Adkins v. United States

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-13435 MARCH 14, 2011
JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket Nos. 5:09-cv-00418-WTH-GRJ & 5:04-cr-00006-WTH-GRJ-1
SHANE ALLEN ADKINS,
lllllllllllllllllllll Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
lllllllllllllllllllll Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(March 14, 2011)
Before EDMONDSON, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Shane Allen Adkins pleaded guilty to being a felon in possession of a
firearm in violation of 18 U.S.C. §§ 922 (g)(1) and 924(e)(1). In his plea
agreement, Adkins waived his right to appeal or collaterally challenge his sentence
except for, inter alia, “a sentence above the statutory maximum.” The district
court enhanced Adkins’s sentence under the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e)(1), after finding that Adkins had three prior
convictions for violent felonies, including a Florida conviction for escape. The
ACCA enhancement made Adkins’s mandatory statutory sentence 180 months.
Adkins received a two-level departure, and the court sentenced him to 126 months
of imprisonment.
Almost five years later, Adkins filed a motion to vacate, set aside, or correct
his sentence pursuant to 28 U.S.C. § 2255. The crux of his argument was that he
should be re-sentenced because Chambers v. United States, 129 S. Ct. 687 (2009),
recently established that escape from custody was not a violent felony. Adkins
argued that the maximum possible sentence without the ACCA enhancement was
120 months, therefore the sentence appeal waiver did not preclude relief. The
Government argued (1) the motion was untimely, (2) the appeal waiver foreclosed
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relief, (3) Adkins procedurally defaulted his claims, and (4) a conviction for
escape from custody is still a “violent felony” after Chambers. The district court
concluded that Adkins’s motion was barred by the sentence appeal waiver in his
plea agreement, and we agree.
“In a Section 2255 proceeding, we review legal issues de novo and factual
findings under a clear error standard.” Lynn v. United States, 365 F.3d 1225, 1232
(11th Cir. 2004) (per curiam) (quoting United States v. Walker, 198 F.3d 811, 813
(11th Cir. 1999) (per curiam)).
Adkins misreads Chambers, which held that “failure to report” is not a
“violent felony” under the ACCA. Chambers, 129 S. Ct. at 689. In United States
v. Lee, we held that a “non-violent walkaway escape from unsecured custody” is
not a violent felony post-Chambers. 586 F.3d 859, 874 (11th Cir. 2009), cert.
denied, 130 S. Ct. 2392 (2010). But we have never held that escape from secure
custody is not a violent felony. In fact, four days after our Lee decision we held
that “a conviction for escape under Florida law is a serious violent felony within
the meaning of [18 U.S.C.] § 3559(c) because it is punishable by a sentence of up
to 15 years and involves a substantial risk that physical force against the person of
another may be used.” United States v. Sanchez, 586 F.3d 918, 931 (11th Cir.
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2009), cert. denied, 130 S. Ct. 1926 (2010).1 Mindful of Chambers, we noted that
Sanchez pleaded guilty “to escape, not a failure to report.” Id. at 932 n.33.
Accordingly, because a Florida conviction for escape is a violent felony,
Adkins’s sentence of 126 months does not violate the statutory maximum, and the
waiver in his plea agreement precludes him from challenging his sentence on the
grounds raised in his § 2255 motion.
AFFIRMED.
1
Because the definitions of “crime of violence” and “violent felony” are “virtually
identical,” cases concerning one definition “provide important guidance” concerning the other.
United States v. Archer, 531 F.3d 1347, 1350 n.1 (11th Cir. 2008).
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