United States v. Howard, 12–15756.

• Citation: 742 F.3d 1334
• Decision Date: 19 February 2014
• Docket Number: No. 12–15756.,12–15756.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Frank M. HOWARD, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

742 F.3d 1334

UNITED STATES of America, Plaintiff–Appellee,

v.Frank M. HOWARD, Defendant–Appellant.

No. 12–15756.

United States Court of Appeals, Eleventh Circuit.

Feb. 19, 2014.

Christopher B. Brinson, Steven E. Butler, Donna Barrow Dobbins, Gina S. Vann, U.S. Attorney's Office, Mobile, AL, for Plaintiff–Appellee.

Christopher Knight, Kristen Gartman Rogers, Carlos Alfredo Williams, Federal Defender's Office, Mobile, AL, for Defendant–Appellant.

Appeal from the United States District Court for the Southern District of Alabama. D.C. Docket No. 1:12–cr–00043–CG–C–1.

Before CARNES, Chief Judge, DUBINA, Circuit Judge, and ROSENTHAL, ^* District Judge.

CARNES, Chief Judge:

This Court has held that a conviction under Alabama's third-degree burglary statute, Ala.Code § 13A–7–7, can qualify as a “violent felony” under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1). See United States v. Rainer, 616 F.3d 1212, 1213 (11th Cir.2010). The settled law of that decision has been unsettled by the Supreme Court's recent decision in Descamps v. United States, ––– U.S. ––––, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), which requires that we revisit our earlier decision of the issue.

When we decided in Rainer that third-degree burglary convictions in Alabama can qualify as ACCA predicates, we believed that the modified categorical approach could be applied to prior convictions for violating any nongeneric statute. See616 F.3d at 1215–16. In Descamps, however, the Supreme Court decided that the modified categorical approach can be applied only when the non-generic statute is also a “divisible” statute, which is one that “sets out one or more elements of the offense in the alternative.” Descamps, 133 S.Ct. at 2281–82. The appellant, Frank Howard, contends that Alabama's third-degree burglary statute is non-generic and indivisible, which would mean that in light of Descamps his convictions under that statute cannot be ACCA predicates. In the alternative, he argues that the documents the government presented at his sentence hearing did not establish that his third-degree burglary convictions qualify as violent felonies under the ACCA even if the modified categorical approach did apply. Howard also challenges his current conviction based on the sufficiency of the evidence presented at his trial.

I. Facts

Because of Howard's sufficiency challenge, we set out in some detail the facts presented at his trial, construed in the light most favorable to the conviction, see United States v. Browne, 505 F.3d 1229, 1253 (11th Cir.2007). On April 28, 2011, the Prichard Police Department received a report from an anonymous caller that a gray Cadillac was parked at a vacant house on Edison Drive. The caller told the police that the vehicle likely contained guns, drugs, and stolen property. Four officers responded to the call around 8:00 p.m. and spotted the gray Cadillac backed into the yard of the abandoned house. The street lamps gave off enough light so that the officers could see three men sitting inside the vehicle—two in the front and one in the back. The man in the driver's seat was Frank Howard. The man in the front-passenger seat was Gabriel Cox.

The four officers parked their police cruisers on the street, exited their vehicles, and approached the Cadillac. As they neared the car, the officers told the three occupants to raise their hands where the officers could see them. Howard and the backseat passenger immediately raised their hands, but Cox did not. Instead he leaned down toward his right foot and fumbled with something near the floorboard for a few seconds. The officers again told Cox to put his hands in the air, and this time he did.

When the officers reached the Cadillac, they smelled marijuana smoke, so they ordered the three occupants to step out of the car. The officers patted down the three men and found a pistol in the backseat passenger's waistband. While standing outside the car during the pat downs, Officer Aaron Tucker noticed a blunt (a cigar wrapper in which the tobacco has been replaced with marijuana) and a bag of marijuana on the front-passenger floorboard—the same area Cox had leaned toward moments earlier. Officer Tucker also saw small plastic bags of marijuana and cocaine sitting on the cushion of Howard's seat. The officers arrested the backseat passenger for carrying a concealed pistol without a permit, and arrested Howard and Cox for possession of marijuana and cocaine.

The officers ran a database search on the Cadillac's license plate number and found that it belonged to Howard. Because Howard did not have anyone who could take possession of the car for him, the officers called for a tow truck. Before the truck arrived, the officers performed an inventory search of the car. Inside the front-passenger glove compartment they found two things: a tag receipt showing that Howard was the owner of the car and a .40–caliber Glock model 23 pistol. The officers ran the pistol's serial number through a national database and learned that it had been reported stolen.

II. Procedural History

A federal grand jury indicted Howard in March 2012, charging him with one count of being a felon in possession of a firearm. See18 U.S.C. § 922(g)(1). Howard's first trial ended in a hung jury. At his second trial, the parties stipulated that Howard had been convicted of a felony and that the pistol found in his car's glove compartment had traveled in interstate commerce, so the only issue was whether Howard had possessed the pistol. The government presented testimony from Officers Aaron Tucker and Walter Knight, two of the officers who had arrested Howard. Both of them recounted the facts we have already set out, and they also testified that, after the officers had ordered the occupants to put their hands in the air, Cox had reached toward the floorboard, not toward the glove compartment. Officer Tucker said that he “had an eye on” Cox as the police approached the Cadillac, and that he did not see Cox touch the glove box. The government introduced into evidence a certified copy of Howard's vehicle registration to prove his ownership of the Cadillac, as well as a certified copy of Howard's 2008 state conviction for carrying a pistol in a vehicle without a license.¹ Howard did not present any evidence of his own.

At the close of the government's case, Howard moved for a judgment of acquittal, which the district court denied. The jury convicted him as charged, and the court entered judgment against him.

Howard's presentence investigation report recommended a base offense level of 24 because he had at least two felony convictions for a crime of violence or a controlled substance offense. SeeU.S.S.G. § 2K2.1(a)(2). It added 2 levels under § 2K2.1(b)(4)(A) for possession of a stolen firearm and 4 levels under § 2K2.1(b)(6)(B) for possession of a firearm in connection with another felony offense. With those enhancements, Howard's total offense level was 30. That offense level, combined with his criminal history category of VI, would have given Howard a guidelines range of 168 to 210 months imprisonment.

The PSR concluded, however, that Howard's eight Alabama convictions—seven for third-degree burglary and one for third-degree robbery—qualified him for an armed career criminal enhancement under the ACCA. The ACCA enhancement carries a 15–year mandatory minimum sentence and an automatic offense level of 33. See18 U.S.C. § 924(e)(1); U.S.S.G. § 4B1.4(b)(3)(B). As a result, Howard's guidelines range was 235 to 293 months imprisonment, with a mandatory minimum of 180 months.

Howard raised several objections to the PSR. The only one relevant to this appeal is a challenge to the PSR's conclusion that he was an armed career criminal under the ACCA. First, he argued that the Supreme Court's decision to grant certiorari in Descamps itself showed that the modified categorical approach should not be applied to an indivisible, non-generic statute, and therefore convictions under the Alabama statute (which is indivisible and non-generic) could not qualify as violent felonies under the ACCA. See––– U.S. ––––, 133 S.Ct. 90, 183 L.Ed.2d 730 (2012). Of course, the grant of certiorari is not a holding that binds courts, nor does it decide anything other than whether to take a case under consideration. See, e.g., Schwab v. Sec'y, Dep't of Corr., 507 F.3d 1297, 1298–99 (11th Cir.2007) (collecting cases); Rutherford v. McDonough, 466 F.3d 970, 977 (11th Cir.2006). Second, Howard argued that even if convictions under the Alabama statute could qualify as ACCA predicates, the government had to present evidence proving that three of his earlier convictions did qualify. He demanded “strict proof” that any of his third-degree burglary convictions qualified as violent felonies under the ACCA.

At the sentence hearing, the government introduced certified copies of three of Howard's earlier convictions: his conviction for third-degree robbery in 2008 and two of his convictions for third-degree burglary in 2005.² Howard conceded that the third-degree robbery conviction counted as an ACCA predicate, but he contested the use of the two third-degree burglary convictions for ACCA purposes. All the government presented in response were copies of: (1) the original criminal complaints, signed by detectives, which alleged second-degree burglary; (2) the district attorney's informations, which charged Howard with second-degree burglary and stated that Howard had indicated his desire to plead guilty without an indictment; and (3) the case action summaries, which said that at the plea hearing the State moved to amend the charge to third-degree burglary and Howard “entered a plea of guilty on Solicitor's Information to the amended charge of Burglary Third Degree.” The government did not present a copy of any plea agreement or a transcript of the plea colloquy for either of the 2005 third-degree burglary convictions.

The district court rejected both of Howard's...