United States v. Chisolm
| Decision Date | 29 October 2015 |
| Docket Number | CASE NO: 6:14–cr–282–Orl–28GJK |
| Citation | 166 F.Supp.3d 1279 |
| Parties | United States of America v. Eugene Chisolm. |
| Court | U.S. District Court — Middle District of Florida |
Andrew C. Searle, US Attorney's Office, Orlando, FL, for United States of America.
Maria Guzman, Conrad Kahn, Larry B. Henderson, Federal Public Defender's Office, Orlando, FL, for Eugene Chisolm.
JOHN ANTOON II
Eugene Chisolm came before me for sentencing after a jury found him guilty of one count of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)
and one count of possession with intent to distribute crack cocaine in violation of 21 U.S.C. § 841(a)(1).1 This Order explains my determination of Defendant's sentencing range under the United States Sentencing Guidelines (“USSG”) and my resolution of Defendant's objections to the sentencing range calculation urged by the Government.
The probation office prepared four Presentence Reports (“PSRs”) in this case. After Defendant objected to the base offense level in the third PSR (Doc. 49)—24 under USSG § 2K2.1(a)(2)
—the probation office changed the base offense level to 14 under USSG § 2K2.1(a)(6) in the fourth and final PSR (Doc. 62) (“the PSR”). After that change was made, neither the Defendant nor the Government objected to that base offense level or to increases of:
(1) two levels under USSG § 2K2.1(b)(4)(A)
because the firearm at issue had been reported stolen and (2) four levels under USSG § 2K2.1(b)(6)(B) because Defendant used or possessed the firearm in connection with another felony offense. Thus, the adjusted base offense level agreed to by the parties is 20. And, based on 11 Criminal History points, Defendant falls within Criminal History Category V absent another enhancement. With a base offense level of 20 and a Criminal History Category of V, Defendant's sentencing range would be 63 to 78 months under the Guidelines.
However, the PSR also included an enhancement under the Armed Career Criminal Act (“ACCA”), which provides for an increased sentence for a defendant who violates 18 U.S.C. § 922(g)
and “has three previous convictions ... for a violent felony or a serious drug offense, or both.” 18 U.S.C. § 924(e).2 If the ACCA enhancement applies, Defendant's total offense level would increase from 20 to 34 under USSG § 4B1.4(b)(3)(A), and his Criminal History Category would increase from V to VI under USSG § 4B1.4(c)(2), resulting in a Guidelines sentencing range of 262 to 327 months. Defendant objected to the ACCA enhancement, and at sentencing the parties argued their positions as to its applicability.
The PSR categorized Defendant as an armed career criminal based on: (1) a 1986 Florida burglary conviction; (2) a 1986 Florida robbery conviction; and (3) a 1992 Florida conviction for the sale of cocaine. (See Doc. 62 at 8). Defendant initially objected to all three of these convictions as bases for the ACCA enhancement, but at sentencing he withdrew his objection to the cocaine conviction. He maintained his objections to the burglary and robbery convictions, however, arguing that neither qualifies as a conviction for a “violent felony” under ACCA.
The ACCA definition of “violent felony” includes several alternatives. The term “means 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)
. In ACCA parlance, paragraph (i) is “the elements clause”; the portion of paragraph (ii) that lists several felonies by name is “the enumerated offenses clause”; and the closing phrase of paragraph (ii) that begins “otherwise involves” is “the residual clause.” On the face of the statute, an offense need only qualify under one of these three alternative definitions to constitute an ACCA “violent felony.”
However, on June 26, 2015, the Supreme Court held that ACCA's residual clause is unconstitutional—specifically, “that imposing an increased sentence under the residual clause of [ACCA] violates the Constitution's guarantee of due process.” Samuel Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 2563, 192 L.Ed.2d 569 (2015)
. Thus, only two viable alternative definitions of “violent felony” now remain in the statute—the definitions under the elements clause and the enumerated offenses clause. See id. (). Defendant contends that neither his burglary conviction nor his robbery conviction fits within either of these two alternatives.
The Florida burglary statute that Defendant was convicted of violating in 1986 provides: “ 'Burglary' means entering or remaining in a structure or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain.” § 810.02, Fla. Stat. (1986)
. It does not “ha[ve] as an element the use, attempted use, or threatened use of physical force against the person of another,” and thus Defendant's burglary conviction does not qualify as an ACCA predicate felony under the elements clause. And, after Samuel Johnson, neither burglary nor any other offense can qualify under ACCA's residual clause.4 Thus, the only possible way the 1986 burglary conviction can serve as an ACCA predicate felony is under ACCA's “enumerated offenses” clause.
Burglary is indeed listed as an enumerated offense in ACCA. See 18 U.S.C. § 924(e)(2)(B)(ii)
(). However, not all offenses labeled “burglary” in a state statute constitute burglary under ACCA. In Taylor v. United States, 495 U.S. 575, 598, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), the Supreme Court explained that the meaning of burglary in ACCA is “the generic, contemporary meaning of burglary,” which the Court defined as a “crime, regardless of its exact definition or label, having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” Id. at 599, 110 S.Ct. 2143.
Because not all burglary statutes fit precisely within the Taylor
court's formulation of the elements of the offense, sentencing courts often must analyze the statute of conviction to determine whether the prior conviction was for generic burglary or something broader. “The Supreme Court has developed two methods for determining whether a prior conviction meets the generic definition of burglary: the categorical approach and the modified categorical approach.” United States v. Howard, 742 F.3d 1334, 1342 (11th Cir.2014). “The first thing [a court does] is examine the statute of conviction using the categorical approach.” Id. at 1345. Under this approach, a court must “look[ ] only to the statutory definitions of the prior offenses, and not to the particular facts underlying those convictions.” Taylor, 495 U.S. at 600, 110 S.Ct. 2143. “A conviction will qualify as an ACCA predicate under the categorical approach ‘only if the statute's elements are the same as, or narrower than, those of the generic offense.’ ” Howard, 742 F.3d at 1345 (quoting Descamps v. United States, ––– U.S. ––––, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013)
). “If the statute is generic ... all convictions under the statute necessarily count as ACCA predicates and there is no need for further analysis.” Id.
If the categorical approach does not resolve the issue of whether a prior conviction meets the generic definition, a court may, “in a narrow range of cases,” apply the modified categorical approach and look beyond the mere fact of conviction. Taylor, 495 U.S. at 602, 110 S.Ct. 2143
. The modified categorical approach may be applied only where a statute is “ ‘divisible’—i.e., comprises multiple, alternative versions of the crime.” Descamps, 133 S.Ct. at 2284. Under either approach, the focus remains on the elements of the crime and not on the facts of the prior conviction:
[T]he modified approach merely helps implement the categorical approach when a defendant was convicted of violating a divisible statute. The modified approach thus acts not as an exception, but instead as a tool. It retains the categorical approach's central feature: a focus on the elements, rather than the facts, of a crime. And it preserves the categorical approach's basic method: comparing those elements with the generic offense's. All the modified approach adds is a mechanism for making that comparison when a statute lists multiple, alternative elements, and so effectively creates ‘several different ... crimes.’ If at least one, but not all of those crimes matches the generic version, a court needs a way to find out which the defendant was convicted of.
(alteration in original) (internal citation omitted). In cases in which application of the modified categorical approach is appropriate, a sentencing court can, in addition to the statutory definitions and the fact of conviction, consider the charging document, jury instructions, a written plea agreement, a transcript of a plea colloquy, and “any explicit factual finding by the trial judge to which the defendant assented,” Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) —so-called “Shepard documents.” “A court may use the modified categorical approach only to determine which alternative element in a divisible statute formed the basis of the defendant's conviction.” Descamps, 133 S.Ct. at 2294.
Here, under the first step of examining the statute of conviction under the categorical approach, Florida's burglary sta...
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