United States v. Larry Levern Jones , 743 F.3d 826 ( 2014 )

Case: 11-11273 Date Filed: 02/25/2014 Page: 1 of 9
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-11273
________________________
D.C. Docket No. 1:10-cr-00174-WS-M-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LARRY LEVERN JONES,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
________________________
(February 25, 2014)
Before CARNES, Chief Judge, DUBINA, Circuit Judge, and ROSENTHAL, *
District Judge.
CARNES, Chief Judge:
*
Honorable Lee H. Rosenthal, United States District Judge for the Southern District of
Texas, sitting by designation.
Case: 11-11273 Date Filed: 02/25/2014 Page: 2 of 9
Larry Jones appeals his 180-month sentence for being a felon in possession
of a firearm and ammunition. See 18 U.S.C. § 922(g)(1). His sentence exceeded
the normal 10-year maximum sentence under the statute, see id. § 924(a)(2),
because the district court imposed an enhancement under the Armed Career
Criminal Act (ACCA), id. § 924(e)(1). Jones’ sole challenge to his sentence
contests the application of the ACCA enhancement, specifically, the decision to
count his prior convictions for third-degree burglary in Alabama as “violent
felonies” for ACCA purposes.
At the time Jones was sentenced in March 2011, the law in this circuit was
that convictions under Alabama’s third-degree burglary statute, Ala. Code § 13A-
7-7, could qualify as violent felonies for purposes of the ACCA. See United States
v. Rainer, 616 F.3d 1212, 1215–16 (11th Cir. 2010). The district court faithfully
followed that precedent and concluded that Jones was eligible for an ACCA
enhancement based on his prior Alabama third-degree burglary convictions.
In between Jones’ sentence and our decision here, however, the Supreme
Court decided Descamps v. United States, — U.S. —, 133 S.Ct. 2276 (2013). It
held that a prior conviction cannot serve as an ACCA predicate if the statute that
earlier conviction is based on “contain[s] a single, ‘indivisible’ set of elements
sweeping more broadly than the corresponding generic offense.” Id. at 2283. We
2
Case: 11-11273 Date Filed: 02/25/2014 Page: 3 of 9
recently determined, in light of Descamps, that our decision in Rainer was no
longer good law because Alabama’s third-degree burglary statute is a non-generic,
indivisible statute. See United States v. Howard, — F.3d —, No. 12-15756, 2014
WL 630657, at *6 (11th Cir. Feb. 19, 2014). As a matter of law, we held, “a
conviction under Alabama Code § 13A-7-7 cannot qualify as generic burglary
under the ACCA.” Id. at *9 (citing Descamps, 133 S.Ct. at 2292).
We could resolve Jones’ challenge to the use of his Alabama third-degree
burglary convictions in a couple of sentences with a cite to Howard but for one
thing. Unlike Howard, Jones did not preserve the issue by objecting to the ACCA
enhancement on this ground in the district court. That failure shifts this appeal into
the plain error review column. The question is whether treating the use of
Alabama convictions for third degree burglary as violent felonies for ACCA
purposes is plain error either generally or particularly in this case. The answer is
“yes,” and “yes.” 1
I.
1
The government argues that the doctrine of invited error precludes us from reviewing
Jones’ challenge at all. See United States v. Ross, 131 F.3d 970, 988 (11th Cir. 1997) (“It is a
cardinal rule of appellate review that a party may not challenge as error a ruling or other trial
proceeding invited by that party.”) (quotation marks omitted). That doctrine does not apply,
because the error here was not “attributable to the action of the defense.” United States v. Doran,
564 F.2d 1176, 1177 (5th Cir. 1977); see also United States v. Stone, 139 F.3d 822, 838 (11th
Cir. 1998) (holding that the doctrine applies only “when a party induces or invites the district
court into making an error”). Jones failed to object to the error, but he did not ask for it.
3
Case: 11-11273 Date Filed: 02/25/2014 Page: 4 of 9
In March 2010 Mobile police officers responded to a call that someone had
started a fire near the corner of St. Madar Street and Davidson Street. When they
arrived at the scene, officers found Jones next to a small fire. They patted him
down and found a loaded .380 caliber pistol tucked in his waistband. Jones
admitted that he was a convicted felon and had no permit for the pistol. The
officers arrested Jones for carrying a pistol without a license.
A federal grand jury indicted Jones in July 2010, charging him with one
count of being a felon in possession of a firearm and ammunition. See 18 U.S.C.
§ 922(g)(1). In late October 2010 Jones pleaded guilty under a written plea
agreement.2
Jones’ presentence investigation report (PSR) concluded that his three prior
Alabama convictions for third-degree burglary qualified him for an armed career
criminal enhancement under the ACCA. See Ala. Code § 13A-7-7. 3 The ACCA
enhancement carries a 15-year mandatory minimum sentence and an automatic
2
The agreement included a general appeal waiver but reserved Jones’ right to appeal
“any sentence in excess of the statutory maximum.” This Court has already denied the
government’s motion to dismiss this appeal based on that appeal waiver. We did so because
without the ACCA enhancement, the maximum sentence Jones could have received under the
statute is ten years. See 18 U.S.C. § 924(a)(2). The enhancement gave Jones a sentence of 15
years, which is “in excess of the statutory maximum.” As a result, the reserve clause in the
appeal waiver applies and the waiver does not.
3
In addition to his three convictions for third-degree burglary, the PSR also listed as an
ACCA predicate offense Jones’ prior conviction for second-degree receipt of stolen property.
See Ala. Code § 13A-8-18. The classification of that prior conviction does not matter here, so
we need not decide whether a conviction under Alabama Code § 13A-8-18 can qualify as an
ACCA predicate.
4
Case: 11-11273 Date Filed: 02/25/2014 Page: 5 of 9
offense level of 33. See 18 U.S.C. § 924(e)(1); U.S.S.G. § 4B1.4(b)(3)(B). After
the PSR applied a 3-level reduction under United States Sentencing Guidelines
§ 3E1.1 for acceptance of responsibility, Jones’ total offense level was 30. That
offense level, combined with his criminal history category of VI, gave Jones a
guidelines range of 168 to 210 months in prison. 4 Because of the ACCA
enhancement, Jones’ ultimate guidelines range was 180 to 210 months in prison,
see U.S.S.G. § 5G1.1(b), with a mandatory minimum of 180 months.
Jones’ attorney never objected to the PSR’s conclusion that Jones qualified
for the ACCA enhancement. While she did file a general objection claiming that
the PSR “improperly categorizes the criminal history of the Defendant,” she filed it
months before the PSR was drafted. She did not object to the PSR’s actual
conclusion that Jones’ prior convictions qualified as ACCA predicates.
The district court adopted the PSR’s findings and its conclusion that Jones’
four prior convictions triggered the ACCA enhancement. The court sentenced
Jones to 180 months in prison, which was the lowest sentence possible given the
mandatory minimum. The court expressed regret that its hands were statutorily
tied, telling Jones, “I’m sorry. . . . It does not seem to me that that’s a range or a
punishment that should be imposed in your case, but I have no other alternative but
to impose it.”
4
Had the PSR not applied the ACCA enhancement, Jones’ total offense level would have
been 15, which would have resulted in a guidelines range of 41 to 51 months imprisonment.
5
Case: 11-11273 Date Filed: 02/25/2014 Page: 6 of 9
II.
Our review under the plain error rule is “limited and circumscribed.” United
States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005) (quotation marks
omitted). We impose four criteria that are “difficult to meet.” Id. (quotation marks
omitted). Before we even have discretion to correct the error, the defendant must
show that there is: “(1) error, (2) that is plain, and (3) that affects substantial
rights.” Id. (quotation marks omitted). Only then may we exercise our “discretion
to notice a forfeited error,” but we may do so “only if (4) the error seriously affects
the fairness, integrity, or public reputation of judicial proceedings.” Id. (quotation
marks omitted). Jones has met all four requirements.
Jones has shown that there was error and it was plain. To receive an ACCA
enhancement, a defendant must have three prior convictions that qualify as violent
felonies under the ACCA. See 18 U.S.C. § 924(e)(1). And as explained above, we
recently held that, based on the Supreme Court’s Descamps decision, “a conviction
under Alabama Code § 13A-7-7 cannot qualify as generic burglary under the
ACCA.” Howard, 2014 WL 630657 at *9 (citing Descamps, 133 S.Ct. at 2292).
That means Jones did not have the three qualifying convictions necessary for the
ACCA enhancement. As for the plainness of that error, an intervening decision by
6
Case: 11-11273 Date Filed: 02/25/2014 Page: 7 of 9
“this Court or the Supreme Court squarely on point may make an error plain.”
United States v. Pielago, 135 F.3d 703, 711 (11th Cir. 1998) (collecting cases).
Howard is an intervening decision and about as “squarely on point” as an
intervening decision can be. So the error was plain.
Jones has also shown that the error affected his substantial rights. Under the
third prong of the plain error rule, Jones has the difficult burden of showing there
is a “reasonable probability” that he would have received a lighter sentence but for
the error. See Rodriguez, 398 F.3d at 1299 (explaining that establishing such a
probability “is anything but easy”). That burden requires him “to show that the
error actually did make a difference: if it is equally plausible that the error worked
in favor of the defense, the defendant loses; if the effect of the error is uncertain so
that we do not know which, if either, side it helped the defendant loses.” See id.
1300. Mere speculation about the effect of the ACCA enhancement is not enough.
See id. at 1299–1300. Jones must point to something in the record showing that
the most likely result on remand is for the sentencing judge to give him a shorter
sentence than he originally received. See id. at 1301.
Jones has carried that burden. It is enough that the district court will be
statutorily compelled to give Jones a shorter sentence on remand. Without the
ACCA enhancement, the maximum sentence the court can impose on remand is
ten years in prison, which is shorter than the fifteen years he originally received.
7
Case: 11-11273 Date Filed: 02/25/2014 Page: 8 of 9
See 18 U.S.C. § 924(a)(2). A shorter sentence will generally result from correction
of an ACCA application error, but even without the maximum/minimum dynamic
that generally comes into play, the difference in result would be true in this
particular case. At the sentence hearing, the district court expressed its desire to
give Jones a shorter sentence than the ACCA’s mandatory minimum allowed,
apologizing to him about the ACCA enhancement and the mandatory sentence:
“I’m sorry. . . . It does not seem to me that [180 to 210 months in prison is] a
range or a punishment that should be imposed in your case, but I have no other
alternative but to impose it.” See United States v. Bennett, 472 F.3d 825, 834
(11th Cir. 2006) (holding that the prejudice requirement of the plain error test was
met where the defendant had been sentenced under an erroneously high guidelines
range, and the “the district judge expressly indicated a desire to impose a sentence
near the low end of the sentencing Guidelines range”). The error did affect Jones’
substantial rights.
Finally, we conclude that this error “seriously affected the fairness, integrity,
or public reputation of the judicial proceedings in this case.” Id. Jones was given
a mandatory minimum sentence that exceeds the statutory maximum that should
have been applied. We will exercise our discretion and correct the error.
III.
8
Case: 11-11273 Date Filed: 02/25/2014 Page: 9 of 9
For those reasons, we vacate Jones’ sentence and remand for resentencing
without the ACCA enhancement. Jones has requested that we limit the scope of
resentencing on remand so that the government cannot seek an enhancement under
the ACCA’s residual clause. See 18 U.S.C. § 924(e)(2)(B)(ii) (providing that the
ACCA enhancement applies to crimes punishable by more than a year that
“involve[] conduct that presents a serious potential risk of physical injury to
another”). The government has not opposed Jones’ proposal. We therefore
exercise our discretion to grant Jones’ request. See Howard, 2014 WL 630657 at
*9–10. The district court should resentence Jones on remand without the ACCA
enhancement, and the government may not argue that any of Jones’ prior
convictions qualify as violent felonies under 18 U.S.C. § 924(e)(2)(B)(ii).
However, that limitation does not prevent the district court from considering the
information and evidence about Jones’ criminal history and prior convictions when
it determines an appropriate punishment under the 18 U.S.C. § 3553(a) sentencing
factors at the resentencing on remand. See id. at *10.
VACATED and REMANDED.
9