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United States Sentencing Guidelines: The Armed Career Criminal Act 18 U.S.C. §924 – Sentence Enhancement For Crime of VIolence

USA v. Lockley
Decided February 11, 2011 Eleventh Circuit Court of Appeals

Issue : Whether the crime of attempted robbery in violation of Florida Statute §§ 812.13(1) and 777.04(1) constitute crimes of violence under the United States Sentencing Guidelines §4B1.1(a) for purposes of sentence enhancement under the Armed Career Criminal Act (ACCA) under 18 U.S.C. § 924(c).

Holding : The Eleventh Circuit Court of Appeals found that attempted robbery is categorically a “crime of violence,” and affirmed Lockley’s sentence enhancement under the career offender provision.

Facts : Theodore D. Lockley appeals his 180-month sentence after pleading guiltyto conspiring to posses with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. § 846. On appeal, Lockley argues that the district court erred in enhancing his sentence under the career offender provision, United States Sentencing Commission, Guidelines Manual, § 4B1.1(a) (Nov. 1, 2008), because his prior conviction for attempted robbery in violation of Fla. Stat. §§ 812.13(1) and 777.04(1) was not a “crime of violence” under § 4B1.2.

Legal Analysis : “[I]n determining whether a prior conviction is a qualifying offense for enhancement purposes, we apply a ‘categorical’ approach—that is, we look no further than the fact of conviction and the statutory definition of the prior offense.” United States v. Llanos-Agostadero, 486 F.3d 1194, 1196-97 (11th Cir. 2007) (citations omitted), cert. denied — U.S. —-, 129 S. Ct. 902, 173 L. Ed. 2d 119 (2009). A court may examine the underlying facts of the conviction only if “ambiguities in the judgement make the crime of violence determination impossible from the face of the judgment itself.” United States v. Harris, 586 F.3d 1283, 1286 n.1 (11th Cir. 2009) (quoting United States v. Beckles, 565 F.3d 832, 842-43 (11th Cir. 2009)).

Under the Guidelines, a defendant is eligible for the career offender enhancement if: (1) he is at least 18 years old at the time of the commission of the offense of conviction; (2) the offense of conviction is a felony crime of violence or controlled substance offense; and (3) he has at least two prior felony convictions for a crime of violence or controlled substance offense. U.S.S.G. § 4B1.1(a).

A “crime of violence” is defined in the Guidelines as any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that –

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another [(“the elements clause”)], or

(2) is burglary of a dwelling, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to

another [(“the residual clause”)]. U.S.S.G. § 4B1.2(a).

Commentary to the Guidelines provides further definitional guidance:

For purposes of this guideline- “Crime of violence” and “controlled substance offense” include the offenses of aiding and abetting, conspiring, and attempting to commit such offenses.

“Crime of violence” includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling. Other offenses are included as “crimes of violence” if (A) that offense has as an element the use, attempted use, or threatened use of physical force

against the person of another, or (B) the conduct set forth (i.e., expressly charged) in the count of which the defendant was convicted involved use of explosives (including any explosive material or destructive device) or, by its nature, presented a serious risk of physical injury to another. U.S.S.G. § 4B1.2, comment. (n.1)

A prior conviction qualifies as a “crime of violence” if any of the following are true:

(1) the defendant was convicted of committing, aiding or abetting the commission of, conspiring to commit, or attempting to commit, an enumerated offense;

(2) the use, attempted use, or threatened use of physical force against another was an element of the offense; or

(3) the conduct for which the defendant was convicted presented a serious risk of physical injury to another person.

Where, as here, the Guidelines specifically designate a certain offense as a “crime of violence,” we compare the elements of the crime of conviction to the generic form of the offense as defined by the States, learned treatises, and the Model Penal Code. Palomino Garcia, 606 F.3d at 1331 (applying Taylor v. United States, 495 U.S. 575, 110 S. Ct. 2143, 109 L. Ed. 2d 607 (1990)). That is, we disregard the label placed on the state crime and look to whether the conduct necessarily proven as a prerequisite for Lockley’s conviction under Florida law is a natural equivalent to the offense as envisioned by the Guidelines’ drafters.

If Fla. Stat. § 812.13(1) follows the generic definition of robbery with only minor variations, or is narrower than the generic offense, we will uphold the district court’s application of the career offender enhancement. Taylor, 495 U.S. at 599, 110 S. Ct. at 2158. If, however, Florida’s definition is broader than generic robbery, Lockley’s prior conviction cannot serve as a predicate, under the categorical approach, for the enhancement.

We find that § 812.13(1) is the equivalent of the generic form of robbery. As a result, we uphold the application of the career offender statute by the District Court. We find the generic definition of robbery to be “the taking of property from another person or from the immediate presence of another person by force or intimidation.” United States v. Walker, 595 F.3d 441, 446 (2d Cir. 2010) (emphasis in original); see also 67 Am. Jur. 2d Robbery § 12 (“[Robbery] is the taking, with intent to steal, personal property of another, from his or her person or in his or her presence, against his or her will, by violence, intimidation, or by threatening the imminent use of force.”) (emphasis added). A comparison of Fla. Stat. § 812.13(1) to this generic definition convinces us that they are clear equivalents.

We further find that attempted robbery under Florida law satisfies § 4B1.2(a)’s residual clause as an offense that “presents a serious potential risk of physical injury to another.” When considering the residual clause, we apply a three-step framework and ask:

First, what is the relevant category of crime, determined by looking to how the crime is ordinarily committed?

Second, does that crime pose a “serious potential risk of physical injury” that is similar in degree to the risks posed by the enumerated crimes?

Third, is that crime similar in kind to the enumerated crimes?

United States v. Harrison, 558 F.3d 1280, 1287 (11th Cir. 2009) (interpreting the ACCA).

Robbery, as we have described it, is purposeful conduct because it requires a deliberate undertaking to deprive another of money or property by use of force or violence or a threat of force or violence. Attempted robbery retains these characteristics; the overt act places the victim and the perpetrator one step closer to a potentially violent encounter.