United States v. Petite

• Decision Date: 03 January 2013
• Docket Number: No. 11–14996.,11–14996.
• Citation: 703 F.3d 1290
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Michael PETITE, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

703 F.3d 1290

UNITED STATES of America, Plaintiff–Appellee,

v.Michael PETITE, Defendant–Appellant.

No. 11–14996.

United States Court of Appeals, Eleventh Circuit.

Jan. 3, 2013.

Linda Julin McNamara, Robert E. O'Neill, Sara C. Sweeney, Josephine W. Thomas, U.S. Attys., Tampa, FL, for Plaintiff–Appellee.

Alec Fitzgerald Hall, Fed. Pub. Def., Tampa, FL, Rosemary Cakmis, Donna Lee Elm, Fed. Pub. Defenders, Orlando, FL, for Defendant–Appellant.

Appeal from the United States District Court for the Middle District of Florida.

Before O'CONNOR,^* Associate Justice Retired, and MARCUS and PRYOR, Circuit Judges.

MARCUS, Circuit Judge:

Michael Petite challenges his sentence of 188 months' imprisonment, followed by 3 years' supervised release, for a violation of the federal felon-in-possession of a firearm statute, 18 U.S.C. § 922(g)(1). Petite's sentence was enhanced by application of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). The sole question the defendant has raised on appeal is whether his prior conviction for intentional vehicular flight from an authorized law enforcement patrol car in violation of Fla. Stat. § 316.1935(2) is a violent felony for ACCA purposes. After thorough review, we conclude that it is and affirm Petite's sentence.

I.

The background facts of this appeal are not in dispute, and the issue presented is a purely legal one. Petite was arrested on December 16, 2010, as part of an undercover drug bust. After his arrest, a loaded Taurus .41 magnum revolver and a bag containing less than one gram of crack cocaine were found in the car Petite arrived in. After being read his Miranda rights, Petite admitted that the gun and the drugs in the car were his. The Bureau of Alcohol, Tobacco, Firearms and Explosives later confirmed that both the gun and the ammunition were manufactured outside of the State of Florida, and a criminal records check revealed that Petite was convicted of multiple felonies prior to the possession of the firearm and the ammunition. Petite was indicted in the United States District Court for the Middle District of Florida and charged with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g).

After the entry of a guilty plea, the United States Probation Office in a Presentence Investigation (“PSI”) concluded that Petite had a base offense level of 24, seeU.S.S.G. § 2K2.1(a)(2), and recommended that the district court add 4 levels because the defendant's firearm possession was in connection with another felony offense (here, possession with intent to distribute crack cocaine), see id.§ 2K2.1(b)(6). The PSI also recommended a 3–level reduction for timely acceptance of responsibility, seeU.S.S.G. § 3E1.1(a), (b), yielding an adjusted total offense level of 25.

However, the PSI also observed that Petite should be characterized as an armed career criminal under 18 U.S.C. § 924(e) because the instant offense was a violation of 18 U.S.C. § 922(g), and he had prior felony convictions in Pinellas County Circuit Court for three earlier offenses: (1) robbery (two counts) on January 29, 1993¹; (2) sale of cocaine on August 17, 1998; and (3) fleeing and attempting to elude a law enforcement officer in violation of Fla. Stat. § 316.1935(2) on May 22, 2006. As an armed career criminal, Petite had an enhanced offense level of 34, which was adjusted to 31 because of a 3–level reductionfor acceptance of responsibility. SeeU.S.S.G. § 4B1.4(b). Based on Petite's criminal history category of VI, his guidelines range was 188–235 months' imprisonment.

At issue in this appeal is only the third of the predicate convictions supporting the armed career criminal enhancement.² Petite objected to the use of his prior vehicle flight conviction in support of an enhanced sentence both before and during the sentencing hearing. The district court disagreed and overruled Petite's objection. It applied the ACCA enhancement based on the government's argument that the Supreme Court's decision in Sykes v. United States, which held that a very similar Indiana vehicle flight offense was in fact a violent felony for ACCA purposes, controlled the outcome of this case. The district court sentenced Petite to the minimum guidelines sentence, 188 months' imprisonment, to be followed by 3 years' supervised release.

II.

Whether a defendant's prior conviction qualifies as a violent felony under the Armed Career Criminal Act is a question of law that we review de novo. United States v. Canty, 570 F.3d 1251, 1254 (11th Cir.2009).

The question before us is whether vehicle flight in violation of Fla. Stat. § 316.1935(2) meets the federal statutory definition of a violent felony. To answer this question, we are obliged to review the Florida statute of conviction, the Armed Career Criminal Act, and the controlling Supreme Court case law interpreting the ACCA's residual clause. We begin with the text. Petite's relevant prior conviction was for a violation of Fla. Stat. § 316.1935(2):

(2) Any person who willfully flees or attempts to elude a law enforcement officer in an authorized law enforcement patrol vehicle, with agency insignia and other jurisdictional markings prominently displayed on the vehicle, with siren and lights activated commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Fla. Stat. § 316.1935(2). For shorthand, we refer to this offense as “simple vehicle flight.” The elements of simple vehicle flight are straightforward: (1) an officer in a law enforcement patrol vehicle, with its jurisdictional markings prominently displayed and its siren and lights activated, orders the motorist to stop; and (2) the motorist willfully flees or attempts to elude the officer. See id.; see also In re Standard Jury Instrs. in Crim. Cases, 73 So.3d 136, 138–39 (Fla.2011). Simple vehicle flight carries a maximum sentence of five years' imprisonment. Fla. Stat. § 775.082(3)(d).

Simple vehicle flight is a lesser included offense of the next subsection of the Florida statute, which provides:

(3) Any person who willfully flees or attempts to elude a law enforcement officer in an authorized law enforcement patrol vehicle, with agency insignia and other jurisdictional markings prominently displayed on the vehicle, with siren and lights activated, and during the course of the fleeing or attempted eluding:

(a) Drives at high speed, or in any manner which demonstrates a wanton disregard for the safety of persons or property, commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(b) Drives at high speed, or in any manner which demonstrates a wanton disregard for the safety of persons or property, and causes serious bodily injury or death to another person, including any law enforcement officer involved in pursuing or otherwise attempting to effect a stop of the person's vehicle, commits a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Fla. Stat. § 316.1935(3). We refer to this offense as “aggravated vehicle flight.” Aggravated vehicle flight carries a maximum sentence of either fifteen or thirty years' imprisonment, depending on whether the offender actually causes serious bodily injury or death to another person. Fla. Stat. § 775.082(3)(b)-(c).

The Armed Career Criminal Act, in turn, provides that a person who violates 18 U.S.C. § 922(g) and has three previous convictions “for a violent felony or a serious drug offense” is subject to additional fines and a fifteen-year minimum sentence (and has an enhanced guidelines sentence under U.S.S.G. § 4B1.4). 18 U.S.C. § 924(e). The ACCA defines “violent felony” this way:

(B) the term “violent felony” 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).

Thus, there are three basic categories of qualifying offenses. The first are those offenses that have as an element the use, attempted use, or threatened use of physical force against another person. Id. § 924(e)(2)(B)(i). The government does not contend that Florida's vehicle flight statute qualifies under this category. See Sykes v. United States, ––– U.S. ––––, 131 S.Ct. 2267, 2273, 180 L.Ed.2d 60 (2011) (“Resisting law enforcement through felonious vehicle flight does not meet the requirements of clause (i)....”). The second category offers a specific list of enumerated crimes: burglary, arson, extortion, and crimes involving the use of explosives. 18 U.S.C. § 924(e)(2)(B)(ii). Again, the crime at issue here is plainly not one of those. The third and more general category consists of those crimes that fit into what has come to be called the ACCA's “residual clause,” see James v. United States, 550 U.S. 192, 201, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007); and it consists of those crimes apart from the enumerated crimes that “otherwise involve[ ] conduct that presents a serious potential risk of physical injury to another,” 18 U.S.C. § 924(e)(2)(B)(ii).

In just the last few years, the Supreme Court has had occasion to issue four decisions exploring whether a crime qualifies as a violent felony under the ACCA's residual clause. Sykes, 131 S.Ct. 2267;Chambers v. United States, 555 U.S. 122, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009); Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008); James, 550 U.S. 192, 127 S.Ct. 1586. And while each subsequent decision has created new interpretive wrinkles, one thing has remained constant—the Supreme Court's insistence that we determine whether a crime is a violent felony for ACCA purposes by means of a “categorical approach.” James, 550 U.S. at 202, 127 S.Ct. 1586. “Under this...