United States v. Antwon Stuckey

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-10295
Non-Argument Calendar
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D.C. Docket No. 8:10-cr-00211-VMC-MAP-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
ANTWON STUCKEY,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(November 27, 2012)
Before DUBINA, Chief Judge, MARCUS and KRAVITCH, Circuit Judges.
PER CURIAM:
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Appellant Antwon Stuckey appeals his 235-month sentence, imposed after
pleading guilty to possession of a firearm by a convicted felon, in violation of 18
U.S.C. §§ 922(g)(1) and 924(e). Stuckey argues that he should not have been
classified as an armed career criminal for two reasons. First, his prior conviction
under Fla. Stat. Ann. § 985.3141 for escape from a juvenile detention facility does
not qualify as a “violent felony” under the Armed Career Criminal Act (“ACCA”).
Second, his prior drug offense convictions under Fla. Stat. Ann. § 893.13 can no
longer qualify as serious drug offenses due to the statute’s unconstitutionality as
adjudicated in Shelton v. Sec’y, Dep’t of Corrs., 802 F.Supp.2d 1289 (M.D. Fla.
2011), rev’d, 691 F.3d 1348 (11th Cir. 2012). According to the presentence
investigation report (“PSI”), Stuckey escaped from a juvenile assessment center
and ran from the police, surrendering only when he could no longer avoid being
apprehended.
I.
We review de novo whether a prior conviction qualifies as a violent felony
under the ACCA. United States v. Matthews, 466 F.3d 1271, 1273 (11th Cir.
2006). The ACCA mandates a minimum sentence of 15 years’ imprisonment if a
defendant who violates 18 U.S.C. § 922(g) has at least three prior convictions “for
a violent felony or a serious drug offense, or both.” 18 U.S.C. § 924(e)(1). The
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statute defines a violent felony 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.” Id.§ 924(e)(2)(B)(i)-(ii) (emphasis added). The last phrase of § 924(e)(2)(B)(ii) is
called the residual clause. United States v. Proch, 637 F.3d 1262, 1266 (11th Cir.
2011).
The Florida statute at issue provides, in relevant part, that “[a]n escape from
. . . [a]ny secure detention facility maintained for the temporary detention of
children . . . [or] residential commitment facility . . . maintained for the custody,
treatment, punishment, or rehabilitation of children found to have committed
delinquent acts or violations of law . . . constitutes escape within the intent and
meaning of [Fla. Stat. Ann.] § 944.40 and is a felony of the third degree.” Fla.
Stat. Ann. § 985.3141.1 A “secure detention center or facility” is defined as a
“physically restricting facility for the temporary care of children, pending
adjudication, disposition, or placement.” Id. § 985.03(48). Residential
1
In 2006, the state legislature amended and renumbered this statute as Fla. Stat. Ann. §
985.721.
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commitment facilities are subject to different levels of security restrictions, and
range from low-risk residential facilities, which may allow youth to have
unsupervised access to the community, to maximum-risk residential facilities,
which do not allow youth to have access to the community. Id.§ 985.03(46)(b)-(e). Under § 944.40, “[a]ny prisoner confined in any prison, jail,
private correctional facility, road camp, or other penal institution . . . or being
transported to or from a place of confinement who escapes or attempts to escape
from such confinement commits a felony of the second degree.” Id. § 944.40.
In determining whether a prior conviction qualifies as a violent felony under
the ACCA, courts generally employ a categorical approach, looking no further
than “the fact of conviction and the statutory definition of the prior offense.”
Sykes v. United States, 564 U.S. __, __, 131 S. Ct. 2267, 2272, 180 L. Ed. 2d 60(2011) (internal quotation marks omitted). But when the judgment is ambiguous,
a court uses the modified categorical approach, and may look at the facts
underlying the predicate conviction by consulting “any charging documents, the
written plea agreement, the transcript of the plea colloquy, and any explicit factual
finding by the trial judge to which the defendant assented.” United States v.
Palomino Garcia, 606 F.3d 1317, 1336-37 (11th Cir. 2010). Undisputed facts in
the PSI may also be relied upon in making an ACCA assessment. United States v.
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Bennett, 472 F.3d 825, 833-34 (11th Cir. 2006).
We recently held that a conviction for escape from jail or from custody
while being transported to or from jail, pursuant to § 944.40, categorically
qualified as a violent felony under the residual clause of the ACCA. Proch, 637
F.3d at 1268-69. We reasoned that, like burglary, escapes from custody would
likely cause “an eruption of violence” upon discovery while the police attempted
to apprehend the escapee, and such an eruption clearly presents a serious potential
risk of physical injury. Id. at 1269. Escape from custody is a “stealth crime that
involves a high degree of recklessness,” and is “purposeful, violent and aggressive
because it involves a choice that will almost certainly be responded to with force,
and potentially violent force, by the police.” Id.Applying the modified categorical approach here, the undisputed
circumstances of Stuckey’s escape indicate that his conduct presented a serious
potential risk of physical injury to another and is therefore indistinguishable from
the escape from jail or custody offense in Proch. Because Stuckey’s conviction
for escape from a juvenile detention facility qualifies as a violent felony under the
residual clause, we conclude that the district court did not err in counting the
conviction for purposes of the ACCA.
II.
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We review de novo whether a prior conviction qualifies as a serious drug
offense under the ACCA. United States v. Robinson, 583 F.3d 1292, 1294 (11th
Cir. 2009). A defendant in a federal sentencing proceeding may not collaterally
attack the validity of prior state convictions used to enhance his sentence under the
ACCA unless the convictions were obtained in violation of his right to counsel.
Custis v. United States, 511 U.S. 485, 487, 114 S. Ct. 1732, 1734, 128 L. Ed.2d
517 (1994).
The petitioner in Shelton filed for federal habeas corpus relief under
28 U.S.C. § 2254, challenging the constitutionality of a Florida statute that
eliminated the mens rea requirement for drug offenses under § 893.13.
802 F.Supp.2d at 1293. The district court, finding that § 893.13 as amended was
facially unconstitutional because it violated the Due Process Clause, granted
habeas relief on that basis. Id. at 1308. During the pendency of Stuckey’s appeal,
we issued an opinion reversing the district court’s grant of habeas relief in Shelton,
holding that the state court did not unreasonably apply clearly established federal
law, as determined by the Supreme Court. Shelton v. Sec’y, Dep’t of Corrs., 691
F.3d 1348, 1353-56 (11th Cir. 2012). In doing so, we expressed “no view on the
underlying constitutional question.” Id. at 1355.
The plain language of binding precedent bars Stuckey from collaterally
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attacking the constitutionality of his prior drug offense convictions. Because he
did not allege that his state convictions were uncounseled, we conclude that the
district court did not err in counting them as serious drug offenses under the
ACCA.
For the aforementioned reasons, we affirm Stuckey’s sentence.
AFFIRMED.
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