U.S. v. Wade

• Decision Date: 04 August 2006
• Docket Number: No. 05-12518.,05-12518.
• Citation: 458 F.3d 1273
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Earl Robert WADE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

458 F.3d 1273

UNITED STATES of America, Plaintiff-Appellee, v. Earl Robert WADE, Defendant-Appellant.

No. 05-12518.

United States Court of Appeals, Eleventh Circuit.

August 4, 2006.

Brian Mendelsohn and Stephanie Kearns, Fed. Pub. Defenders, Fed. Def. Program, Inc., Atlanta, GA, for Wade.

Amy Levin Weil, C. Joy Lampley Fortson, Atlanta, GA, for U.S.

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

Before BIRCH, CARNES and BRUNETTI^*, Circuit Judges.

CARNES, Circuit Judge:

Earl Robert Wade appeals his sentence of 235 months imprisonment for possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g) and § 924(e). Seeking to have us vacate his sentence, Wade raises issues relating to the armed career criminal provisions of § 924(e) and United States Sentencing Guidelines § 4B1.4 (Nov.2004), about the U.S.S.G. § 3E1.1 reduction for acceptance of responsibility, and about whether the district court understood the difference between departing as part of the guidelines determination and going outside the guidelines range as authorized by United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

I.

On December 19, 2003, City of Atlanta police arrested Wade, a convicted felon, for possession of a firearm on that date. Following his release from custody, Atlanta police arrested him on May 12, 2004 for possession of a different firearm on that date. Those were state offenses. No federal charges were brought against Wade for that conduct until July 27, 2004, when he was indicted on two counts of possession of a firearm as a convicted felon in violation of § 922(g) and § 924(e). The first count was based on the December 2003 offense and the second count was based on the May 2004 one. Wade pleaded guilty to the first count on November 4, 2004. The district court, upon motion of the government, dismissed the second count.

The pre-sentence investigation report (PSI) indicated that under U.S.S.G. § 2K2.1(a)(2), a base offense level of 24 applied because Wade had committed the offense "subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense." It recommended a four-level § 2K2.1(b)(5) increase because Wade possessed the firearm in connection with a felony offense, possession of crack cocaine.

The PSI also indicated that Wade was an armed career criminal within the meaning of U.S.S.G. § 4B1.4 because he had been convicted of a violation of § 924(e) and of three or more prior violent felonies or serious drug offenses. Wade's previous convictions were for: (1) attempted burglary; (2) burglary; (3) possession of cocaine; and (4) possession of marijuana. With respect to the attempted burglary conviction, which was the result of a plea, the PSI reported that according to "Court documents" Wade had attempted to kick in the door of a residence. Based on Wade's status as an armed career criminal, the PSI recommended that his offense level be increased from 28 to 33 pursuant to § 4B1.4(b)(3)(B).

Notwithstanding Wade's guilty plea, the PSI recommended that he not be given a § 3E1.1 reduction in his offense level for acceptance of responsibility. The reason was that after Wade's initial arrest for possession of a firearm, he had resumed criminal activity by committing the same offense several months later. Considering all the circumstances, the PSI concluded that Wade's repetition of criminal conduct outweighed any contrition he may have shown in his guilty plea. See U.S.S.G. § 3E1.1, cmt. n.3. The result was an adjusted offense level of 33 and a criminal history category of VI, which meant a guidelines range of 235 to 293 months imprisonment; the statutory mandatory minimum sentence was 15 years (180 months), however the PSI noted that "a ten-year statutory minimum was on record at the time of the plea."

In his written response to the PSI, Wade made three objections. First, he objected to application of the Armed Career Criminal Act (ACCA) but only on the basis that "attempted burglary cannot be used as a predicate offense under the definition used [in] 18 U.S.C. § 924(e)." That objection focused on attempted burglary as a category of crime; it did not dispute the PSI's allegation that state "Court documents" established that Wade had been convicted of the crime as a result of attempting to kick in the door of a residence and commit a theft inside.

Second, Wade objected under Booker and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), to the use of any of his three prior convictions because they were not listed in the indictment. Finally, Wade objected to the PSI's recommendation that he be denied a three-level reduction for acceptance of responsibility based on conduct that occurred months before the federal indictment was filed. He argued that the logical result of ruling out an acceptance of responsibility reduction for him is that he would never be able to receive one even though he came to court, acknowledged his culpability, and accepted responsibility for the offense.

At the March 4, 2005 sentencing hearing, Wade reiterated his objections. Wade contended that no Georgia attempted burglary conviction can serve as a predicate offense for an ACCA conviction. When the district court pointed out that the crime involved Wade attempting to kick the door in, Wade did not dispute that. Nor did he voice any disagreement with the prosecutor's statement that "in this case the defendant attempted to kick the person's door." In overruling Wade's objection, the district court acknowledged the general concerns about use of attempted burglary convictions for ACCA purposes but explained, "when he's trying to kick in the door, [that] presents conduct which is narrow and offers the potential for violence." Wade made no protest about the court's characterization of the actual facts underlying the conviction nor did he question the source of those facts.

Wade also objected at the sentence hearing to not receiving a reduction for acceptance of responsibility. In rejecting Wade's position on that, the district court explained that the purpose of the reduction is to treat defendants who had realized the error of their ways and reformed more favorably than those whose actions show no change of attitude. The court determined that Wade was not entitled to the reduction because even though his arrest had put him on notice that his possession of a firearm was wrong, he possessed another firearm five months later.

The court found that Wade was an armed career criminal and was not entitled to a reduction for acceptance of responsibility. That resulted in an offense level of 33, and with Wade's criminal history category of VI, the court calculated the guidelines range at 235 to 293 months. It also recognized that the applicable statutory mandatory minimum sentence was fifteen years. Wade argued that the mandatory minimum was "extremely harsh" and "more than sufficient," and requested that he be given that minimum sentence.

The court responded that although it believed the guidelines sentence was "unnecessary for any of the purposes set out in the statute, . . . I do not have a reason to depart based on my opinion that the sentence is excessive." The court continued: "I find that I would [depart], if I were free to, but I have not been given a reason nor can I think of a reason to depart solely because I think the sentence is excessive in this case." The court stated that the fact that Wade was "a twenty-two year-old young man who had a hard life" was not a sufficient "reason to depart" because "[o]therwise I would have to depart and deviate in virtually every case I get." The court sentenced Wade to 235 months imprisonment, the bottom of the guidelines range. At that point Wade objected that the sentence was unreasonable. This appeal followed.

II.

Section 4B1.4(a) of the guidelines provides that "[a] defendant who is subject to an enhanced sentence under the provisions of 18 U.S.C. § 924(e) is an armed career criminal." U.S.S.G. § 4B1.4(a). Application of that statutory provision, the Armed Career Criminal Act, requires a finding that the defendant who has violated § 922(g) has three previous convictions for a violent felony or serious drug offense. 18 U.S.C. § 924(e)(1). The term "violent felony" is defined in the ACCA as any crime 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; ....

§ 924(e)(2)(B)(i)-(ii). This matters to the calculation of a guidelines sentence in this case because § 4B1.4(a) of the guidelines effectively incorporates by reference the definition of "violent felony" from § 924(e)(2)(B), and § 4B1.4(b) of the guidelines provides for a higher offense level for armed career offenders.

Wade contends that the district court erred in sentencing him as an armed career criminal because attempted burglary under Georgia law is not a violent felony within the meaning of § 924(e)(2)(B) and therefore cannot serve as one of the three predicate offenses. Wade also contends that his implicit admission throughout the sentence proceeding, even when coupled with the explicit one to us at oral argument, that he was convicted because he attempted to kick in the door of a residence, is immaterial under the categorical approach of Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 2159, 109 L.Ed.2d 607 (1990).

We disagree. It is the law of this circuit that a failure to object to allegations of fact in a PSI admits those facts for sentencing purposes. See United States v. Shelton, 400 F.3d 1325, 1330 (11th Cir.2005); see also United States v. Walters, 269 F.3d 1207, 1213 (10th Cir. 2001); United States v. Joshua, 40 F.3d 948, 952 ...