A Touchy Subject: The Eleventh Circuit's Tug-of-War Over What Constitutes Violent 'Physical Force'

38 Pages Posted: 16 Feb 2018 Last revised: 7 Mar 2018

See all articles by Conrad Kahn

Conrad Kahn

Federal Defender's Office, MDFL

Danli Song

U.S. Sentencing Commission; Federal Defender's Office, MDFL

Date Written: February 14, 2018


In a prosecution for possession of a firearm by a convicted felon, a pivotal question is whether an individual is subject to a sentencing enhancement under the Armed Career Criminal Act (ACCA). If an individual has three or more prior convictions that qualify as “violent felonies” or “serious drug offenses,” the ACCA increases his statutory range of imprisonment from zero-to-ten years to fifteen years to life.

Historically, a prior conviction could qualify as a “violent felony” if it satisfied at least one of the three “violent felony” clauses—the elements clause, the enumerated-offenses clause, or the catch-all residual clause. But on June 26, 2015, the Supreme Court invalidated the residual clause in Johnson v. United States, 135 S. Ct. 2551 (2015) (Johnson II).

Since Johnson II, substantial disagreements have emerged both within the Eleventh Circuit and among the other circuits regarding Johnson II’s reach and the proper application of the ACCA's elements clause. This Article examines those disagreements, including three ways the Eleventh Circuit got it wrong—specifically, the court’s unusual conduct in ruling on requests to file second or successive post-conviction motions based on Johnson II and recent rulings on whether the Florida offenses of robbery and felony battery qualify as “violent felonies” under the elements clause. This Article argues the ACCA’s elements-clause analysis should focus on the degree of force used in an act, and the Supreme Court should resolve these disagreements and provide guidance to the lower courts by reviewing whether one of these offenses satisfies the elements clause.

Keywords: criminal law, sentencing, armed career criminal act, violent felony, Johnson, elements clause, physical force, Florida robbery, Florida felony battery, habeas, 2255, second or sucessive, Eleventh Circuit

JEL Classification: K14

Suggested Citation

Kahn, Conrad and Song, Danli, A Touchy Subject: The Eleventh Circuit's Tug-of-War Over What Constitutes Violent 'Physical Force' (February 14, 2018). University of Miami Law Review, 2018, Available at SSRN: https://ssrn.com/abstract=3123867 or http://dx.doi.org/10.2139/ssrn.3123867

Conrad Kahn

Federal Defender's Office, MDFL ( email )

Orlando, FL
407-648-6338 (Phone)

Danli Song (Contact Author)

U.S. Sentencing Commission ( email )

One Columbus Cir., NE
Washington, DC 20002
United States
202-502-4644 (Phone)

Federal Defender's Office, MDFL ( email )

Orlando, FL
407-648-6338 (Phone)

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