United States v. Richard A. Nunes , 147 F. App'x 854 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPTEMBER 2, 2005
No. 04-15604 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00007-CR-5-MCR
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICHARD A. NUNES,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(September 2, 2005)
Before ANDERSON, HULL and MARCUS, Circuit Judges.
PER CURIAM:
Richard A. Nunes appeals his 165-month sentence for assaulting three
federal officers, in violation of 18 U.S.C. §§ 111(a) and (b). The district court
enhanced his sentence, pursuant to U.S.S.G. § 4B1.1(b)(C), based on his status as a
career offender. On appeal, Nunes argues that the district court erred in sentencing
him under the then-mandatory Sentencing Guidelines. See United States v.
Booker, 543 U.S. ___, 125 S. Ct. 738 (2005). After review, we vacate Nunes’s
sentence and remand for resentencing.
I. BACKGROUND
A. Plea Colloquy
In a written plea agreement, Nunes pled guilty to three counts of assaulting a
federal officer. During his plea colloquy, Nunes stated that the three officers
grabbed him, that he injured the officers during an ensuing melee, but that he was
justified in doing so. Nonetheless, Nunes pled guilty “because I want to get this
over with. I need to move on with my life. . . . I made a mistake, because it takes
two to tango, because I was involved. I want to accept what I have to accept and
get on down the road.” After finding a sufficient factual basis to support Nunes’s
plea and that his plea was freely and voluntarily given, the district court accepted it
and adjudicated Nunes guilty.
B. PSI and Sentencing
The Presentence Investigation Report (“PSI”), set Nunes’s offense level at
2
32 based on a determination that Nunes qualified as a career offender under
U.S.S.G. § 4B1.1(a). The PSI reduced Nunes’s base offense level by three levels
for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1. As a career
offender under U.S.S.G. § 4B1.1(b)(C), Nunes’s criminal history category was
automatically VI. Even absent his career offender status, however, Nunes’s
criminal history category would have been VI based on his 14 criminal history
points. With a criminal history category of VI and an offense level of 29, Nunes’s
Guidelines range was 151-188 months imprisonment.
Nunes objected to the PSI and again at sentencing, arguing that Blakely v.
Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), rendered the Guidelines
unconstitutional, and that they thus could not be applied to him. The district court
overruled Nunes’s objections and sentenced him to 165 months’ imprisonment, the
middle of the Guidelines range.
II. DISCUSSION
A. Career Offender Status
For the first time on appeal, Nunes argues that his October 27, 1998
conviction for unlawful restraint was not a “crime of violence” as defined in
U.S.S.G. § 4B1.2(a), and thus, that he does not qualify as a career offender.
Because Nunes did not raise the issue of his career-offender status in the district
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court, we review the argument for plain error. United States v. Burge, 407 F.3d
1183, 1186 (11th Cir. 2005).
A defendant qualifies as a “career offender” under the Guidelines 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) (emphasis added).
The Guidelines define “crime of violence” as: “any offense under federal or
state law, punishable by imprisonment for a 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) . . . otherwise involves conduct that presents a serious
potential risk of physical injury to another.” U.S.S.G. § 4B1.2(a).1
1
The first application note to U.S.S.G. § 4B1.2 more specifically defines “crime of violence”
as follows:
“Crime of violence” includes murder, manslaughter, kidnapping, aggravated assault,
forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and
burglary of a dwelling. Other offenses are included as “crimes of violence” if (A)
that offense has as an element the use, attempted use, or threatened use of physical
force against the person of another, or (B) the conduct set forth (i.e., expressly
charged) in the count of which the defendant was convicted . . . presented a serious
potential risk of physical injury to another.
U.S.S.G. § 4B1.2, cmt. n. 1.
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Thus, “under U.S.S.G. § 4B1.2, there are two approaches for classifying an
offense as a crime of violence. The first approach is to determine whether the use,
attempted use or threatened use of physical force against another is an element of”
the crime. United States v. Searcy, – F.3d – , 2005 WL 1767649, at *3 (11th Cir.
July 28, 2005). “Alternatively, under the second approach, we must determine
whether [the crime] involves conduct that, by its nature, presents a serious potential
risk of physical injury to another.” Id.
In this case, the attempted use or threatened use of physical force is not an
element of Nunes’s prior crime of unlawful restraint. In Illinois, the defendant
commits the offense of unlawful restraint when he “knowingly without legal
authority detains another.” 720 ILCS 5/10-3. The Illinois courts have stated that
“[a]ctual or physical force is not a necessary element of unlawful restraint as long
as an individual’s freedom of locomotion is impaired.” People v. Bowen, 609
N.E.2d 346, 361 (Ill. App. Ct. 1993).
However, under the second approach, the crime of unlawful restraint is one
that “by its nature, presents a serious potential risk of physical injury to another.”
Searcy, 2005 WL 1767649, at *3. As the Seventh Circuit recently stated in
analyzing whether unlawful restraint was a “crime of violence” for purposes of
U.S.S.G. § 4B1.1, “[a] risk of violent confrontation is inherent in a crime . . . that
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involves restraining another person against her will.” United States v. Swanson, 55
Fed.Appx. 761, 762 (7th Cir. 2002). Further, other circuits have concluded that the
similar crimes of false imprisonment and kidnapping by deception that do not have
physical force as an element nonetheless present a serious risk of physical injury,
and thus are “crimes of violence.” See United States v. Zamora, 222 F.3d 756,,
764-65 (10th Cir. 2000); United States v. Williams, 110 F.3d 50, 52-53 (9th Cir.
1997); United States v. Kaplansky, 42 F.3d 320, 324 (6th Cir. 1994) (en banc).
Thus, the district court did not err, and certainly did not plainly err, in
determining that Nunes’s conviction for unlawful restraint constituted a “crime of
violence” for purposes of U.S.S.G. § 4B1.1.
B. Booker
Nunes also points out that the district court applied the pre-Booker
mandatory Guidelines scheme, and argues that his case should be remanded for
resentencing. Because Nunes timely raised a Blakely objection in the district
court, we review his Blakely, now Booker, claim de novo. United States v. Paz,
405 F.3d 946, 948 (11th Cir. 2005) (citation omitted).
In Booker, the Supreme Court held that Blakely applied to the Sentencing
Guidelines. United States v. Rodriguez, 398 F.3d 1291, 1297-98 (11th Cir. 2005).
“Under Booker, there are two kinds of sentencing errors: one is constitutional and
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the other is statutory.” United States v. Dacus, 408 F.3d 686, 688 (11th Cir. 2005).
“[T]he Sixth Amendment right to trial by jury is violated where under a mandatory
guidelines system a sentence is increased because of an enhancement based on
facts found by the judge that were neither admitted by the defendant nor found by
the jury.” Rodriguez, 398 F.3d at 1298 (emphasis omitted). The statutory error
occurs when the district court sentences a defendant “under a mandatory
Guidelines scheme, even in the absence of a Sixth Amendment enhancement
violation.” United States v. Shelton, 400 F.3d 1325, 1330-31 (11th Cir. 2005).
In this case, we conclude that the district court did not violate Nunes’s Sixth
Amendment rights. First, the district court’s determination that Nunes’s unlawful
restraint crime was sufficient to support the § 4B1.1 career offender enhancement
was a question of law. Searcy, 2005 WL 1767649, at *2. Second, this Court
repeatedly has concluded that an enhancement based on prior convictions does not
constitute a Sixth Amendment violation under Booker. See, e.g., United States v.
Orduno-Mireles, 405 F.3d 960, 962 (11th Cir. 2005).
Although there is no Sixth Amendment violation in this case, the district
court committed statutory Booker error in sentencing Nunes under a mandatory
Guidelines regime. Thus, we must determine whether the statutory error in
Nunes’s sentencing is harmless. See Paz, 405 F.3d at 948.
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“A non-constitutional error is harmless if, viewing the proceedings in their
entirety, a court determines that the error did not affect the sentence, or had but
very slight effect. If one can say with fair assurance that the sentence was not
substantially swayed by the error, the sentence is due to be affirmed even though
there was error.” United States v. Mathenia, 409 F.3d 1289, 1292 (11th Cir. 2005)
(internal quotation marks and punctuation omitted). The burden is on the
government to show that the error was harmless and the standard “is not easy for
the government to meet.” Id.
We conclude that the government has failed to meet its burden as to Nunes’s
sentence. There is no evidence in the record indicating what effect, if any,
changing from a mandatory to an advisory approach would have had on the district
court’s sentencing decision. Accordingly, “[w]e simply do not know what the
sentencing court would have done had it understood the guidelines to be advisory
rather than mandatory, and had properly considered the factors in 18 U.S.C. §
3553(a).” United States v. Davis, 407 F.3d 1269, 1271 (11th Cir. 2005).
Accordingly, we vacate Nunes’s sentence and remand his case to the district
court for resentencing. We note that the district court correctly calculated Nunes’s
Guidelines range. See United States v. Crawford, 407 F.3d 1174, 1178 (11th Cir.
2005) (stating that after Booker, district courts must consult the Guidelines and
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“[t]his consultation requirement, at a minimum, obliges the district court to
calculate correctly the sentencing range prescribed by the Guidelines”). Thus, on
remand, the district court is required to sentence Nunes under an advisory
Guidelines regime, and shall consider the Guidelines range of 151-188 months’
imprisonment and “other statutory concerns as well, see [18 U.S.C.] § 3553(a)
(Supp. 2004).” Booker, 125 S. Ct. at 757.2
VACATED AND REMANDED.
2
We do not mean to suggest by our holding that the district court must impose any particular
sentence on remand. Rather, we merely hold that the government did not meet its burden of
showing that the Booker statutory error was harmless. We also do not attempt to decide now
whether a particular sentence might be reasonable in this case.
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