U.S. v. Canty

• Decision Date: 11 June 2009
• Docket Number: No. 08-10659.,08-10659.
• Citation: 570 F.3d 1251
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Myron Christopher CANTY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

570 F.3d 1251

UNITED STATES of America, Plaintiff-Appellee, v. Myron Christopher CANTY, Defendant-Appellant.

No. 08-10659.

United States Court of Appeals, Eleventh Circuit.

June 11, 2009.

John L. Badalamenti, Fed. Pub. Def., Tampa, FL, Donna Lee Elm, Fed. Pub. Def., James T. Skuthan, Acting Fed. Pub. Def., Orlando, FL, Lisa Call, Fed. Pub. Def., Jacksonville, FL, for Canty.

Patricia D. Barksdale, Jacksonville, FL, for U.S.

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

Before CARNES, HULL and COX, Circuit Judges.

COX, Circuit Judge:

We consider in this appeal whether a defendant's sentence was properly enhanced pursuant to the Armed Career Criminal Act, 18 U.S.C. § 924(e) ("the ACCA" or "the statute"). We hold that, pursuant to recent decisions of the Supreme Court and this court, convictions for carrying a concealed firearm should not be treated as violent felonies under the statute. And, concluding that the record does not support a finding of three violent felonies or serious drug crimes necessary to apply the ACCA enhancement, we vacate the sentences and remand for resentencing.

I. FACTUAL BACKGROUND

After pleading guilty to possession of counterfeit federal reserve notes in violation of 18 U.S.C. § 472, and being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), Myron Canty's sentence was enhanced pursuant to the ACCA, which called for a fifteen-year mandatory minimum sentence. The ACCA provides that, when a defendant sentenced for a violation of 18 U.S.C. § 922(g) has three or more prior convictions for violent felonies or serious drug crimes "committed on occasions different from one another," the mandatory minimum prison sentence is fifteen years. 18 U.S.C. § 924(e)(1).

The presentence investigation report (PSR) prepared by the probation office recommended sentencing Canty as an armed career criminal. The PSR listed all of Canty's prior convictions but did not specify which of these convictions were violent felonies or serious drug offenses under the ACCA. At the sentencing hearing, the Government made no objections to the PSR and pursued an ACCA sentence.

Canty objected to the PSR because it included facts and circumstances of Canty's prior crimes taken from arrest and booking reports. Canty argued that because arrest and booking reports are not documents the court may rely upon to determine whether a defendant's prior crimes are proper predicate convictions for application of the ACCA, the PSR should not include facts taken from those reports. In support of this argument, Canty cited Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), which limits a sentencing court to examination of the charging document, the terms of a plea agreement, the transcript of a plea colloquy in which the factual basis for the plea was confirmed by the defendant, or "some comparable judicial record of this information" to determine if the crime to which a defendant has pleaded guilty fits the definitions of crimes upon which an ACCA enhancement can rest. Shepard, 544 U.S. at 26, 125 S.Ct. at 1263.

The Government responded to Canty's Shepard objection by adopting the addendum to the PSR. The relevant part of that addendum states:

It is the [Probation] Office's understanding of Shepard, that the case limits the sentencing court to consideration of [the charging document, terms of a plea agreement, the transcript of a plea colloquy or other such documentation] when the facts from the police report are used to support a conviction; strictly speaking, in Shepard, a conviction relied upon to enhance the defendant's sentence pursuant to the Armed Career Criminal Act. The holding in that case does not appear to be applicable to this defendant. The affected paragraphs are reported for the Court's perusal and consideration, as likely "circumstances" of the arrest—not in support of the conviction for reasons of aggravating the otherwise applicable sentence.

(PSR Addendum at 1.) The Government further stated that the objected-to facts "are not being presented to prove the underlying qualifying convictions, but merely to advise the court of the circumstances of the arrest in question." (R.3 at 6.) The Government then offered four certified copies of state convictions that were entered in evidence as Exhibits 1 through 4. Exhibit 1 is a Florida judgment of conviction, file-stamped August 5, 2002, for three crimes: felon in possession of a firearm, carrying a concealed firearm, and obstructing or opposing an officer. Exhibit 2 is a Florida judgment of conviction, file-stamped January 29, 1998, for three crimes: escape while transporting, possession of cocaine, and obstructing or opposing an officer with violence. Exhibit 3 is a Florida judgment of conviction, also file-stamped January 29, 1998, for possession of cocaine with intent to sell or deliver. Exhibit 4 is a Florida judgment of conviction, file-stamped May 25, 1995, for two crimes: carrying a concealed firearm and possession of a weapon in the vicinity of a school. Each of the exhibits records that Canty pleaded guilty or nolo contendere to the crimes. The court overruled Canty's Shepard objection, finding that, in light of the Government's submission of Exhibits 1 through 4, Shepard did not apply to Canty's case.

Canty also objected that his two convictions for carrying a concealed firearm and his conviction for escape should not be classified as violent felonies for purposes of enhancing the sentence pursuant to the ACCA. The Government responded that Eleventh Circuit precedent held that these crimes were properly considered violent felonies, and the court overruled the objection on that ground.¹

Finally, Canty objected that his Sixth Amendment rights would be violated if his sentence were enhanced based upon facts not stipulated to or proven to a jury beyond a reasonable doubt. The court overruled the objection.

Canty was sentenced, pursuant to the ACCA, to 186 months in prison on each count, to be served concurrently (the fifteen-year mandatory minimum under the ACCA called for a sentence of 180 months). The Government did not request, and the court did not make, findings as to how many violent felony or serious drug convictions Canty had or whether those crimes were committed on occasions separate from one another. Nor did the court state which of the convictions reflected on Exhibits 1 through 4 it relied upon in determining that Canty's sentence should be enhanced pursuant to the statute.

II. ISSUE ON APPEAL & CONTENTIONS OF THE PARTIES

Canty appeals his sentences, arguing that they should not have been enhanced pursuant to the ACCA because carrying a concealed firearm and escape are not properly considered violent felonies under the statute.² The Government acknowledges that, after Begay v. United States, 553 U.S. ___, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), and this court's subsequent decision in United States v. Archer, 531 F.3d 1347, 1352 (11th Cir.2008), carrying a concealed firearm should not be treated as an ACCA violent felony. The Government argues, however, that we should consider escape a violent felony for purposes of the sentencing enhancement. And, the Government defends the sentences on the basis that, even when the concealed firearms convictions are disregarded, Defendant has three violent felony or serious drug offense convictions that make the ACCA 15-year mandatory minimum applicable. The Government identifies these three convictions as escape while transporting (documented on Exhibit 2 offered at the sentencing hearing), obstructing or opposing an officer with violence (also documented on Exhibit 2), and possession with intent to sell cocaine (documented on Exhibit 3).

III. STANDARD OF REVIEW

Whether a particular conviction is a violent felony for purposes of the ACCA is a question of law we consider de novo, United States v. Day, 465 F.3d 1262, 1264 (11th Cir.2006), as is whether crimes were committed on "occasions different from one another," within the meaning of the ACCA. United States v. Pope, 132 F.3d 684, 689 (11th Cir.1998).

IV. DISCUSSION

We agree with the parties that carrying a concealed weapon is not a violent felony that may be used as a predicate conviction to enhance a defendant's sentence under the ACCA. See Archer, 531 F.3d at 1352 (holding that carrying a concealed weapon can not be a "crime of violence" under the U.S. Sentencing Guidelines and stating, "This court has repeatedly read the definition of a `violent felony' under § 924(e) of the Armed Career Criminal Act as `virtually identical' to the definition of a `crime of violence' under U.S.S.G. § 4B1.2."). Therefore, as the parties recognize, in order for Canty's ACCA sentence to be affirmed, his crimes of escape, obstructing or opposing an officer with violence, and possession with intent to sell cocaine all must be considered violent felonies or serious drug offenses. Canty does not dispute that his drug conviction is a serious drug offense as defined by the statute. But, the parties disagree as to whether Canty's other two convictions should be counted as violent felonies under the statute.

Canty argues that, after Begay, his escape conviction should not be considered a conviction for a violent felony. And, he argues that, even if that crime is considered a violent felony, the Government has not shown and cannot show that it was committed on an occasion different from the crime of obstructing or opposing an officer with violence because both crimes were committed on the same day. The Government argues that escape is properly considered a violent felony under Eleventh Circuit precedent, and that Begay should not change that rule. And, the Government argues, even though both crimes were committed on the same day, the record demonstrates that Canty committed his escape crime on an occasion different from his crime of obstructing or opposing an officer with violence.

We...