United States v. Lerondrick Elliott , 757 F.3d 492 ( 2014 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0387n.06
No. 13-5427
FILED
UNITED STATES COURTS OF APPEALS May 23, 2014
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff - Appellee, )
)
ON APPEAL FROM THE
v. )
UNITED STATES DISTRICT
)
COURT FOR THE WESTERN
LERONDRICK ELLIOTT, )
DISTRICT OF KENTUCKY
)
Defendant - Appellant. )
BEFORE: MOORE, WHITE, and DONALD, Circuit Judges.
HELENE N. WHITE, Circuit Judge. Lerondrick Elliott appeals his 180-month
sentence for felon in possession of a firearm, arguing that the district court erred in treating his
Kentucky conviction of facilitation to robbery, first degree, Ky. Rev. Stat. Ann. § 506.080, as a
“violent felony” under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). We
AFFIRM.
I.
On December 8, 2010, Louisville Police stopped a vehicle in which Elliott was a
passenger for a traffic violation. Elliott fled on foot and discarded a semi-automatic pistol and
$4,000 in counterfeit currency. He pleaded guilty of being a felon in possession of a firearm, 18
U.S.C. § 922(a), and counterfeiting, 18 U.S.C. § 472, pursuant to a plea agreement that reserved
his right to challenge his status as an armed career criminal under 18 U.S.C. § 924(e).
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The ACCA increases the sentences of certain federal defendants who have three prior
convictions for a “serious drug offense” or a “violent felony.” Id. Elliott’s criminal record
contained several prior convictions. In August 1998, he pleaded guilty of first-degree cocaine
trafficking; and in March 1999, he pleaded guilty of facilitation to robbery, first degree, Ky. Rev.
Stat. Ann. §§ 506.080 and 515.020, and first-degree trafficking in cocaine. Based on those three
prior felony convictions, the probation office concluded in its presentence report that Elliott
should be sentenced in accordance with the ACCA. Elliott objected, arguing his conviction of
facilitation to robbery, Ky. Rev. Stat. Ann. § 506.080, should not be characterized as a violent
felony under the ACCA. The district court disagreed and sentenced Elliott to the minimum
sentence permitted by the ACCA, 180 months in prison.
II.
Section 924(e) provides in pertinent part:
In the case of a person who violates section 922(g) of this title and has three
previous convictions by any court referred to in section 922(g)(1) of this title for a
violent felony or a serious drug offense, or both, committed on occasions different
from one another, such person shall be fined under this title and imprisoned not
less than fifteen years, and, notwithstanding any other provision of law, the court
shall not suspend the sentence of, or grant a probationary sentence to, such person
with respect to the conviction under section 922(g).
Under the ACCA, the term “violent felony” is defined as:
Any crime punishable by imprisonment for a term exceeding one year, . . . that (i)
has as an element the use, attempted use, or threatened use of physical force
against the person of another; or (ii) is burglary, arson, or extortion, involves use
of explosives, or otherwise involves conduct that presents a serious potential risk
of physical injury to another[.]
18 U.S.C. § 924(e)(2)(B).
Courts generally refer to § 924(e)(2)(B)(i) as the “force” prong, to the portion of
§ 924(e)(2)(B)(ii) listing specific offenses as the “enumerated felonies” prong, and to the portion
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of § 924(e)(2)(B)(ii) covering conduct involving a serious potential risk of physical injury as the
“residual clause.” United States v. Johnson, 707 F.3d 655, 659 (6th Cir. 2013).
Whether a prior conviction should be considered a violent felony within the meaning of
the ACCA is determined by considering the offense generically, that is, “in terms of how the law
defines the offense and not in terms of how an individual offender might have committed it on a
particular occasion.” Begay v. United States, 553 U.S. 137, 141–42 (2008) (citing Taylor v.
United States, 495 U.S. 575, 602 (1990)); see also United States v. Mosley, 575 F.3d 603, 606–
07 (6th Cir. 2009). This “categorical approach” requires that we examine the elements of the
crime of which the defendant was previously convicted. In the context of the enumerated
felonies prong of the ACCA, we compare those elements to the elements of the enumerated
‘generic’ crime—i.e., the offense as commonly understood. Descamps v. United States 133
S. Ct. 2276, 2281 (2013). The prior conviction qualifies as an enumerated felony only if the
crime’s statutory elements are the same as, or narrower than, those of the generic offense. Id.
Descamps clarifies prior case law and explains that a court may employ the modified
categorical approach (which involves looking to additional documents beyond the elements of a
crime) only when a criminal statute is “divisible,” i.e., if it provides for alternative elements,
some of which satisfy the elements of the generic offense and some of which do not. A burglary
statute that specifically criminalizes both breaking and entering a car and breaking and entering a
residence would be such a statute. A sentencing court is permitted to look to the indictment,
judgment of conviction or verdict to determine whether the defendant was convicted of the crime
of breaking and entering a house or the crime of breaking and entering a car. However, where a
criminal statute is simply broader than the generic crime, criminalizing a broader range of
conduct than the relevant generic offense, a sentencing court may not look to the facts of the
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offense to determine whether the actual crime committed fits within the ACCA. Descamps, 133
S. Ct. at 2281. In other words, for the purpose of the federal sentence enhancement, it does not
matter what the defendant did; all that matters is the crime of which he was convicted.
III.
This court “review[s] de novo a district court's determination that a defendant should be
sentenced as an armed career criminal.” United States v. Vanhook, 640 F.3d 706, 709 (6th Cir.
2011). Findings of fact underlying a district court’s sentencing calculations are reviewed for
clear error and the district court’s conclusions of law are reviewed de novo. United States v.
Galloway, 439 F.3d 320, 322 (6th Cir. 2006).
A.
Kentucky’s facilitation statute provides:
A person is guilty of criminal facilitation when, acting with knowledge that
another person is committing or intends to commit a crime, he engages in conduct
which knowingly provides such person with means or opportunity for the
commission of the crime and which in fact aids such person to commit the crime.
Ky. Rev. Stat. Ann. § 506.080. Here, the crime Elliot was convicted of facilitating was robbery,
first degree, which is defined as:
A person is guilty of robbery in the first degree when, in the course of committing
theft, he uses or threatens the immediate use of physical force upon another
person with intent to accomplish the theft and when he: (a) Causes physical injury
to any person who is not a participant in the crime; or (b) Is armed with a deadly
weapon; or (c) Uses or threatens the immediate use of a dangerous instrument
upon any person who is not a participant in the crime.
Ky. Rev. Stat. Ann. § 515.020.
Elliott acknowledges that robbery, first degree, is a violent felony under the ACCA. He
argues, however, that by reaching down into the armed robbery charge to attach the “force”
necessary for a violent offense, the sentencing court violated Descamps. More specifically, he
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contends that 1) the Kentucky offense of facilitation to commit a crime does not have as one if its
elements the requisite “use, attempted use, or threatened use of physical force against another,”
which would render it a crime of violence under U.S.S.G § 4B1.2(a), and 2) Descamps prohibits
looking at the actual facts of the offense to find the use of force.
Elliott is correct that independent of the underlying crime that is being facilitated,
Kentucky’s facilitation statute is broad and does not meet the force prong’s narrow definition of
“use, attempted use or threatened use of physical force against another.” He is also correct that
to the extent the district court examined the facts underlying the facilitation to commit robbery
conviction and focused on Elliott’s providing a handgun to the robber, it ran afoul of Descamps.
However, Elliott was not convicted of facilitation in the abstract; he was convicted of facilitation
to commit robbery, first degree. We turn then to the elements of that offense.1
In Kentucky, the elements of facilitation to commit robbery, first degree, are 1) the
defendant knew that another person was committing or intended to commit robbery, first degree,
2) the defendant engaged in conduct that he knew would provide the person with means or
opportunity to commit the crime, and 3) the defendant’s conduct in fact aided the person to
commit the offense.2
1
In United States v. Chandler, 419 F3d 484, 487 (6th Cir. 2005), this court considered a Tennessee conviction of
facilitation of aggravated assault and determined that:
a defendant is never convicted of a generic “facilitation of a felony” charge. Rather, a defendant
convicted for facilitation is always found to have facilitated a specific felony. See State v. Parker,
932 S.W.2d 945, 950–51 (Tenn. Crim. App. 1996) (noting that before an accused can be convicted
of facilitation of a felony, “the state must prove the commission of a specified felony and the
assistance the accused gave to the person committing the specified felony.”); see also United
States v. Sawyers, 409 F.3d 732, 738 (6th Cir. 2005) (“noting that, in determining whether
facilitation of a felony under Tennessee law constitutes a crime of violence, a court must look to
the crime actually facilitated.”).
Chandler at 487 (emphasis in original).
2
In Kentucky, criminal facilitation is a lesser-included offense of criminal complicity. To be guilty of criminal
complicity, and therefore guilty of the substantive offense by complicity, the defendant must not only have
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B.
Focusing on the elements of facilitation to commit robbery, first degree, our analysis is
guided by United States v. Gloss, 661 F.3d 317 (6th Cir. 2011), in which this court determined
that a prior conviction of facilitation to commit robbery under Tennessee law, Tenn. Code Ann.
§§ 39-11-403 and 39-13-401, qualified as a crime of violence under the force prong of the
ACCA, § 924(e)(2)(B)(i). The court confined its analysis to the question whether the offense has
as an element the use, attempted use, or threatened use of physical force against the person of
another and distinguished cases discussing the ACCA’s residual clause. Because conviction of
facilitation in Tennessee requires proof that the underlying crime was actually committed, and
the underlying crime of robbery includes the element of the use or threatened use of force, the
court concluded that facilitation to commit robbery in Tennessee has as an element the use or
threatened use of force. The same is true of the Kentucky statute.
Elliott argues that Descamps was decided after Chandler and Gloss, and prohibits our
looking beyond the elements of the facilitation statute to the facts of the facilitated offense. But
looking at the elements of the underlying offense is different from looking at the facts of the
underlying offense. Descamps mandates the former inquiry and prohibits the latter. Focusing on
the elements rather than the facts reveals that no matter the facts, a defendant cannot be
convicted of facilitation of robbery, first degree, in Kentucky unless his conduct actually aided
the commission of the robbery, which means that the completed offense must be proved. The
completed offense of robbery, first degree, involves a theft committed through the use or
threatened immediate use of physical force upon another person with intent to accomplish the
theft, where the defendant also (a) causes physical injury to any person who is not a participant
indifferent knowledge that the person aided intends to commit the offense, but also must intend to aid the
commission of the crime. Chumbler v. Kentucky, 905 S.W.2d 488, 499 (Ky. 1995).
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in the crime; or (b) is armed with a deadly weapon; or (c) uses or threatens the immediate use of
a dangerous instrument upon any person who is not a participant in the crime. Thus, whether by
verdict or plea, conviction of the Kentucky offense of facilitation of robbery, first degree,
establishes the element of force or the threatened use of force.
Elliott’s argument is based on the distinction between facilitation—which involves mere
knowledge of the perpetrator’s intent and a lack of intent that the perpetrator commit the
underlying offense—and criminal complicity—which requires the same intent necessary to
commit the underlying offense—also misses the mark. The distinction in mental states is
relevant to the ACCA analysis under the residual clause, where the inquiry is whether the prior
offense involves conduct that “presents a serious potential risk of physical injury to another,” and
is “purposeful, violent, and aggressive.” Begay, 553 U.S. at 144–45. However, the force clause
of the ACCA requires only that force or the threatened use of force be an element of the offense.
Here, force or the threatened use of force is an element of facilitation to commit robbery, first
degree, and thus, as in Gloss, we need not reach the question whether the offense would be a
violent felony under the residual clause. See United States v. Nance, 481 F.3d 882, 888 (6th Cir.
2007).
IV.
Elliott also argues, for the first time, that it was unconstitutional for the district court to
find that his prior crimes meet the requirements of the ACCA. Relying on Apprendi-Alleyne, he
asserts that because additional facts beyond the conviction are necessary for the finding, which
raises the penalty for the felon in possession of a firearm offense, the Sixth Amendment requires
that the facts be found by a jury beyond a reasonable doubt.
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Elliott waived this argument by failing to raise it below. Further, we held in United
States v. Barnett, 398 F.3d 516, 524–25 (6th Cir. 2005), that Apprendi v. New Jersey, 530 U.S.
466 (2000), “does not require the nature or character of prior convictions to be determined by a
jury.” In addition, Alleyne v. United States, 133 S. Ct. 2151 (2013), provides no help to Elliott
because Alleyne did not revisit the prior conviction exception. Id. at 2160 n.1.
V.
For the foregoing reasons, we AFFIRM.
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