U.S. v. Harrison

• Decision Date: 19 February 2009
• Docket Number: No. 08-12636.,08-12636.
• Citation: 558 F.3d 1280
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Victor Edgar HARRISON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

558 F.3d 1280

UNITED STATES of America, Plaintiff-Appellee, v. Victor Edgar HARRISON, Defendant-Appellant.

No. 08-12636.

United States Court of Appeals, Eleventh Circuit.

February 19, 2009.

Gwendolyn L. Spivey (Fed. Pub. Def.), Fed. Def. Office, Tallahassee, FL, Thomas S. Keith (Fed.Pub. Def.), Fed. Pub. Defender's Office, Pensacola, FL, for Harrison

Nancy J. Hess, Tiffany Hope Eggers, U.S. Atty., Pensacola, FL, E. Bryan Willson, U.S. Atty., Tallahassee, FL, for U.S.

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

Before HULL, WILSON and HILL, Circuit Judges.

HULL, Circuit Judge:

This appeal presents the question of whether a prior state conviction for violating subsection 2 of Florida's willful fleeing statute, Fla. Stat. § 316.1935(2), is a "violent felony" under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e).

I. BACKGROUND

In federal district court, Appellant Harrison was indicted on one count of possession of a firearm by a convicted felon, 18 U.S.C. § 922(g)(1) ("Count 1"), and one count of possession of an unregistered, short-barrel shotgun, 26 U.S.C. § 5861(d) ("Count 2"). Harrison pled guilty to both counts.

The government sought a penalty increase under 18 U.S.C. § 924(e)(1). Section 924(e)(1) imposes a mandatory minimum sentence of fifteen years and a maximum of life imprisonment if a defendant, convicted of violating § 922(g), has three previous convictions that are either violent felonies or serious drug offenses.¹ Count 1 of the indictment listed Harrison's three prior Florida state court felony convictions.

The Presentence Investigation Report ("PSI") calculated Harrison's base offense level as 22, pursuant to U.S.S.G. § 2K2.1(a)(3), and recommended a two-level enhancement, pursuant to U.S.S.G. § 2K2.1(b)(1)(A), because Harrison's offense involved three or more firearms. After a three-level reduction for acceptance of responsibility, the PSI recommended a total offense level of 21 and a criminal history category of VI. That yielded an advisory guidelines range of 77 to 96 months in prison. The PSI noted that for each count, the statutory maximum sentence was ten years in prison.

But the PSI failed to apply the ACCA's increased penalties for Harrison's three prior convictions. The government filed a sentencing memorandum objecting. The memorandum identified the following three convictions, listed in the PSI, as relevant: (1) a 2003 conviction under Fla. Stat. § 316.1935(3) for fleeing or attempting to elude police at high speed; (2) a 2003 conviction for possession of a controlled substance with intent to sell, manufacture or deliver; and (3) a 2000 conviction under Fla. Stat. § 316.1935(2) for fleeing or attempting to elude police. The government attached copies of the judgments and sentences for all three convictions including the information, written plea agreement, and arrest report for the 2000 conviction under § 316.1935(2).²

Harrison's response admitted that his two 2003 convictions qualified as violent felonies. But he argued that his 2000 conviction under § 316.1935(2) did not. Therefore, in his view, the district court was prohibited from looking beyond the statutory language of § 316.1935(2) to determine whether it was a conviction for a violent felony.

The probation officer then revised an addendum to the PSI. The revised addendum noted that whether a § 316.1935(2) conviction qualified as a "violent felony" for purposes of the ACCA was an issue of first impression and stated that, should the district court sustain the government's objection, Harrison's offense level would be 30 after application of the "Armed Career Criminal" provision, U.S.S.G. § 4B1.4(b)(3)(B), in the Sentencing Guidelines.³ As to Count 1, Harrison would face a mandatory minimum fifteen-year sentence under the ACCA, whereas for Count 2 the statutory maximum would remain a ten-year sentence. Therefore, Harrison's advisory guidelines range would increase from 77 to 96 months to 180 to 210 months in prison as to Count 1, and from 77 to 96 months to 120 months in prison as to Count 2.⁴

The district court sustained the government's ACCA objection and concluded that Harrison's § 316.1935(2) conviction qualified under the ACCA. The court adopted the PSI's revised addendum's alternate calculation of Harrison's total offense level of 30 (which applied U.S.S.G. § 4B1.4's armed career criminal offense enhancement). That yielded an advisory guidelines range of 180 to 210 months in prison as to Count 1 and 120 months in prison as to Count 2. After considering the 18 U.S.C. § 3553(a) factors, the district court sentenced Harrison to 210 months in prison and 5 years of supervised release on Count 1, and 120 months in prison and 3 years of supervised release on Count 2, to run concurrently. In imposing the sentences, the district court emphasized Harrison's criminal history and the need to protect the public from Harrison.

On appeal, Harrison raises a single issue: whether the district court erred in concluding that a conviction under Fla. Stat. § 316.1935(2) is a "violent felony" for purposes of the ACCA.⁵

II. DISCUSSION

A. "Violent Felony" Under the ACCA

Harrison's conviction—of being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1)—would ordinarily subject to him to a term of imprisonment not to exceed ten years. 18 U.S.C. § 924(a)(2). But where a felon violates § 922(g)(1) "and has three previous convictions . . . for a violent felony . . . such person shall be . . . imprisoned not less than fifteen years." Id. Therefore, the question of what constitutes a violent felony can make all the difference. See also Begay v. United States, ___ U.S. ___, 128 S.Ct. 1581, 1583, 170 L.Ed.2d 490 (2008) ("[The ACCA] imposes a more stringent 15-year mandatory minimum sentence on [such] an offender who has three prior convictions `for a violent felony or a serious drug offense.'" (quoting 18 U.S.C. § 924(e)(1))).

Section 924(e)(2)(B) of the ACCA defines a "violent felony" as:

any crime punishable by imprisonment for a term exceeding one year . . . that —

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another . . . .

18 U.S.C. § 924(e)(2)(B) (emphasis added).⁶

The parties agree that Harrison's conviction does not involve the "use, attempted use, or threatened use of physical force against the person of another." See 18 U.S.C. § 924(e)(2)(B)(i). And the government does not contend that Harrison committed burglary, arson, extortion, or a crime that "involves the use of explosives." See id. § 924(e)(2)(B)(ii). Therefore, the issue on appeal is whether Harrison's conviction of violating Florida's statute making it a felony to willfully flee or attempt to elude a police officer, see Fla. Stat. § 316.1935(2), is a crime that "otherwise involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B)(ii). In the parlance of the Supreme Court's ACCA jurisprudence, the question is whether Harrison was convicted of a state crime that falls under the ACCA's "residual" clause.

In the last two years, the Supreme Court has, on three separate occasions, instructed lower courts on how to read the residual clause. See Chambers v. United States, 555 U.S. ___, 129 S.Ct. 687, 691-93, 172 L.Ed.2d 484 (2009); Begay, 128 S.Ct. at 1586-88 (2008); James v. United States, 550 U.S. 192, 127 S.Ct. 1586, 1597, 167 L.Ed.2d 532 (2007). In each case, the Supreme Court determined whether a state crime was a "violent felony" under the ACCA. Therefore, we recount the Supreme Court's recent foray into determining whether a state crime involved "conduct that presents a serious potential risk of physical injury to another" within the meaning of the ACCA.

B. Categorical Approach

Before assessing the riskiness of a crime under the ACCA, a court first must identify exactly what the crime at issue is. In James, the Supreme Court instructed that lower courts should employ a "categorical approach" to focus its analysis. 127 S.Ct. at 1593-94. That is, courts should "look only to the fact of conviction and the statutory definition of the prior offense." Id. at 1594 (quoting Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 2160, 109 L.Ed.2d 607 (1990)). Generally speaking, courts should not consider the "particular facts disclosed by the record of conviction." Id. (quotation marks omitted). Such an approach requires looking to the "elements of the offense . . . without inquiring into the specific conduct of this particular offender." Id. (emphasis omitted).⁷ Therefore, we look to the way the crime is "generally committed"—not by examining the particular facts in a defendant's case or by focusing on extreme situations. Chambers, 129 S.Ct. at 690. It is the "ordinary case" or the "generic sense" of the state crime that counts. Begay, 128 S.Ct. at 1584 ("In determining whether [a] crime is a violent felony, we consider the offense generically, that is to say, we examine it in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion."); James, 127 S.Ct. at 1597 ("[T]he proper inquiry is whether the conduct encompassed by the elements of the offense, in the ordinary case, presents a serious potential risk of injury to another.").⁸

With respect to choosing the correct category of crime, the categorical approach changes slightly when a court analyzes a state crime under the residual clause, as is the case here, as opposed to a state crime enumerated in § 924(e)(2)(B)(ii). For example, in Taylor v. United States, where the Supreme Court first unveiled the "categorical approach," the question was whether the word "burglary"—an enumerated offense in...