Spencer v. United States

• Citation: 727 F.3d 1076
• Decision Date: 15 August 2013
• Docket Number: No. 10–10676.,10–10676.
• Parties: Kevin SPENCER, Petitioner–Appellant, v. UNITED STATES of America, Respondent–Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

727 F.3d 1076

Kevin SPENCER, Petitioner–Appellant,

v.UNITED STATES of America, Respondent–Appellee.

No. 10–10676.

United States Court of Appeals, Eleventh Circuit.

Aug. 15, 2013.

Agne A. Krutules, Atlanta, GA, for Petitioner–Appellant.

Peggy Morris Ronca, U.S. Attorney's Office, Orlando, FL, Robert E. O'Neill, U.S. Attorney's Office, Tampa, FL, Julie Hackenberry Savell, U.S. Attorney's Office, Jacksonville, FL, for Respondent–Appellee.

Appeal from the United States District Court for the Middle District of Florida. D.C. Docket Nos. 3:08–cv–914–VMC–MCR, 3:06–cr–349–VMC–MCR–1.

Before JORDAN and KRAVITCH,

Circuit Judges, and HORNBY, ^* District Judge.

HORNBY, District Judge:

We hold that a defendant who unsuccessfully raised a career offender issue at both sentencing and on direct appeal can use a timely-filed first motion under 28 U.S.C. § 2255 to pursue the same issue when an intervening case from the Supreme Court validates his argument and applies retroactively. Under that intervening case, this defendant's third degree Florida felony child abuse conviction no longer qualifies as a predicate crime of violence. He therefore is not properly treated as a career offender. We vacate the district court's denial of his section 2255 motion and remand for resentencing.

Procedural History

In 2007, Kevin Spencer, age 21, received a 151–month federal sentence for distributing 5.5 grams of crack cocaine. The sentencing judge determined that Spencer was a career offender and sentenced him at the bottom of the career offender Guideline range. The judge told Spencer that without career offender status, “instead of looking at a level 32, you'd have been looking at a level 23. It's, in essence, half the sentence, in essence.” Sentencing Tr. at 20 (Record No. 49). (Without career offender status, Spencer's Guideline range was 70 to 87 months. Presentence Investigation Report ¶¶ 24, 37.)

To be a career offender, a defendant must have two previous felony convictions for enumerated drug trafficking crimes and/or crimes of violence. 28 U.S.C. § 994(h). Spencer certainly had one such previous conviction. In 2004 at age 18, he was convicted of possession with intent to sell cocaine while he was 17. But at his 2007 federal sentencing, Spencer argued that the second predicate felony—a 2004 Florida conviction on the same date as the other predicate conviction—was not a qualifying crime of violence.

Spencer argued then and now that this Florida conviction—third degree felony abuse of a minor—did not require intent to cause physical injury or even a reasonable likelihood of physical injury, that intent to cause mental injury (or a reasonable likelihood of mental injury) alone was sufficient for conviction, and therefore that the conviction did not satisfy the federal crime-of-violence definition.

Spencer lost that argument before the federal sentencing judge. He appealed his sentence, making the same arguments on appeal. This court rejected those arguments in 2008 and affirmed Spencer's career offender sentence in an unpublished per curiam opinion on the basis that the conduct that resulted in the prior conviction created a serious potential risk of physical injury. United States v. Spencer (Spencer I), 271 Fed.Appx. 977, 979 (11th Cir.2008).

Two weeks later, the United States Supreme Court decided Begay v. United States, 553 U.S. 137, 143, 128 S.Ct. 1581, 1585, 170 L.Ed.2d 490 (2008), a case that narrowed one portion of the crime-of-violence definition to “crimes that are roughly similar, in kind as well as in degree of risk posed,” to examples specifically listed in the statute (the listed crimes are burglary, arson, extortion, and use of explosives).¹Spencer then moved that same year under 28 U.S.C. § 2255 (his first such motion) to vacate, set aside, or correct his sentence. The district court denied his motion in 2010. Order and Judgment in Civil Case (Record Nos. 17 & 18). We then granted a certificate of appealability ² on the following two issues:

1. Whether in light of Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), and later cases in this court, Spencer's freestanding challenge to a career offender sentence is cognizable under 28 U.S.C. § 2255.

2. If so, whether the district court, in light of Begay, erroneously determined that Spencer was a career offender based upon a predicate state conviction for felony child abuse under Fla. Stat. § 827.03(1).³

On appeal from a district court's denial of a section 2255 motion, “we review legal issues de novo and factual findings under a clear error standard.” Thomas v. United States, 572 F.3d 1300, 1303 (11th Cir.2009) (citation omitted). We also “review de novo whether a prior conviction qualifies as a ‘crime of violence’ under the Sentencing Guidelines.” United States v. Lockley, 632 F.3d 1238, 1240 (11th Cir.2011) (citation omitted).

Analysis

I.The Applicable Statutes and Guideline

The United States Sentencing Commission created career offender sentences as a result of a specific directive from Congress. In the Sentencing Reform Act of 1984, Congress instructed:

The Commission shall assure that the guidelines specify a sentence to a term of imprisonment at or near the maximum term authorized for categories of defendants in which the defendant is eighteen years old or older and—

(1) has been convicted of a felony that is [a crime of violence or an enumerated drug trafficking offense]; and

(2) has previously been convicted of two or more prior felonies, each of which is—

(A) a crime of violence; or

(B) [an enumerated drug trafficking offense].

28 U.S.C. § 994(h). Accordingly, the Commission devised a separate Guideline 4B1.1 for calculating the sentences of these “career offenders.” As Congress directed, they generally receive a significantly higheroffense level and a higher criminal history score, with a resulting significantly higher sentencing range.

Since 1989,⁴ the Sentencing Commission has used the statutory definition of “violent felony” from the Armed Career Criminal Act to define “crime of violence” for career offenders: ⁵

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. Sentencing Guidelines Manual § 4B1.2(a).

The Florida statute under which Spencer was convicted of third degree felony child abuse provided: “A person who knowingly or willfully abuses a child without causing great bodily harm, permanent disability, or permanent disfigurement to the child commits a felony of the third degree....” Fla. Stat. § 827.03(1) (2003) (emphasis added).⁶ It defined child abuse as:

(a) Intentional infliction of physical or mental injury⁷ upon a child;

(b) An intentional act that could reasonably be expected to result in physical or mental injury to a child; or

(c) Active encouragement of any person to commit an act that results or could reasonably be expected to resultin physical or mental injury to a child.

Id. (emphases added). Spencer argued at his federal sentencing that the records that the federal sentencing judge could consult did not show that he pleaded guilty to the physical injury element of the statute at his Florida conviction, and thus that his Florida conviction could not be counted as a crime of violence.

The government agrees that Spencer's Florida conviction for third degree felony child abuse does not satisfy subsection (1) of the federal crime-of-violence definition requiring that physical force be an element of the crime. Appellee's Br. at 22 n.4. The government's concession is appropriate because the Florida statute can result in conviction without the use or threat of physical force. The Florida crime also is not one of the enumerated crimes in subsection (2) (burglary of a dwelling, arson, extortion, use of explosives).

Instead, to be counted as a crime of violence, Spencer's Florida conviction must qualify under the so-called residual clause of subsection (2) as an offense that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” The sentencing judge in 2007 and this court in 2008 both ruled against Spencer on the basis of that language.

We turn then to the initial issue on which we granted the certificate of appealability.

II.

Can section 2255 be used to challenge a career offender sentence where the challenge is based upon a later Supreme Court case and later cases from this court?

Spencer seeks to challenge his career offender sentence under that portion of section 2255 that allows a prisoner serving federal time to “move the court which imposed the sentence to vacate, set aside or correct the sentence” when his claim is “that the sentence was imposed in violation of the Constitution or laws of the United States.” 28 U.S.C. § 2255(a).⁸ This is Spencer's first such motion. Spencer claims that, because of the Supreme Court's new definition of crime of violence in Begay, he had only one prior drug trafficking offense or crime of violence at the time of his federal sentence, while the career offender statute and Guideline both require two, and that his career offender sentence therefore was “in violation of the ... laws of the United States.” Section 2255(f)(3) provides a one-year limitation period for filing such a motion. The period runs from “the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.” ⁹ As we discuss in Part IV, we and other circuit courts have stated that Begay applies retroactively. Here, Spencer filed his motion in a timely...