United States v. Sanchez, 18-10711

• Decision Date: 02 October 2019
• Docket Number: No. 18-10711,18-10711
• Citation: 940 F.3d 526
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Fernando SANCHEZ, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

940 F.3d 526

UNITED STATES of America, Plaintiff-Appellee,
v.
Fernando SANCHEZ, Jr., Defendant-Appellant.

No. 18-10711

United States Court of Appeals, Eleventh Circuit.

October 2, 2019

940 F.3d 528

Aileen Cannon, Jonathan Colan, Nicole D. Mariani, Emily M. Smachetti, U.S. Attorney Service - Southern District of Florida, U.S. Attorney Service - SFL, for Plaintiff - Appellee.

Ricardo Bascuas, University of Miami School of Law, CORAL GABLES, FL, Michael Caruso, Federal Public Defender, Federal Public Defender's Office, WEST PALM BEACH, FL, Sara Wilson Kane, Federal Public Defender's Office, MIAMI, FL, for Defendant - Appellant.

Before ROSENBAUM, GRANT and HULL, Circuit Judges.

HULL, Circuit Judge:

After pleading guilty, defendant Fernando Sanchez, Jr., appeals his sentence for one count of being a convicted felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). At sentencing, the district court imposed the mandatory minimum fifteen-year sentence under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(1), (e)(2)(B)(i). On appeal, Sanchez argues that: (1) he did not qualify as an armed career criminal under the ACCA because he did not have three qualifying prior convictions; and (2) in any event, the district court plainly erred in imposing the ACCA's mandatory minimum sentence because he was convicted of only one § 922(g) count. After review, we affirm.

I. FACTUAL BACKGROUND

A. Guilty Plea

On June 19, 2017, Sanchez, a convicted felon, sold a loaded rifle to a confidential informant working with law enforcement. Subsequently, on June 28, 2017, Sanchez sold the same confidential informant two semiautomatic firearms and 278 rounds of ammunition. Audio and video recordings captured both of these firearm transactions.

A grand jury indicted Sanchez on two counts of possession of a firearm and ammunition by a convicted felon, in violation of § 922(g)(1). Pursuant to a written plea agreement, Sanchez pled guilty to one firearm count, and the government dropped the other firearm count.

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B. Presentence Investigation Report

The Presentence Investigation Report ("PSI") initially calculated an adjusted offense level of 22 under U.S.S.G. § 2K2.1. The PSI reported that Sanchez had these five prior convictions: (1) a 1991 New York conviction for first-degree robbery; (2) 1993 New York convictions for attempted murder and assault with intent; (3) 2002 federal convictions for conspiracy to commit armed carjacking, aiding and abetting attempted armed carjacking, using and carrying a firearm during and in relation to a crime of violence, and felon in possession of a firearm; (4) a 2017 Florida conviction for resisting an officer without violence; and (5) a 2017 Florida conviction for tampering with physical evidence.

The PSI increased Sanchez's offense level from 22 to 33, under U.S.S.G. § 4B1.4(b)(3)(B), because it concluded Sanchez was an armed career criminal under the ACCA. The PSI identified Sanchez's first three prior convictions listed above as the qualifying ACCA predicate felony convictions. The PSI reduced Sanchez's offense level by 3, pursuant to U.S.S.G. § 3E1.1(a) and (b), because he accepted responsibility for his offense, for a total offense level of 30.

The PSI calculated a criminal history category of III based on six criminal history points. The PSI increased Sanchez's criminal history category to IV, pursuant to U.S.S.G. § 4B1.4(c)(3), due to Sanchez's status as an armed career criminal. With a total offense level of 30 and a criminal history category of IV, Sanchez's initial advisory guidelines range was 135 to 168 months' imprisonment. However, because the statutory minimum sentence of 15 years under the ACCA was greater than the high end of the range, the PSI determined that Sanchez's advisory guidelines sentence was 180 months. See U.S.S.G. § 5G1.1(b) (providing that when the mandatory minimum sentence is greater than the advisory guidelines range, it becomes the guidelines sentence).

Sanchez objected to the PSI's designation of him as an armed career criminal under the ACCA and the Sentencing Guidelines. Relevant to this appeal, Sanchez argued that neither of his prior New York convictions qualified as violent felonies because they did not have as an element the use, attempted use, or threatened use of violent force, as required by Johnson v. United States, 559 U.S. 133, 130 S. Ct. 1265, 176 L.Ed.2d 1 (2010) (" Curtis Johnson").

In response, the government argued that both of Sanchez's New York convictions categorically qualified as violent felonies under the ACCA's elements clause. The government also submitted certificates of disposition for each conviction. These documents showed that Sanchez was convicted of New York first-degree robbery under New York Penal Law § 160.15(4) and New York attempted second-degree murder under New York Penal Law §§ 110 and 125.25(1). Sanchez has never disputed that he has these two New York convictions.¹

C. Sentencing

At sentencing, the district court stated that Sanchez's prior convictions were "prototypical violent crimes" and qualified as ACCA predicates. Overruling Sanchez's objection, the district court adopted the PSI's findings and stated that the advisory

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guidelines range was 180 months. After hearing from Sanchez and considering the 18 U.S.C. § 3553(a) sentencing factors, the district court imposed a 180-month sentence. Afterward, Sanchez renewed his objection to the district court's ACCA determination.

II. DISCUSSION

Under the ACCA, a defendant convicted of an offense under 18 U.S.C. § 922(g) is subjected to an increased mandatory minimum prison sentence if he has three prior felony convictions for a "violent felony" or a "serious drug offense." 18 U.S.C. § 924(e)(1). Here, Sanchez argues that his New York convictions for first-degree robbery and attempted second-degree murder do not qualify as violent felonies under the ACCA.

The ACCA defines "violent felony," inter alia, as any offense punishable by a term of imprisonment exceeding one year that "has as an element the use, attempted use, or threatened use of physical force against the person of another." 18 U.S.C. § 924(e)(2)(B)(i). Sanchez's appeal concerns only this elements clause.²

We apply the categorical approach to determine whether a prior conviction qualifies under the ACCA's elements clause. United States v. Hill, 799 F.3d 1318, 1322 (11th Cir. 2015). Under the categorical approach, we look only to the fact of conviction and the statutory definition of the prior offense. Id. "A crime is categorically a violent felony under the elements clause if even the least culpable conduct criminalized by the statute would fall within the ACCA definition." United States v. Jones, 906 F.3d 1325, 1328 (11th Cir. 2018), cert. denied, ––– U.S. ––––, 139 S. Ct. 1202, 203 L.Ed.2d 228 (2019) (quotation marks omitted).

A. Physical Force Requirement of the ACCA's Elements Clause

Recently, the Supreme Court has thrice addressed the definition of "physical force" for purposes of similarly worded elements clauses. See Curtis Johnson, 559 U.S. at 138-40, 130 S. Ct. at 1270-71 (ACCA's elements clause) ; United States v. Castleman, 572 U.S. 157, 168-71, 134 S. Ct. 1405, 1413-15, 188 L.Ed.2d 426 (2014) ( 18 U.S.C. § 921(c)(33)(A)(ii)'s elements clause); Stokeling v. United States, 586 U.S. ––––, ––––, 139 S. Ct. 544, 550, 552, 553-55, 202 L.Ed.2d 512 (2019) (ACCA's elements clause). Taken together, the Supreme Court in these cases has told us that "physical force" in the elements clause means: (1) an act that is physical, meaning that it must be "exerted by and through concrete bodies," not "intellectual or emotional force" and (2) a physical act that is directly or indirectly "capable of causing physical pain and injury." Stokeling, 586 U.S. at ––––, 139 S. Ct. at 552 ; Castleman, 572 U.S. at 163 n.2, 134 S. Ct. at 1410 n.2 ; Curtis Johnson, 559 U.S. at 138, 130 S. Ct. at 1270. "Capable," in turn, means that the force "potentially" will cause physical pain or injury. Stokeling, 586 U.S. at ––––, 139 S. Ct. at 554. Even before Stokeling, this was our Court's binding precedent as to the force element under the ACCA. See Jones, 906 F.3d at 1328-29 (ACCA) ; Hylor v. United States, 896 F.3d 1219, 1222-23 (11th Cir. 2018) (ACCA); United States v. Deshazior, 882 F.3d 1352, 1357-58 (11th Cir. 2018), cert. denied, ––– U.S. ––––, 139 S. Ct. 1255, 203 L.Ed.2d 275 (2019) (ACCA); United States v. Vail-Bailon, 868 F.3d 1293, 1301-02 (11th Cir. 2017) (en

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banc), cert. denied, ––– U.S. ––––, 138 S. Ct. 2620, 201 L.Ed.2d 1031 (2018) (Sentencing Guidelines).

We now turn to Sanchez's two New York convictions to determine whether each categorically involved the use, attempted use, or threatened use of such physical force.

B. New York First-Degree Robbery

New York's statutory scheme contains three degrees of robbery determined by the presence of...