United States v. Bates, No. 18-12533

• Decision Date: 28 May 2020
• Docket Number: No. 18-12533
• Citation: 960 F.3d 1278
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Titus BATES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

960 F.3d 1278

UNITED STATES of America, Plaintiff-Appellee,

v.Titus BATES, Defendant-Appellant.

No. 18-12533

United States Court of Appeals, Eleventh Circuit.

May 28, 2020

Phyllis Clerk, Ryan Karim Buchanan, Jane Elizabeth McBath, Gabriel Adam Mendel, Lawrence R. Sommerfeld, U.S. Attorney Service - Northern District of Georgia, U.S. Attorney's Office, ATLANTA, GA, for Plaintiff - Appellee.

Victoria M. Calvert, W. Matthew Dodge, Stephanie A. Kearns, Federal Defender Program, Inc., ATLANTA, GA, for Defendant - Appellant.

Before BRANCH and MARCUS, Circuit Judges, and HUCK,^* District Judge.

HUCK, District Judge:

BACKGROUND

This appeal arises from Defendant-Appellant Titus Bates’s convictions and subsequent sentence for possession with intent to distribute marijuana, assaulting a federal officer, discharging a firearm in relation to a crime of violence, and being a felon in possession of a firearm. Bates now challenges his convictions and sentence, arguing: 1) the district court erred in determining that 18 U.S.C. § 111(b) constitutes a crime of violence under 18 U.S.C. § 924(c) ; 2) the district court erred in excluding evidence relevant to his self-defense theory at trial; 3) the district court erred in denying his motion for judgment of acquittal on the § 111 and § 924(c) counts; 4) his 360-month sentence is erroneous for various reasons; and 5) the Supreme Court’s recent decision in Rehaif v. United States , ––– U.S. ––––, 139 S. Ct. 2191, 204 L.Ed.2d 594 (2019), necessitates vacating his guilty plea to being a felon in possession of a firearm. For the reasons discussed below, we find no error and, therefore, affirm Bates’s convictions and sentence.

In the early morning hours of November 21, 2013, a task force of federal and state officers executed a warrant for Bates’s arrest and a search of his residence for drug-related offenses. The officers approached the side door to Bates’s home, announced that they were the police, and commanded that the door be opened. After no one answered, the officers began to ram the door. Shortly thereafter, Bates fired two gunshots through the door, hitting one federal officer in the leg. Bates then called 9-1-1 and told the operator "the police at my door" and to "please tell ‘em don’t shoot me." He also said, "I thought it was somebody trying to come in," and "I hope I ain’t shot people." Bates eventually opened the front door and was taken into custody.

When officers took Bates to a patrol car, Bates told Bureau of Alcohol Tobacco and Firearms ("ATF") Agent Kimberly Underwood that he did not know the police were at his door and that he thought he was being robbed. After officers put Bates in custody, they searched his residence and found approximately seven pounds of marijuana in the kitchen, two shell casings in the living room, and Bates’s firearm in the basement, indicating Bates had dropped it down a vent.

Consequently, Bates was indicted on five counts. The grand jury charged Bates with assaulting a federal officer with a dangerous weapon in violation of 18 U.S.C. § 111 (Count 1); discharging a firearm in relation to a crime of violence in violation of 18 U.S.C. § 924(c) (Count 2); possessing marijuana with intent to distribute in violation of 21 U.S.C. § 841 (Count 3); discharging a firearm in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c) (Count 4); and knowingly possessing a firearm as a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(e) (Count 5). Bates pled guilty to the two possession counts and proceeded to trial on the remaining counts.

Prior to trial, Bates filed a motion to dismiss Count 2, on the basis that § 111 did not qualify as a crime of violence for purposes of § 924(c). The district court denied the motion. Bates also gave notice of his intent to rely on psychiatric evidence related to a 2002 shooting incident. Specifically, in 2002, Bates answered a knock at his door and was shot in the mouth and back in an apparent attempted robbery. Bates intended to support his theory of self-defense by introducing psychiatric testimony about the effects of the 2002 shooting on his actions in the instant case, hospital records confirming that he had been shot in 2002, and the statement he made to Agent Underwood. The district court excluded this evidence.

Ultimately, the jury found Bates guilty of assaulting a federal officer under § 111(b) and, because the district court instructed the jury that § 111(b) was a crime of violence, guilty of discharging a firearm in relation to a crime of violence under § 924(c). The jury acquitted Bates of the remaining charge of discharging a firearm in relation to a drug-trafficking crime.

At sentencing, Bates again argued that assault on a federal officer should not be considered a crime of violence. In addition, Bates argued that his prior Georgia convictions for possession of marijuana with intent to distribute were not predicates for "career offender" status under § 4B1.1 of the United States Sentencing Guidelines (the "Guidelines"), and "armed career criminal" status under the Armed Career Criminal Act (the "ACCA"), 18 U.S.C. § 924(e). The district court rejected these arguments. The district court also denied Bates a two-level reduction for acceptance of responsibility, finding that his guilty pleas were a "strategic move" and not an acceptance of responsibility. The district court sentenced Bates to thirty years in prison, which he is now serving.

Bates appeals.

DISCUSSION

I. Crime of Violence Determination

First, Bates argues the district court erred by determining that his assault conviction under 18 U.S.C. § 111 qualifies as a "crime of violence" under 18 U.S.C. § 924(c).¹ The government responds that § 111 contains three separate crimes and, at the very least, the sub-part under which Bates was convicted, § 111(b), qualifies as a crime of violence. The government is correct. For the reasons discussed below, we join five sister circuits and hold that a violation of § 111(b) qualifies as a crime of violence.

A district court’s designation of an offense as a crime of violence is a question of law subject to de novo review. See United States v. McGuire , 706 F.3d 1333, 1336 (11th Cir. 2013). To qualify as a crime of violence, an offense must meet the definition of § 924(c) ’s "elements clause."² The elements clause defines a crime of violence as a felony offense that "has as an element the use, attempted use, or threatened use of physical force against the person or property of another." 18 U.S.C. § 924(c)(3)(A). The term "use" means the "active employment" of physical force. Leocal v. Ashcroft , 543 U.S. 1, 9, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004). The Supreme Court defines "physical force" as "violent force – that is, force capable of causing physical pain or injury to another person." Johnson v. United States , 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010).

To determine whether a statute qualifies as a crime of violence, courts employ the "categorical" approach. United States v. St. Hubert , 909 F.3d 335, 348 (11th Cir. 2018), abrogated on other grounds by United States v. Davis , ––– U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019). Under this approach, courts compare the elements of the crime to the statutory definition, looking "only to the elements of the predicate offense statute" and not "at the particular facts of the defendant’s offense conduct." Id. However, when a statute is "divisible" (defines multiple crimes), courts apply the "modified categorical approach" and may look "to a limited class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy) to determine what crime, with what elements, a defendant was convicted of." Mathis v. United States , ––– U.S. ––––, 136 S. Ct. 2243, 2249, 195 L.Ed.2d 604 (2016).

Section 111 provides:

(a) In general.--Whoever--

(1) forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section 1114 of this title while engaged in or on account of the performance of official duties; or

(2) forcibly assaults or intimidates any person who formerly served as a person designated in section 1114 on account of the performance of official duties during such person’s term of service,

shall, where the acts in violation of this section constitute only simple assault, be fined under this title or imprisoned not more than one year, or both, and where such acts involve physical contact with the victim of that assault or the intent to commit another felony, be fined under this title or imprisoned not more than 8 years, or both.

(b) Enhanced penalty.--Whoever, in the commission of any acts described in subsection (a), uses a deadly or dangerous weapon (including a weapon intended to cause death or danger but that fails to do so by reason of a defective component) or inflicts bodily injury, shall be fined under this title or imprisoned not more than 20 years, or both.

18 U.S.C. § 111. We have held that § 111 establishes "three separate crimes, the first two of which are contained in § 111(a), and the third in § 111(b) [,]" the "enhanced penalty" provision. United States v. Siler , 734 F.3d 1290, 1296 (11th Cir. 2013). Thus, the statute is divisible, and the modified categorical approach applies. The parties agree that Bates was convicted under § 111(b).

Still, Bates maintains that, even if § 111 is divisible, the enhanced penalty provision does not qualify as a crime of violence. We disagree. The enhanced penalty provision requires the government to prove that the defendant committed an act described in § 111(a) and, in doing so, the defendant either : 1) used a deadly/dangerous weapon or 2) inflicted bodily injury. See id. at 1296–97 ; 18 U.S.C. § 111(b). Each prong of § 111(b) transforms a § 111(a) act into a crime of violence.

Bates argues that "because simple assault, the foundation of a § 111(b) violation, does not include the element of physical force, no firearm or...