United States v. Royland Kicklighter

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
Sept. 28, 2009
No. 09-10217
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
D. C. Docket No. 05-00034-CR-6
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROYLAND KICKLIGHTER,
a.k.a. Roy Kicklighter,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(September 28, 2009)
Before BIRCH, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:
Royland Kicklighter appeals his 180-month sentence for distribution of
methamphetamine, pursuant to 21 U.S.C. § 841(a)(1). He argues that the district
court erred in deeming him to be eligible for the career offender enhancement
under U.S.S.G. § 4B1.1. He also asserts that the court erred by applying that
enhancement even though the government did not file an information regarding its
intent to rely on his prior drug conviction, as required by 21 U.S.C. § 851. After
reviewing the record, we find no error and thus AFFIRM his sentence.
I. BACKGROUND
In January 2006, Kicklighter pled guilty to one count of distribution of
methamphetamine, in violation of 21 U.S.C. § 841(a)(1). Because the offense
involved at least 50, but less than 150, grams of methamphetamine, Kicklighter’s
base offense level for the crime was 32. See U.S.S.G. § 2D1.1(c)(4) (Mar. 2006).
After a three-level sentence reduction for acceptance of responsibility, his total
offense level was 29. According to the Presentence Investigation Report (“PSI”),
Kicklighter had three prior convictions — two for burglary of a residence and one
for conspiracy to possess with intent to distribute marijuana — that were either
crimes of violence or controlled substance offenses. As a result, Kicklighter
qualified as a career offender, which changed his criminal history category from V
to VI. See id. § 4B1.1(a), (b).
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Kicklighter filed a written objection to the PSI in which he asserted that the
burglary convictions were not violent crimes and cited a prior district court ruling
to that effect. At the sentencing hearing, the probation officer who compiled the
PSI reaffirmed the career offender determination and noted that the district court
order in question addressed a sentencing enhancement for possession of a firearm
rather than the question of whether burglaries were violent crimes. Kicklighter’s
counsel stated that, after reviewing the documentation, he agreed that the ruling
addressed a different issue and that any concerns about the PSI had been resolved.
Additionally, Kicklighter indicated that the reason he mentioned that ruling was
because the earlier court had considered the firearm enhancement a crime of
violence and he wanted to prove that he was not violent. He also stated that he
knew of no other errors in the PSI. The district court then adopted the factual
statements in the PSI as findings of fact.
The court noted that Kicklighter’s total offense level of 29 and criminal
history category of VI yielded a guidelines range of 151 to 188 months of
imprisonment. The court ultimately sentenced Kicklighter to 180 months of
imprisonment. Kicklighter’s counsel did not object to this sentence or to the
court’s findings of fact or conclusions of law. Kicklighter appealed his sentence.
II. DISCUSSION
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On appeal, Kicklighter raises two issues with respect to his sentence. He
asserts that the district court erred by finding his two prior burglary convictions to
be crimes of violence under U.S.S.G. § 4B1.1. He maintains that the statute under
which he was convicted, O.C.G.A. § 16-7-1, encompasses conduct which both
would and would not be considered a crime of violence under § 4B1.1, and that
the court considered improper evidence in finding that his conviction was for a
crime of violence. He also argues that the district court erred by imposing a career
offender enhancement because the government did not provide notice of the
convictions it intended to use in seeking an enhanced sentence, as required under
21 U.S.C. § 851.
A. Career Offender Enhancement
We review de novo a district court’s decision to classify a defendant as a
career offender based on § 4B1.1. See United States v. Gibson, 434 F.3d 1234,
1243 (11th Cir. 2006). However, if a defendant fails to raise an argument before
the district court, we review it for plain error. See United States v. De La Garza,
516 F.3d 1266, 1269 (11th Cir. 2008). “Under plain error review, there must be
(1) an error, (2) that is plain, (3) that affects the defendant’s substantial rights, and
(4) that seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id.4
Section 4B1.1 deems a defendant to be a career offender if he was at least
eighteen years old at the time he committed the offense for which he is being
sentenced, that offense “is a felony that is either a crime of violence or a controlled
substance offense,” and he “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). The
sentencing guidelines define a “crime of violence” as a state or federal offense
punishable by imprisonment for more than a year that “(1) has as an element the
use, attempted use, or threatened use of physical force against the person of
another, or (2) is burglary of a dwelling, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a serious potential risk of
physical injury to another.” Id. § 4B1.2(a).
To determine whether an offense would qualify as a crime of violence under
§ 4B1.1, “a district court may look outside of the ‘offense of conviction’ to the
conduct surrounding that conviction if ambiguities in the judgment make the crime
of violence determination impossible from the face of the judgment itself.” United
States v. Beckles, 565 F.3d 832, 842–43 (11th Cir. 2009) (quotation marks and
citation omitted). District courts thus may make additional fact findings “when the
crime for which the defendant was convicted encompasses both conduct that
constitutes a crime of violence and conduct that does not constitute a crime of
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violence.” Id. at 843. The court can base these fact findings “on undisputed
statements in the PSI.” United States v. Bennett, 472 F.3d 825, 832 (11th Cir.
2006) (per curiam). We deem facts contained in a PSI to be undisputed and
admitted if a party does not assert a specific and clear objection to them before the
sentencing court. See id.; see also Beckles, 565 F.3d at 844. The failure to make
such a challenge “to conclusory statements in the PSI renders those statements
undisputed and permits the sentencing court to rely upon them without error even
if there is an absence of supporting evidence.” Beckles, 565 F.3d at 844.
The Georgia statute under which Kicklighter was convicted of two
burglaries, O.C.G.A. § 16-7-1, encompasses conduct that both would and would
not constitute a crime of violence because it discusses burglaries that involve
various locales, including dwellings. See O.C.G.A. § 16-7-1; see also Bennett,
472 F.3d at 832 (making a similar determination with respect to this statute).
Because of this statutory ambiguity, the court was permitted to rely on the
undisputed portions of Kicklighter’s PSI to make factual findings about whether
his convictions were for burglaries of a dwelling and thus would be crimes of
violence.
Although Kicklighter objected before the district court to the PSI’s
characterization of his burglary convictions as crimes of violence, he did not argue
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specifically that they did not involve a dwelling. Because of this failure, we
evaluate the court’s determination for plain error. See De La Garza, 516 F.3d at
1269. The PSI stated that the burglaries involved dwellings and that Kicklighter
qualified for the § 4B1.1 enhancement as a result. Since Kicklighter failed to
make a specific and clear objection to these statements, they were undisputed, and
the district court was permitted to rely on them in finding that Kicklighter’s
burglaries constituted crimes of violence. See Beckles, 565 F.3d at 844. The
court thus was warranted in finding that Kicklighter had at least two prior crimes
of violence, as required for the § 4B1.1 enhancement. Since it is undisputed that
he met the other requirements for career offender status, the court did not plainly
err in finding Kicklighter eligible for the § 4B1.1 enhancement.
B. Failure to File Information
Kicklighter argues that the government failed to provide notice that he was
subject to an enhanced sentence based on his prior convictions under 21 U.S.C.
§ 851. He maintains that, as a result, the district court erred by imposing a
sentence based on the career offender enhancement. Because he did not raise this
argument before the district court, we evaluate it for plain error. See De La Garza,
516 F.3d at 1269.
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“We review the adequacy of a section 851 notice de novo.” United States v.
Ramierez, 501 F.3d 1237, 1239 (11th Cir. 2007) (per curiam). Section 851(a)(1)
provides:
No person who stands convicted of an offense under this part shall be
sentenced to increased punishment by reason of one or more prior
convictions, unless before trial, or before entry of a plea of guilty, the
United States attorney files an information with the court (and serves a
copy of such information on the person or counsel for the person) stating
in writing the previous convictions to be relied upon.
21 U.S.C. § 851(a)(1). However, we have determined these notice requirements
do not apply when the government seeks to use the prior convictions as the basis
for a career offender enhancement, “so long as the enhanced sentence still falls
within the permissible statutory range.” Young v. United States, 936 F.2d 533,
536 (11th Cir. 1991) (considering the issue in the context of a 28 U.S.C. § 2255proceeding). Kicklighter acknowledges this precedent but asserts that the
rationale for the § 851 requirements should apply even to career offender
enhancements. However, our prior panel precedent rule forbids us from reaching
such a conclusion since there has been no contrary opinion by the Supreme Court
or by this court sitting en banc. See United States v. Campa, 529 F.3d 980, 1014
(11th Cir. 2008). Because Kicklighter’s sentence fell below the statutory
maximum term of imprisonment, which was twenty years, the government was not
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required to provide § 851 notice. See 21 U.S.C. § 841(b)(1)(C). Accordingly, we
conclude that the district court did not plainly err by enhancing his sentence as a
career offender under § 4B1.1 in the absence of such notice.
III. CONCLUSION
Kicklighter argues that the district court erred by applying a career offender
enhancement based on improper evidence and in the absence of the requisite § 851
notice. Because he did not object to the factual basis upon which the district court
found him eligible for that enhancement and since the § 851 notice requirements
do not apply to career offender enhancements, the court did not plainly err in
applying the enhancement. We therefore AFFIRM his sentence.
AFFIRMED.
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