This matter comes before the Court for sentencing. Defendant filed a Sentencing Memorandum (Doc. #37) arguing he does not qualify under the Armed Career Criminal Act (ACCA) because he does not have three qualifying predicate convictions. The United States filed a Sentencing Memorandum (Doc. #39) arguing to the contrary, and defendant filed a Response (Doc. #40) re-asserting his view that he is not an armed career offender. "The prosecution bears the burden of proving that a sentencing enhancement under the ACCA is warranted." United States v. Lee, 586 F.3d 859, 866 (11th Cir. 2009). For the reasons stated below, the Court finds that the United States has shown that defendant qualifies as an armed career criminal.
Defendant was charged in a one count Indictment (Doc. #1) with possession of a firearm and ammunition after having been convicted of felony offenses, in violation of 18 U.S.C. §§ 922(g)(1), 924(e), and Section 2. The Indictment identified the following prior felony convictions: Robbery and battery on a person over 65 years old; battery on a law enforcement officer; burglary of a structure and grand theft; grand theft; possession of cocaine; possession of cocaine; possession of cocaine; resisting officer - high speed vehicle pursuit/flee attempt; battery - two prior convictions third or subsequent offense; fleeing and eluding law enforcement officer with lights and siren; and possession of a firearm by convicted felon and cocaine possession with intent to sell, manufacture or deliver. Defendant plead guilty to the federal firearms offense, and while he does not deny he was convicted of the listed offenses, he challenges their qualification as a "violent felony" or a "serious drug offense" under the ACCA.
Conviction for knowing possession of a firearm or ammunition by a convicted felon pursuant to Section 922(g) is punishable by a term of imprisonment of not more than ten years plus a fine. 18 U.S.C. § 924(a)(2). Under the ACCA, the statutory sentence is increased to a mandatory minimum fifteen years imprisonment if the defendant "has three previous convictions . . . for a violent felony or a serious drug offense, or both, committed on occasions different from one another, . . ." 18 U.S.C. § 924(e)(1). Additionally, under the Sentencing Guidelines an armed career offender's range of imprisonment is enhanced. United States Sentencing Guidelines (U.S.S.G.) § 4B1.4. The Presentence Report (¶28), and the government, contend that defendant qualifies as an armed career criminal under Section 924(e)(1) and the Sentencing Guidelines. Defendant virtually concedes that he has two qualifying ACCA felony convictions, but disputes the determination in the Presentence Report that there is a third qualifying felony conviction among the multitude of his other convictions.
Whether a prior conviction is a "violent felony" is a question of federal law. Johnson v. United States, 130 S. Ct. 1265, 1269 (2010); United States v. Santiago, 601 F.3d 1241, 1243 (11th Cir. 2010). "Violent felony" is defined in § 924(e) as follows:
(B) [T]he term "violent felony" means any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, 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). Under the "elements" clause in § 924(e)(2)(B)(i), the "physical force" requires "violent force --that is, force capable of causing physical pain or injury to another person." Johnson, 130 S. Ct. at 1271 (emphasis in original). After Begay v. United States, 553 U.S. 137 (2008), the "residual clause" of § 924(e)(2)(B)(ii) requires that the offense pose a serious potential risk of physical injury comparable to the risk posed by the enumerated crimes, and be "roughly similar, in kind" to the enumerated crimes. Begay 553 U.S. at 143. See also United States v. Alexander, 609 F.3d 1250, 1255-56 (11th Cir. 2010).
To determine whether a prior offense is a "violent felony," the Court uses a "categorical approach" in which it looks "only to the fact of conviction and the statutory definition of the prior offense." Sykes v. United States, 131 S. Ct. 2267, 2272 (2011); Taylor v. United States, 495 U.S. 575, 602 (1990). The Court considers whether the elements of the offense qualify as a violent felony, without inquiring into the specific conduct of a particular offender. Sykes, 131 S. Ct. at 2272; James v. United States, 550 U.S. 192, 202 (2007). The Court focuses on the elements of the state crime to determine the way in which it is ordinarily committed. Sykes, 131 S. Ct. at 2272. Where this categorical approach establishes that a statute encompasses both conduct that constitutes a violent felony and conduct that does not, a "modified categorical approach" is followed. Shepard v. United States, 544 U.S. 13, 23 (2005); United States v. Palomino Garcia, 606 F.3d 1317, 1327 (11th Cir. 2010). In such a situation, a court is allowed to go beyond the mere fact of conviction, but is limited to examining only "records of the convicting court approaching the certainty of the record of conviction." Shepard, 544 U.S. at 23.
These records include charging documents, plea agreements, transcripts of plea colloquies, findings of fact and conclusions of law from a bench trial, and jury instructions and verdict forms. Johnson, 130 S. Ct at 1273.
A "serious drug offense" is (1) An offense under certain federal drug statutes for which the maximum term of imprisonment is ten years or more. § 924(e)(2)(A)(i), or (2) an offense under State law involving manufacturing, distributing, or possessing with intent to manufacture or distribute a controlled substance for which the maximum term of imprisonment is ten years or more. § 924(e)(2)(A)(ii).
The Presentence Report counts the Robbery conviction in paragraph 37 as a qualifying predicate crime of violence under the ACCA. (PSR, ¶28). Defendant "does not dispute that his robbery offence may well be a violent felony as contemplated by the ACCA, . . ." (Doc. #37, p. 2). The Court concludes that defendant's robbery conviction is a violent felony under the ACCA. United States v. Lockley, 632 F.3d 1238, ...