United States v. Boggan, 121713 FED11, 12-14296

Docket Nº:12-14296
Opinion Judge:PANNELL, District Judge
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KENNETH EARL BOGGAN, Defendant-Appellant.
Judge Panel:Before HULL and HILL, Circuit Judges, and PANNELL District Judge. HILL, Circuit Judge, dissenting:
Case Date:December 17, 2013
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
FREE EXCERPT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v.

KENNETH EARL BOGGAN, Defendant-Appellant.

No. 12-14296

United States Court of Appeals, Eleventh Circuit

December 17, 2013

DO NOT PUBLISH

Appeal from the United States District Court for the Northern District of Alabama D.C. Docket No. 2:12-cr-00089-IPJ-TMP-1

Before HULL and HILL, Circuit Judges, and PANNELL, [*] District Judge.

PANNELL, District Judge

After pleading guilty to one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), Kenneth Boggan was sentenced to 180 months of imprisonment. He appeals the district court's designation of his prior conviction for third-degree burglary in Alabama as a violent felony under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(1). The court affirms.

I. Background

On March 13, 2010, Kenneth Boggan was driving with his brother when a Birmingham, Alabama police officer stopped him for a traffic violation. The officer found an SKS assault rifle and a Smith & Wesson .357 caliber revolver in the car, along with a Kel-Tec .32 caliber pistol in Boggan's back pocket. On February 29, 2012, Boggan was indicted as a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He entered a blind guilty plea on May 1, 2012.

The pre-sentence report ("PSR") submitted to the district court revealed that Boggan had several prior Alabama convictions punishable by a term of imprisonment exceeding one year. The ACCA imposes a mandatory minimum sentence of fifteen years of imprisonment for a person "who has three previous . . . convictions for a violent felony or serious drug offense, or both, on occasions different from one another." 18 U.S.C. § 924(e)(1). According to the PSR, Boggan had four convictions that could independently be labeled as violent felonies: (1) a 1981 conviction for third-degree burglary, (2) a 1985 conviction for first-degree robbery, (3) a 1985 conviction for kidnapping, and (4) a 1985 conviction for rape. Boggan's kidnapping and rape convictions, however, arose out of the same criminal episode, so only one could be counted towards the three violent felonies required to trigger a fifteen-year mandatory minimum sentence under 18 U.S.C. § 924(e)(1). Nevertheless, with his 1985 robbery and 1981 burglary convictions, the PSR concluded that Boggan still had three prior violent felonies.

Boggan objected to the PSR's treatment of his prior offenses, including the 1981 third-degree burglary offense, as violent felonies. The district court overruled his objections and sentenced Boggan to the mandatory minimum sentence of fifteen years imprisonment. Boggan now appeals the district court's determination that his third-degree burglary offense was a violent felony that triggered a statutory enhancement of his sentence.

II. Standard of Review

This court reviews "de novo whether a particular conviction is a 'violent felony' for purposes of the ACCA." United States v. Matthews, 466 F.3d 1271, 1273 (11th Cir. 2006).

III. Discussion

The issue on appeal is whether a conviction for violation of Alabama's third-degree burglary statute, Ala. Code § 13A-7-7 (1979), 1 constitutes a "violent felony" for purposes of statutory sentencing enhancements under the ACCA, 18 U.S.C. § 924(e)(1), and for purposes the United States Sentencing Guidelines ("USSG") § 4B1.4.

A. The ACCA

The ACCA defines a violent felony as:

any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that—

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

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

18 U.S.C. § 924(e)(2)(B). The final clause of § 924(e)(2)(B)(ii)––crimes that otherwise involve conduct that presents a serious potential risk of physical injury to another––is known as the "residual clause."

B. The District Court's Ruling

At Boggan's sentencing hearing, the district court held that his burglary offense was a violent felony because it was covered under the residual clause of the violent-felony definition in § 924(e)(2)(B)(ii). The residual clause applies to offenses "involv[ing] conduct that presents a serious potential risk of physical injury to another."

C. Boggan's Argument on Appeal

On appeal, Boggan concedes that two of his three prior convictions (the 1985 robbery and the combined 1985 kidnapping and rape) qualify as...

To continue reading

FREE SIGN UP