United States v. Kenta Cook ( 2017 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-11577
Non-Argument Calendar
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D.C. Docket No. 3:15-cr-00005-DHB-BKE-1
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
KENTA COOK,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Georgia
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(April 20, 2017)
Before MARCUS, JORDAN and ROSENBAUM, Circuit Judges.
PER CURIAM:
The government appeals Kenta Cook’s 120-month sentence, imposed after
he pled guilty to being a felon in possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(1). On appeal, the government argues that the district court erred by
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failing to impose a minimum sentence of 15 years under 18 U.S.C. § 924(e), the
Armed Career Criminal Act (“ACCA”), because Cook’s prior Georgia conviction
of felony obstruction qualifies as violent felony for purposes of the ACCA. After
careful review, we vacate and remand.
We review de novo whether a prior conviction qualifies as a violent felony
under the ACCA. United States v. Hill, 799 F.3d 1318, 1321 (11th Cir. 2015). A
district court is not authorized to impose a sentence below an applicable minimum
statutory penalty unless the government filed a substantial assistance motion or the
defendant falls within the safety-valve provision of 18 U.S.C. § 3553(f). United
States v. Castaing-Sosa, 530 F.3d 1358, 1360 (11th Cir. 2008).
Under the ACCA, “[i]n the case of a person who violates section 922(g) of
this title and has three previous convictions . . . for a violent felony or a serious
drug offense, or both, committed on occasions different from one another, such
person shall be . . . imprisoned not less than fifteen years.” 18 U.S.C. § 924(e)(1).
A “violent felony” includes a felony that “has as an element the use, attempted use,
or threatened use of physical force against the person of another.” Id. §
924(e)(2)(B)(i); see also United States v. Braun, 801 F.3d 1301, 1307 (11th Cir.
2015) (noting that this definition of “violent felony” is called the “elements
clause”). Physical force is violent force, meaning “force capable of causing
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physical pain or injury to another person.” Johnson v. United States, 559 U.S. 133,
140 (2010).
To determine whether a prior conviction was for a violent felony, a court
typically uses a categorical approach and compares the elements of the statute of
conviction with the elements of the generic crime, meaning the offense as it is
commonly understood. Descamps v. United States, 133 S. Ct. 2276, 2281 (2013).
The court examines only the statutory elements of the prior offense and does not
consider the particular facts underlying the defendant’s conviction. Id. at 2283.
An offense categorically qualifies as a violent felony under the ACCA if an
element of the offense is the use, attempted use, or threatened use of physical force
against the person of another. United States v. Wilkerson, 286 F.3d 1324, 1325
(11th Cir. 2002). A court uses a modified categorical approach only if the prior
conviction was for violating a divisible statute that sets out one or more elements
of the offense in the alternative, and one alternative matches an element of the
generic offense but another does not. Descamps, 133 S. Ct. at 2281. “[T]he
modified categorical approach permits sentencing courts to consult a limited class
of documents, such as indictments and jury instructions, to determine which
alternative formed the basis of the defendant’s prior conviction.” Id.
Under Georgia’s obstruction statute,
[w]hoever knowingly and willfully resists, obstructs, or opposes any law
enforcement officer . . . in the lawful discharge of his or her official duties
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by offering or doing violence to the person of such officer . . . is guilty of a
felony and shall, upon conviction thereof, be punished by imprisonment for
not less than one nor more than five years.
O.C.G.A. § 16-10-24(b). We have held that “the Georgia crime of felony
obstruction of justice categorically meets the ‘use, attempted use, or threatened use
of physical force’ requirement of the elements clause of the ACCA.” United States
v. Brown, 805 F.3d 1325, 1327-28 (11th Cir. 2015) (concluding that the element of
offering or doing violence in O.C.G.A. § 16-10-24(b) “is enough to satisfy the
elements clause of the ACCA”).
Consistent with our holding in Brown, Cook’s Georgia conviction of felony
obstruction categorically qualifies as a conviction of a violent felony under the
ACCA, and the district court erred in holding otherwise. See id. at 1327. We are
bound by this prior precedent because it has not been overruled by this Court en
banc or the Supreme Court. United States v. Vega–Castillo, 540 F.3d 1235, 1236
(11th Cir. 2008) (quotations omitted) (“Under the prior precedent rule, we are
bound to follow a prior binding precedent unless and until it is overruled by this
court en banc or by the Supreme Court.”). The district court also erred by using
the modified categorical approach and by considering the circumstances
surrounding Cook’s conviction when deciding if it was a conviction of a violent
felony. See Descamps, 133 S. Ct. at 2281-82 (holding that a court may not apply
the modified categorical approach if a crime of conviction categorically qualifies
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as an ACCA predicate offense). While Cook argues that application of the
categorical approach raises Sixth Amendment concerns, the Supreme Court has
said that the categorical approach avoids Sixth Amendment concerns by “merely
identifying a prior conviction.” Id. at 2288; see also Apprendi v. New Jersey, 530
U.S. 466, 490 (2000) (stating that, “[o]ther than the fact of a prior conviction, any
fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable doubt”).
As for Cook’s reliance on the Supreme Court’s recent decision in Johnson v.
United States, 135 S. Ct. 2551 (2015), it is misplaced. In Johnson, the Court held
that the ACCA’s residual clause -- which defines “violent felony” to include a
felony that “involves conduct that presents a serious potential risk of physical
injury to another” -- is unconstitutionally vague. Id. at 2555-57 (emphasis omitted)
(quotation omitted). The Supreme Court contrasted the ACCA’s elements clause
with the residual clause, stating that, “unlike the part of the definition of a violent
felony that asks whether the crime has as an element the use . . . of physical force,
the residual clause asks whether the crime involves conduct that presents too much
risk of physical injury.” Id. at 2557 (quotations and emphases omitted). The Court
determined that the residual clause is unconstitutional in part because it “leaves
grave uncertainty about how to estimate the risk posed by a crime” by tying “the
judicial assessment of risk to a judicially imagined ‘ordinary case’ of a crime, not
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to real-world facts or statutory elements.” Id. Johnson does not impact Cook’s
classification as an armed career criminal, however, because his obstruction
conviction qualifies as a conviction of a violent felony under the ACCA’s elements
clause. See Brown, 805 F.3d at 1327-28; see also Hill, 799 F.3d at 1322 (noting
that “the Supreme Court expressly limited its holding [in Johnson] to the ACCA’s
residual clause” and left the definition of “violent felony” under the elements
clause undisturbed).
In short, Cook’s Georgia conviction of felony obstruction categorically
qualifies as a conviction of a violent felony under the ACCA. Cook does not
dispute that he also has two other convictions that are predicate convictions for the
purpose of applying the ACCA. Thus, Cook is an armed career criminal under 18
U.S.C. § 924(e)(1) and is subject to the minimum 15-year penalty. Moreover,
because the government did not file a substantial assistance motion and the
statutory safety-valve provision is not at issue, the district court was not authorized
to impose a sentence below the minimum statutory penalty. See Castaing-Sosa,
530 F.3d at 1360. Accordingly, we vacate Cook’s sentence and remand for
resentencing consistent with this opinion.
VACATED AND REMANDED.
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