United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-1635
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Kevin Eugene Lee, *
*
Appellant. *
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Submitted: September 23, 2010
Filed: November 4, 2010
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Before GRUENDER, ARNOLD, and SHEPHERD, Circuit Judges.
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ARNOLD, Circuit Judge.
After Kevin Lee pleaded guilty to being a felon in possession of a firearm and
to possessing stolen firearms, see 18 U.S.C. § 922(g)(1), (j), the district court1
sentenced him to life in prison. Mr. Lee appealed his sentence, and we affirm.
1
The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
I.
Mr. Lee first argues that the district court erred in categorizing him as an armed
career criminal under § 4B1.4 of the United States Sentencing Guidelines because he
did not have the requisite predicate offenses. An offender is an armed career criminal
under the guidelines if he is subject to the enhanced sentencing provisions of the
Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). U.S.S.G. § 4B1.4(a).
A person convicted of being a felon in possession of a firearm under § 922(g)
qualifies for an enhancement under the ACCA if he has three previous convictions
"for a violent felony ... committed on occasions different from one another."
18 U.S.C. § 924(e)(1). As relevant, the statute defines "violent felony" as any crime
that "has as an element the use, attempted use, or threatened use of physical force"
against another, or "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). Here, the district court found that Mr. Lee had
at least three prior convictions – namely, for burglary, escape, and injury to a child –
that qualified as violent felonies under the terms of the ACCA. Mr. Lee concedes that
his burglary offense falls within the statute's ambit, but he argues that his escape
offense does not qualify as a violent felony and that his two convictions for injury to
a child should be counted as a single offense because they were committed on the
same occasion, 18 U.S.C. § 924(e)(1). The district court rejected similar arguments
and we review this legal determination de novo. United States v. Gordon, 557 F.3d
623, 624 (8th Cir. 2009).
Mr. Lee was convicted in Illinois state court for the felony of escape pursuant
to 720 Ill. Comp. Stat. § 5/31-6. Both the information charging Mr. Lee and his
judgment of conviction refer generally to the statute, which describes several types of
escape. As we observed in United States v. Parks, No. 09-2791, 2010 WL 3463406,
at *2 (8th Cir. Sept. 7, 2010), however, the Illinois escape statute separates the
prohibited behavior into "discrete subparts," making it "easy" for a court to distinguish
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between the statute's covered offenses. For example, § 5/31-6(a) punishes both an
escape from custody and a failure to report, but the statute distinguishes between the
two by "plac[ing] the behaviors in two different felony classes (Class Two and Class
Three) of different degrees of seriousness." United States v. Chambers, 129 S. Ct.
687, 691 (2009).
Both the information and the relevant judgment identify Mr. Lee's crime as a
class 2 felony. None of the statute's class 2 felonies requires "as an element the use,
attempted use, or threatened use of physical force" against another, 18 U.S.C.
§ 924(e)(2)(B)(i). Nor is escape a crime specifically listed in § 924(e)(2)(B)(ii).
Therefore, Mr. Lee's crime of escape is a "violent felony" only if it "otherwise
involves conduct that presents a serious potential risk of physical injury to another,"
id. To satisfy this standard, the escape offense must be both "roughly similar, in kind
as well as in degree of risk posed" to the crimes listed in the ACCA, United States v.
Begay, 553 U.S. 137, 143 (2008), and must "typically involve[ ] conduct that is
similarly purposeful, violent and aggressive" as compared to the closest analogue
among the statute's specified offenses. Gordon, 557 F.3d at 625; see also Begay,
553 U.S. at 144-45. To determine whether these conditions are met, we first look at
the offense of conviction on a categorical basis, examining its facial elements, not the
facts underlying the conviction. Begay, 553 U.S. at 141. If the statute on its face
prohibits both conduct that does and does not qualify as a violent felony under the
ACCA, we refer to documents such as charging papers, terms of a plea agreement, or
jury instructions to make our determination. United States v. Pearson, 553 F.3d 1183,
1186 (8th Cir. 2009) (internal quotation marks and citation omitted).
Before the Supreme Court decided Chambers, we had held that all escapes were
crimes of violence. Pearson, 553 F.3d at 1185. Chambers, 129 S. Ct. at 691,
however, held that an escape "characterized by a failure to present oneself for
detention on a specified occasion" is not a violent felony under the ACCA. We
interpreted this decision as overruling our precedent that "all escapes – including
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failures to return or report to custody – are crimes of violence, but leav[ing] intact our
precedent holding that escape from custody is a crime of violence." Pearson,
553 F.3d at 1186. When an inmate escapes from a secure facility that is guarded by
someone with custodial responsibility to keep offenders confined, we have held that
the inmate "engages in purposeful, violent, and aggressive behavior" that creates the
sort of "substantial risk of violent confrontation" that satisfies the ACCA. Parks, 2010
WL 3463406, at *4 (emphasis omitted).
Each of the class 2 felonies that appear in § 5/31-6 constitutes an escape from
custody. See 720 Ill. Comp. Stat. § 5/31-6(a), (b-1), (c), (c-5). Because we have held
that all escapes from custody are violent felonies, see Pearson, 553 F.3d at 1186, we
need not refer to any additional documents to determine that Mr. Lee's escape is a
violent felony under the ACCA. But even if we were to look at the underlying
documents here, they provide no support for Mr. Lee's argument. The document
imposing the sentence states that Mr. Lee "intentionally escaped from a penal
institution, that being the Rock County Jail." A jail is quite obviously the type of
"secured and guarded facility" that we identified as being a place from which an
escape creates a risk of violent confrontation. See Parks, 2010 WL 3463406, at *4.
So Mr. Lee's conviction for escape quite plainly qualifies as a violent felony under
that standard as well.
While Mr. Lee also argues that his two convictions for injury to a child should
not be counted as separate offenses, he has never disputed that at least one of them
qualifies as a violent felony under the ACCA. We find no reason to conclude
otherwise, and, since we have already decided that Mr. Lee's convictions for burglary
and for escape satisfy the statutory definitions, his contention is irrelevant. Mr. Lee
was convicted of three prior violent felony offenses that satisfy the requirements of
the ACCA, and thus he is an armed career criminal.
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II.
After correctly establishing Mr. Lee's base offense level under the sentencing
guidelines, the district court held that Mr. Lee was eligible for six sentencing
enhancements that raised his offense level from 26 to 43, yielding a guidelines
sentence of life imprisonment. The conduct that supported the enhancements had to
do with the number of firearms that Mr. Lee had possessed, whether he had attempted
to sell the firearms, his use of the firearms in a robbery of a local hotel, and his role
in planning and carrying out that robbery. Mr. Lee did not admit to any of this
conduct, but the district court, based on unchallenged factual assertions in the pre-
sentencing report and evidence presented at sentencing, found by a preponderance of
the evidence that the conduct had occurred.
Mr. Lee contends that the district court violated his Fifth Amendment right to
due process by not imposing a higher burden of proof on the government. He argues
that the enhancements had a disproportionate impact on his sentence, and so their
applicability required, at a minimum, clear and convincing evidence. The district
court rejected a similar argument at sentencing and we review its decision de novo.
United States v. Howell, 606 F.3d 960, 963 (8th Cir. 2010).
Mr. Lee's argument on this issue relies heavily on dicta from our decision in
United States v. Townley, 929 F.2d 365 (8th Cir. 1991), where we said that we "[did]
not foreclose the possibility that in an exceptional case" a clear-and-convincing
evidentiary standard might apply, because due process might require such a standard
when a sentencing enhancement became " 'a tail which wags the dog of the
substantive offense.' " Id. at 369 (quoting McMillan v. Pennsylvania, 477 U.S. 79, 88
(1986)). But Mr. Lee's argument that his is Townley's "exceptional case" overlooks
the fact that after Townley we decided squarely that due process never requires
applying more than a preponderance-of-the-evidence standard for finding sentencing
facts, even where the fact-finding has "an extremely disproportionate impact on the
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defendant's advisory guidelines range." United States v. Villareal-Amarillas, 562 F.3d
892, 897 (8th Cir. 2009). The argument therefore fails.
We reject as well Mr. Lee's related contention that the district court violated his
Sixth Amendment right to a jury trial because the conduct that supported the
enhancements formed the basis for a state criminal charge for which Mr. Lee had not
been tried. No doubt, Mr. Lee has a right to a jury trial on his charge in the state
court. But it is not a violation of the Sixth Amendment for a sentencing court to base
its sentence on facts that it finds to be true just because they may later be used to
support a conviction in a state court. And so long as factual findings do not increase
a defendant's sentence beyond the penalty authorized for the offense of conviction,
there is no Sixth Amendment right to have a jury determine those facts. United States
v. Booker, 543 U.S. 220, 244 (2005). Here, § 924(e) authorizes a life sentence for the
offense to which Mr. Lee pleaded guilty, so his argument is without merit.
III.
Mr. Lee contests the district court's refusal to award him any points for
acceptance of responsibility in calculating the guidelines range. Under § 3E1.1 of the
sentencing guidelines, an offender is entitled to receive a 2-point deduction if he
"clearly demonstrates acceptance of responsibility for his offense," and another 1-
point deduction if the government submits a motion asserting that the offender
"assisted authorities in the investigation or prosecution of his own misconduct by
timely notifying [them] of his intention to enter a plea of guilty." U.S.S.G. § 3E1.1.
At sentencing, Mr. Lee argued that he should receive the full 3-point reduction
because he had assisted in the government's investigation and timely entered his guilty
plea. But the district court gave him no points because he had frivolously contested
relevant conduct at sentencing and had falsely denied it in his allocution. In reviewing
the district court's denial, we recognize that "the district court is in a unique position
to evaluate a defendant's acceptance of responsibility," United States v. Searcy, 233
F.3d 1096, 1102 (8th Cir. 2000), and its decision "is entitled to great deference and
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should be reversed only if it is so clearly erroneous as to be without foundation,"
United States v. Winters, 416 F.3d 856, 860 (8th Cir. 2005).
A defendant who enters a guilty plea is not entitled to credit for acceptance of
responsibility as a matter of right. Id.; see also U.S.S.G. § 3E1.1, cmt. n.3. Rather,
a district court must determine whether a downward offense level adjustment is
warranted by taking into account "appropriate considerations," such as those listed
in the commentary to § 3E1.1. U.S.S.G. § 3E1.1, cmt, n.1. According to this
commentary, a plea of guilty combined with truthful admissions concerning the
offense of conviction and any relevant conduct is "significant evidence of acceptance
of responsibility." U.S.S.G. § 3E1.1 cmt. n.3. Furthermore, a defendant may remain
silent with respect to relevant conduct beyond the offense of conviction without
affecting his ability to obtain a reduction. U.S.S.G. § 3E1.1 cmt. n.1(a). But where
a defendant "falsely denies, or frivolously contests, relevant conduct that the court
determines to be true," a district court should find that the defendant "has acted in a
manner inconsistent with acceptance of responsibility." Id.
The district court heard testimony and reviewed affidavits from witnesses that
Mr. Lee offered during the sentencing hearing. The substance of this evidence
concerned whether Mr. Lee's co-defendant, Brandon Vance, was attempting to
implicate Mr. Lee falsely in much of the relevant conduct that led to his sentencing
enhancements. One of Mr. Lee's witnesses, a private investigator, testified that an
inmate claimed that Mr. Vance and his mother, Melody Vance, had tried to hire him
to frame Mr. Lee. As proof, the investigator offered the fact that Ms. Vance had
deposited $20 in the inmate's prison account as a purported initial payment for his
services. The investigator also submitted an affidavit from a second inmate who
stated that Mr. Vance had told him that the hotel robbery was his idea so he could get
some money to pay off his personal debts.
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To rebut these allegations, the government called Ms. Vance to the stand. She
admitted to depositing the money into the prison account, but she testified that she put
it there so her son could access it without having it garnished. The government then
called a special agent of the Bureau of Alcohol, Tobacco, Firearms and Explosives
(ATF) and a detective from the Coralville, Iowa, Police Department to testify about
Mr. Lee's significant involvement in the relevant conduct. These witnesses also
recounted interviews that they had conducted with Mr. Lee during which he had
admitted to his role in selling the stolen firearms and committing the hotel robbery.
After hearing this evidence, the district court found that the testimony that
Mr. Lee's witnesses provided was incredible and contrary to credible testimony
offered by the government's witnesses. The court then denied Mr. Lee acceptance of
responsibility, stating specifically that:
Certainly, on the issue of acceptance of responsibility, a defendant has
a right to raise claims and argue legal issues without losing acceptance
of responsibility, but what cannot be done is for the defendant to present
himself or to sponsor false information, asking the court to rely on it, and
that's what has happened here.
The court further noted that, in making its decision, it also considered statements by
Mr. Lee that indicated that he had not accepted responsibility and continued to blame
everyone else. In particular, the court referred to Mr. Lee's allocution, in which he
stated that he was a scapegoat, that there was no evidence linking him to any of the
stolen firearms, and that the ATF agent who had testified for the government had
perjured himself and should have to take a lie detector test. In addition, the court
referred to the hearing evidence that the private investigator offered as frivolous.
We can find no clear error in the district court's decision to deny Mr. Lee credit
for acceptance of responsibility. The district court based its decision largely on a
determination that the evidence that Mr. Lee offered was both incredible and frivolous
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and that he had made false statements during his allocution. A "finding based on the
credibility of live witnesses can almost never be clearly erroneous," United States v.
E.R.B., 86 F.3d 129, 130 (8th Cir. 1996), and particularly cannot be so here where the
evidence that Mr. Lee presented and his own statements were wholly rebutted by
evidence offered by the government that the district court found to be credible.
Mr. Lee also contends that he was denied his Fifth Amendment right to due
process because the district court's ruling effectively prohibited him from proving that
he was entitled to credit for assuming responsibility. But the district court expressly
adverted to Mr. Lee's right to "raise claims and argue legal issues" and to present
evidence in support of them. What Mr. Lee does not have a constitutional right to do
is to advance frivolous evidence and make false statements, and the district court, on
an ample record, found that he did just that. Mr. Lee received all the constitutional
process that he was due.
IV.
Mr. Lee argues finally that the district court's imposition of life imprisonment
constitutes cruel and unusual punishment under the Eighth Amendment. In doing so,
he attacks both the court's calculated sentence under the sentencing guidelines and its
alternative sentence, which was the same (the court said at sentencing that even if its
guidelines-range calculation was determined to be wrong, it would impose the
sentence of life imprisonment). Mr. Lee contends that the severity of the sentence is
grossly disproportionate to the gravity of his criminal offenses and showed the district
court's inherent misapprehension of the sentencing factors enumerated in 18 U.S.C.
§ 3553(a). We review this issue de novo. United States v. Wiest, 596 F.3d 906, 911
(8th Cir. 2010), cert. denied, No. 10-5724, 2010 WL 3073798 (U.S. Oct. 4, 2010).
The Eighth Amendment prohibits punishment that is "grossly disproportionate"
to the offense of conviction. United States v. Paton, 535 F.3d 829, 837 (8th Cir. 2008)
(internal quotation marks and citations omitted). Although this "narrow
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proportionality principle" applies to all criminal sentences, it is "exceedingly rare" for
a noncapital sentence to violate the Eighth Amendment. Id.
To determine whether a sentence is grossly disproportionate, we examine " 'the
gravity of the offense compared to the harshness of the penalty.' " Paton, 535 F.3d at
837 (quoting Ewing v. California, 538 U.S. 11, 28 (2003)). In weighing these matters,
we consider the "harm caused or threatened to the victim or to society, and the
culpability and degree of the defendant's involvement." Weist, 596 F.3d at 911-12.
We also consider a defendant's history of felony recidivism, if there is one. Paton,
535 F.3d at 837 (citing Ewing, 538 U.S. at 29).
Here, Mr. Lee contends that his sentence is unconstitutional because a typical
sentence for the offenses to which he pleaded guilty is ten years' imprisonment. In
making this argument, though, Mr. Lee passes over the crucial point that the district
court was not just sentencing him for his two firearms offenses. Rather, by
committing these crimes and pleading guilty, Mr. Lee subjected himself to being
sentenced under a federal recidivism statute – the ACCA – and corresponding
recidivism sections of the advisory sentencing guidelines – particularly § 4B1.4. The
statute required that Mr. Lee serve a minimum of fifteen years, see 18 U.S.C.
§ 924(e)(1), and, with applicable enhancements, the guidelines recommended an
advisory sentence of life imprisonment, a sentence within the statutory limits.
We find, moreover, that the harm caused or threatened by Mr. Lee's crimes and
his significant degree of involvement and culpability in those offenses weigh in favor
of the sentence that he received. See Weist, 596 F.3d at 911-12. The district court
found, based on sufficient evidence, that Mr. Lee had stolen and possessed between
8 and 24 firearms, one of which was a semiautomatic weapon capable of accepting
large-capacity ammunition magazines. He then arranged for the sale of some of these
weapons to a person he knew was a drug dealer and felon, and he used the remaining
weapons as part of the armed robbery at a local hotel. Mr. Lee played a significant
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role in that robbery, as the idea originated with him, he performed the initial scouting
and planning, and he directed two co-offenders, one of whom was a minor, in the
commission of the act. He also tied up a hotel clerk with duct tape. As Mr. Lee points
out, he did instruct his co-offenders not to take a laptop that contained the hotel clerk's
schoolwork and not to point their weapons directly at the hotel clerk after she had
opened the cash drawer. But these small acts of restraint pale in comparison to the
blatant disregard for public and personal safety that Mr. Lee demonstrated by stealing
the firearms, arranging for their illegal sale, and initiating and committing the armed
robbery.
Mr. Lee's criminal history also supports this lengthy sentence. At the time of
the firearms offenses at issue here, Mr. Lee had already been convicted of theft
(multiple counts), felony escape, second degree burglary (which also involved
Mr. Lee fleeing arrest into an elementary school), unlawful discharge of a handgun,
and inflicting injury on a child (multiple counts). When Mr. Lee's recent firearm
charges are added to this long list of offenses, it is difficult not to conclude that this
history "demonstrates an unwillingness or inability to 'conform[ ] to the norms of
society as established by its criminal law.' " Paton, 535 F.3d at 837 (quoting Rummel
v. Estelle, 445 U.S. 263, 276 (1980)). It also gave the district court good reason to
find that a life sentence – based on the sentencing guidelines or not – was appropriate
given that Mr. Lee, in the words of the district court, was an "unrepentant recidivist"
who had been "treated leniently by the state systems." In the district court's opinion,
Mr. Lee's sentence was justified considering the factors in § 3553(a) because he had
proven to be a "violent criminal ... [who] needs to be off the street for the protection
of the public," and "[t]he only way to deter him [from further endangering the public]
is to lock him up." Given Mr. Lee's extensive history of inflicting harm on others and
placing the greater public in danger, we find no occasion to disagree.
Quite the opposite. When we consider the seriousness of Mr. Lee's crimes and
his criminal history, we hold that this is not "the rare case in which a threshold
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comparison of the crime committed and the sentence imposed leads to an inference
of gross disproportionality." Ewing, 538 U.S. at 30 (internal quotation marks and
citation omitted). For that reason, we need not consider any contrasts that Mr. Lee
attempts to draw between his sentence and others within our circuit or elsewhere. Id.
While severe, Mr. Lee's sentence falls within the statutory range that Congress
provided, Paton, 535 F.3d at 838, as well as the recommended guidelines range, and
is supported by the district court's proper consideration of the sentencing factors in
§ 3553(a). Mr. Lee's sentence thus does not violate the Eighth Amendment's
prohibition against cruel and unusual punishment.
V.
For the forgoing reasons, we affirm the judgment of the district court.
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