Spencer v. United States

Decision Date14 November 2014
Docket NumberNo. 10–10676.,10–10676.
CourtU.S. Court of Appeals — Eleventh Circuit
PartiesKevin SPENCER, Petitioner–Appellant, v. UNITED STATES of America, Respondent–Appellee.

Kimberly J. Johnson, Pope McGlamry Kilpatrick Morrison & Norwood, LLP, W. Bruce Maloy, Atlanta, GA, for PetitionerAppellant.

Kevin Spencer, Jonesville, VA, pro se.

Peggy Morris Ronca, U.S. Attorney's Office, Orlando, FL, Michael A. Rotker, U.S. Department of Justice, Washington, DC, Robert E. O'Neill, U.S. Attorney's Office, Tampa, FL, Julie Hackenberry Savell, U.S. Attorney's Office, Jacksonville, FL, for RespondentAppellee.

Appeal from the United States District Court for the Middle District of Florida. D.C. Docket Nos. 3:08–cv–00914–VMC–MCR, 3:06–cr–00349–VMC–MCR–1.

Before ED CARNES, Chief Judge, TJOFLAT, HULL, MARCUS, WILSON, WILLIAM PRYOR, MARTIN, JORDAN and ROSENBAUM, Circuit Judges.*

Opinion

WILLIAM PRYOR, Circuit Judge:

This appeal concerns whether a federal prisoner may relitigate an alleged misapplication of the advisory United States Sentencing Guidelines in a collateral attack on a final sentence. After he pleaded guilty to distributing cocaine and we affirmed the judgment against him, Kevin Spencer moved to vacate his sentence of imprisonment, 28 U.S.C. § 2255, for an alleged error in the application of the advisory guidelines. Spencer argues that an intervening decision of the Supreme Court, Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), makes clear that the district court and this Court erroneously classified him as a “career offender” based on a prior conviction for felony child abuse, which he argues is not a “crime of violence.” United States Sentencing Guidelines Manual § 4B1.1 (Nov.2006). Spencer maintains that this alleged error represents a “fundamental defect which inherently results in a complete miscarriage of justice,” Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962), that can be revisited on collateral review. We disagree.

Spencer cannot collaterally attack his sentence based on a misapplication of the advisory guidelines. Spencer's sentence falls below the statutory maximum, and his prior conviction for felony child abuse has not been vacated. Spencer's sentence was and remains lawful. We affirm the denial of Spencer's motion to vacate his sentence.

I. BACKGROUND

A federal grand jury indicted Kevin Spencer for distributing cocaine base in 2006. See 21 U.S.C. § 841(a)(1), (b)(1)(C). Spencer pleaded guilty to that federal charge in 2007. Spencer's plea came after repeated encounters with the criminal justice system.

Spencer had previously pleaded guilty to eight crimes committed between 2003 and 2006, and the State of Florida charged Spencer with other crimes during that period too. In November of 2003, Spencer was arrested for selling cocaine within 1000 feet of a school. Two months later, officers arrested Spencer after discovering cocaine, marijuana, and drug paraphernalia in his vehicle. Spencer pleaded guilty to both cocaine-related offenses on the same day. The trial court sentenced him to concurrent one-year sentences for those crimes, but the state did not prosecute the charges for possession of marijuana and drug paraphernalia. One month after his arrest for possession of drugs, officers arrested Spencer for driving without a license. He pleaded guilty, and the court sentenced him to 16 days in jail. Less than six months later, Spencer engaged in sexual intercourse with a 14–year–old girl. He pleaded guilty to felony child abuse and received a one-year sentence for that crime. Then in March of 2005, officers arrested Spencer for driving without a valid license and possession of marijuana and drug paraphernalia. The state did not prosecute the drug charges, and Spencer pleaded guilty to driving without a valid license. One month later, officers arrested Spencer for possession of cocaine and resisting an officer. Spencer pleaded guilty, and the court sentenced him to four months in jail for possession of cocaine. The state did not prosecute the other charge. Eight months later, officers arrested Spencer for drug possession and trespassing on posted property. The state dropped the charges for drug possession, but Spencer pleaded guilty to the trespassing charge. And in 2006, Spencer pleaded guilty to curb drinking.

Based on Spencer's prior convictions for selling cocaine and felony child abuse, the district court concluded that Spencer was a career offender under the guidelines, U.S.S.G. § 4B1.1, and sentenced him to 151 months of imprisonment. The guidelines define a career offender as having at least two prior felony convictions for crimes of violence or controlled substance offenses. Id. A “crime of violence” is any crime punishable by a term of more than one year of imprisonment that either “has as an element the use, attempted use, or threatened use of physical force against the person of another,” or “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.” Id. § 4B1.2(a)-(b).

Spencer argued that his prior conviction for felony child abuse is not a “crime of violence.” When he was 18 years old, Spencer engaged in sexual intercourse with a 14–year–old female victim. The state charged him with lewd or lascivious battery, see Fla. Stat. § 800.04(4) (2004), but he pleaded guilty to a lesser offense of third-degree felony child abuse. He admitted during the plea colloquy that he had “engage[d] in sexual activity with a minor,” which “could reasonably cause physical or mental injury to that child.” Under Florida law, when an offender “knowingly or willfully abuses a child without causing great bodily harm, permanent disability, or permanent disfigurement to the child,” the offender commits third-degree felony child abuse. Id. § 827.03(2)(c). “Child abuse” under Florida law includes [a]n intentional act that could reasonably be expected to result in physical or mental injury to a child.” Id. § 827.03(1)(b)(2).

In Spencer's direct appeal, we rejected his argument that the district court erroneously sentenced him as a career offender, and we affirmed his sentence. Spencer v. United States, 271 Fed.Appx. 977, 978–79 (11th Cir.2008). We relied on prior panel precedent that sexual offenses against minors are crimes of violence, see, e.g., United States v. Ivory, 475 F.3d 1232, 1238 (11th Cir.2007), abrogated by United States v. Owens, 672 F.3d 966 (11th Cir.2012), and we ruled that Spencer's conviction for felony child abuse was a crime of violence because it “involved a serious potential risk of physical injury to another.” Spencer, 271 Fed.Appx. at 979.

Two weeks later, the Supreme Court decided Begay, which prompted Spencer to move to vacate his sentence, 28 U.S.C. § 2255. The Supreme Court held that driving under the influence of alcohol was not a “violent felony” under the Armed Career Criminal Act because it did not involve purposeful, violent, or aggressive conduct and was not similar to burglary, arson, extortion, or crimes involving explosives. Begay, 553 U.S. at 145, 148, 128 S.Ct. at 1588 ; see also Sykes v. United States, ––– U.S. ––––, 131 S.Ct. 2267, 2275, 180 L.Ed.2d 60 (2011) (declining to extend Begay to vehicle flight). Because the career-offender provision of the guidelines uses language nearly identical to the definition of “violent felony” in the Armed Career Criminal Act, see James v. United States, 550 U.S. 192, 206, 127 S.Ct. 1586, 1596, 167 L.Ed.2d 532 (2007), Begay also limited the meaning of a “crime of violence” for purposes of the career-offender enhancement. Spencer argued that Begay applies retroactively to his sentence and makes clear that felony child abuse is not a crime of violence. Spencer moved that he be resentenced without the career-offender enhancement.

The district court denied Spencer's motion to vacate his sentence, but we then granted a certificate of appealability on the following two issues:

Whether in light of Begay ..., Gilbert v. United States, 609 F.3d 1159 (11th Cir.2010), and Hunter v. United States, 559 F.3d 1188 (11th Cir.2009), the movant's freestanding challenge to a career offender sentence imposed under U.S.S.G. § 4B1.1 is cognizable under 28 U.S.C. § 2255 ? If so, whether the district court, in light of Begay ... erroneously determined that the movant was properly classified as a career offender where he had a prior state conviction for felony child abuse under Fla. Stat. § 827.03(1) ?

After a panel of this Court answered both questions in the affirmative, Spencer v. United States, 727 F.3d 1076 (11th Cir.2013), vacated pending reh'g en banc, No. 10–10676 (11th Cir. Mar. 7, 2014), we voted to vacate the panel opinion and rehear this appeal en banc.

II. STANDARD OF REVIEW

When we review the denial of a motion to vacate a sentence, 28 U.S.C. § 2255, we review legal conclusions de novo and findings of fact for clear error.” Mamone v. United States, 559 F.3d 1209, 1210 (11th Cir.2009).

III. DISCUSSION

We divide our discussion in two parts. First, we explain why we exercise our discretion to decide this appeal despite a defective certificate of appealability. Second, we conclude that the district court lacked the authority to review Spencer's claim that he was erroneously sentenced under the advisory guidelines.

A. The Certificate of Appealability Is Defective, But We Exercise Our Discretion to Consider the Merits of this En Banc Appeal at this Late Stage.

Prisoners who move to vacate their sentences may contest only a narrow subset of issues to our Court. A certificate of appealability may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.”28 U.S.C. § 2253(c)(2). The certificate must specify what issue or issues raised by the prisoner satisfy that requirement. Id. § 2253(c)(3). The Supreme Court has held that the issuance a certificate of...

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