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United States v. Davis

United States Court of Appeals, Eleventh Circuit

November 7, 2017

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
TERRANCE TYRONE DAVIS, Defendant-Appellant.

         Appeal from the United States District Court for the Southern District of Alabama No. 1:15-cr-00158-CG-B-1.

          Before ED CARNES, Chief Judge, ROSENBAUM, and HIGGINBOTHAM, [*] Circuit Judges.

          ED CARNES, Chief Judge

         This is an ACCA "violent felony" issue case. So here we go down the rabbit hole again to a realm where we must close our eyes as judges to what we know as men and women. It is a pretend place in which a crime that the defendant committed violently is transformed into a non-violent one because other defendants at other times may have been convicted, or future defendants could be convicted, of violating the same statute without violence. Curiouser and curiouser it has all become, as the holding we must enter in this case shows. Still we are required to follow the rabbit.

         I. FACTS AND PROCEDURAL HISTORY

         Terrance Tyrone Davis was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Based in part on his prior Alabama conviction for first degree sexual abuse, the district court enhanced his sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e). That law establishes a mandatory minimum sentence of 15 years for defendants convicted of violating § 922(g) who have at least three prior convictions for violent felonies or serious drug offenses. Davis contends that under Alabama law, first degree sexual abuse does not qualify as a violent felony for ACCA purposes.

         In 2012 Davis was indicted in Alabama state court for first degree rape. The indictment stated that "Davis . . ., a male, did engage in sexual intercourse with [the victim], a female, by forcible compulsion, in violation of [Alabama's first degree rape statute]." He pleaded guilty to the lesser included felony offense of first degree sexual abuse, in violation of Alabama Code § 13A-6-66, instead of the rape charge.

         In 2015 Davis was again convicted, this time for being a felon in possession of a firearm. The presentence investigation report determined that he was an armed career criminal based on three earlier convictions: (1) a 1998 conviction for third degree robbery, in violation of Alabama Code § 13A-8-43; (2) a 2003 conviction for second degree assault, in violation of Alabama Code § 13A-6-21; and (3) the 2012 conviction for first degree sexual abuse, in violation of Alabama Code § 13A-6-66. Based in part on its determination that Davis was an armed career criminal, the PSR calculated a total offense level of 31 and a criminal history category of VI, yielding an advisory guidelines range of 188 to 235 months imprisonment.

         Davis objected to using his sexual abuse conviction to enhance his sentence under the ACCA, contending that based on the Supreme Court's decision in Johnson v. United States, 559 U.S. 133, 130 S.Ct. 1265 (2010), it does not qualify as a violent felony. Over his objection, the district court concluded that the conviction does categorically qualify as a violent felony and the court treated him as an armed career criminal subject to the 15-year mandatory minimum sentence. Davis was sentenced to 188 months, which was eight months above the mandatory minimum and at the low end of his advisory guidelines range.

         II. THE ACCA FRAMEWORK

         Under the ACCA, a defendant who is convicted of being a felon in possession of a firearm is subject to a 15-year mandatory minimum sentence if he has three prior convictions "for a violent felony or a serious drug offense." 18 U.S.C. § 924(e)(1). The ACCA defines a violent felony as any crime punishable by a term of imprisonment 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). This case involves only the first part of that definition, § 924(e)(2)(B)(i), which is known as the elements clause.

         "Whether a particular conviction is a violent felony for purposes of the ACCA is a question of law we consider de novo." United States v. Gundy, 842 F.3d 1156, 1160 (11th Cir. 2016). The answer here depends on whether one of the elements required by the statute of conviction is "the use, attempted use, or threatened use of physical force against the person of another." 18 U.S.C. § 924(e)(2)(B)(i). If so, the conviction qualifies as a violent felony; if not, it doesn't.

         To determine whether the statute of conviction "has as an element the use, attempted use, or threatened use of physical force against the person of another, " 18 U.S.C. § 924(e)(2)(B)(i), we are confined to looking at the fact of conviction and the elements required for conviction. United States v. Hill, 799 F.3d 1318, 1322 (11th Cir. 2015); United States v. Braun, 801 F.3d 1301, 1303 (11th Cir. 2015); United States v. Estrella, 758 F.3d 1239, 1249 n.4 (11th Cir. 2014); see also Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 2159 (1990). "All that counts . . . are the elements of the statute of conviction, " not the "specific conduct of [a] particular offender." Mathis v. United States, 579 U.S., 136 S.Ct. 2243, 2251-52 (2016) (quotation marks omitted).

         We apply federal law in interpreting the ACCA, but state law in determining the elements of state offenses, keeping in mind that state law is what the state supreme court says that it is. Johnson, 559 U.S. at 138, 130 S.Ct. at 1269 (explaining that when deciding whether a prior conviction is a "violent felony" under the ACCA, "[w]e are . . . bound by [state courts'] interpretation of state law, including its determination of the elements of [the statute of conviction]"); Braun, 801 F.3d at 1303 ("We are bound by federal law when we interpret terms in the ACCA, and we are bound by state law when we interpret the elements of state-law crimes."); Estrella, 758 F.3d at 1249 n.4 (explaining that "the question we are answering here is whether those elements as defined by state law, including state court decisions, " qualify for a federal sentence enhancement); United States v. Rosales-Bruno, 676 F.3d 1017, 1021 (11th Cir. 2012) ("[W]e look to [state] case law to determine whether a conviction under [a state statute] necessarily involves the employment of 'physical force' as that term is defined by federal law.").

         The Supreme Court has held that we must first employ what is known as the "categorical approach." Hill, 799 F.3d at 1322. Under that approach, regardless of what the true facts are, "we presume that the state conviction rested upon the least of the acts criminalized by the statute . . . ." Esquivel-Quintana v. Sessions, 581 U.S., 137 S.Ct. 1562, 1568 (2017) (alterations and quotation marks omitted); see, e.g., Braun, 801 F.3d at 1307. And then we must decide if the least of the acts criminalized includes the use, attempted use, or threatened use of physical force against another person, 18 U.S.C. § 924(e)(2)(B)(i). If not, that is the end of our inquiry and the prior conviction does not count as a violent felony under the elements clause.

         The inquiry is more complicated when the statute of conviction makes multiple acts criminal, if there are multiple ways to commit the crime that the statute defines. If that is so, as it often is, we have to determine whether the statute is indivisible, meaning that it includes multiple ways of committing the same offense, or is instead divisible, meaning that it lists multiple offenses. Mathis, 136 S.Ct. at 2249. If the statute is indivisible, we use the categorical approach. In that case a conviction under it qualifies as a violent felony only if all of acts criminalized in the statute involve the use of physical force against the person of another.

         But if the statute is divisible, we employ a modification of the categorical approach, aptly known as the "modified categorical approach, " to determine "which crime in the statute formed the basis of the defendant's conviction." Gundy, 842 F.3d at 1162. Under the modified categorical approach, we can look at certain judicial records, such as the indictment or the plea colloquy, in order to determine which of the multiple crimes listed in the statute the defendant was convicted of committing. Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 1263 (2005). If we can tell "which statutory phrase the defendant was necessarily convicted under, " United States v. Howard, 742 F.3d 1334, 1345 (11th Cir. 2014), we return to the categorical approach and apply it to that statutory phrase. Doing so requires us to decide whether the least of the acts criminalized by that statutory phrase (instead of whether all of the acts criminalized by all of the statutory phrases) includes the use, attempted use, or threatened use of physical force against another person, as required by the ACCA's elements clause, 18 U.S.C. § 924(e)(2)(B)(i). The Supreme Court has held that the "physical force" that the elements clause requires is "violent force - that is, force capable of causing physical pain or injury to another person." Johnson, 559 U.S. at 140, 130 S.Ct. at 1271.

         The question we face in this appeal is whether Alabama's first degree sexual abuse statute, as interpreted by the Alabama Supreme Court, necessarily includes as an element the use, attempted use, or threatened use of violent physical force. III. DIVISIBILITY OF FIRST DEGREE SEXUAL ABUSE

         Alabama Code § 13A-6-66(a), which is the statute Davis was ...


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