U.S.A v. Alexander

• Decision Date: 25 June 2010
• Docket Number: No. 08-17062.,08-17062.
• Citation: 609 F.3d 1250
• Parties: UNITED STATES of America, Plaintiff-Appellee,v.Richard Lee ALEXANDER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

609 F.3d 1250

UNITED STATES of America, Plaintiff-Appellee,v.Richard Lee ALEXANDER, Defendant-Appellant.

No. 08-17062.

United States Court of Appeals Eleventh Circuit.

June 25, 2010.

R. D'Arsey Houlihan, Asst. Fed. Pub. Def., Kathleen M. Williams, Fed. Pub. Def., Miami, FL, for Alexander.

Robert J. Luck, Anne R. Schultz, Sean Paul Cronin, Kathleen M. Salyer, Miami, FL, for U.S.

Appeal from the United States District Court for the Southern District of Florida.

Before TJOFLAT and COX, Circuit Judges, and KORMAN,^* District Judge.

COX, Circuit Judge:

Richard Lee Alexander appeals the sentence imposed following his guilty plea to a charge of being a felon in possession of a firearm. The district court added a career offender enhancement to Alexander's sentence because it held that his prior felony conviction under Fla. Stat. § 790.15(2) for discharging a firearm from a vehicle within 1,000 feet of another person qualified as a crime of violence under the United States Sentencing Guidelines. Alexander contends that the enhancement was improper. Applying the framework announced by the Supreme Court in Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), we conclude that a conviction under Fla. Stat. § 790.15(2) involves conduct that is “similar in kind and degree of risk posed” to burglary, arson, extortion, and crimes involving the use of explosives-the crimes enumerated in the Guidelines' definition of crime of violence. U.S.S.G. § 4B1.2(a). Therefore, we hold that Alexander's conviction qualifies as a crime of violence.

Alexander also contends that the court erred by failing to award credit against his sentence for time that he served in state custody. We conclude that the district court did not have authority to award credit for time served in state custody. Accordingly, we affirm.

I. Background & Procedural History

On February 4, 2008, Alexander was arrested by Miami Gardens police officers and was charged, under Florida law, for possession of narcotics and possession of a firearm by a convicted felon. He was detained at the Miami-Dade County Jail. On May 30, 2008, he was indicted on federal charges stemming from the same incident. A three-count indictment alleged a violation of 18 U.S.C. § 922(g)(1) for possession of a firearm by a convicted felon, a violation of 21 U.S.C. § 844(a) for possession of cocaine, and a violation of section 844(a) for possession of marijuana. On June 13, 2008, he was transferred from state custody to federal custody, and the Florida charges were dismissed.

Alexander pleaded guilty to possession of a firearm by a convicted felon, count one of the federal indictment. Pursuant to a plea agreement, the Government dismissed counts two and three, the drug charges. The United States Probation Office then produced a Presentence Investigation Report (“PSI”). Alexander had previously been convicted of discharging a firearm from a vehicle within 1,000 feet of another person in violation of Fla. Stat. § 790.15(2). The PSI factored this conviction as a “crime of violence” for purposes of U.S.S.G. § 2K2.1(a)(4)(A), which increased the recommended base offense level from fourteen to twenty.

Alexander filed an objection to the PSI; he argued that the prior conviction under Fla. Stat. § 790.15(2) did not qualify as a crime of violence in light of Begay because it was not “purposeful, violent, and aggressive” behavior. 128 S.Ct. at 1586. At the sentencing hearing, Alexander reasserted that his prior conviction should not be categorized as a crime of violence, but the district court disagreed. Reasoning that an enhancement is appropriate where a prior offense involved behavior that could “result in a serious potential risk of physical injury to another,” the court held that a conviction under Fla. Stat. § 790.15(2) qualifies as a crime of violence and that the PSI properly set Alexander's base offense level at twenty. (R.2-40 at 8-9.) After a three-level adjustment for acceptance of responsibility, the court determined that Alexander's Guidelines offense level was seventeen, that his criminal history category was IV, and that the advisory Guidelines range was thirty-seven to forty-six months. The court considered the relevant sentencing factors and imposed a sentence of forty-three months imprisonment to be followed by a term of three-years supervised release. Alexander then requested that the court grant credit against or modify his sentence to account for the time he spent in state custody from the date of his arrest to the date he was transferred to federal custody. The court declined to do so. Alexander appeals.

II. Issues on Appeal & Contentions of the Parties

We first consider whether a conviction under Fla. Stat. § 790.15(2) for willfully discharging a firearm from a vehicle within 1,000 feet of another person qualifies as a crime of violence as defined by U.S.S.G. § 4B1.2(a) and the Supreme Court's opinion in Begay. Alexander argues that, applying the framework set forth in Begay, his prior conviction does not qualify as a crime of violence because a violation of Fla. Stat. § 790.15(2) does not present a serious risk of injury to another and is not similar in kind as well as in degree of risk posed to the crimes listed as examples in § 4B1.2(a)(2)-burglary, arson, extortion, and crimes involving the use of explosives. The Government counters that the district court properly classified Alexander's prior conviction as a crime of violence because willfully discharging a firearm is inherently violent and aggressive and because the crime poses a greater potential risk of physical injury to another than many other offenses held to be crimes of violence.

Alexander also argues that he is entitled to credit against his sentence for the time that he spent in state custody based on the incident that ultimately led to his conviction in this case. He argues that under 18 U.S.C. § 3585(b), a defendant is entitled to credit for any time he has spent in official detention prior to the date of sentencing. The Government counters that the legal authority to calculate credit for time served under 18 U.S.C. § 3585(b) is vested in the Attorney General. And, exhaustion of administrative remedies is a jurisdictional prerequisite to any action challenging the calculation of time-served credit. Because Alexander does not allege that he exhausted his administrative remedies, the Government argues, the district court properly declined to award credit for time served in state custody.

III. Standard of Review

We consider de novo a district court's interpretation of the Sentencing Guidelines and the application of law to sentencing issues. United States v. Llanos-Agostadero, 486 F.3d 1194, 1196 (11th Cir.2007).

IV. Discussion

A. Crime of Violence

The Sentencing Guidelines provide for a base offense level of fourteen for a violation of 18 U.S.C. § 922(g)(1), possession of a firearm by a convicted felon. U.S.S.G. § 2K2.1(a)(6). The base offense level is increased to twenty if the defendant has a prior conviction for a crime of violence. Id. § 2K2.1(a)(4)(A). This increases the advisory sentencing range for a defendant with a category IV criminal history, like Alexander, from 27-33 months imprisonment to 51-63 months imprisonment. Id. Ch. 5, Pt. A. The Guidelines define “crime of violence” as

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 Government concedes that the crime in this case, discharging a firearm from a vehicle within 1,000 feet of another person, does not fall under subsection one of this definition, and we agree. And, the crime is not one of those enumerated in subsection two. At issue is whether this offense falls within the residual provision of subsection two-whether it “otherwise involves conduct that presents a serious potential risk of physical injury to another.” Id. § 4B1.2(a)(2).

In Begay James v. United States, 550 U.S. 192, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007), and Chambers v. United States, --- U.S. ----, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009), the Supreme Court analyzed the definition of “violent felony” under the Armed Career Criminal Act (“ACCA”). 18 U.S.C. § 924(e)(2)(B)(i)-(ii). Considering whether a crime is a “violent felony” under the ACCA is similar to considering whether a conviction qualifies as a “crime of violence” under U.S.S.G. § 4B1.2(a) because “the definitions for both terms are virtually identical.” United States v. Taylor, 489 F.3d 1112, 1113 (11th Cir.2007) (quotation and citation omitted). The definitions provide the same example offenses: burglary, arson, extortion, and crimes involving the use of explosives. And, the residual clauses are identical; they classify as violent any felony that “otherwise involves conduct that presents a potential risk of physical injury to another.” Compare 18 U.S.C. § 924(e)(2)(B)(ii) (defining “violent felony”) with U.S.S.G. § 4B1.2(a)(2) (defining “crime of violence”). Accordingly, we look to the Supreme Court's opinions applying the ACCA, including Begay James, and Chambers, for guidance in considering whether an offense qualifies as a crime of violence under the Sentencing Guidelines. See United States v. Harris, 586 F.3d 1283, 1285 (11th Cir.2009).

The first step of the “crime of violence” analysis is to identify the specific crime at issue. In James, the Supreme Court instructed that courts should apply a “categorical approach” to this step of the analysis. 550 U.S. at 202, 127 S.Ct. at 1593-94. Under this approach, we “look only to the fact of conviction and the statutory definition of the prior offense, and do not generally consider the...