[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 95-8973
D. C. Docket No. 1:93-CR-437-1-JOF
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SHARKE FERNANDO BANKSTON,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Georgia
September 4, 1997)
Before HATCHETT, Chief Judge, TJOFLAT, Circuit Judge, and CLARK,
Senior Circuit Judge.
TJOFLAT, Circuit Judge:
Under the United States Sentencing Commission guidelines, a
convicted defendant is a “career offender” if, among other
things, “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 (Nov. 1, 1994). The question this appeal
presents is whether a felony conviction for a crime of violence
that is based on a plea of “guilty but mentally ill” (“GBMI”)
under
Ga. Code Ann. § 17-7-131 (1986) qualifies as a conviction
within the meaning of section 4B1.1. We conclude that it does.
I.
A.
On May 4, 1995, Sharke Bankston pled guilty in the United
States District Court for the Northern District of Georgia to the
offense of bank robbery in violation of
18 U.S.C. § 2113(a) and
(d) (1994).1 The court accepted his plea and directed its
probation office to prepare a presentence investigation report
(“PSR”). The PSR disclosed that Bankston had three previous
felony convictions in Georgia, all for crimes of violence: an
Section 2113(a) states in pertinent part: “Whoever, by
force or violence, . . . takes, or attempts to take . . . any
property or money . . . belonging to . . . any bank . . .[s]hall
be fined . . . or imprisoned not more than twenty years, or
both.”
18 U.S.C. § 2113(a) (1994). Section 2113(d) states that
“[w]hoever, in committing, or in attempting to commit [a bank
robbery], assaults any person, or puts in jeopardy the life of
any person by the use of a dangerous weapon or device, shall be
fined . . . or imprisoned not more than twenty-five years, or
both.”
18 U.S.C. § 2113(d) (1994).
In committing the instant offense, Bankston threatened to
kill one bank teller and held a dangerous weapon, a metal-tipped
ballpoint pen, to the neck of another bank teller.
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aggravated assault and kidnapping conviction on June 27, 1978; an
armed robbery and possession of firearm by convicted felon
conviction on May 19, 1986; and an aggravated assault and
possession of firearm by convicted felon conviction on June 6,
1986. The latter two convictions were based on GBMI pleas under
Georgia law.
The PSR treated these convictions as “prior felony
convictions” under section 4B1.1 and thus classified Bankston as
a career offender. This classification had the effect of
increasing Bankston’s offense level of 25 for the bank robbery to
an offense level of 31.2 Given his criminal history category of
VI,3 his sentencing range was 188-235 months of imprisonment.
At the sentencing hearing, Bankston objected to the PSR's
determination that he qualified as a career offender on the
ground that prior convictions under section 4B1.1 must result
from a “guilty plea, trial, or plea of nolo contendere.” If the
convictions at issue did not qualify as such prior convictions,
he correctly observed, the court could not sentence him as a
career offender.
Overruling Bankston’s objection, the district court found
that either of the GBMI convictions, when combined with the June
Pursuant to his plea agreement with the Government,
Bankston received a three-point reduction for “acceptance of
responsibility.” Otherwise, his offense level would have been 34
instead of 31.
Even without the career-offender classification,
Bankston’s criminal history category was VI because he had 15
criminal history points. See U.S.S.G. Ch.5, Pt.A (Sentencing
Table) (Nov. 1, 1994).
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27, 1978, aggravated assault and kidnapping conviction,4
qualified Bankston as a career offender under section 4B1.1.5
More specifically, the court analogized the GBMI plea to a plea
of nolo contendere, finding that a GBMI plea under Georgia law
did not establish that a defendant was actually mentally ill at
the time of the offense. Accordingly, the court sentenced
Bankston to 212 months of imprisonment in the custody of the
Bureau of Prisons, five years supervised release, and a $50
special assessment. Bankston now appeals his sentence.
B.
The career offender guideline, section 4B1.1, states:
A defendant is a career offender if (1) the defendant was at
least eighteen years old at the time of the instant offense,
(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 (Nov. 1, 1994). The commentary to section
4B1.2, which is the companion guideline to section 4B1.1, defines
a “prior felony conviction” as “a prior adult federal or state
conviction for an offense punishable by death or imprisonment for
Bankston did not object to the use of the June 27, 1978,
conviction as a predicate offense. He served the sentence for
that conviction until November 20, 1985, thus falling within the
15-year window for consideration of prior felony sentences. See
U.S.S.G. § 4A1.2(e)(1) (Nov. 1, 1994).
The court applied the 1994 version of the sentencing
guidelines because a sentencing court must use the guidelines in
effect at the time of sentencing. See United States v. Camacho,
40 F.3d 349, 354 (11th Cir. 1994), cert. denied,
514 U.S. 1090,
115 S.Ct. 1810,
131 L.Ed.2d 735 (1995).
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a term exceeding one year, regardless of whether such offense is
specifically designated as a felony and regardless of the actual
sentence imposed.” U.S.S.G. § 4B1.2, comment. (n.3) (Nov. 1,
1994). The term “'convicted of an offense' . . . means that the
guilt of the defendant has been established, whether by guilty
plea, trial, or plea of nolo contendere.” U.S.S.G. § 4A1.2(a)(4)
(Nov. 1, 1994).6
Bankston urges us to adopt a strict interpretation of
section 4B1.1 and find that a prior conviction based on a GBMI
plea under Georgia law cannot be used as a predicate offense to
establish career offender status. First, he submits that finding
him to be a career offender has a severe effect on his sentence:
with the enhancement, his sentencing range increases from 110-137
months imprisonment to 188-235 months. Second, he contends that
the Sentencing Commission, by omitting the GBMI plea from
sections 4B1.1 and 4A1.2(a)(4), intended that only convictions
established by guilty plea, trial, or plea of nolo contendere be
used as predicate offenses to establish career offender status.
The fact that several states had authorized use of the GBMI plea
by the time the first sentencing guidelines were drafted, he
argues, manifests the Sentencing Commission’s intent to exclude
that plea from the career offender guideline. He also suggests
that a conviction based on a GBMI plea indicates a lesser degree
of culpability than a conviction established by guilty plea,
The career offender guideline incorporates the definitions
and instructions for computing criminal history found in § 4A1.2.
See U.S.S.G. § 4B1.2, comment. (n.4) (Nov. 1, 1994).
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trial, or plea of nolo contendere. Thus, if we were to find the
career offender guideline ambiguous, Bankston asks that we apply
the “rule of lenity” in his favor.
In response, the Government asserts that Bankston's GBMI
convictions under Georgia law qualify as “prior felony
convictions” under section 4B1.1. Citing portions of the statute
authorizing the GBMI plea,
Ga. Code Ann. § 17-7-131, the
Government argues that a conviction based on a GBMI plea has the
same operation at law as any other guilty plea, and should be
treated as such for purposes of the career offender guideline.
II.
We agree with Bankston that section 4B1.1 does not
explicitly state that a conviction established by a GBMI plea
should be considered a “prior felony conviction.” Furthermore,
we have located no authority that reveals what the Sentencing
Commission intended by incorporating section 4A1.2(a)(4)'s
definition of “convicted of an offense” into section 4B1.1's
“prior felony conviction” requirement.7
Our analysis, however, should not end at this point. The
issue is whether a conviction established by a GBMI plea under
Georgia law should be considered a conviction established by a
We question the district court's use of its analogy
between the plea of GBMI and the plea of nolo contendere as a
basis for applying the career offender guideline at sentencing.
Moreover, as will be discussed, infra, the court misstated
Georgia law in finding that a GBMI plea does not reflect that the
defendant was, in fact, mentally ill at the time of the offense.
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guilty plea under section 4A1.2(a)(4) of the guidelines. Because
we lack express guidance from the Sentencing Commission on this
issue, we turn to the question whether a GBMI plea under
Ga. Code
Ann. § 17-7-131 (1986), the statute under which the convictions
in dispute were established, is a “guilty plea” within the
meaning of section 4A1.2(a)(4).8 If a conviction based on a GBMI
plea has the same force and effect under Georgia law as a
conviction based on a guilty plea, then Bankston's convictions
may be used as “prior felony convictions” under section 4B1.1 to
enhance his sentence.
A.
The state of Georgia has allowed criminal defendants to
plead GBMI since the state legislature made extensive revisions
to section 17-7-131 in 1982. Under the amended version of that
statute, the trial judge must instruct the jury that they may
consider four possible verdicts when the accused contends that he
was insane or otherwise mentally incompetent at the time of the
offense: (1) “guilty”; (2) “not guilty”; (3) “not guilty by
reason of insanity at the time of the crime”; (4) “guilty but
Although the current version of § 17-7-131 is essentially
the same statute under which Bankston twice pled GBMI and was
convicted in 1986, we have reconstructed by reference to past
Georgia session laws the exact version of § 17-7-131 that was in
effect at that time. Section 17-7-131 has been amended four
times since 1986, and the version under which Bankston pled GBMI
was in effect from July 1, 1985, to July 1, 1988. Even though no
such version of the statute can be currently found in the
Official Code of Georgia Annotated, we refer to this version as
“§ 17-7-131 (1986)” for accuracy and clarity.
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mentally ill at the time of the crime.”
Ga. Code Ann. § 17-7-
131(c) (1986).9 In fact, in all cases in which the accused
interposes the defense of insanity, the judge is required to give
the following jury instruction about the GBMI verdict: “I charge
you that should you find the defendant guilty but mentally ill at
the time of the crime, the defendant will be given over to the
Department of Corrections or the Department of Human Resources,
as the mental condition of the defendant may warrant.”
Ga. Code
Ann. § 17-7-131(b)(3)(B) (1986); Spraggins v. State,
364 S.E.2d
861 (Ga. 1988). Under section 17-7-131, the term “mentally ill”
means “having a disorder of thought or mood which significantly
impairs judgment, behavior, capacity to recognize reality, or
ability to cope with the ordinary demands of life.”
Ga. Code
Ann. § 17-7-131(a)(2) (1986). Furthermore, contrary to the
erroneous statement made by the district court at sentencing, a
GBMI plea manifests a recognition that the defendant was mentally
ill at the time of the offense: a court in Georgia cannot accept
“[a] plea of guilty but mentally ill at the time of the crime . .
. until the defendant has undergone examination by a licensed
psychologist or psychiatrist and the court has examined the
psychological or psychiatric reports, held a hearing on the issue
of the defendant's mental condition, and is satisfied that there
In 1988, the Georgia legislature added the fifth possible
verdict of “guilty but mentally retarded,” see
Ga. Code Ann. §
17-7-131(c) (1988), which remains operative in the current
version of the statute, see
Ga. Code Ann. § 17-7-131(c) (1990 &
Supp. 1996). In essence, a guilty but mentally retarded
conviction has the same operation at law as a GBMI conviction.
See
Ga. Code Ann. § 17-7-131(g) (1990 & Supp. 1996).
8
is a factual basis that the defendant was mentally ill at the
time of the offense.”
Ga. Code Ann. § 17-7-131(b)(2) (1986).
A review of section 17-7-131 reveals that a conviction based
on the GBMI plea has the same operation at law as a conviction
based on a plea of guilty. The State of Georgia bears the same
burden of proof when trying to secure a GBMI verdict as it does
when trying to secure a guilty verdict. Section 17-7-131(c)(2)
states that a defendant may be found GBMI only if “the jury, or
court acting as trier of facts, finds beyond a reasonable doubt
that the defendant is guilty of the crime charged and was
mentally ill at the time of the commission of the crime.”
Ga.
Code Ann. § 17-7-131(c)(2) (1986); see also Keener v. State,
334
S.E.2d 175, 178 (Ga. 1985) (“The burden is on the state to prove
that the defendant is guilty of the crime charged, including the
requisite element of intent, beyond a reasonable doubt.”). The
statute, moreover, directs the court to sentence a defendant
found GBMI as it would sentence a defendant found guilty: if a
defendant is found GBMI, “the court shall sentence [the
defendant] in the same manner as a defendant found guilty of the
offense.”
Ga. Code Ann. § 17-7-131(g)(1) (1986) (emphasis
added).
The sole substantive distinction between a conviction based
on a GBMI plea and one based on a guilty plea relates to the
incarceration and treatment of the defendant after sentencing. A
defendant found GBMI is evaluated by a psychiatrist or a licensed
psychologist from the Georgia Department of Human Resources after
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sentencing and prior to transfer to a Department of Corrections
facility.
Ga. Code Ann. § 17-7-131(g)(1) (1986). If the GBMI
defendant is determined not to be in need of immediate
hospitalization, then he is committed to an appropriate penal
facility, like any other convicted offender, with the caveat that
he “shall be further evaluated and then treated, within the
limits of state funds appropriated therefor.”
Ga. Code Ann. §
17-7-131(g)(2) (1986). Afterwards, an incarcerated GBMI
defendant may be transferred back to the Department of Human
Resources if such action is “psychiatrically indicated for his
mental illness.”
Ga. Code Ann. § 17-7-131(g)(3) (1986). If the
GBMI defendant is determined to be in need of immediate
hospitalization after conviction, then he may be transferred to a
designated mental health facility.
Ga. Code Ann. § 17-7-
131(g)(4) (1986).10 Finally, the court may require a GBMI
defendant, unlike a defendant who enters a plea of guilty, to
undergo psychiatric treatment as a condition of probation.
Ga.
Code Ann. § 17-7-131(h) (1986).11
We infer from the statute that a GBMI defendant is
returned to the penal facility if and when his mental health
improves.
Effective July 1, 1988, the Georgia legislature made
another significant distinction between a defendant who pleads
GBMI and a defendant who pleads guilty. Under section 17-7-
131(j), a defendant who pleads GBMI or guilty but mentally
retarded cannot be sentenced to death; the most severe sentence
that the court can impose is life imprisonment.
Ga. Code Ann. §
17-7-131(j) (1990 & Supp. 1996). This additional distinction is
of no moment here, however, because this subsection was not in
effect at the time Bankston was sentenced for the offenses at
issue.
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B.
In Logan v. State,
352 S.E.2d 567 (Ga. 1987), the Supreme
Court of Georgia removed all doubts that a conviction based on
the GBMI plea under Georgia law has the same operation at law as
a plea of guilty. In Logan, the defendant pled GBMI to “malice
murder” and was sentenced to life imprisonment.
Id. at 568. He
subsequently filed a motion to withdraw his plea, which the lower
court denied.
Id. After petitioning unsuccessfully for state
habeas corpus relief, the defendant filed a motion for an out-of-
time appeal and an extraordinary motion for a new trial in order
to challenge the entry of the GBMI plea.
Id. The Georgia
Supreme Court affirmed the judgment on the ground that the GBMI
plea was valid and properly entered.
Id. at 568-69. In reaching
this conclusion, the court found that a verdict based on a GBMI
plea under section 17-7-131 “has the same force and effect as any
other guilty verdicts, with [the] additional provision that the
Department of Corrections or other incarcerating authority
provide mental health treatment for a person found guilty but
mentally ill.”
Id. at 568 (emphasis added); see also Merritt v.
State Farm Fire & Casualty Co.,
463 S.E.2d 42, 44 (Ga. Ct. App.
1995) (“A plea of guilty but mentally ill under OCGA § 17-7-
131(g) is nonetheless a plea of guilty and has the same force and
effect.”).
In light of section 17-7-131 and the Georgia Supreme Court’s
ruling in Logan, we find that a conviction based on the GBMI plea
has the same force and legal effect as a conviction established
11
by a plea of guilty. We therefore hold that a plea of “guilty
but mentally ill” is a “guilty plea” within the meaning of
section 4A1.2(a)(4) of the sentencing guidelines, and that the
convictions at issue qualify as “prior felony convictions” under
section 4B1.1.
The district court did not err in using Bankston’s May 19,
1986, and June 6, 1986, convictions to enhance his sentence
pursuant to the career offender guideline. His conviction and
sentence are therefore
AFFIRMED.
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