United States v. Gundy

• Decision Date: 23 November 2016
• Docket Number: No. 14-12113,14-12113
• Citation: 842 F.3d 1156
• Parties: United States of America, Plaintiff–Appellee, v. Nathan E. Gundy, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

842 F.3d 1156

United States of America, Plaintiff–Appellee,

v.Nathan E. Gundy, Defendant–Appellant.

No. 14-12113

United States Court of Appeals, Eleventh Circuit.

Date Filed: November 23, 2016

James C. Stuchell, James D. Durham, Nancy Greenwood, Brian T. Rafferty, R. Brian Tanner, Edward J. Tarver, U.S. Attorney's Office, SAVANNAH, GA, Lamont A. Belk, Christopher Clark, AUGUSTA, GA, for Plaintiff–Appellee.

Mildred Geckler Dunn, Nicole Kaplan, Stephanie A. Kearns, Federal Defender Program, Inc., ATLANTA, GA, for Defendant–Appellant.

Before HULL and JILL PRYOR, Circuit Judges, and CONWAY,^* District Judge.

HULL, Circuit Judge:

Defendant Nathan E. Gundy appeals his conviction and 288-month sentence for being a convicted felon in possession of firearms. The district court determined that Gundy was an armed career criminal under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), because he had at least three prior Georgia burglary convictions, each of which qualified as a predicate "violent felony" under the enumerated crimes provision of the ACCA. On appeal, Gundy challenges his designation as an armed career criminal under § 924(e).

After review of the record and with the benefit of oral argument, we affirm Gundy's conviction and sentence.

I. BACKGROUND

In December 2013, a jury found Gundy guilty on one count of being a convicted felon in possession of firearms, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e).

The Presentence Investigation Report ("PSI") recommended a base offense level of 24, pursuant to U.S.S.G. § 2K2.1. The PSI recommended (1) a 2-level increase under U.S.S.G. § 2K2.1(b)(1)(A) because the offense involved three firearms,¹ (2) a 2-level increase under U.S.S.G. § 2K2.1(b)(4)(A) because the firearms Gundy possessed were stolen, and (3) a 4-level increase under U.S.S.G. § 2K2.1(b)(6)(B) because Gundy possessed the firearms in connection with another felony offense. These increases yielded an adjusted offense level of 32.

Gundy had numerous prior felony convictions, 17 criminal history points, and a criminal history category of VI, even without a § 924(e) enhancement. Gundy's offense level of 32 and criminal history category of VI would have yielded an advisory guidelines range of 210 to 262 months. Without a § 924(e) enhancement, Gundy's statutory maximum penalty would have been 120 months' imprisonment. See18 U.S.C. § 924(a)(2).

The PSI, however, reported that Gundy was an armed career criminal under § 924(e) because he was previously convicted of seven burglary offenses in Georgia, namely: (1) a 2001 conviction for one count of burglary, (2) another 2001 conviction for four counts of burglary, each of which occurred on a separate occasion, (3) a 2005 conviction for one count of burglary, and (4) a 2006 conviction for one count of burglary. Gundy had pled guilty to each of those Georgia burglary offenses. The PSI provided that Gundy had other Georgia convictions for forgery, possession of cocaine, possession of marijuana, entering an automobile, and theft by taking.

Due to his status as an armed career criminal under § 924(e), Gundy's offense level increased from 32 to 34 under U.S.S.G. § 4B1.4(b)(3)(A). With a total offense level of 34 and a criminal history category of VI, Gundy's advisory guidelines range was 262 to 327 months' imprisonment.

Gundy's status as an armed career criminal under § 924(e) raised his statutory range of imprisonment to 15 years to life, rather than zero to 10 years.

As to the PSI, Gundy objected to the 2-level increase for possessing stolen firearms and the 4-level increase for possessing firearms in connection with another felony. He also objected to his designation as an armed career criminal on the ground that only two of his burglary convictions involved the burglary of a residence. According to Gundy, only "burglary of a residence" qualifies as a "violent felony" under the ACCA, and, therefore, he did not have the requisite three violent felony convictions to qualify as an armed career criminal.

At the April 2014 sentencing hearing, the district court overruled Gundy's objection to the 2-level increase for possessing stolen firearms, but sustained Gundy's objection to the 4-level increase for possessing the firearms in connection with another felony.

The district court also overruled Gundy's objection to his designation as an armed career criminal. The district court expressly deferred to the reasoning of the probation officer set forth in an addendum to the PSI. In that addendum, the probation officer concluded that Gundy was an armed career criminal because the charging documents in each of Gundy's burglary convictions "reveal[ed] that each of those offenses [met] the elements of generic burglary (i.e., [Gundy] unlawfully entered a building or structure with the intent to commit a theft").

Because the district court sustained Gundy's objection to the 4-level increase, Gundy's total offense level became 33 under U.S.S.G. § 4B1.4(b). With a total offense level of 33 and a criminal history category of VI, Gundy's advisory guidelines range was 235 to 293 months' imprisonment. After considering the advisory guidelines range and the factors set forth in 18 U.S.C. § 3553(a), the district court sentenced Gundy to 288 months' imprisonment. Gundy appealed his conviction and sentence.

Gundy makes several arguments challenging the validity of his § 922(g) conviction. After our review of the record, we find that all of Gundy's arguments are without merit and affirm Gundy's conviction. The only remaining issue is a sentencing one—whether the district court erred in concluding that Gundy's prior Georgia burglary convictions qualified as violent felonies under the ACCA. Whether a particular conviction is a violent felony for purposes of the ACCA is a question of law we consider de novo. United States v. Canty, 570 F.3d 1251, 1254 (11th Cir. 2009).

II. THE ACCA

A felon in possession of a firearm who has at least three prior convictions "for a violent felony or a serious drug offense, or both, committed on occasions different from one another," is subject to an enhanced statutory penalty under the ACCA. 18 U.S.C. § 924(e)(1). The ACCA defines the term "violent felony" as any crime punishable by a term of imprisonment 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.

Id.§ 924(e)(2)(B). The first prong of this definition is sometimes referred to as the "elements clause," while the second prong contains the "enumerated crimes" and, finally, what is commonly called the "residual clause."² United States v. Owens, 672 F.3d 966, 968 (11th Cir. 2012).

This case involves the enumerated crimes clause, which defines "violent felony," in part, as "burglary, arson, or extortion" and crimes that "involve[ ] use of explosives." 18 U.S.C. § 924(e)(2)(B)(ii). In listing these crimes in § 924(e)(2), Congress referred only to the "generic" versions of those enumerated crimes. SeeTaylor v. United States, 495 U.S. 575, 598, 110 S.Ct. 2143, 2158, 109 L.Ed.2d 607 (1990). Further, an enumerated crime counts as an ACCA violent felony if its elements are the same as, or narrower than, those of the generic offense. Seeid. at 599, 110 S.Ct. at 2158.

III. DISCUSSION

A. Elements-Based Analysis of a Prior Crime

The United States Supreme Court most recently articulated how to interpret and apply the ACCA's enumerated crimes provision in Mathis v. United States, 579 U.S. ––––, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016). In Mathis, the Supreme Court recognized that its opinion in Taylor"set out the essential rule governing ACCA cases more than a quarter century ago," which is that "[a]ll that counts under the [ACCA] ... are the elements of the statute of conviction." Mathis, 579 U.S. at ––––, 136 S.Ct. at 2251 (quotation marks omitted). "That simple point became a mantra" in the Supreme Court's subsequent ACCA decisions. Id. Indeed, the Supreme Court in Mathis pointed out that this "essential rule" has governed all of its ACCA decisions since Taylor:

At the risk of repetition (perhaps downright tedium), here are some examples. In Shepard: ACCA "refers to predicate offenses in terms not of prior conduct but of prior ‘convictions' and the ‘element[s]’ of crimes." 544 U.S. at 19, 125 S.Ct. 1254 (alteration in original). In James v. United States:"[W]e have avoided any inquiry into the underlying facts of [the defendant's] particular offense, and have looked solely to the elements of [burglary] as defined by [state] law." 550 U.S. 192, 214, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007). In Sykes v. United States:"[W]e consider [only] the elements of the offense [,] without inquiring into the specific conduct of this particular offender." 564 U.S. 1, 7, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011) (quoting James, 550 U.S. at 202, 127 S.Ct. 1586 ; emphasis in original). And most recently (and tersely) in Descamps: "The key [under ACCA] is elements, not facts." 570 U.S., at ––––, 133 S.Ct. at 2283.

Id. at 2251–52.

Mathis thus drove home the point that focusing on the elements of the statute of conviction is, and always has been, the essential principle governing ACCA cases: "For more than 25 years, we have repeatedly made clear that application of ACCA involves, and involves only, comparing elements." Id. at 2257.

Mathis also instructs that "[t]he comparison of elements ... is straightforward when a statute sets out a single (or ‘indivisible’) set of elements to define a single crime." Id. at 2248. In such cases, the court simply "lines up that crime's elements alongside those of the generic offense and sees if they match." Id. This is known as the "categorical approach." Seeid. at 2248.

Mathis notes, however, that some criminal statutes do not set out a single crime but "have a more...