United States v. Priddy

• Decision Date: 15 December 2015
• Docket Number: No. 15–5136.,15–5136.
• Citation: 808 F.3d 676
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Donald Eugene PRIDDY, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

808 F.3d 676

UNITED STATES of America, Plaintiff–Appellee,

v.Donald Eugene PRIDDY, Defendant–Appellant.

No. 15–5136.

United States Court of Appeals, Sixth Circuit.

Dec. 15, 2015.

ON BRIEF:M. Dianne Smothers, Federal Public Defender, Memphis, Tennessee, for Appellant. Kevin G. Ritz, United States Attorney's Office, Memphis, Tennessee, for Appellee.

Before: KEITH, CLAY, and WHITE, Circuit Judges.

CLAY, J., delivered the opinion of the court in which KEITH, J., joined, and WHITE, J., joined in part. WHITE J. (pp. 13–14), delivered a separate opinion concurring in all but section II.A.1. of the majority opinion.

OPINION

CLAY, Circuit Judge.

Defendant Donald Priddy ("Defendant") appeals his sentence of 180 months of imprisonment imposed by the district court following his plea of guilty to two counts of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). The district court imposed this sentence after it determined that Defendant had four predicate violent felonies for purposes of the Armed Career Criminal Act ("ACCA"), which requires a mandatory-minimum sentence of 180 months for a defendant convicted of violating § 922(g) who has three or more prior convictions for violent felonies. 18 U.S.C. § 924(e)(1). On appeal, Defendant argues his convictions cannot qualify as violent felonies and that the district court erred in sentencing him under the ACCA. For the reasons that follow, we AFFIRM the district court's judgment.

I.BACKGROUND

On June 24, 2013, a federal grand jury in the Western District of Tennessee returned a two-count indictment against Defendant. The indictment charged Defendant with two counts of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). Count I charged Defendant with possession of a Rohm Model RG–12 .22 caliber revolver. Count II charged Defendant with possession of a Smith and Wesson .357 caliber revolver. On September 15, 2014, Defendant pled guilty to both charges.

United States Pretrial Services prepared a Presentence Investigation Report ("PSR") which recommended that the district court adjudge Defendant an armed career criminal for purposes of the ACCA based on his prior convictions for multiple violent felonies. The PSR identified the following prior Tennessee convictions as predicate violent felonies: (1) two 1991 convictions for aggravated burglary, (2) a 1994 conviction for robbery, (3) a 1999 conviction for aggravated burglary, and (4) two 2005 convictions for burglary.

Before sentencing, defense counsel explained to Defendant that he qualified for sentencing enhancement under the ACCA, but Defendant did not understand why his prior convictions qualified him as an armed career criminal. Defense counsel then conceded that Defendant was subject to the ACCA's sentencing enhancement and also asked if Defendant could address the court:

I believe [Defendant] may wish to address Your Honor. And I know you always give a defendant that opportunity. But despite my truly best efforts in trying to explain to him the situation with Armed Career Criminal Act, and how that applies as is different from career offender or different from a guideline situation—it's confusing on a good day for anybody. But I've explained to him—and you can see from our filing, I have not raised objections to the guideline calculations. But in—specifically to the unfortunate situation that I think he falls into the Armed Career Criminal category. The nature of his prior convictions are set out in the report.

Even with current cases that may be pending and things that we're watching certainly very closely—unfortunately, [Defendant] has several burglary priors. He has an escape. Just a mix, if you will. But the ones, unfortunately, that give rise to the application of [the ACCA enhancement] are three aggravated burglaries and then two burglaries of a business or of some other thing that was not a residence, and a robbery.

(R. 55, Sentencing Hearing, PageID# 68 (emphasis added)). The court permitted Defendant to speak. Defendant then questioned why his two convictions for aggravated burglary in 1991, for which he was sentenced concurrently, counted as two separate convictions. Defendant denied committing two separate burglaries and stated that he only pled guilty to two charges because he was promised a concurrent sentence if he did so. The court told Defendant that even though he was sentenced concurrently, that did not change the fact that he was convicted of two separate offenses. The court also told Defendant that he could not use the federal sentencing forum to gain review of his state convictions.

The court then explained to Defendant that regardless of those two convictions for aggravated burglary in 1991, he still had three or more felonies that would qualify as violent felonies under the ACCA.

The district court ruled that the ACCA enhancement applied to Defendant's sentence. The court specifically found that Defendant's three aggravated burglary convictions and his robbery conviction were violent felonies for purposes of the ACCA. The court did not address Defendant's 2005 burglary convictions because Defendant already had enough violent felonies to qualify for the ACCA enhancement. The court sentenced Defendant to a statutory minimum term of 180 months in prison.

II.DISCUSSION

Standard of Review

As an initial matter, the parties dispute this Court's standard of review on appeal.

Defendant asserts that this Court review de novo whether a prior conviction constitutes a violent felony under the ACCA. The government agrees that review is ordinarily de novo but argues that because Defendant failed to object to the district court's application of the ACCA, he waived any challenge to his ACCA-enhanced sentence. Therefore, the government argues that this Court should decline to address the merits of that claim. The government contends, alternatively, that if this Court reaches the merits of the case, it must review Defendant's claims only for plain error because Defendant failed to raise his appellate claims below. Thus, the first question becomes whether Defendant waived his claim challenging his ACCA-enhanced sentence, or alternatively, whether he forfeited it.

"Waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right." United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) ). A defendant's failure to object to a sentencing error, or even his acknowledgment that he has no objection, does not amount to a waiver of that error. See United States v. Simmons, 587 F.3d 348, 374 (6th Cir.2009) (explaining that "[w]here the sentencing judge asks the parties [if they have any objections] but a party fails to raise any objections ‘not previously raised,’ the defendant forfeits all unpreserved claims and plain-error review applies on appeal") (citing United States v. Vonner, 516 F.3d 382, 385–86 (6th Cir.2008) ).

In regards to forfeiture, a party must object "with that reasonable degree of specificity which would have adequately apprised the trial court of the true basis for his objection." United States v. Bostic, 371 F.3d 865, 871 (6th Cir.2004) (quoting United States v. LeBlanc, 612 F.2d 1012, 1014 (6th Cir.1980) ). "A specific objection provides the district court with an opportunity to address the error in the first instance and allows this court to engage in more meaningful review." Id. Therefore, this Court requires district courts to ask what we call the Bostic question: "[whether the parties] have any objections to the sentence ... that have not previously been raised." Id. at 872. This so-called Bostic question is "especially pertinent with respect to objections that concern the adequacy of the court's explanation precisely because such objections cannot be made until after the court states its reasoning in the course of sentencing the defendant." Simmons, 587 F.3d at 354.

However, where the defendant has "explicitly agreed" that a particular guideline calculation or enhancement applies to his sentence, any challenge to that enhancement on appeal is waived. See United States v. Aparco–Centeno, 280 F.3d 1084, 1088 (6th Cir.2002) (holding that an objection to classification of two offenses as aggravated felonies was waived because in his sentencing memorandum the defendant "explicitly agreed that they qualified as such."). A defendant waives an argument that he does not qualify for a sentencing enhancement by "explicitly agree[ing]" that he does qualify. Id. Such explicit agreement occurs when the defendant expresses a "plain, positive concurrence" with applying the enhancement, United States v. Mabee, 765 F.3d 666, 671–73 (6th Cir.2014), like when he "agree[s] in open court" that he qualifies for a designation that increases his sentence. Aparco–Centeno, 280 F.3d at 1088. After agreeing, the defendant cannot make the opposite argument on appeal; the argument is waived and this Court does not review it.

Id.; see also United States v. Hall, 373 Fed.Appx. 588, 591 (6th Cir.2010).

We have previously found a defendant to have waived a claim under similar facts. In Aparco–Centeno, the defendant challenged the district court's determination that his prior convictions constituted "aggravated felonies." Aparco–Centeno, 280 F.3d at 1087. At the sentencing hearing, defense counsel had no objection to the PSR and the two prior convictions listed in it. Id. at 1088. Defense counsel also wrote in his sentencing memorandum that "[b]ecause [the defendant's] sentences for two of these offences were at least one year in duration, they are classified as aggravated felonies under 8 U.S.C. § 1101(a)(43)." Id.

We noted that not only did defense counsel fail to object to the district court's consideration of the two prior convictions as aggravated felonies, he "explicitly...