United States v. Dennis E. Ray ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
Sept. 28, 2009
No. 08-14278 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00497-CR-T-27-TGW
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DENNIS E. RAY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(September 28, 2009)
Before BIRCH, HULL and ANDERSON, Circuit Judges.
PER CURIAM:
Dennis Ray appeals his total sentence of 354 months’ imprisonment,
imposed after he pled guilty to one count of conspiracy to possess with intent to
distribute five kilograms of cocaine, in violation of 21 U.S.C. § 841(b)(1)(A)(ii),
and one count of possession of a firearm in relation to, and in furtherance of, a
drug trafficking crime, in violation of 18 U.S.C. § 924(c). Ray was sentenced to
294 months’ imprisonment for the drug count and 60 months for the firearm count,
to run consecutively.
I. CRIME OF VIOLENCE DETERMINATION
The PSI initially assigned Ray a base offense level of 34, based on the drug
amount, and subtracted three levels for acceptance of responsibility, making Ray’s
total offense level 31. The PSI, however, deemed that Ray was subject to an
enhanced sentence because he qualified as a career offender under U.S.S.G.
§ 4B1.1. The PSI based this classification on Ray’s predicate convictions of (1)
conspiracy to possess with intent to distribute cocaine and (2) escape, which the
PSI deemed a crime of violence. Concerning the latter conviction, the PSI states
only that Ray “escaped from Federal Prison Camp, Atlanta, Georgia, on June 14,
1999. He turned himself in to the Tampa Police Department on June 18, 1999,
informing them that he was a fugitive from Federal Prison Camp in Atlanta,
Georgia.” At sentencing, Ray explained that during his predicate escape offense,
he had walked away from the prison camp and had voluntarily surrendered after a
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weekend home visit. In the same proceeding, Ray’s probation officer maintained
that Ray had escaped by failing to return from work release.
On appeal, Ray argues that his prior federal escape conviction does not
constitute a “crime of violence” within the meaning of the career offender
provision of the Sentencing Guidelines, U.S.S.G. § 4B1.1. He contends that his
conduct does not constitute the purposeful, violent, and aggressive conduct
required by Begay v. United States, 553 U.S. ___, 128 S.Ct. 1581, 170 L.Ed.2d
490 (2008). Ray further argues that, despite our holding in United States v. Gay,
251 F.3d 950 (11th Cir. 2001), in light of the Supreme Court’s recent decision in
Chambers v. United States, 555 U.S. ___, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009),
his walkaway escape or failure to return from work release is not a “crime of
violence.” The government concedes that we should remand this case to allow the
district court to determine whether Ray’s prior federal escape conviction qualifies
as a “crime of violence” within the meaning of the career offender provision of the
Sentencing Guidelines.
We review de novo the district court’s application and interpretation of the
sentencing guidelines. United States v. Gibson, 434 F.3d 1234, 1243 (11th Cir.
2006). We also review de novo “the district court’s decision to classify a
defendant as a career offender pursuant to U.S.S.G. § 4B1.1.” Id.
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The sentencing guidelines deem a defendant to be a career offender if “(1)
the defendant was at least eighteen years old at the time the defendant committed
the instant offense of conviction; (2) the instant offense of conviction is a felony
that is either a crime of violence or a controlled substance offense; and (3) the
defendant has at least two prior felony convictions of either a crime of violence or
a controlled substance offense.” U.S.S.G. § 4B1.1(a). The sentencing guidelines
further clarify that a “crime of violence” is an offense, punishable by a prison term
exceeding one year, that “(1) has as an element the use, attempted use, or
threatened use of physical force against the person of another, or (2) is burglary of
a dwelling, arson, or extortion, involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of physical injury to another.”
U.S.S.G. § 4B1.2(a)(1), (2).
Decisions regarding the “violent felony” provision of the Armed Career
Criminal Act (ACCA) are useful when determining whether an offense is a crime
of violence under U.S.S.G. § 4B1.1 “because of the similar definitions of a ‘crime
of violence’ in the Guidelines and of a ‘violent felony’ in ACCA.” United States
v. Archer, 531 F.3d 1347, 1350 n.1 (11th Cir. 2008). In determining whether a
particular offense constitutes a violent felony in ACCA, the Supreme Court
“examine[s] it in terms of how the law defines the offense and not in terms of how
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an individual offender might have committed it on a particular occasion.” Begay,
553 U.S. ___, 128 S.Ct. at 1584. In Begay, the Court used this categorical
approach to hold that driving under the influence is not a violent felony under
ACCA. Id. at ___, 128 S.Ct. at 1588. Thus, whether Ray’s conduct is a “crime of
violence” under the Guidelines turns on whether such conduct in general is
categorized as a “crime of violence.”
The federal escape statute of 1999, the year in which Ray committed the
escape, provided in pertinent part:
Whoever escapes or attempts to escape from the custody of
the Attorney General or his authorized representative, or from any
institution or facility in which he is confined by direction of the
Attorney General, or from any custody under or by virtue of any
process issued under the laws of the United States by any court,
judge, or commissioner [United States magistrate judge], or from
the custody of an officer or employee of the United States pursuant
to lawful arrest, shall, if the custody or confinement is by virtue of
an arrest on a charge of felony, or conviction of any offense, be
fined under this title or imprisoned not more than five years, or
both.
18 U.S.C. § 751 (1999).
Although we have not addressed whether a violation of the federal escape
statute constitutes a “crime of violence” under the Guidelines, we have held that a
violation of the Georgia escape statute constitutes such a crime. Gay, 251 F.3d at
952. A person violates the Georgia escape statute when he or she is confined and
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“intentionally escapes from lawful custody or from any lawful place of lawful
confinement,” or “intentionally fails to return as instructed to lawful custody.”
O.C.G.A. § 16-10-52(a)(1), (5); Gay, 251 F.3d at 952. In Gay, we held that, a prior
escape conviction under the Georgia statute “qualifies as a crime of violence under
the career offender guideline” even if it only “involves a walk-away from
unsecured correctional facilities.” Gay, 251 F.3d at 954-55 (internal quotations
omitted). The rationale was that escape presents a potential risk of violence if
authorities attempt to recapture the prisoner. Id. at 954.
In Chambers, the Supreme Court addressed the issue of whether a failure to
report for penal confinement involves conduct that presents a serious potential risk
of physical injury to another, and thus is a violent felony pursuant to the ACCA.
Chambers, 555 U.S. ___, 129 S.Ct. at 689 (internal quotations omitted). The
defendant in Chambers was sentenced to 11 weekends in prison and “failed to
report for weekend confinement” on 4 occasions. Id. at ___, 129 S.Ct. at 690. He
was subsequently convicted of “failing to report to a penal institution,” in violation
of an Illinois statute. Id. (internal brackets omitted). The Court used Begay’s
categorical approach, but noted that the statute placed together in a single
numbered section several different kinds of behavior, including escape and failure
to report. Id. at ___, 129 S.Ct. at 691. The Court then separately categorized the
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crimes of escape and failure to report, determining that “[t]he behavior that likely
underlies a failure to report would seem less likely to involve a risk of physical
harm than the less passive, more aggressive behavior underlying an escape from
custody.” Id. The Court held that failure to report is a “form of inaction” that does
not constitute the “purposeful, violent, and aggressive conduct” at issue when an
offender commits one of the enumerated offenses of arson, using explosives, or
burglary of a residence. Id. at ___, 129 S.Ct. at 692 (internal quotations omitted).
The Court concluded that a failure to report is not a violent felony under the
ACCA. Id. at ___, 129 S.Ct. at 693.
In this case, we need not decide whether Ray’s behavior constituted a “crime
of violence” in light of Chambers. The government concedes that this case should
be remanded to allow the district court to determine whether Ray’s prior federal
escape conviction qualifies as such a crime within the meaning of the career
offender provision. The district court did not reach whether Chambers had any
effect on the categorization of Ray’s federal escape conviction, as Chambers at that
time was pending before the Supreme Court. Accordingly, consistent with the
Government’s concession, we vacate the judgment of the district court with respect
to its career offender determination and remand to the district court for
reconsideration of that issue in light of Chambers.
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II.18 U.S.C. § 924(c) DETERMINATION
Relying on the text of 18 U.S.C. § 924(c)(1)(A), Ray also argues that the
district court erred by imposing a consecutive five-year sentence for his firearm
conviction. The government argues that Ray’s appeal of this issue should be
dismissed because he waived his right to appeal his sentence in his plea agreement.
We review the validity of a sentence appeal waiver de novo. United States v.
Weaver, 275 F.3d 1320, 1333 n.21 (11th Cir. 2001). A sentence appeal waiver will
only be enforced if the waiver was knowing and voluntary. United States v.
Bushert, 997 F.2d 1343, 1350-51 (11th Cir. 1993). For a sentence appeal waiver to
be knowing and voluntary, the government must show that: (1) the district court
specifically questioned the defendant about the waiver during the plea colloquy, or
(2) the record is “manifestly clear” that the defendant otherwise understood the
significance of the appeal waiver. Weaver, 275 F.3d at 1333; Bushert, 997 F.2d at
1351.
In this case, it is clear that Ray knowingly and voluntarily waived his right to
appeal this issue.1 The district court specifically questioned Ray about the appeal
waiver during the plea colloquy, including asking whether Ray understood that the
1
The only exceptions to Ray’s appeal waiver are if (1) the sentence exceeds the
guideline range as determined by the court under the guidelines, (2) the sentence exceeds the
statutory maximum penalty of life in prison, or (3) the sentence violates the Eighth Amendment to
the Constitution which prohibits excessive fines and cruel and unusual punishment.
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appeal waiver meant he could not challenge the way the court calculated his
sentence. Ray agreed that he understood the appeal waiver and its implications.
Therefore, the appeal waiver is enforceable. As a result, Ray cannot challenge his
sentence on appeal with regard to this issue.2
Alternatively, Ray’s appeal of this issue cannot succeed because he cannot
establish plain error. “A sentencing issue not raised in the district court is
reviewed for plain error[.]” United States v. Richardson, 166 F.3d 1360, 1361
(11th Cir. 1999). To prove plain error, a defendant must show: “(1) error, (2) that
is plain and (3) that affects substantial rights.” United States v. Turner, 474 F.3d
1265, 1276 (11th Cir. 2007). We have held that an error cannot be “plain” unless it
is “clear under current law.” United States v. Humphrey, 164 F.3d 585, 588 (11th
Cir. 1999). Thus, where neither we nor the Supreme Court has ever directly
resolved an issue, and other circuits are split on it, there can be no plain error in
regard to that issue. See id. at 587-88.
The relevant section of 18 U.S.C. § 924(c) states:
Except to the extent that a greater minimum sentence is
otherwise provided by this subsection or by any other provision
of law, any person who, during and in relation to any crime
of violence or drug trafficking crime (including a crime of
2
Although the Chambers issue is seemingly also barred by the appeal waiver, prior
to Ray’s sentencing hearing, the United States Attorney’s Office agreed to waive enforcement of
the appeal waiver solely as to the issue of whether Ray qualified as a career offender.
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violence or drug trafficking crime that provides for an
enhanced punishment if committed by the use of a deadly
or dangerous weapon or device) . . . uses or carries a
firearm, or who, in furtherance of any such crime,
possesses a firearm, shall, in addition to the punishment
provided for such crime of violence or drug trafficking
crime – be sentenced to a term of imprisonment of not less
than 5 years.
18 U.S.C. § 924(c)(1)(A)(i) (emphasis added). Neither we nor the Supreme Court
has ever interpreted the “except clause” of 924(c), and other circuits are split on the
scope of the clause. Therefore, the interpretation of the “except clause” is not
“clear under current law” as required by the first prong of the plain error test, and
there can be no plain error on this issue. Humphrey, 164 F.3d at 588.
III. CONCLUSION
Upon review of the record and consideration of the parties’ briefs, we affirm
in part, and vacate and remand in part for further proceedings.
AFFIRMED in part, VACATED AND REMANDED in part.
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