United States v. Andrew Jackson Chitwood ( 2012 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-12054
APRIL 5, 2012
Non-Argument Calendar
JOHN LEY
________________________ CLERK
D.C. Docket No. 4:10-cr-00029-RLV-WEJ-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANDREW JACKSON CHITWOOD,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(April 5, 2012)
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
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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
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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 (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
1
As a career offender, Chitwood’s criminal history category would automatically be VI, see
§ 4B1.1(b), but that made no difference because it already was VI even without consideration of his
career offender status.
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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 (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
2
In determining whether a conviction is a crime of violence under U.S.S.G. § 4B1.2, we also
rely on cases interpreting the residual clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e),
because the § 4B1.2 definition of “crime of violence” and ACCA’s definition of “violent felony”
are substantially the same. See United States v. Archer, 531 F.3d 1347, 1350 n.1 (11th Cir. 2008).
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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
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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
(2011) (quoting James v. United States, 550 U.S. 192, 202, 127 S. Ct. 1586, 1594
(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
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“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 sentence because that conviction is a crime of violence under the
categorical approach, which the district court did not apply. The government had
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argued at the sentence hearing that false imprisonment was categorically a crime of
violence. Because we can affirm for any reason supported by the record, “[e]ven
though the district court did not reach the residual clause issue, we can still decide
it.” United States v. Harris, 608 F.3d 1222, 1227 (11th Cir. 2010). That is true
where, as here, the alternative route for affirming does not facts that remain to be
found by the district court.
In James v. United States, 550 U.S. 192, 201–02, 127 S. Ct. 1586, 1593–94
(2007), the Supreme Court instructed federal courts to use a “categorical approach”
to analyze whether a crime creates sufficient risk of physical injury to another to fit
within the residual clause. We were told that under that approach we should “look
only to the fact of conviction and the statutory definition of the prior offense,” and
not to the “particular facts disclosed by the record of conviction.” Id. at 202, 127
S.Ct. at 1594 (quotation marks omitted). It is “the elements of the offense” and not
“the specific conduct of this particular offender” we examine. Id.; see also
Chambers v. United States, 555 U.S. 122, 125, 129 S. Ct. 687, 690 (2009). And it
is the “ordinary” or “generic” case that counts. Harrison, 558 F.3d at 1285; see
also Begay v. United States, 553 U.S. 137, 141, 128 S. Ct. 1581, 1584 (2008) (“In
determining whether [a] crime is a violent felony, we consider the offense
generically, that is to say, we examine it in terms of how the law defines the
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offense and not in terms of how an individual offender might have committed it on
a particular occasion.”); James, 550 U.S. at 208, 127 S.Ct. at 1597 (“[T]he proper
inquiry is whether the conduct encompassed by the elements of the offense, in the
ordinary case, presents a serious potential risk of injury to another.”). Applying
this categorical approach, the Supreme Court in James looked at whether attempted
burglary “posed the same ‘serious potential risk of physical injury’ that a
completed burglary did.” Harrison, 558 F.3d at 1285 (quoting James, 550 U.S. at
203, 127 S.Ct. at 1594). The Court concluded that it did. See James, 550 U.S. at
203–09, 127 S.Ct. at 1594–98
In Begay, the Supreme Court added to the residual clause analysis when it
examined whether driving under the influence was “‘roughly similar, in kind as
well as in degree of risk posed,’” to any of the enumerated offenses. Harrison, 558
F.3d at 1285 (quoting Begay, 553 U.S. at 143, 128 S.Ct. at 1585). The Begay
Court reasoned that the presence of the enumerated offenses as examples implied
that the ACCA covered “only similar crimes, rather than every crime that ‘presents
a serious potential risk of physical injury to another.’” Begay, 553 U.S. at 142,
128 S.Ct. at 1585 (quoting 18 U.S.C. § 924(e)(2)(B)(ii)). The court noted that
“[t]he listed crimes all typically involve purposeful, violent, and aggressive
conduct.” Begay, 553 U.S. at 144–45, 128 S.Ct. at 1586 (quotation marks
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omitted). It followed that to be similar in kind to those listed crimes—burglary,
arson, extortion, and the use of explosives— offenses that were violent crimes
under the residual provision must also involve “purposeful, violent, and aggressive
conduct.” Chambers, 555 U.S. at 128, 129 S.Ct. at 692; see also Begay, 553 U.S.
at 144–45, 128 S.Ct. at 1586; Harrison, 558 F.3d at 1295 (“Begay requires courts
to further address whether the crime is similar ‘in kind’ to burglary, arson,
extortion, and the use of explosives. For [an offense] to be ‘similar in kind’ to
those enumerated offenses, the conduct underlying the crime must be ‘purposeful,
violent, and aggressive.’” (citations omitted)). Because it concluded that DUI was
not “purposeful, violent, and aggressive” in that sense, the Court held that it was
not a violent felony. Begay, 553 U.S. at 144–45, 148, 128 S. Ct. at 1586–88.
In our Harrison decision we synthesized James and Begay into a three-part
test for determining whether a state offense is a crime of violence under the
categorical approach:
First, what is the relevant category of crime, determined by looking to
how the crime is ordinarily committed? Second, does that crime pose
a “serious potential risk of physical injury” that is similar in degree to
the risks posed by the enumerated crimes? Third, is that crime similar
in kind to the enumerated crimes?
558 F.3d at 1287. To determine whether a crime is “similar in kind” to an
enumerated offense, “we ask whether the conduct at issue in the statute is
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‘purposeful, violent and aggressive,’ or, whether it is a more passive crime of
inaction.” United States v. Harris, 608 F.3d 1222, 1227 (11th Cir. 2010).
Last year, however, the Supreme Court revisited the residual clause in Sykes
v. United States, __ U.S. __, 131 S. Ct. 2267 (2011), and the ever-shifting sands of
the residual clause shifted again.3 The previous conviction at issue in Sykes was
knowingly or intentionally fleeing in a vehicle from a law enforcement officer in
violation of Ind. Code § 35-44-3-3. The Court noted that, “[i]n general, levels of
risk divide crimes that qualify [under the residual clause] from those that do not,”
and that the only decision “in which risk was not the dispositive factor is Begay.”
Sykes, 131 S. Ct. at 2275. The Court reasoned that Begay’s “purposeful, violent,
and aggressive” language had “no precise textual link to the residual clause” and
was “an addition to the statutory text.” Id. Further, it stated that crimes that are
3
Justice Scalia’s dissent in Sykes asserts that the residual clause of the ACCA is
unconstitutional because it is so vague that it “does not ‘give a person of ordinary intelligence fair
notice’ of its reach.” Sykes, 131 S. Ct. at 2287 (Scalia, J., dissenting) (quoting United States v.
Batchelder, 442 U.S. 114, 123, 99 S. Ct. 2198, 2203–04 (1979)). See generally Sykes, 131 S. Ct. at
2284–88 (Scalia, J., dissenting). His dissent notes that Sykes is the Court’s fourth attempt in four
years to clarify which crimes qualify as violent felonies under the ACCA residual clause. Id. at
2284. However logical Justice Scalia’s reasoning, and however appealing the result of that logic
might be to courts like our own with caseloads enhanced by residual clause enhancement issues, the
majority opinion in Sykes took the position that the ACCA residual clause “states an intelligible
principle and provides guidance that allows a person to ‘conform his or her conduct to the law.’”
Id. at 2277 (majority opinion) (quoting Chicago v. Morales, 527 U.S. 41, 58, 119 S. Ct. 1849, 1860
(1999) (plurality opinion)). That position appears to foreclose a conclusion, at least by a lower
federal court such as our own, that the residual clause is unconstitutionally vague. In any event, the
parties in this case have not raised that issue.
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“purposeful, violent, and aggressive” and crimes that “present serious potential
risks of physical injury to others tend to be one and the same.” Id. Therefore, “[i]n
many cases the purposeful, violent and aggressive inquiry will be redundant with
the inquiry into risk . . . .” Id. The Court concluded in Sykes that risk level
provided a better categorical standard than the purposeful, violent, and aggressive
standard it had articulated in Begay just two years earlier. Id. at 2275–76.
Another explanation the Sykes court gave for retreating from the
Begay standard, or at least curtailing its reach, is that the focus on “purposeful,
violent, and aggressive” was useful primarily to explain the result in Begay, which
had involved DUI, “a crime akin to strict liability, negligence, and recklessness
crimes.” Id. at 2276. The vehicle flight to avoid law enforcement statute at issue
in Sykes, by contrast, required knowing or intentional flight, and therefore was
“not a strict liability, negligence, or recklessness crime.” Id. Because of that
distinction and because the statute involved in Sykes was categorically similar in
risk to the offenses named in the residual clause, the Sykes Court concluded that
knowingly or intentionally fleeing in a vehicle from a law enforcement officer is a
violent crime under the residual clause. Id. at 2275–76.
Of our sister circuits that have spoken to the issue, a majority have
concluded that Sykes means that Begay’s “purposeful, violent, and aggressive”
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analysis is useful only when dealing with strict liability, negligence, or
recklessness crimes. See, e.g., United States v. Meeks, __ F.3d __, __, No. 10-
5336, 2012 WL 15169, at *2 (6th Cir. Jan. 5, 2012) (“The Supreme Court has
recently suggested that Begay’s purposeful, violent, and aggressive conduct
inquiry should be limited to crimes based on strict liability, negligence, and
recklessness because it is not based on statutory language and is often redundant
with the inquiry into risk. In other cases, levels of risk will generally divide crimes
that qualify as crimes of violence from those that do not.” (citations and quotation
marks omitted)); United States v. Rodriguez, 659 F.3d 117, 119 (1st Cir. 2011)
(“According to Sykes, Begay’s purposeful, violent, and aggressive formulation
will be redundant with the inquiry into risk when the felony at issue is not a strict
liability, negligence, or recklessness crime. Where the prior felony has a stringent
mens rea requirement—as is the case here—Begay provides no shelter.” (citations
and quotation marks omitted)); United States v. Watson, 650 F.3d 1084, 1093 (8th
Cir. 2011) (“Thus, provided the felony at issue is not ‘akin to strict liability,
negligence, or recklessness crimes,’ it qualifies as a crime of violence under the
residual clause if it is ‘as a categorical matter, similar in risk to the listed crimes.’”
(quoting Sykes, 131 S. Ct. at 2275–76)); United States v. McMurray, 653 F.3d 367,
376 n.9 (6th Cir. 2011) (“[T]he Supreme Court retreated to some degree from
14
Begay’s ‘purposeful violent, and aggressive’ standard. Nevertheless, the Court
indicated that the Begay standard remains applicable when the felony is a strict
liability, negligence, or recklessness crime.”); United States v. Armijo, 651 F.3d
1226, 1237 n.14 (10th Cir. 2011) (noting similarity of risk as dispositive and
applying Sykes to U.S.S.G. § 4B1.2); United States v. Hill, 645 F.3d 900, 910 (7th
Cir. 2011). But see United States v. Koufos, __ F.3d __, __, Nos. 10-2195, 10-
2199, 10-2200, 2011 WL 6778133, at *5–8 (10th Cir. Dec. 27, 2011) (not
addressing the Sykes/Begay question explicitly, but analyzing for “purposeful,
violent, and aggressive conduct” post-Sykes); United States v. Park, 649 F.3d
1175, 1177–78, 1180 (9th Cir. 2011) (not addressing the Sykes/Begay question
explicitly, but finding post-Sykes that California first-degree burglary was
“roughly similar” to the enumerated generic burglary in part because it typically
involved “purposeful, violent, and aggressive conduct”).
Because Sykes makes clear that Begay’s “purposeful, violent, and
aggressive” analysis does not apply to offenses that are not strict liability,
negligence, or recklessness crimes, we join the general consensus of the circuits
recognizing as much. Offenses that are not strict liability, negligence, or
recklessness crimes qualify as crimes of violence under U.S.S.G. § 4B1.2(a)(2)’s
residual clause if they categorically pose a serious potential risk of physical injury
15
that is similar to the risk posed by one of the enumerated crimes. See Sykes, 131
S. Ct. at 2275–76. At least where the previous conviction required knowing or
intentional conduct, it is enough if that conviction was for a crime that generally
creates as much risk of physical injury as one of the enumerated crimes.
V.
Therefore, we compare the risk of serious physical injury that violations of
Georgia’s false imprisonment statute pose to that posed by the closest analog
among the enumerated offenses—burglary of a dwelling. See id. at 2273. The risk
need not be present in every conceivable violation of the false imprisonment
statute, just as it is not present in every burglary of a dwelling, but it must be
present “in the ordinary case.” Harris, 608 F.3d at 1228 (quoting James, 550 U.S.
at 208, 127 S.Ct. at 1597).
“Burglary is dangerous because it can end in confrontation leading to
violence.” Sykes, 131 S. Ct. at 2273; see also James, 550 U.S. at 199–200, 127
S.Ct. at 1592 (noting that all of the enumerated offenses “create significant risks of
bodily injury or confrontation that might result in bodily injury”). Or, as the
Supreme Court has explained: “The fact that an offender enters a building to
commit a crime often creates the possibility of a violent confrontation between the
offender and an occupant, caretaker, or some other person who comes to
16
investigate. And the offender’s own awareness of this possibility may mean that
he is prepared to use violence if necessary to carry out his plans or to escape.”
Taylor v. United States, 495 U.S. 575, 588, 110 S. Ct. 2143, 2153 (1990).4
Under Georgia law, “[a] person commits the offense of false imprisonment
when, in violation of the personal liberty of another, he arrests, confines, or detains
such person without legal authority.” Ga. Code Ann. § 16-5-41(a). As Georgia
cases make clear, false imprisonment ordinarily creates risks of physical injury to
another similar to the risks created by burglary which were discussed in Taylor.
See, e.g., Parson v. State, 711 S.E.2d 398, 400 (Ga. Ct. App. 2011) (finding false
imprisonment where defendant pulled victim back into her car, pushed her into the
driver’s seat, held her by her throat, and hit her in the chest); Bearfield v. State, 699
S.E.2d 363, 365 (Ga. Ct. App. 2010) (explaining that to avoid discovery of his
false imprisonment and attempted rape of a 9-year-old girl, the defendant “ran to
[the victim], picked her up, and threw her off his second story rear balcony”
resulting in “injuries to her lip, legs, and stomach”); Pierce v. State, 687 S.E.2d
185, 190 (Ga. Ct. App. 2009) (involving a defendant who, while holding the victim
4
The quotation from the Taylor opinion speaks of a burglar entering a building instead of
entering a dwelling because the ACCA definition of “violent felony,” which was involved in that
case, lists “burglary” as one of the violent crimes, not “burglary of a dwelling,” as § 4B1.2(a)(2) of
the guidelines does in defining “crime of violence.” Of course, burglary of a dwelling poses a risk
of serious physical injury at least as great, and probably greater, than the burglary of a building that
is not a dwelling.
17
in her apartment against her will, “grabbed the victim by the hair and dragged her
from room to room in the apartment while beating her. . . . took her clothes off and
‘threw’ her in the shower”); Williams v. State, 670 S.E.2d 828, 832–33 (Ga. Ct.
App. 2008) (“[T]he false imprisonment occurred when Williams forced the victim
into the prayer room closet after he raped her, bound the closet doors closed with a
cord, and ordered the victim under threat of death to remain there until he left.”).
Arresting, confining, or detaining someone against his or her will presents a risk of
serious physical injury to another similar to the risk that burglary of a dwelling
presents: the risk of a violent confrontation between the offender and the person
being falsely imprisoned, including the risk that the offender will have to inflict
serious physical injury to detain the victim. And, just as with burglary, the
offender’s awareness that such a violent confrontation is possible and could be
necessary indicates that he may be prepared to use violence if necessary to
complete the crime or to escape.
The decisions of other circuits addressing similar statutes support our
conclusion that Georgia false imprisonment creates risks similar to those created
by burglary of a dwelling and is, therefore, a crime of violence. See, e.g., United
States v. Capler, 636 F.3d 321, 322, 324, 329 (7th Cir. 2011) (concluding that
Illinois’ crime of unlawful restraint is a crime of violence within the meaning of §
18
4B1.2(a)(2)); United States v. Billups, 536 F.3d 574, 576, 578–82 (7th Cir. 2008)
(concluding the same about Wisconsin’s crime of false imprisonment); United
States v. Riva, 440 F.3d 722, 723, 725 (5th Cir. 2006) (concluding the same about
Texas’ crime of unlawful restraint of a child younger than 17 years); United States
v. Stapleton, 440 F.3d 700, 703–04 (5th Cir. 2006) (concluding that Louisiana’s
crime of false imprisonment with a dangerous weapon is a violent felony within
the meaning of the ACCA); United States v. Zamora, 222 F.3d 756, 763–65 (10th
Cir. 2000) (concluding that New Mexico’s crime of false imprisonment is a crime
of violence within the meaning of § 4B1.2(a)(2)).
And we have held that “kidnapping is a crime of violence.” United States v.
Salemi, 26 F.3d 1084, 1087 (11th Cir. 1994); see also U.S.S.G. § 4B1.2 cmt. n.1.
That holding is particularly relevant because under Georgia law the crime of false
imprisonment is identical to the crime of kidnapping, except false imprisonment
does not require movement of the victim. See, e.g., Hall v. State, 709 S.E.2d 348,
352 (Ga. Ct. App. 2011) (“And significantly, the only difference between the crime
of kidnapping and the crime of false imprisonment is the element of asportation.”).
Although the additional element of movement might increase the risk of physical
injury some, the similarity of the two offenses lends support to our conclusion that
false imprisonment is also a crime of violence.
19
Chitwood correctly points out that both the Supreme Court and this Court
have sometimes relied on statistics when determining whether offenses are crimes
of violence. But we have never held that statistical evidence is required. When, as
here, “we are without the benefit of empirical evidence . . . we are left to rely on
our own common-sense analysis of whether [the] conduct poses a serious potential
risk of physical injury.” United States v. Alexander, 609 F.3d 1250, 1257 (11th
Cir. 2010). Being without the benefit of empirical evidence, we rely on our
common sense, which leads us to conclude that the conduct involved in violating
Georgia’s false imprisonment statute generally poses a risk of serious physical
injury comparable to burglary of a dwelling. Violations of Georgia’s false
imprisonment statute are crimes of violence as defined in § 4B1.2(a) and for the
purpose of sentencing under the career offender provision of U.S.S.G. § 4B1.1.
The district court did not err in sentencing Chitwood as a career offender.
AFFIRMED.
20