U.S. v. Bennett

• Decision Date: 13 December 2006
• Docket Number: No. 05-15376.,05-15376.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Carl BENNETT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

472 F.3d 825

UNITED STATES of America, Plaintiff-Appellee, v. Carl BENNETT, Defendant-Appellant.

No. 05-15376.

United States Court of Appeals, Eleventh Circuit.

December 13, 2006.

N. Harvey Weitz (Court-Appointed), Weiner, Shearouse, Weitz, Greenberg & Shawe, LLP, Savannah, GA, for Defendant-Appellant.

Robert M. Brennan, Amy Lee Copeland, U.S. Atty., Savannah, GA, for Plaintiff-Appellee.

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

Before BLACK and HULL, Circuit

Judges, and CONWAY,^* District Judge.

PER CURIAM:

Defendant-Appellant Carl Bennett appeals his 220-month sentence imposed following his guilty plea to possession of a firearm by a convicted felon and armed career criminal, 18 U.S.C. §§ 922(g)(1), 924(e). On appeal, Bennett contends that the district court erred in classifying him as an armed career criminal under 18 U.S.C. § 924(e), the Armed Career Criminal Act (ACCA), based on information contained in his Presentence Investigation Report (PSI). Bennett also maintains that the district court erred in sentencing him based on a total offense level of 32 under the United States Sentencing Guidelines (U.S.S.G.). We determine that the district court did not err in classifying Bennett as an armed career criminal, but did err in calculating a total offense level of 32.

I. BACKGROUND

According to Bennett's PSI, on June 7 2004, Bennett was stopped by police officers while he was driving a car that belonged to another individual. The police officers found a shotgun in the trunk of the car. The car also contained household goods and electronic equipment that had been burgled from a residence. Steven Worriels, a passenger in the car, implicated Bennett in the burglary, but Bennett denied his involvement.

A. Indictment

On February 5, 2005, Bennett was indicted for possession of a firearm by a convicted felon and armed career criminal, in violation of 18 U.S.C. §§ 922(g)(1), 924(e). The indictment charged that Bennett had been convicted of several felonies: two counts of burglary, both occurring on June 2, 1984, for which Bennett was sentenced to ten years; burglary, occurring on September 18, 1983, and burglary, occurring on February 15, 1984, for which Bennett was sentenced to ten years; burglary, occurring on October 28, 1988, for which he was sentenced to ten years; and burglary, possession of tools for the commission of a crime, and obstruction of justice, occurring on November 12, 1991, for which he was sentenced to fifteen years, five years, and five years, all concurrent.

B. Plea Colloquy

At the plea colloquy before the district judge, Bennett had an opportunity to challenge his prior convictions as set forth in the indictment. Not only did Bennett fail to object to the convictions, but he expressly admitted them, as the following colloquy demonstrates:

Q Have you read the indictment and gone over the charges in the indictment with your lawyer?

A Yes, sir.

Q In this case, Mr. Bennett, you are charged in this one-count indictment, and the indictment charges that on or about June 7, 2004, in Chatham County within the Southern District of Georgia, that you, who before that time had been convicted of felonies, offenses punishable by imprisonment for more than one year; and that is, the felony offense of burglary, two counts, both offenses occurring June 2, 1984, for which you were sentenced to ten years with four years suspended in the Superior Court of Chatham County, Georgia on August 27, 1984; also, the felony offense of burglary occurring September 18, 1983, and burglary occurring February 15, 1984, for which you were sentenced to ten years with four years suspended in the Superior Court of Chatham County, Georgia October 19, 1984; also, the felony offense of burglary occurring October 28, 1988 for which you were sentenced to ten years in the Superior Court of Chatham County, Georgia on May 30, 1989; and the offense of burglary, possession of tools for the commission of a crime and obstruction of justice occurring November 12, 1991, for which you were sentenced to 15 years and five years, all concurrent, in the Superior Court of Chatham County, Georgia on May 8, 1992, that you did knowingly possess in and affecting interstate commerce a firearm; that is, a Stevens Model 6712 .12 gauge shotgun, and it gives the serial number, which before that time had been transported in interstate or foreign commerce, in violation of 18 United States Code, Sections 922(g)(1) and 924(e)[.]

And that is what you are charged with in the indictment that you are pleading guilty to today, Mr. Bennett. Do you understand that?

A Yes.

Bennett's attorney, Christian Steinmetz, stated that Bennett would stipulate that he was a convicted felon who knowingly possessed a firearm. However, Bennett's attorney stated that he and his client wished to preserve an objection to the classification of Bennett's prior convictions as violent felonies for the sentencing hearing. The district judge initially explained that Bennett could challenge a host of issues at sentencing, including whether Bennett's prior convictions were violent felonies. However, the district judge then made it clear that by pleading guilty, Bennett was admitting that he had three prior violent felonies. The district court stated: "But what he's pleading guilty to today is that he is a convicted felon; that he knowingly possessed a firearm that had been used in foreign or interstate commerce; and that he had three-at least three prior felony convictions." Mr. Steinmetz then replied: "As listed in 924(e)." The district court responded: "Which says that he had three previous felony convictions of violence and drug distribution. And those are the elements that the government had to prove. And if the government cannot prove those elements, then he would not be authorized to be found guilty in this case." The court further asked if Bennett was prepared to admit that he had committed three prior violent felony convictions, and Bennett admitted that he had at least three violent felonies, as follows:

Q Now, if [Bennett]'s not prepared this morning to admit that he had three prior felony convictions that constituted violent convictions, and the law is clear, in my opinion, that a burglary, whether it be a residential burglary or a commercial burglary, but particularly residential burglary, is a violent felony under federal law and under the sentencing guidelines. And if Mr. Bennett is not prepared to admit that on the record at sentencing (sic) today, then we're wasting our time here and we'll come back on Monday.

MR. STEINMETZ: Your Honor, I think Mr. Bennett is and I'll ask him—

THE COURT: — Well, I don't want you to tell me. I want Mr. Bennett to tell me that. Now, if you and Mr. Bennett need some more time to talk, I'll be glad to give you that time. But unless he is prepared to admit the elements of the crime that he is charged with and that he is pleading guilty to today, then I am not going to go forward with this guilty plea, and I'm not going to play ring around the rosy here or split hairs.

MR. STEINMETZ: I believe Mr. Bennett is ready to go forward.

[Note: Counsel and defendant confer off the record.]

Q All right, Mr. Bennett, do you understand the charges against you that I have explained to you, and understand the charges against you in the indictment, and do you understand the elements of the offense that I've described to you and that you're pleading guilty to today?

A Yes, sir.

Q And do you understand that part of those elements of the offense is that you are pleading guilty to having been previously convicted as one of those elements that you previously committed at least three violent felonies?

A Yes, Your Honor. (emphasis added).

After Bennett's admission to having at least three prior violent felony convictions, the district judge informed Bennett of the maximum penalties Bennett would face if he pled guilty. Bennett acknowledged that he understood the penalties and entered his guilty plea.

C. Presentence Investigation Report

Following Bennett's conviction, the United Stated Probation Office prepared Bennett's PSI, which listed his prior convictions for burglaries of commercial or residential buildings and classified Bennett as an armed career criminal under § 924(e). As to the two June 2, 1984 burglaries listed in the indictment, the PSI stated that police records revealed these were "two commercial burglaries involv[ing] the theft of change from a Car Park and food items from Stand N'Snack, both of which were Savannah businesses." As to the September 18, 1983 burglary in the indictment, the PSI stated that police records showed Bennett "entered a closed Radio Shack store and stole an electric typewriter and a computer having a combined value of approximately $1400." As to the February 15, 1984 burglary in the indictment, the PSI stated that police records showed Bennett burglarized two Savannah businesses, Ocean Chemical and Metal Crafts, Inc. As to the October 28, 1988 burglary in the indictment, the PSI stated that "court documents reveal that the defendant forcefully entered the residence of Cynthia Cooper, Savannah, on October 28, 1988." As to the November 12, 1991 burglary in the indictment, the PSI stated that "court records reveal that the offense involved the defendant's burglary of the residence of Glendora Baldwin, Savannah, on November 12, 1991."

In the PSI, the probation officer recommended enhancing the base offense level to 34 because of Bennett's status as an armed career criminal and because the firearm found by the police officers was possessed by Bennett in connection with a crime of violence (burglary of the residence).

Bennett filed written objections to the PSI. Specifically, Bennett objected to being characterized as an armed career criminal. Bennett contended that, even though he pled guilty to several charges of burglary, his prior crimes did not qualify as...