U.S. v. Burge, No. 04-13468.

• Decision Date: 02 May 2005
• Docket Number: No. 04-13468.
• Citation: 407 F.3d 1183
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joshua John BURGE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

407 F.3d 1183

UNITED STATES of America, Plaintiff-Appellee, v. Joshua John BURGE, Defendant-Appellant.

No. 04-13468.

United States Court of Appeals, Eleventh Circuit.

May 2, 2005.

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Kristen Gartman Rogers, Carlos Alfredo Williams, Christopher Knight, Fed. Pub. Defenders, Mobile, AL, for Defendant-Appellant.

Leigh Lichty Pipkin, Mobile, AL, for Plaintiff-Appellee.

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

Before EDMONDSON, Chief Judge, and DUBINA and HULL, Circuit Judges.

DUBINA, Circuit Judge:

In this case, the government charged the defendant/appellant Joshua John Burge with the illegal possession of a fire-arm by a previously convicted felon in violation of 18 U.S.C. § 922(g)(1). Burge entered a guilty plea, and the district court sentenced him under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), to 190 months imprisonment. Burge filed this appeal challenging the constitutionality of his sentence under the ACCA and United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 756, 160 L.Ed.2d 621 (2005). For the reasons that follow, we affirm.

I. BACKGROUND

The maximum sentence for a violation of 18 U.S.C. § 922(g)(1) is 10 years. 18 U.S.C. § 924(a)(2). For this substantive offense, without consideration of the ACCA, the probation officer assigned Burge, under the now advisory Federal Sentencing Guidelines ("Guidelines"), a total offense level of 17, criminal history category V, with a Guidelines range of 46 to 57 months imprisonment.¹ The mandatory minimum sentence pursuant to the ACCA is 15 years. 18 U.S.C. § 924(e)(1). As an armed career criminal under the ACCA, Burge received an offense level of 34 pursuant to U.S.S.G. § 4B1.4(b)(3)(A). After a 3 level reduction for his acceptance of responsibility, the probation officer assigned Burge a total offense level of 31, criminal history category VI, with a Guidelines range of 188 to 235 months imprisonment.

A defendant is subject to the ACCA if he or she "violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another." 18 U.S.C. § 924(e)(1). The term "violent felony" under 18 U.S.C. § 924(e)(2)(B)(ii), "means 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 ... is burglary." "[T]he term `conviction' includes a finding that a person has committed an act of juvenile delinquency involving a violent felony." 18 U.S.C. § 924(e)(2)(C).

There is no dispute that Burge has two prior adult burglary convictions that fall under section 924(e). However, in order to apply section 924(e), the court considered—as the third necessary conviction—Burge's juvenile charge of burglary in the first degree under Ala.Code § 13A-7-5 (1975), which was adjudicated by the Juvenile Court of Mobile County, Alabama. Based on the statutory language of Ala.Code § 13A-7-5, the juvenile petition, and the juvenile judgment of delinquency, the district court determined that the juvenile adjudication satisfied the requirements of section 924(e). The district court then applied U.S.S.G. § 4B1.4(b)(3)(A), as opposed to U.S.S.G. § 4B1.4(b)(3)(B), based on the fact that Burge pointed his gun at the arresting officers during the substantive offense committed under section 922(g). This application of the Guidelines resulted in a 1 level increase to Burge's total adjusted offense level.

Burge challenges his sentence and contends that: (1) the district court erred by considering the juvenile petition and judgment to determine whether the juvenile adjudication satisfied section 924(e); (2) the consideration of his juvenile adjudication violates Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); and (3) the imposition of his sentence under the Guidelines violates Booker.

II. ISSUES

1. Whether the district court may look beyond the statutory definition of an offense to determine if it qualifies as a prior conviction under the ACCA.

2. Whether a juvenile adjudication may be considered as a prior conviction under the ACCA.

3. Whether the imposition of Burge's sentence violates Booker.

III. STANDARDS OF REVIEW

The court reviews the district court's legal interpretation of the statutes and Guidelines de novo. United States v. Johnson, 375 F.3d 1300, 1301 (11th Cir.2004); see also United States v. Pope, 132 F.3d 684, 689 (11th Cir.1998) (stating that the court reviews questions of statutory interpretations under the ACCA de novo).

Because Burge waived his constitutional objection to the district court's application of the Guidelines, the court reviews his sentence for plain error. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.2005); United States v. Duncan, 400 F.3d 1297, 1301 (11th Cir.2005). "An appellate court may not correct an error the defendant failed to raise in the district court unless there is: (1) error, (2) that is plain, and (3) that affects substantial rights." Rodriguez, 398 F.3d at 1298 (quotation and internal marks omitted). "If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings." Id. (quotation omitted).

IV. DISCUSSION

A. The petition and judgment of a juvenile adjudication may be considered

In order to determine whether Burge's juvenile offense (burglary) was committed while he was carrying a firearm and, therefore, whether his juvenile adjudication could count as a conviction for purposes of the ACCA, the district court considered the petition for a declaration of juvenile delinquency and the juvenile judgment of adjudication. Burge does not dispute the fact of the underlying adjudication, that is, that he was adjudicated delinquent for violating Ala.Code § 13A-7-5; rather, Burge argues that the juvenile adjudication cannot be considered because the statute can be violated in one of three ways, and if the court only considers the statute and the fact of adjudication, it is unclear whether he committed the offense while carrying a firearm.²

The district court's consideration of the petition and judgment to resolve the ambiguity was not error. When a court considers the application of a sentencing enhancement it should generally follow a "categorical approach" and "consider only the fact of conviction and the statutory definition of the prior offense." United States v. Breitweiser, 357 F.3d 1249, 1254 (11th Cir.2004) (quotation and citation omitted); accord Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 2160, 109 L.Ed.2d 607 (1990) (holding that 18 U.S.C. § 924(e) "generally requires the trial court to look only to the fact of conviction and the statutory definition of the prior offense"). The district court may, however, "look beyond the conviction when sentence enhancements are based on a defendant's prior conduct or crime." Breitweiser, 357 F.3d at 1254. Under such circumstances, the district court "may look behind the judgment of conviction when it is impossible to determine from the face of the judgment or statute whether the prior crime satisfies the enhancement statute." Id. at 1255. The district court's review "is limited to the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information." Shepard v. United States, ___ U.S. ___, 125 S.Ct. 1254, 1263, 161 L.Ed.2d 205 (2005). Here, consistent with Breitweiser and Shepard, the district court looked beyond the face of the statute to the petition and judgment in order to determine that Burge was adjudicated delinquent for committing first degree burglary while carrying a firearm and, therefore, to determine that his juvenile adjudication satisfied the ACCA.

B. A juvenile adjudication may be a "prior conviction" under the ACCA

Burge's juvenile adjudication required a finding of proof beyond a reasonable doubt (as well as all other constitutionally required safeguards), but did not afford him the right to a jury trial. Thus, Burge, relying on United States v. Tighe, 266 F.3d 1187 (9th Cir.2001), argues that the district court erred when it considered his prior juvenile adjudication for purposes of increasing his sentence under the ACCA.

"[T]he sentencing factor at issue here—recidivism—is a traditional, if not the most traditional, basis for a sentencing court's increasing an offender's sentence." Almendarez-Torres v. United States, 523 U.S. 224, 243, 118 S.Ct. 1219, 1230, 140 L.Ed.2d 350 (1998). "[T]he government need not allege in its indictment and need not prove beyond a reasonable doubt that a defendant had prior convictions for a district court to use those convictions for purposes of enhancing a sentence." United States v. Marseille, 377 F.3d 1249, 1257 (11th Cir.2004) (citing Almendarez-Torres, 523 U.S. at 228, 118 S.Ct. at 1223). "This conclusion was left undisturbed by Apprendi, Blakely [v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004)], and Booker." United States v. Shelton, 400 F.3d 1325, 1329 (11th Cir.2005).

In Almendarez-Torres the Court considered whether an increased maximum sentence (from up to 2 years to up to 20 years) based on a prior conviction constituted a separate crime, which needed to be alleged in the indictment, or a sentence enhancement, which did not need to be alleged in the indictment, and the Court concluded that it was a sentence enhancement. 523 U.S. at 227-28, 118 S.Ct. at 1222. In Jones v. United States,...