U.S. v. Lee

• Citation: 631 F.3d 1343
• Decision Date: 02 February 2011
• Docket Number: No. 10–10926.,10–10926.
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Shawntrail J. LEE, a.k.a. Billy Darkside, a.k.a. Jathen Lee, a.k.a. Jermaine Wilder, a.k.a. Shawn Lee, a.k.a. Rahshaun Frost, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

631 F.3d 1343

22 Fla. L. Weekly Fed. C 1746

UNITED STATES of America, Plaintiff–Appellee,

v.Shawntrail J. LEE, a.k.a. Billy Darkside, a.k.a. Jathen Lee, a.k.a. Jermaine Wilder, a.k.a. Shawn Lee, a.k.a. Rahshaun Frost, Defendant–Appellant.

No. 10–10926.

United States Court of Appeals, Eleventh Circuit.

Feb. 2, 2011.

Alexander H. Booth, Sullivan, Hall, Booth & Smith, P.C., Atlanta, GA, Edmund A. Booth, Jr., David M. Stewart, Augusta, GA, R. Brian Tanner, Edward J. Tarver, Savannah, GA, for Plaintiff–Appellee.Michael W. Millians, Glover Blount and Millians, Augusta, GA, for Defendant–Appellant.Appeal from the United States District Court for the Southern District of Georgia.Before WILSON and PRYOR, Circuit Judges, and BUCKLEW,^* District Judge.

BUCKLEW, District Judge:

Appellant Shawntrail J. Lee appeals his sentence of 120 months' imprisonment, after a jury found him guilty of one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). The district court sentenced Lee as a career offender under U.S. Sentencing Guidelines Section 2K2.1(a)(2), after finding that he had two prior felony convictions for crimes of violence. At issue is whether the district court erred in ruling that Lee's prior New Jersey felony convictions for eluding police in the second degree and for conspiracy to commit armed robbery were crimes of violence, as defined in U.S.S.G. § 4B1.2(a), for purposes of the career offender enhancement.

I. Background

Lee was indicted on one count of possession of a firearm and ammunition by a felon, in violation of 18 U.S.C. § 922(g). A jury found Lee guilty, and he was initially sentenced to 180 months' imprisonment, after the district court determined that he was an armed career criminal with three prior violent felony convictions under New Jersey law: “walkaway” escape, eluding police in the second degree, and conspiracy to commit armed robbery.

Lee appealed that conviction and sentence. This Court affirmed the conviction, but vacated and remanded for resentencing, holding that one of Lee's three prior felony convictions—the “walkaway” escape—was not a violent felony under 18 U.S.C. § 924(e)(2)(B)(ii) of the Armed Career Criminal Act. United States v. Lee, 586 F.3d 859 (11th Cir.2009). The Court declined to address the eluding and conspiracy predicate convictions in that opinion. Id. at 874 n. 11.

On remand, the probation officer prepared an amended presentence investigation report, in which she categorized Lee's eluding and conspiracy convictions as crimes of violence. Because Lee had two predicate convictions for crimes of violence, the probation officer recommended that he be sentenced as a career offender pursuant to U.S.S.G. § 2K2.1(a)(2).

At the re-sentencing hearing, Lee objected that his offense of eluding police in the second degree was not a crime of violence. The district court also permitted Lee to adopt and incorporate an objection that he lodged at the original sentencing hearing that the government had not established that his prior conviction for conspiracy involved the underlying offense of armed robbery, and that, nevertheless, the conviction did not constitute a crime of violence.

The district court overruled these objections and found that the New Jersey crime of eluding in the second degree was categorically a crime of violence because the crime is defined as a flight or attempt to elude police that “creates a risk of death or injury to any person.” N.J. Stat. Ann. § 2C:29–2b. The district court also reincorporated its finding at the original sentencing hearing that sufficient judicial records from New Jersey established that Lee's prior conviction for conspiracy involved the underlying offense of armed robbery, and that such conviction categorically constituted a crime of violence.

Lee was sentenced to the statutory maximum of 120 months, pursuant to 18 U.S.C. §§ 922(g)(1) and 924(a)(2). This appeal followed.

II. Discussion

Lee challenges his 120 month sentence on the grounds that the district court erred in finding that his prior New Jersey convictions for eluding police in the second degree and for conspiracy to commit armed robbery were crimes of violence under U.S.S.G. § 4B1.2(a). This Court reviews de novo whether a defendant's prior conviction qualifies as a crime of violence under the U.S. Sentencing Guidelines. United States v. Harris, 586 F.3d 1283, 1284 (11th Cir.2009).

Under U.S. Sentencing Guidelines Section 2K2.1(a)(2), felons receive a base offense level of 24 if they committed a firearm offense “subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense.” The Sentencing Guidelines provide the following definition:

The term “crime of violence” means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that—

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or

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

U.S.S.G. § 4B1.2(a). The phrase, “or otherwise involves conduct that presents a serious potential risk of physical injury to another,” is referred to as the “residual provision,” or residual clause. Harris, 586 F.3d at 1285. This appeal addresses whether Lee's prior violations of New Jersey's eluding and conspiracy statutes, N.J. Stat. Ann. §§ 2C:29–2b and 2C:5–2, fall under the residual clause.

We follow a three-step inquiry for determining whether a prior conviction constitutes a crime of violence under the residual clause:

First, what is the relevant category of crime, determined by looking to how the crime is ordinarily committed? Second, does that crime pose a “serious potential risk of physical injury” that is similar in degree to the risks posed by the enumerated crimes? Third, is that crime similar in kind to the enumerated crimes?

United States v. Harrison, 558 F.3d 1280, 1287 (11th Cir.2009). In making this determination, we use the “categorical approach,” which “looks only to the fact of conviction and the statutory definition of the prior offense without examining particular facts disclosed by the record of conviction.” United States v. Whitson, 597 F.3d 1218, 1220 (11th Cir.2010) (per curiam) (citations, internal quotations, and alterations omitted).¹A. Eluding Police in the Second Degree

In Harris, this Court considered whether the second degree felony of willfully fleeing or attempting to elude a police officer under Florida law, a crime which required that the defendant drive at high speed or “demonstrate [ ] a wanton disregard for the safety of persons or property,” constituted a crime of violence under the Sentencing Guidelines. 586 F.3d at 1284 (quoting Fla. Stat. § 316.1935(3)(a)). Using the three-step inquiry listed above to analyze the crime as it is ordinarily committed, the Court determined that the Florida offense was a crime of violence because it was clear from the face of the statute that it was similar in kind and degree of risk to the enumerated crimes. Id. at 1288. The Court reasoned that “[f]leeing from the police at high speed or with ‘a wanton disregard for the safety of persons or property’ does indeed ‘show an increased likelihood that the offender is the kind of person who might deliberately point the gun and pull the trigger.’ ” Id. (quoting Fla. Stat. § 316.1935(3)(a) and Begay v. United States, 553 U.S. 137, 146, 128 S.Ct. 1581, 1587, 170 L.Ed.2d 490 (2008)).

The Court determined that the act of fleeing the police was “undeniably purposeful,” as willfulness is an explicit element of the statute. Harris, 586 F.3d at 1288. Furthermore, the Court ruled that the offense was violent and aggressive because, “[i]n the ‘ordinary case,’ roadways are populated by other travelers whom the offender and the officer will have to avoid hitting in the course of a high speed chase.” Id. (quoting James v. United States, 550 U.S. 192, 208, 127 S.Ct. 1586, 1597, 167 L.Ed.2d 532 (2007)). Thus, fleeing the police at high speed is “like holding a weapon out, ready to fire,” or “[l]ike an arsonist lighting a fire without regard for harm the fire may cause.” Id. at 1288–89.

In reaching this conclusion, the Court distinguished second degree eluding from third degree eluding, a crime which the Court found not to be a violent felony in United States v. Harrison, 558 F.3d 1280 (11th Cir.2009). Id. at 1287. In Harrison. the Court concluded that the Florida crime of third degree eluding, as ordinarily committed, did not constitute a violent felony because it did not require either high speed or a wanton disregard for safety, and therefore did not entail the same high level of risk as the enumerated crimes. 558 F.3d at 1294.

Harris is instructive due to the similarities between the Florida and New Jersey crimes of second degree eluding.² Here, the parties agree that Lee was convicted under Section 2C:29–2b of the New Jersey Statutes, which reads:

Any person, while operating a motor vehicle on any street or highway in this State ... who knowingly flees or attempts to elude any police or law enforcement officer after having received any signal from such officer to bring the vehicle ... to a full stop commits a crime of the third degree; except that, a person is guilty of a crime of the second degree if the flight or attempt to elude creates a risk of death or injury to any person.N.J. Stat. Ann. § 2C:29–2b. We begin by reading the face of the statute “itself to discern the crime as it is ordinarily committed.” Harris, 586 F.3d at 1288. This statute contains elements that are very similar to the Florida second degree eluding statute: (1) a law enforcement officer signals a motorist to stop; (2) the motorist knowingly flees or attempts to elude the officer; and (3) the flight or attempt to elude “creates a risk of...