                    ____________________

    ARGUED JANUARY 25, 2022 — DECIDED APRIL 30, 2024
                ____________________

   Before RIPPLE, WOOD, and JACKSON-AKIWUMI, Circuit
Judges.
   JACKSON-AKIWUMI, Circuit Judge. This case concerns
whether the district court improperly enhanced Denny An-
derson’s sentence under the Armed Career Criminal Act,

(e). ACCA mandates a 15-year minimum sen-
tence for those convicted of possessing a gun after three or
more prior convictions for a “violent felony.” In this direct ap-
peal (Anderson once had a habeas appeal before this court
2                                                  No. 21-1325

too), Anderson argues that one of the prior convictions the
district court relied on—his Florida conviction in 2001 for ag-
gravated assault—covers reckless conduct and is therefore no
longer a “violent felony” after Borden v. United States,

 (2021), held that predicate acts must be inten-
tional crimes. We held this case in abeyance pending the Flor-
ida Supreme Court’s decision in Somers v. United States,

 (Fla. 2022), which addressed whether the Flor-
ida crime of aggravated assault covers reckless conduct. With
that case decided, we are prepared to address Anderson’s ap-
peal. We conclude that Anderson’s Florida conviction in 2001
is not a predicate violent felony and that the government may
not substitute one of Anderson’s other prior convictions as an
alternative predicate offense. Because Anderson does not
have three predicate convictions, the ACCA enhancement
was improper. We therefore vacate and remand for resentenc-
ing.
                                 I.
    Denny Anderson was sentenced in 2012 for possessing a
firearm as a felon, in violation of 

(g)(1), after
shooting at a man and then yelling racial slurs about him. The
maximum penalty for the illegal-possession offense normally
is 10 years, 

 § 924(a)(2) (2018), but ACCA mandates a
15-year minimum sentence for anyone who has three prior
convictions for a “violent felony,” id. § 924(e). The indictment
alleged eight prior felony convictions qualifying Anderson
for a sentencing enhancement under § 924(e). Anderson
pleaded guilty and was sentenced to an agreed-upon term of
180 months (15 years) in prison.
   Anderson was resentenced in 2021, at the conclusion of a
successful habeas petition he filed under 

 in
No. 21-1325                                                  3

2013. In that petition, he moved to vacate his sentence based
on several defects. This court ruled that he was entitled to a
hearing, Anderson v. United States, 

 (7th Cir.
2017), and the district court vacated the sentence. The govern-
ment recharged him in a superseding indictment that listed
the same prior convictions as in the original indictment, and
the government again maintained that he was subject to a
15-year minimum sentence. In the factual basis supporting
Anderson’s renewed guilty plea, the government stated that
Anderson had been convicted of three prior felonies. The par-
ties agree that two—a 1981 burglary and a 1987 robbery—are
ACCA predicates. The third offense the government men-
tioned was a 1995 Class C felony conviction for battery in In-
diana. The original indictment, however, gave the wrong date
of conviction, and, at the plea hearing for the superseding in-
dictment, the government said the conviction was from “Mar-
ion County, Indiana,” but has since acknowledged that it is
from Hendricks County, Indiana.
   As the case proceeded to sentencing, the probation office
supplied information about Anderson’s criminal history. The
Presentence Investigation Report listed as “Adult Criminal
Convictions” three violent felonies—the burglary from 1981,
the robbery from 1987, and an aggravated assault from 2001
in Florida. Anderson’s 1995 Indiana battery offense was in-
cluded under “Other Arrests,” a section listing offenses of
which Anderson was not convicted. The PSR also stated that
the battery “charge” was “[d]ismissed per plea agreement.”
   The district court agreed that Anderson’s convictions for
burglary, robbery, and Florida aggravated assault qualified as
violent felonies, triggering a 15-year minimum sentence. The
court did not discuss the Indiana battery offense as a predicate
4                                                    No. 21-1325

conviction. Neither party objected to the PSR, which the court
adopted, and Anderson did not object to his designation as an
armed career criminal. The court then resentenced him to
188 months in prison.
    After Anderson filed this appeal to challenge his 15-year
minimum sentence under ACCA, the district court permitted
the government to supplement the record with three sets of
documents. The first is a copy of Anderson’s “judgment of
conviction” for felony battery in Indiana on October 20, 1995,
reflecting a sentence of probation. The second is a copy of the
docket for that case. The docket shows that the state peti-
tioned to revoke probation several months after the judgment.
That petition was followed by a final entry stating “[c]ase dis-
missed per order.” The third is a document showing that,
shortly before the date of that final entry, Anderson entered
into a plea deal in which the state agreed to “dismiss.” The
final entry on the docket reflects the order granting that mo-
tion to dismiss.
                                 II.
    This case turns on whether Anderson’s 2001 conviction for
assault in Florida, or the 1995 battery offense in Indiana, qual-
ify as the third predicate conviction and therefore properly
subjected him to a higher minimum sentence under ACCA.
See 

(e). Ordinarily we review that question
de novo. United States v. Love, 

, 678 (7th Cir. 2021).
But because Anderson did not contest his ACCA designation
in the district court, we review that designation for plain er-
ror. United States v. Williams, 

 (7th Cir. 2019).
No. 21-1325                                                     5

                                 A.
    Anderson first argues that his Florida conviction for ag-
gravated assault is plainly not a “violent felony” because as-
sault under Florida law, FLA. STAT. § 784.021, includes reckless
conduct, and therefore the scope of the crime is too broad to
constitute a violent felony. A state offense is a violent felony
for ACCA if it “necessarily involves the defendant’s ‘use, at-
tempted use, or threatened use of physical force against the
person of another.’” Borden, 141 S. Ct. at 1822 (quoting

(e)). A state offense is overbroad (and therefore
not a violent felony) if it requires only the reckless use, at-
tempted use, or threatened use of force. 

 at 1821–22.
    As mentioned earlier, we waited for the Florida Supreme
Court to rule on whether the crime of assault in that state in-
cludes reckless conduct. It has done so, holding that “an as-
sault cannot be committed by a reckless act.” Somers, 355 So.
3d at 892. But that decision, Anderson contends, does not re-
solve the matter before us. According to Anderson, the rele-
vant inquiry is whether the law at the time of his conviction was
broader than the corresponding federal law. And at the time
of Anderson’s conviction in 2001, Florida courts were split on
the breadth of the assault statute. Some appellate courts had
held that assault could be committed recklessly, see LaValley v.
Florida, 

, 1127–28 (Fla. Dist. Ct. App. 1994);
Kelly v. Florida, 

 (Fla. Dist. Ct. App. 1989),
while others had reached the opposite conclusion, see, e.g.,
Lavin v. Florida, 

 (Fla. Dist. Ct. App. 2000)
(“Aggravated assault requires proof of a specific intent to do
violence to the person of another.”); Florida v. Shorette, 

 (Fla. Dist. Ct. App. 1981) (same); J.C.M. v. Florida,

, 873–74 (Fla. Dist. Ct. App. 1979) (same).
6                                                      No. 21-1325

   As an initial matter, Anderson is correct that we look to the
law at the time of the offense to determine whether a crime is
a violent felony under ACCA. See Love, 7 F.4th at 678 (“We
consider the version of the State’s criminal statute in effect at
the time of the offense.”); cf. McNeill v. United States, 

 (2011) (considering the “law under which the defend-
ant was convicted” in determining whether a defendant com-
mitted a “serious drug offense” under ACCA).
    The breadth of the Florida aggravated assault statute at the
time of Anderson’s conviction is not easily discerned. Under
rules of federal statutory construction, we ordinarily presume
that a court’s construction of a federal statute merely clarifies
existing law and is “an authoritative statement of what the
statute meant before as well as after the decision of the case
giving rise to that construction.” Rivers v. Roadway Exp., Inc.,

, 312–13 (1994). Under this presumption, the ag-
gravated assault statute at the time of Anderson’s 2001 con-
viction would have the same meaning as the Florida Supreme
Court’s interpretation in Somers in 2022. But because we are
dealing with a Florida statute, we must apply Florida’s rules
of statutory construction. See, e.g., Lexington Ins. Co. v. Rugg &
Knopp, Inc., 

 (7th Cir. 1999) (“That other ju-
risdictions favor a policy cannot weigh heavily in a federal
court’s determination in an unsettled area of a state’s law if
there is any significant indication that that state’s own law ei-
ther disfavors the policy in question directly or that promoting
the policy would run afoul of established state standards of judicial
interpretation or statutory construction.” (emphasis added)).
And Florida has a unique approach to statutory interpreta-
tion: In Florida v. Barnum, 

 (Fla. 2005), the
Florida Supreme Court held that “all decisions of this Court
disagreeing with a statutory construct previously rendered by
No. 21-1325                                                    7

a district court constitute ‘changes’ in the applicable law from
the law at the time of conviction.” Moreover, court-initiated
“changes” in the law do not apply retroactively unless the
court states that the change satisfies a three-part test enunci-
ated in Witt v. Florida, 

 (Fla. 1980). Barnum,

.
    Because the Florida Supreme Court decision in Somers dis-
agrees with the statutory construct put forth in LaValley and
Kelly, it ostensibly constitutes a “change” in the law. Barnum,

. (Put aside, for the time being, the conflicting
decisions in Lavin, Shorette, and J.C.M., which we will return
to in a moment.) But Somers did not cite or apply the Witt ret-
roactivity test; the opinion said nothing at all about retroac-
tivity. Therefore, Somers does not announce a retroactive
change in the law. With no ruling from the state’s highest
court on the law at the time of Anderson’s conviction, we turn
to the Florida appellate courts to determine the law of the
state. See Barnum, 

 (holding that “decisions of
the district courts represent the law of the state, binding all
Florida trial courts” unless there is “interdistrict con-
flict”); United States v. Cornette, 

 (4th Cir.
2019) (“[W]hen confronting matters of state law that have not
yet been decided by the state’s high court, we typically turn
to the state’s intermediate appellate courts.”). But, as dis-
cussed, there was an interdistrict conflict at the time of Ander-
son’s conviction, meaning there was no “law of the state.” Bar-
num, 

.
    Given this state of affairs—that there was no unified law
of the state in 2001 on whether aggravated assault could be
committed recklessly—the “realistic probability” test is an apt
tool to use. We apply that doctrine when, in comparing a state
8                                                   No. 21-1325

statute to its federal counterpart, “the language of the state
statute is ambiguous or has indeterminate reach.” United
States v. Turner, 

, 527 (7th Cir. 2022) (Jackson-Aki-
wumi, J., concurring); see also Aguirre-Zuniga v. Garland,

, 451 (7th Cir. 2022) (applying the same test in the
immigration context). Under this approach, we ask whether
there is a “realistic probability, not a theoretical possibility,
that the [s]tate would apply its statute to conduct that falls
outside the generic definition of the crime.” Gonzales v. Du-
enas-Alvarez, 

 (2007). To show a realistic prob-
ability, a defendant must “at least point to his own case or
other cases in which the state courts in fact did apply the stat-
ute in the special (nongeneric) manner for which he argues.”

    Anderson has done just that by identifying Florida appel-
late court decisions ruling that assault could be committed
recklessly. The Eleventh Circuit rejected this conclusion when
presented with a similar argument; it reasoned that the Flor-
ida Supreme Court’s decision in Somers “tells us what the stat-
ute always meant.” Somers v. United States, 

, 896
(11th Cir. 2023) (citation omitted). But the Eleventh Circuit did
not address Florida’s approach to statutory interpretation,
which, as we explained above, we are bound to follow when
interpreting Florida law. Because the Florida Supreme Court
did not say that Somers applied retroactively, the decisions
from the Florida appellate courts tell us how the statute was
applied at the time. See Barnum, 

; Cornette,

. And, based on those conflicting decisions,
there was a realistic probability that courts would punish con-
duct that included recklessness.
No. 21-1325                                                       9

    We recognize that, in applying the realistic-probability test
to rule that Anderson’s 2001 conviction is not a predicate
ACCA conviction, we are relying on appellate decisions like
LaValley and Kelly that we now know, based on Florida’s de-
cision in Somers, erroneously held that assault could be con-
victed recklessly. But at the time of Anderson’s conviction,
these decisions were not erroneous. See Pardo v. Florida,

 (Fla. 1992) (“[T]he decisions of the district
courts of appeal represent the law of Florida unless and until
they are overruled by [the Florida Supreme Court].” (empha-
sis added)). And this problem could arise any time a court fol-
lows a state law as interpreted at the time of sentencing, and
a state supreme court later takes a different position. Further-
more, in a case as close as this one, we must consider that de-
fendants are often unable to take advantage of favorable
changes in the law. See, e.g., United States v. Brock, 

,
466 (7th Cir. 2022) (new judicial decisions that interpret a
criminal statute more narrowly are not extraordinary and
compelling reasons for compassionate release); Jones v. Hen-
drix, 

, 1869 (2023) (new judicial decisions that
interpret a criminal statute more narrowly do not warrant re-
lief under a second or subsequent collateral attack under

(b)(2)). Our ruling today places the govern-
ment on no worse footing.
    Because Florida appellate cases using the recklessness
standard were good law at the time of Anderson’s conviction
in 2001, a defendant faced a realistic probability that a trial
court would have relied on them to convict him of aggravated
assault when that defendant had only a reckless state of mind.
Given that realistic probability, the government may not rely
on the 2001 Florida conviction as an ACCA predicate.
10                                                 No. 21-1325

                                B.
    The government hedges its bets by proposing a “backup”
offense if Anderson’s 2001 Florida conviction cannot be an
ACCA predicate. The government reasons that Anderson’s
1995 battery offense from Indiana can replace the Florida con-
viction and therefore sustain his enhanced sentence under
ACCA. This would mean, the government argues, the district
court did not plainly err in applying ACCA.
    Anderson opposes this backup plan. In Anderson’s view,
he currently has no Indiana conviction for battery. He does
not dispute that the charge he faced in 1995 for battery is a
“violent felony” under ACCA; he instead contends that his
“conviction” was vacated and thus is not a predicate crime.
See 

(a)(20). In support he points to two sources.
The first is the PSR—which, because the district court adopted
it, he argues we must accept unless clearly erroneous. He
highlights its statement that his battery “charge” was “dis-
missed.” The second is the material that the government sub-
mitted after Anderson appealed. This includes a copy of the
judgment in 1995 reflecting his battery conviction and proba-
tion. He highlights the docket sheet showing a later-filed pe-
tition to revoke probation and the final entry stating “[c]ase
dismissed per order.”
    The government counters that the battery conviction is in-
tact and that “dismissed” refers to the charge of Anderson’s
probation violation. Relying on its supplemental submission,
the government observes that, after Anderson’s battery con-
viction, the state charged him with a probation violation, An-
derson reached a plea deal about that charge, and that charge
is what the state agreed to “dismiss.” From this sequence, the
No. 21-1325                                                   11

government concludes that only the probation charge was
dismissed; the underlying conviction for battery remains.
    The government is correct that the Indiana battery convic-
tion is intact. The “dismissal” of the “charge” referenced in
the PSR must be the charge of the probation violation, as it was
the only charge pending on the referenced date. By that time,
the battery charge had previously been reduced to a judgment
of conviction. And judgments of conviction can only be va-
cated or set aside, not “dismissed.”
    Even so, in light of the way the government presented in-
formation about the battery conviction, the government can-
not rely on the conviction to support the ACCA enhancement.
The government can substitute one predicate offense (the In-
diana battery) for one that the district court can no longer rely
on (the Florida assault) only when the substitution would not
offend principles of fair notice. See White v. United States,

, 553–54 (7th Cir. 2021); Dotson v. United States,

, 320 (7th Cir. 2020). Fair notice requires that de-
fendants receive a reasonable opportunity to challenge at
their sentencings the predicates used to enhance their sen-
tence. Dotson, 949 F.3d at 320–21. This rule enables defendants
to retrieve during the sentencing phase, rather than years later
which might be difficult, information about their convictions
that the government asserts are ACCA predicates and that de-
fendants seek to contest. We conclude that Anderson did not
receive fair notice that the government was relying on his 1995
battery conviction in Indiana.
   According to the government, Anderson cannot feign sur-
prise at the use of his battery conviction because he had rea-
son to believe that it could serve as a predicate. The govern-
ment observes that both the original and superseding
12                                                  No. 21-1325

indictment listed his battery conviction as a felony in violation
of § 922(g) and § 924(e), and the government’s factual basis
for the plea also referred to his battery conviction.
    Yet the details supplied to Anderson undercut the quality
of this notice. First, the government included the wrong date
of conviction in its original indictment. Second, it gave the
wrong county in its factual basis. Third, the last document
about Anderson’s convictions to come to him—the PSR fur-
nished before resentencing in 2021—did not even include the
battery offense under past “convictions,” did not refer to it as
one of his three ACCA predicates, and instead reported the
battery “charge” as “dismissed.”
    Given the conflicting and misleading details supplied to
Anderson, he did not have fair notice that this battery convic-
tion might serve as an ACCA predicate. To conclude other-
wise would require future defendants to challenge not only
all prior convictions (with little help from the government, if
the dates and counties of conviction can be wrong), but also
all prior arrests and charges in the PSR that may later turn out
to be convictions. This would prolong sentencing hearings
into “extraordinarily difficult exercises over questions where
the answers may never matter.” Dotson, 949 F.3d at 322.
    Anderson’s case is different from that of White, 8 F.4th at
553, and Dotson, 949 F.3d at 318. The defendants there re-
ceived fair notice because the convictions the government
sought to substitute were correctly described in documents
such as the PSR (even if the convictions were not listed as
ACCA predicates). Here, the PSR, which Anderson received
just before resentencing, did not list the battery offense as a
conviction at all, undermining whatever notice he previously
received from the indictment and leaving him with no reason
No. 21-1325                                                 13

to contest the battery as a possible ACCA predicate. Further,
the defendant in Dotson conceded that the challenged convic-
tion could be an ACCA predicate; Anderson did not.
    For these reasons, the government cannot substitute the
Indiana battery conviction for the Florida assault conviction.
With both of those convictions unavailable, only two violent
felonies remain, yet ACCA requires three. Therefore, the dis-
trict court’s decision to apply ACCA’s 15-year minimum floor
to his sentence was plain error—clear, prejudicial error affect-
ing the sentencing proceeding’s fairness. See Molina-Martinez
v. United States, 

, 194 (2016). Anderson must be
resentenced without the mandatory 15-year enhancement.
    Accordingly, we VACATE the judgment and REMAND
for resentencing.
14                                                   No. 21-1325

    RIPPLE, Circuit Judge, dissenting. In my view, the majority
gives short shrift to the decision of the Florida Supreme Court
in Somers v. United States, 

 (Fla. 2022). This opin-
ion of the Florida Supreme Court makes clear that it was
aware that the Eleventh Circuit sought its guidance on the el-
ements of Florida’s aggravated assault statute because the
Government sought to enhance Mr. Somers’s sentence on the
basis of such a conviction. The Florida Supreme Court there-
fore understood that the Eleventh Circuit needed to know the
scope of the Florida aggravated assault statute at the time
Mr. Somers was convicted of the predicate offense. See 

 at
890–91. See also McNeill v. United States, 

(2011). The Florida Supreme Court’s employment of the pre-
sent tense in the presentation of its analysis is a common con-
vention and should not be read to imply that the court was
not addressing its analysis to the time of the conviction of the
predicate offense. Cf. 

 (noting that questions regarding the
scope of past crimes in the context of the ACCA “can only be
answered by reference to the law under which the defendant
was convicted”).
    We owe the Supreme Court of Florida a presumption of
regularity with respect to the answer that it gave our col-
leagues in the Eleventh Circuit. The Florida Justices were en-
tirely cognizant of the nature of the Eleventh Circuit’s inquiry,
and they answered that inquiry. The fact that the Justices did
not address explicitly the rule of retroactivity previously ar-
ticulated in State v. Barnum, 

, 528–29 (Fla. 2005),
and Pardo v. State, 

 (Fla. 1992), does not jus-
tify our rejection of their analysis. Given the lack of unanimity
among the Florida appellate districts prior to Somers, the Flor-
ida Supreme Court’s decision did not displace an established
state-wide rule.
No. 21-1325                                             15

   I would affirm the judgment of the district court.