United States v. Chitwood

• Decision Date: 05 April 2012
• Docket Number: No. 11–12054Non–Argument Calendar.,11–12054Non–Argument Calendar.
• Citation: 676 F.3d 971,23 Fla. L. Weekly Fed. C 892
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Andrew Jackson CHITWOOD, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

23 Fla. L. Weekly Fed. C 892

676 F.3d 971

UNITED STATES of America, Plaintiff–Appellee,

v.Andrew Jackson CHITWOOD, Defendant–Appellant.

No. 11–12054Non–Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

April 5, 2012.

Kim Dammers, Lawrence R. Sommerfeld, Sally Yates, Atlanta, GA, for Plaintiff–Appellee.

Thomas L. Hawker, Stephanie A. Kearns, Fed. Pub. Defenders, Fed. Def. Program, Inc., Atlanta, GA, for Defendant–Appellant.

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

Before CARNES, BARKETT and ANDERSON, Circuit Judges.

CARNES, Circuit Judge:

Andrew Chitwood appeals his 188–month sentence, which was imposed after he pleaded guilty to and was convicted of possession with intent to distribute methamphetamine and obstruction of an officer. The sentence was based in part on the district court's ruling that Chitwood's previous conviction for violating Georgia's false imprisonment statute qualified as a crime of violence for purposes of career offender treatment under United States Sentencing Guidelines § 4B1.1. He contends that was error.

I.

A police informant arranged to buy $5,200 worth of methamphetamine from Chitwood. They met at a gas station, and the informant confirmed that Chitwood had the drugs in his car. Police officers then pulled cars in front of and behind Chitwood's car, identified themselves as law enforcement, and asked Chitwood to exit his car. Instead of exiting, Chitwood put his car in reverse and hit an officer's vehicle, causing minor damage. Police then arrested him without further incident. Searches of Chitwood and his car yielded 150.68 grams of methamphetamine and a 9mm pistol.

A federal grand jury indicted Chitwood on three counts: possession with intent to distribute more than 50 grams of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B); possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2); and obstruction of an officer, in violation of 18 U.S.C. § 111(a)(1) and (b). As part of a written plea agreement, Chitwood pleaded guilty to the first and third counts, and the second count was dismissed.

The presentence investigation report recommended a base offense level of 26 because Chitwood possessed between 50 and 200 grams of methamphetamine. See U.S.S.G. § 2D1.1(c)(7) (Nov.2010). The report added 2 levels because Chitwood possessed a firearm, see id. § 2D1.1(b)(1), and subtracted 3 levels for acceptance of responsibility, see id. § 3E1.1(a), (b). It also recommended 24 criminal history points, placing Chitwood in criminal history category VI. With an adjusted offense level of 25 and a criminal history category of VI, Chitwood's guidelines range would have been 110 to 137 months. See id. § 5A (Sentencing Table).

The PSR recommended, however, that the court sentence Chitwood as a career offender under § 4B1.1(a) of the guidelines. That recommendation was premised on the view that he had previously been convicted of committing two predicate crimes of violence—false imprisonment and aggravated assault—which made him a career offender within the meaning of § 4B1.1(a). As a career offender, Chitwood's offense level would be bumped up to 34 because one of his offenses had a statutory maximum sentence of 25 years or more. See 21 U.S.C. § 841(b)(1)(B); U.S.S.G. § 4B1.1(b)(B).¹ He would, however, still be eligible for the 3–level reduction for acceptance of responsibility. See U.S.S.G. § 4B1.1(b). The net result of treating Chitwood as a career offender would be a guidelines range of 188–235 months instead of 110–137 months.

Chitwood objected to the PSR's recommendation that he be treated as a career offender. He argued that a violation of Ga.Code Ann. § 16–5–41, Georgia's false imprisonment statute, was not a crime of violence under the categorical approach. He also objected to any factual description of the offense in the PSR to the extent it was based on documents other than those approved by Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005).

At the sentence hearing, the government conceded that this Court had never addressed whether violation of Georgia's false imprisonment statute was a crime of violence but argued that it was. Chitwood took the position that because false imprisonment is not an enumerated offense in § 4B1.2(a)(2) of the sentencing guidelines and there is no “physical force” element to the offense, see U.S.S.G. § 4B1.2(a)(1), as it is defined under Georgia law, see Ga.Code Ann. § 16–5–41, the crime can be a crime of violence only if it falls within the scope of the residual clause of § 4B1.2(a)(2). He argued that, applying our test from United States v. Harrison, 558 F.3d 1280, 1287 (11th Cir.2009) abrogated by Sykes v. United States, ––– U.S. ––––, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011), the underlying offense of false imprisonment is not a crime of violence.²

The district court adopted the PSR, including the finding that false imprisonment was a crime of violence. Although the record is somewhat unclear on this point, the court appears to have applied the modified categorical approach, see United States v. Pantle, 637 F.3d 1172, 1176 (11th Cir.2011), in determining that the crime of false imprisonment for which Chitwood had been convicted was a crime of violence under § 4B1.2. As a result, it set Chitwood's total offense level at 31, and with a criminal history category of VI, his guidelines range was 188–235 months. The court imposed a sentence of 188 months imprisonment.

II.

“We review de novo whether a prior conviction qualifies as a ‘crime of violence’ under the Sentencing Guidelines.” United States v. Lockley, 632 F.3d 1238, 1240 (11th Cir.2011). And “we may affirm ‘for any reason supported by the record, even if not relied upon by the district court.’ ” United States v. Al–Arian, 514 F.3d 1184, 1189 (11th Cir.2008) (quoting Williams v. Bd. of Regents, 477 F.3d 1282, 1284 (11th Cir.2007)).

Under § 4B1.2 of the guidelines, any state or federal offense that is punishable by more than one year of imprisonment can be a crime of violence if it fits within one of three categories. The first category includes crimes that have “as an element the use, attempted use, or threatened use of physical force against the person of another ....” U.S.S.G. § 4B1.2(a)(1). The second category includes the enumerated crimes of “burglary of a dwelling, arson, or extortion” and those involving the “use of explosives.” § 4B1.2(a)(2). The third category, sometimes referred to as residual clause crimes, includes those that “otherwise involve[ ] conduct that presents a serious potential risk of physical injury to another.” Id.

The use, attempted use, or threatened use of physical force is not an element of false imprisonment under Ga.Code Ann. § 16–5–41, so the first category of violent crimes is out. Nor is false imprisonment one of the enumerated offenses in § 4B1.2(a)(2), so the second category is out too. That leaves the third category, residual clause crimes.

There are two ways in which a crime can fall within the residual clause of § 4B1.2(a)(2). The first way is the categorical approach, under which “ ‘we consider whether the elements of the offense are of the type that would justify its inclusion within the residual provision, without inquiring into the specific conduct of this particular offender.’ ” Sykes v. United States, ––– U.S. ––––, ––––, 131 S.Ct. 2267, 2272, 180 L.Ed.2d 60 (2011) (quoting James v. United States, 550 U.S. 192, 202, 127 S.Ct. 1586, 1594, 167 L.Ed.2d 532 (2007)). If the elements of an offense are such that any conviction for violating that statute will fall within the scope of the residual clause, then we can say categorically that the offense is a crime of violence under the residual clause.

The second way that a crime can come within the residual clause is the modified categorical approach, which can be applied where some, but not all, of the violations of a particular statute will involve the requisite violence. See Pantle, 637 F.3d at 1175. Stated another way, courts apply the modified categorical approach “when the law under which a defendant has been convicted contains different statutory phrases—some of which qualify as ‘crimes of violence’ and some of which do not ....” Id. In that statement, “different statutory phrases” means different statutory elements or ways of violating the statute.

III.

At sentencing in this case, the district court cited Pantle and stated that it was applying the modified categorical approach to conclude that Chitwood's Georgia false imprisonment conviction was for a crime of violence. Using that approach to “determine which statutory phrase was the basis for the conviction” involves consulting “a narrow universe of ‘ Shepard documents' that includes any charging documents, the written plea agreement, the transcript of the plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” Id.; see Shepard, 544 U.S. at 26, 125 S.Ct. at 1263 (“We hold that enquiry under the ACCA to determine whether a plea of guilty to burglary defined by a nongeneric statute necessarily admitted elements of the generic offense is limited to the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.”). The problem is, as Chitwood argues, the government concedes, and we agree, that the district court did not consult any Shepard documents when deciding that Chitwood's Georgia conviction for false imprisonment was for a crime of violence.

IV.

The government argues, however, that the error in the district court's application of the modified categorical approach to Chitwood's Georgia false imprisonment conviction does not require setting aside his career-offender-enhanced...