U.S. v. Ellis
| Decision Date | 26 March 2009 |
| Docket Number | No. 07-11276.,07-11276. |
| Citation | 564 F.3d 370 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Curtis Lee ELLIS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Talal Haffar (argued), Marc Woodson Barta, Dallas, TX, for U.S.
Kevin Joel Page (argued), Fed. Pub. Def., Dallas, TX, for Ellis.
Appeal from the United States District Court for the Northern District of Texas.
Before HIGGINBOTHAM, ELROD and HAYNES, Circuit Judges.
On September 4, 2007, Judge Lynn of the United States District Court for the Northern District of Texas accepted defendant-appellant Curtis Lee Ellis' guilty plea as to three counts of bank robbery in violation of 18 U.S.C. § 2113. Previously, Ellis had been convicted of common law robbery and attempted common law robbery in North Carolina, leading the probation officer to recommend a career offender enhancement under Federal Sentencing Guideline § 4B1.1. Applied this enhancement, the district court sentenced him to 168 months of imprisonment. Ellis appeals his sentence on the grounds that his prior conviction for attempted common law robbery does not qualify as a "crime of violence" under § 4B1.2 because North Carolina broadly defines the term "attempted." We conclude that Ellis has forfeited the right to challenge this potential error in the use of the North Carolina conviction by failing to object before the district court. We offer a full narrative of the path Ellis would have us travel, all without any whisper of it uttered in the district court. Doing so points toward the large interest such an undertaking would trample.
The district court sustained Ellis' only two challenges to the Presentence Report refusing to apply enhancements for a "threat of death" and "bodily injury." This worked no change in Ellis' final sentencing range because the court found Ellis to be a career offender and enhanced under Guideline § 4B1.1, predicated on previous "crimes of violence." This set Ellis's total offense level at 29 after a three-point adjustment for acceptance of responsibility.1 Coupled with his criminal history category of VI, his sentencing range was 151-188 months.2
Despite the fact that Ellis' criminal history was the most salient factor in his sentence, the PSR's treatment of it went unchallenged. The PSR grounded the career offender enhancement in Ellis's convictions in North Carolina for common law robbery and attempted common law robbery, finding them to be "crimes of violence" under the Guidelines. Under Guideline § 4B1.1(a), a career offender enhancement applies if, inter alia, "the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense." Ellis accepts that this court has held that common law robbery under North Carolina law is a crime of violence as defined by § 4B1.2.3 But he urges that in North Carolina, attempted robbery is not a crime of violence because state law defines that offense— specifically the "overt act" requirement— more broadly than most other states.
Guideline 4B1.1(a) defines a career offender as (1) one who is eighteen at the time he committed the current offense, (2) which must be a felony that is a crime of violence or a controlled substance offense, and (3) the offender must have two previous convictions that fall into either of those categories. Section 4B1.2 defines "crime of violence" as a crime punishable by imprisonment for a term greater than one year that "has as an element the use, attempted use, or threatened use of physical force against the person of another, or is a 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."4 The application notes provide further definitional guidance:
"Crime of violence" includes murder, manslaughter, kidnaping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling. Other offenses are included as "crimes of violence" if (A) that offense has as an element the use, attempted use, or threatened use of physical force against the person of another, or (B) the conduct set forth (i.e., expressly charged) in the count of which the defendant was convicted involved use of explosives (including any explosive material or destructive device) or, by its nature, presented a serious potential risk of physical injury to another.5
Finally, the application notes also include within the definition of crime of violence "the offenses of aiding and abetting, conspiring, and attempting to commit such offenses."6
As this definition suggests, a crime may fall within one of the enumerated categories, or within the one of the two general provisions, the first requiring the predicate crime to have as "an element the use, attempted use, or threatened use of physical force against the person of another," and the second requiring the prior crime to involve explosives or "by its nature" to present "a serious potential risk of physical injury to another."7 Ellis argues that his conviction in North Carolina for attempted common law robbery does not fall within the enumerated category of robbery (defined to include attempted robbery), or within either of the two catch-all provisions.
The Guidelines do not define "attempt" or "robbery," leaving that task to the courts. This court uses a common sense approach to determine if a prior conviction is categorically an enumerated offense, deciding whether an offense is attempted robbery according to its ordinary, contemporary, and common meaning.8 In Taylor, the Supreme Court defined burglary using "the generic sense in which the term is now used in the criminal codes of most States."9 If the state definition for an offense is broader than the generic definition, a conviction under that state's law cannot serve as a predicate for the enhancement.10
In an unpublished opinion, this court considered whether common law robbery under North Carolina law is categorically a crime of violence pursuant to § 4B1.2.11 The court generically defined robbery as "aggravated larceny, containing at least the elements of misappropriation of property under circumstances involving [immediate] danger to the person."12 North Carolina courts have defined common law robbery as "the felonious, non-consensual taking of money or personal property from the person or presence of another by means of violence or fear."13 The court in Moore concluded that the state's definition of robbery "substantially corresponds" to the generic definition and thus was a crime of violence.14
Recognizing that the common law robbery conviction was properly used to support his career offender status as a crime of violence, Ellis now seeks to challenge the inclusion of his attempt conviction in reaching the crime of violence standard for Guidelines purposes.
To resolve the question in this case we would need to define the generic, contemporary meaning of "attempt" and to compare this definition with North Carolina's use of that term, no easy task. Professor LaFave notes that the actus reus requirement for attempt crimes is very difficult to define with precision.15 Ellis argues that the trend among the states is toward the "substantial step" language of the Model Penal Code. The Model Penal Code defines attempt as follows:
A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he:
(a) purposely engages in conduct that would constitute the crime if the attendant circumstances were as he believes them to be; or
(b) when causing a particular result is an element of the crime, does or omits to do anything with the purpose of causing or with the belief that it will cause such result without further conduct on his part; or
(c) purposely does or omits to do anything that, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.16
Subsections (a) and (b), according to Ellis, are variations of the proximity approach, which require the actor to take steps approaching the accomplished crime, often nearly completing the crime.17 Subsection (c) is the broadest category under the Code, requiring only a "substantial step" to completing the crime. In the difference between this phrase and the "slight acts" language of North Carolina law lies the essence of Ellis's argument.
Ellis argues from LaFave that twenty-two states have adopted the substantial step test of the Model Penal code, and he notes that all twelve circuit courts (in contexts other than determining a generic, contemporary meaning under the Guidelines), the military courts, and the courts of four other states have adopted this test.18 Ellis cites approvingly the Second Circuit's opinion in Sui v. INS, in which the court noted a shift in the meaning of "attempt": "As in Taylor, the modern meaning of `attempt' has evolved from the classic common-law definition of the term, and the elements of intent and a substantial step toward commission set out in the Model Penal Code make up the most commonly used `attempt' definition today."19
Ellis points out that North Carolina has not codified the crimes of either robbery or attempt.20 The North Carolina Supreme Court, he argues, has defined the actus reus requirement of attempt broadly. He cites State v. Bell, in which that court opined: "Because `the reason for requiring an overt act is that without it there is too much uncertainty as to what the intent actually was,' `whenever the design of a person to commit a crime is clearly shown, slight acts in furtherance of the design will constitute an attempt.'"21 Ellis notes that a minority of states has adopted the "slight acts" test, and he argues this language is inconsistent with the...
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