[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APR 4, 2011
No. 09-13728 JOHN LEY
CLERK
________________________
D. C. Docket No. 09-00015-CR-3-LAC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARK HENRY PANTLE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(April 4, 2011)
Before CARNES and PRYOR, Circuit Judges, and SEITZ,* District Judge.
PER CURIAM:
*
Honorable Patricia A. Seitz, United States District Judge for the Southern District of
Florida, sitting by designation.
Mark Henry Pantle was sentenced to 120 months imprisonment following
his conviction for knowingly possessing a firearm after having been convicted of a
felony, in violation of 18 U.S.C. § 922(g)(1). His base offense level was set at 24
under U.S.S.G. § 2K2.1(a)(2) based on the district court’s determination that he
had two prior convictions for crimes of violence as defined by U.S.S.G. §
4B1.2(a). Those two prior convictions were for felony battery in violation of Fla.
Stat. § 784.03 in 2006, and for attempted first degree assault in violation of Ala.
Code §§ 13A-6-20(a) and 13A-4-2(a) in 1997.
In addition to his base offense level of 24, Pantle received a two-level
enhancement because the firearm he possessed was stolen and a four-level
enhancement because he had used or possessed a firearm in connection with his
1997 Alabama conviction for attempted first degree assault. See U.S.S.G. §§
2K2.1(b)(4)(A) & 2K2.1(b)(6). Based on his adjusted offense level of 30 and his
criminal history category of VI, Pantle’s guidelines range was 168 to 210 months
imprisonment. However, because the statutory maximum term of 120 months
imprisonment was less than his applicable guidelines range, 120 months became
the guidelines sentence under U.S.S.G. § 5G1.1(a).
In explaining Pantle’s sentence, the district court stated that it had reviewed
the 18 U.S.C. § 3553(a) factors and the guidelines and indicated that it thought 120
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months was not enough. Specifically, the court stated:
And while I’m not willing to find that this sentence is reasonable, it is
the maximum permitted, and therefore, I do think that it will serve the
sentencing purpose and meet the general goals of punishment and
hopefully deter anyone else from similar criminal conduct.
Pantle contends that the district court erred in setting his base offense level
at 24 based on his prior Florida and Alabama convictions because he believes that
neither conviction qualifies as a “crime of violence” within the meaning of
§ 2K2.1(a).
I.
Generally, we review de novo the issue of whether a defendant’s prior
conviction constitutes a crime of violence under the sentencing guidelines. United
States v. Llanos-Agostadero, 486 F.3d 1194, 1196 (11th Cir. 2007). But because
Pantle failed to object to his prior convictions being considered “crimes of
violence,” we review that aspect of the sentence calculation only for plain error.
See United States v. Camacho-Ibarquen, 410 F.3d 1307, 1315 (11th Cir. 2005).
For this Court to correct an error under plain error review, “(1) there must be
error; (2) the error must be plain; (3) the error must affect the appellant’s
substantial rights; and (4) the error must seriously affect the fairness, integrity, or
public reputation of judicial proceedings.” United States v. Gallego, 247 F.3d
1191, 1196 (11th Cir. 2001) (quotation marks and alteration omitted). “In order to
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be plain enough for the plain error rule, an asserted error must be clear from the
plain meaning of a statute or constitutional provision, or from a holding of the
Supreme Court or this Court.” United States v. Rodriguez, 627 F.3d 1372, 1381
(11th Cir. 2010). But it is enough that the error was plainly established under the
law at the time of appellate review. United States v. Rodriguez, 398 F.3d 1291,
1299 (11th Cir. 2005)
II.
A conviction under § 922(g)(1) results in a base offense level of 14, but if
the defendant already has two prior convictions for crimes of violence, his
applicable base offense level is increased to 24. U.S.S.G. §§ 2K2.1(a)(2) & (6).
The term “crime of violence” under § 2K2.1 “has the meaning given that term in §
4B1.2(a) and Application Note 1 of the Commentary to § 4B1.2.” U.S.S.G. §
2K2.1, cmt. n.1. Under § 4B1.2(a), a “crime of violence” is defined 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, or
(2) is burglary of a dwelling, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another.
U.S.S.G. § 4B1.2(a). A “crime of violence” includes the attempt to commit an
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offense that would, if completed, be a crime of violence. U.S.S.G. § 4B1.2, cmt.
n.1.
“The first step of the ‘crime of violence’ analysis is to identify the specific
crime at issue,” generally using a categorical approach. United States v.
Alexander, 609 F.3d 1250, 1253 (11th Cir. 2010). “However, when the law under
which a defendant has been convicted contains different statutory phrases—some
of which [qualify as “crimes of violence”] and some of which do not—the
judgment is ambiguous and we apply a ‘modified categorical approach.’” United
States v. Palomino Garcia, 606 F.3d 1317, 1336 (11th Cir. 2010) (citing Johnson v.
United States, ___ U.S. ___, 130 S. Ct. 1265, 1273 (2010)). Under the modified
categorical approach, the district court:
may determine which statutory phrase was the basis for the conviction
by consulting a narrow universe of “Shepard 1 documents” that
includes any charging documents, the written plea agreement, the
transcript of the plea colloquy, and any explicit factual finding by the
trial judge to which the defendant assented.
Id. at 1337. In cases such as this one where a prior conviction is the result of a
guilty plea, the question is whether the court documents establish that the
defendant “necessarily admitted” the elements of a predicate offense through his
plea. Shepard, 544 U.S. at 16, 24, 125 S. Ct. at 1257, 1262.
1
Shepard v. United States, 544 U.S. 13, 125 S. Ct. 1254 (2005).
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After identifying the crime, “[courts] then address whether it is a ‘crime of
violence.’” Alexander, 609 F.3d at 1254. A crime is covered by the “use clause”
of U.S.S.G. § 4B1.2(a)(1) if the offense has as an element the use of violent force.
Johnson, ___ U.S. at ___, 130 S. Ct. at 1271. Alternatively, a crime is covered by
the “residual clause” of U.S.S.G. § 4B1.2(a)(2) if the crime “presents a serious
potential risk of physical injury to another and is similar in kind to burglary, arson,
extortion, and crimes involving the use of explosives, the crimes enumerated in
U.S.S.G. § 4B1.2.” Alexander, 609 F.3d at 1259.
III.
Pantle first contends that under Johnson, his conviction for felony battery
under Fla. Stat. § 784.03 does not categorically qualify as a “crime of violence”
under § 2K2.1(a). In that case the Supreme Court recently held that the Florida
felony offense of battery is not categorically a “violent felony” under the “use
clause” of the ACCA. Johnson, ___ U.S. at ___, 130 S. Ct. at 1270–72 (holding
that the least of the acts sufficient to support a conviction under Fla. Stat. §
784.03—actually and intentionally touching—was not a “violent felony”); see also
United States v. Rainey, 362 F.3d 733, 734 (11th Cir. 2004) (recognizing that the
definition of a “crime of violence” under the career offender guideline is “virtually
identical” to the definition of a “violent felony” under the Armed Career Criminal
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Act, 18 U.S.C. § 924(e)). Consequently, when nothing in the Shepard documents
before the trial court shows that a defendant’s prior conviction under Fla. Stat. §
784.03 was based on greater force than an actual and intentional touching, the prior
conviction does not constitute a violent felony under 18 U.S.C. § 924(e)(2)(B)(i).
Johnson, ___ U.S. at ___, 130 S. Ct. at 1268–74.
Pantle also contends that the district court plainly erred by enhancing his
base offense level based on his 1997 Alabama conviction for attempted first degree
assault. Under Alabama law, a person commits the crime of assault in the first
degree if:
(1)With intent to cause serious physical injury to another person, he
causes serious physical injury to any person by means of a deadly
weapon or a dangerous instrument; or
(2) With intent to disfigure another person seriously and permanently,
or to destroy, amputate or disable permanently a member or organ of
his body, he causes such an injury to any person; or
(3) Under circumstances manifesting extreme indifference to the value
of human life, he recklessly engages in conduct which creates a grave
risk of death to another person, and thereby causes serious physical
injury to any person; or
(4) In the course of and in furtherance of the commission or attempted
commission of arson in the first degree, burglary in the first or second
degree, escape in the first degree, kidnapping in the first degree, rape
in the first degree, robbery in any degree, sodomy in the first degree
or any other felony clearly dangerous to human life, or of immediate
flight therefrom, he causes a serious physical injury to another person;
or
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(5) While driving under the influence of alcohol or a controlled
substance or any combination thereof . . . he causes serious bodily
injury to the person of another with a motor vehicle.
Ala. Code § 13A-6-20(a). Alabama law also provides that “[a] person is guilty of
an attempt to commit a crime if, with the intent to commit a specific offense, he
does any overt act towards the commission of such offense.” Ala. Code § 13A-4-
2(a).
Pantle points out that a conviction for attempted first degree assault under
Alabama law is possible under any of the five enumerated paragraphs of Ala. Code
§ 13A-6-20(a), including § 13A-6-20(a)(3), which permits a conviction when the
defendant acts “recklessly” instead of intentionally. He argues that a reckless
conduct crime cannot be a crime of violence within the meaning of U.S.S.G. §
4B1.2(a). See Palomino Garcia, 606 F.3d at 1336.
Pantle also argues that a conviction under § 13A-6-20(a)(5) cannot be
considered a crime of violence because that paragraph of the statute does not
require proof of any mental state. In Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377
(2004), the Supreme Court held that a subsection of Florida’s drunk driving statute,
which made it a crime to cause serious bodily injury while driving under the
influence of alcohol, was not a crime of violence. Id. at 9–10, 125 S.Ct. at 382–83.
The Court reasoned that the drunk driving offense did not require an offender
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convicted under that subsection to “actively employ” physical force because it did
not require proof of any mental state. Id. at 9, 125 S.Ct. at 382. Furthermore, the
Supreme Court specifically identified Ala. Code §13A-6-20(a)(5) as a statute like
Florida’s that did not require proof of any mental state. Id. at 8 n.5, 125 S.Ct. at
382 n.5.
IV.
We need not decide whether Pantle is correct about his Alabama and Florida
convictions not being crimes of violence. Even if we assume that the district court
erred in counting those convictions as crimes of violence, and even if we assume
that any error in doing so was plain, Pantle’s claim still fails because he cannot
satisfy the third prong of the plain error standard. (Because he fails the third
prong, we need not address the fourth.)
Under the third prong of the plain error analysis, “[i]t is the defendant rather
than the [g]overnment who bears the burden of persuasion with respect to
prejudice.” Rodriguez, 398 F.3d at 1299. And in order to meet that burden, a
defendant must show that the claimed error affected his substantial rights, which
“almost always requires that the error must have affected the outcome of the
district court proceedings.” Id. (quotation marks omitted). A defendant’s burden
under the plain error standard to show prejudice is “anything but easy”— “the
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burden truly is on the defendant to show that the error actually did make a
difference.” Id. at 1299–1300. As we explained in Rodriguez:
[I]f it is equally plausible that the error worked in favor of the defense,
the defendant loses; if the effect of the error is uncertain so that we do
not know which, if either, side it helped the defendant loses. Where
errors could have cut either way and uncertainty exists, the burden is
the decisive factor in the third prong of the plain error test, and the
burden is on the defendant.
Id. at 1300. Here, as in Rodriguez, the burden is the decisive factor, and
Pantle has not carried it.
Even assuming away both the Florida conviction and the Alabama
conviction, Pantle has still failed to meet his burden of showing that there is a
reasonable probability that the district court would have given him a shorter
sentence without the enhanced base offense level based on his two prior
convictions. See Rodriguez, 398 F.3d at 1301. Pantle relies on United States v.
Antonietti, 86 F.3d 206 (11th Cir. 1996), to establish that his substantial rights
were affected, but that reliance is misplaced. In Antonietti we did hold that the
district court had plainly erred by erroneously calculating the defendants’ base
offense levels and that the defendants’ substantial rights were affected as a result of
the error. Id. at 208–09. However, the defendants in that case were sentenced
pursuant to the mandatory sentencing guidelines. When the sentencing guidelines
were mandatory, there was a greater likelihood that a guidelines error affected the
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sentence that was imposed. Thus, the holding in Antonietti was that the error
affected the defendants’ substantial rights because they would not have been
eligible for the same sentence had the district court correctly calculated their base
offense levels. But United States v. Booker, 543 U.S. 220, 267, 125 S.Ct. 738, 769
(2005), changed that.
In Pantle’s case, the maximum sentence permitted by statute is 120 months.
Because his guidelines range exceeded the statutory maximum sentence, the
statutory maximum became his guidelines sentence. If Pantle were to be
resentenced without counting either prior conviction as a crime of violence, his
base offense level would be 14 (instead of 24). See U.S.S.G. § 2K2.1(a)(6).
Applying the same upward adjustments as before, Pantle’s adjusted offense level
would be 20 (instead of 30). Combined with his 23 criminal history points, which
yield a criminal history category of VI, Pantle’s guidelines range would be 70 to 87
months (instead of 168 to 210 months). Although his guidelines range would be
different, he could still receive the same 120-month sentence because § 3553(a)
would permit the district court to vary upward to that sentence. Unlike the
appellants in Antonietti, we do not know that Pantle would not have received the
same sentence without the (assumed) error.
To put it in terms of the third prong standard, Pantle has not demonstrated
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that there is a reasonable probability that he would have received a lower sentence
if the two prior convictions had not been counted as crimes of violence. See
Rodriguez, 398 F.3d at 1299. We can go further than that. In fact, the record
actually establishes a reasonable probability that Pantle would not have received a
lower sentence. After all, the district court expressly indicated that it believed the
120-month sentence was not long enough but could not go higher because that was
the statutory maximum. Having failed to carry his burden of showing a reasonable
probability of a different result, Pantle has not established that the error about
which he complains can be corrected under the plain error rule.
AFFIRMED.
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