U.S. v. Lockley

• Decision Date: 11 February 2011
• Docket Number: No. 09–15728.,09–15728.
• Citation: 632 F.3d 1238
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Theodore D. LOCKLEY, a.k.a. Teddy, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

632 F.3d 1238

22 Fla. L. Weekly Fed. C 1782

UNITED STATES of America, Plaintiff–Appellee,

v.Theodore D. LOCKLEY, a.k.a. Teddy, Defendant–Appellant.

No. 09–15728.

United States Court of Appeals, Eleventh Circuit.

Feb. 11, 2011.

Noel G. Lawrence (Court–Appointed), Lawrence & Parker, P.A., Jacksonville, FL, for Lockley.Patricia D. Barksdale, Jacksonville, FL, for U.S.Appeal from the United States District Court for the Middle District of Florida.Before TJOFLAT, CARNES and HILL, Circuit Judges.TJOFLAT, Circuit Judge:

Theodore D. Lockley appeals his 180–month sentence after pleading guilty to conspiring to possess with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. § 846. On appeal, Lockley argues that the district court erred in enhancing his sentence under the career offender provision, United States Sentencing Commission, Guidelines Manual, § 4B1.1(a) (Nov. 1, 2008), because his prior conviction for attempted robbery in violation of Fla. Stat. §§ 812.13(1) and 777.04(1) was not a “crime of violence” under § 4B1.2.

We review de novo whether a prior conviction qualifies as a “crime of violence” under the Sentencing Guidelines. United States v. Palomino Garcia, 606 F.3d 1317, 1326 (11th Cir.2010). “[I]n determining whether a prior conviction is a qualifying offense for enhancement purposes, we apply a ‘categorical’ approach—that is, we look no further than the fact of conviction and the statutory definition of the prior offense.” United States v. Llanos–Agostadero, 486 F.3d 1194, 1196–97 (11th Cir.2007) (citations omitted), cert. denied ––– U.S. ––––, 129 S.Ct. 902, 173 L.Ed.2d 119 (2009). A court may examine the underlying facts of the conviction only if “ambiguities in the judgment make the crime of violence determination impossible from the face of the judgment itself.” United States v. Harris, 586 F.3d 1283, 1286 n.1 (11th Cir.2009) (quoting United States v. Beckles, 565 F.3d 832, 842–43 (11th Cir.2009)). In the present case, we are able to make the “crime of violence” determination from the face of Florida's robbery and attempt statutes. We therefore disregard the facts of the underlying conviction and look only to the elements of Lockley's prior conviction.

Under the Guidelines, a defendant is eligible for the career offender enhancement if: (1) he is at least 18 years old at the time of the commission of the offense of conviction; (2) the offense of conviction is a felony crime of violence or controlled substance offense; and (3) he has at least two prior felony convictions for a crime of violence or controlled substance offense. ¹ U.S.S.G. § 4B1.1(a). A “crime of violence” is defined in the Guidelines as

any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that—

(1) has as an element the use, attempted use, or threatened use of

physical force against the person of another [(“the elements clause”)], or

(2) is burglary of a dwelling, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another [(“the residual clause”)].

U.S.S.G. § 4B1.2(a).

Commentary to the Guidelines provides further definitional guidance:

For purposes of this guideline—

“Crime of violence” and “controlled substance offense” include the offenses of aiding and abetting, conspiring, and attempting to commit such offenses.

“Crime of violence” includes murder, manslaughter, kidnapping, 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 risk of physical injury to another.

U.S.S.G. § 4B1.2, comment. (n.1) (emphasis added). We recognize that this definition is disjunctive. For that reason, a prior conviction qualifies as a “crime of violence” if any of the following are true: (1) the defendant was convicted of committing, aiding or abetting the commission of, conspiring to commit, or attempting to commit, an enumerated offense; (2) the use, attempted use, or threatened use of physical force against another was an element of the offense; or (3) the conduct for which the defendant was convicted presented a serious risk of physical injury to another person.²See, e.g., United States v. Wilson, 392 F.3d 1243, 1245–46 (11th Cir.2004) (interpreting the nearly-identical “crime of violence” provision in U.S.S.G. § 2L1.2 in the disjunctive).

The Government proceeds under all three avenues. We will consider them in turn, beginning with the proposition that Lockley's prior attempted robbery conviction qualifies as a “crime of violence” because robbery is an enumerated offense. Lockley counters the Government's position by claiming that the Florida robbery statute in question is non-generic—meaning it is broader than the generic definition of robbery—in that it criminalizes the use of intimidation or fear, not merely force or violence, to obtain the property of another. Lockley thus urges us to find that Florida's robbery statute defies our categorical approach, vacate the district court's sentence, and remand for resentencing.

Where, as here, the Guidelines specifically designate a certain offense as a “crime of violence,” we compare the elements of the crime of conviction to the generic form of the offense as defined by the States, learned treatises, and the Model Penal Code. Palomino Garcia, 606 F.3d at 1331 (applying Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)). That is, we disregard the label placed on the state crime and look to whether the conduct necessarily proven as a prerequisite for Lockley's conviction under Florida law is a natural equivalent to the offense as envisioned by the Guidelines' drafters. Id. at 1330–31. If Fla. Stat. § 812.13(1) follows the generic definition of robbery with only minor variations, or is narrower than the generic offense, we will uphold the district court's application of the career offender enhancement. Taylor, 495 U.S. at 599, 110 S.Ct. at 2158. If, however, Florida's definition is broader than generic robbery, Lockley's prior conviction cannot serve as a predicate, under the categorical approach, for the enhancement. Id. at 599–602, 110 S.Ct. at 2158–60. As explained below, we find that § 812.13(1) is the equivalent of the generic form of robbery. As a result, we cannot do as Lockley asks.

Section 812.13 defines “robbery” as

the taking of money or other property which may be the subject of larceny from the person or custody of another, with the intent to either permanently or temporarily deprive the person or the owner of the money or other property, when in the course of the taking there is the use of force, violence, assault, or putting in fear.

Fla. Stat. § 812.13(1). The taking referred to

must be by the use of force or violence or by assault so as to overcome the resistance of the victim, or by putting the victim in fear so that the victim does not resist.

Fla. Std. Jury Instr. (Crim.) 15.1.³ The property taken need not be taken from the actual person of the victim, but must be sufficiently under his control “so that it cannot be taken without the use of force, violence, or intimidation directed against the victim.” Id. Assault, in turn, is defined as “an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.” Fla. Stat. § 784.011(1). And, “[t]he fear contemplated by the statute is the fear of death or great bodily harm.” Magnotti v. State, 842 So.2d 963, 965 (Fla. 4th Dist.App.2003) (internal quotation marks omitted).

For our purpose, then, commission of robbery in violation of Fla. Stat. § 812.13(1) necessarily requires that the defendant (1) commit a taking of money or other property from another person or in the custody of another person (2) with the intent to permanently or temporarily deprive the person of the money or property or any benefit thereof (3) using force, violence, or an intentional threat of imminent force or violence against another coupled with an apparent ability to use that force or violence, or by causing the person to fear death or great bodily harm (4) where the money or property has value. See Fla. Std. Jury Instr. (Crim.) 15.1. These elements hew almost exactly to the generic definition of robbery.

“[T]he generic form of robbery ‘may be thought of as aggravated larceny,’ containing at least the elements of ‘misappropriation of property under circumstances involving [immediate] danger to the person.’ ” United States v. Santiesteban–Hernandez, 469 F.3d 376, 380 (5th Cir.2006) (quoting Wayne LeFave, Substantive Criminal Law § 20.3 intro., (d)(2) (2d ed.2003) (alteration in original)). There is, nevertheless, at least some subtle variation in the breadth of that definition, and it is upon this variation that Lockley makes his case. “The majority of states require property to be taken from a person or a person's presence by means of force or putting in fear.” Id.; see also id. at 380 n. 5 (collecting statutes and determining that thirty-eight states and the District of Columbia have adopted a definition of robbery which includes either fear or intimidation). Under the majority's definition, there need not be a direct threat to the person of another—instead, intimidation or “putting in fear” of potential injury suffices. See, e.g., United States v. Becerril–Lopez, 541 F.3d 881, 890–91 (9th Cir.2008) (interpre...