United States Court of Appeals
For the First Circuit
No. 13-2292
UNITED STATES OF AMERICA,
Appellee,
v.
CLETUS E. DAVIS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Kayatta, Baldock,* and Selya,
Circuit Judges.
Jeffrey W. Langholtz on brief for appellant.
Margaret D. McGaughey, Assistant United States Attorney, with
whom Thomas E. Delahanty II, United States Attorney, was on brief,
for appellee.
December 9, 2014
*
Of the Tenth Circuit, sitting by designation.
BALDOCK, Circuit Judge. A federal grand jury indicted
Defendant Cletus Davis on one count of being a felon in possession
of two firearms in violation of 18 U.S.C. § 922(g)(1). Prior to
trial, Defendant filed a motion to suppress. He moved to suppress
the firearms as products of an unlawful search of his residence.
He also moved to suppress a statement he made while in transport to
the county jail regarding the presence of the firearms in his
residence. The district court in an oral ruling denied Defendant’s
motion to suppress. Thereafter, Defendant entered a conditional
plea of guilty pursuant to Federal Rule of Criminal Procedure
11(a)(2), reserving the right to appeal the denial of his motion.
At sentencing, the district court, over Defendant’s objection,
found he qualified as an armed career criminal under 18 U.S.C.
§ 924(e), and sentenced him to the mandatory minimum fifteen years
in prison.
Defendant now appeals both his conviction and sentence. In
challenging his conviction, Defendant no longer contests the
validity of the search itself under the Fourth Amendment. Rather,
Defendant now argues that two statements he made regarding the
presence of firearms inside the residence should be suppressed
under the Fifth Amendment based on alleged Miranda violations. As
noted above, Defendant objected to only one of those statements in
the district court. As for his sentence, Defendant continues to
object to being labeled an armed career criminal. Exercising
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jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291, we
affirm.
I.
The following facts, taken from the transcript of the
suppression hearing, are consistent with the district court’s oral
findings. Robert Omiecinski is a state probation officer in Maine.
In April 2011, Officer Omiecinski was supervising Defendant.
Defendant was on state probation as a result of felony convictions
for unlawfully “furnishing and trafficking in prison contraband.”
Defendant’s conditions of probation included the following:
(1) “[a]nswer all questions by your probation officer and permit
the officer to visit you at your home or elsewhere,” (2) “not own,
possess or use any firearm or dangerous weapon,” and (3) “submit to
random search and testing for drugs at the direction of a probation
or law enforcement officer.”
On April 5, 2011, Defendant was released from prison after
serving time for a probation violation, and he went to live with
his girlfriend, Elizabeth Hicks, in Wales, Maine. That same day,
Officer Omiecinski received a phone call from Hicks’ mother. She
advised Omiecinski that “there were guns and drugs” at her
daughter’s residence. Omiecinski decided to conduct a “home visit,
a probation check” the next day to “investigate and find out what
the situation was.”
Officer Omiecinski contacted Chris Libby, another state
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probation officer, for assistance in conducting the planned visit
to Hicks’ residence. He also contacted the local sheriff’s office
for assistance. Omiecinski informed Sergeant Rielly Bryant that
safety concerns prompted him to request the assistance of uniformed
officers. Omiecinski testified that Defendant’s criminal history
included “an armed standoff prior to his probation. Knowing there
potentially were guns [and] drugs in the house, for officer safety
I wanted as much manpower as possible in case something went
wrong.”1 Omiecinski, Libby, and Bryant agreed they would go to
Hicks’ residence and, for safety reasons, place Defendant “into
restraints” as soon as they made contact with him.
On April 6, 2011, Omiecinski, Libby, Bryant, and Deputy Travis
Lovering, also with the sheriff’s department, arrived at Hicks’
residence. Officer Libby, who knew Hicks, knocked on the door.
Hicks answered. Libby identified himself, asked if Defendant was
present, and told Hicks they wanted to search the home. Hicks
invited the four inside. Defendant, who was in the kitchen,
acknowledged Officer Omiecinski. In the house with Defendant and
Hicks were her three children and her mother. According to
1
In 2010, Libby was supervising a female probationer with whom
Defendant was living at the time. At some point that year, Libby
received information indicating Defendant “was abusive and that he
dealt drugs and there was a gun and some knives” in the
probationer’s residence. After a three-hour standoff with
Defendant and the probationer, authorities gained access to the
residence and located a “big bag” of cocaine in a vacuum cleaner
and a gun in a safe under Defendant’s control.
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Sergeant Bryant, Hicks’ mother “asked for permission to be able to
remove the children from the home and [the officers] quickly
granted” her request. Omiecinski approached Defendant and told
him: “I’m going to place you in restraints and handcuffs for my
safety. I’m here to do a probation check and we’re going to do a
search . . . .” Omiecinski also informed Defendant “he was not
under arrest,” and if everything checked out okay he would be “free
to go.” Omiecinski then handcuffed Defendant. By all accounts,
Defendant was “extremely cooperative” throughout the encounter.
Officer Omiecinski asked Defendant if any firearms were inside
the home. Defendant responded that a .22 rifle could be found in
the bedroom belonging to one of the children. Omiecinski asked
Hicks the same question. Hicks, who also was cooperative
throughout, responded that another rifle was in the bathroom off
the master bedroom. Omiecinski and Lovering remained with
Defendant while Libby and Bryant searched for the firearms.
Officer Libby retrieved “an M44” Polish rifle from the bathroom.
Sergeant Bryant retrieved a .22 caliber rifle from the child’s
bedroom. Bryant asked Hicks if she had ammunition for the .22
caliber rifle. Hicks removed some .22 caliber ammunition from the
dresser drawer. Hicks told Libby that she had no ammunition for
the M44 rifle. Omiecinski then informed Defendant that he was
under arrest. Bryant escorted Defendant, who remained handcuffed,
to his squad car for transport to the sheriff’s station.
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At this point, none of the officers had provided Defendant a
Miranda warning. Sergeant Bryant testified that “[m]y intention
was to go to the jail and advise him of his rights and record any
conversation that we had.” After Bryant informed Defendant of his
intention, Defendant “indicated that he would want to discuss with
his attorney prior to talking to me.” In response to the question
of whether he and Defendant “exhange[d] any small talk” en route,
Bryant stated: “Yes. We had a brief discussion. I talked about
—it’s a general question I usually ask when somebody is on
probation, how much time they have that’s possibly over their head
remaining, those types of questions, whether he was working or
anything at that particular point in time.”
When asked whether Defendant made any statements about the
rifles during their conversation, Sergeant Bryant again responded
yes: “At one point during the transport he uttered a statement
that maybe it was apparent that he was angry at his fiancé because
he knew the firearms were in the house and she was . . . supposed
to get those out of the house.” Bryant testified Defendant’s
statement was not in response to any question he asked. And Bryant
did not respond to Defendant’s statement. Bryant explained: “I
knew that [Defendant] did not want to talk to me about the case
itself and he had not been issued his Miranda warning at that point
so I wasn’t going to further any questioning into that unless he
had been read Miranda and changed his mind.”
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II.
We first address Defendant’s conviction. In doing so, we
assume some familiarity with Miranda v. Arizona, 384 U.S. 436
(1966), and its progeny. The Fifth Amendment requires police to
provide a criminal suspect a Miranda warning before subjecting him
to “custodial interrogation.” See Dickerson v. United States, 530
U.S. 428, 432 (2000). Otherwise, any incriminating statement a
suspect makes as a result of such interrogation may be inadmissible
at trial. See Rhode Island v. Innis, 446 U.S. 291, 297 (1980).
The ultimate question of whether an interrogation is “custodial” is
a mixed question of law and fact and, where preserved by proper
objection in the district court, subject to de novo review. United
States v. Fernandez-Ventura, 132 F.3d 844, 846 (1st Cir. 1998).
This standard “is not applied mechanically, but in view of the
totality of the circumstances.” Id. Similarly, “the determination
as to whether police ‘interrogation’ occurred [at all] depends on
the totality of the circumstances, a balancing analysis commonly
considered amenable to plenary review” where, as here, the
underlying historical facts are not in dispute. United States v.
Taylor, 985 F.2d 3, 7 n.5 (1st Cir. 1993).
A.
We initially consider the statement to which Defendant
objected in the district court, that is, the statement about the
rifles Defendant made to Sergeant Bryant during transport to the
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sheriff’s station. The district court ruled such statement was not
the product of “interrogation”:
[I]t is conceded that the defendant was under arrest and
was in custody and the question is whether . . . the
single statement was the product of an interrogation,
[or] was a volunteered statement, that statement to the
effect that [Defendant] was angry at his girlfriend
because he knew there were guns in the house and she was
supposed to get rid of them.
I find, based on the evidentiary record, that was a
volunteered statement. It was not a response to a
question. . . . [I]t would be too much speculation, based
on the record here, to conclude that really it was a coy
or devious procedure by the police officer to acquire
that information.
I do not agree that [Defendant’s statement] flows from
the question of how much time do you have left on
probation, are you working, family questions and so I
find that [the statement] is not the product of custodial
interrogation.
Undoubtedly, Defendant was “in custody” at the time he made
his statement to Sergeant Bryant. Officer Omiecinski earlier had
informed Defendant of his arrest based upon probable cause. But
“the special procedural safeguards outlined in Miranda are required
not where a suspect is simply taken into custody, but rather where
a suspect in custody is subjected to interrogation.” Innis, 446
U.S. at 300. “Miranda safeguards come into play whenever a person
in custody is subjected to either express questioning or its
functional equivalent.” Id. at 300-01 The “functional equivalent”
of questioning is “any words or action on the part of the police
. . . that the police should know are reasonably likely to elicit
an incriminating response from the suspect.” Id. at 301. “[T]he
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mere fact that a police officer may be aware that there is a
possibility that a suspect may make an incriminating statement is
insufficient to establish the functional equivalent of
interrogation.” Taylor, 985 F.2d at 8 (internal quotation marks
omitted).
The district court concluded, based on the totality of the
circumstances, that the brief conversation between Defendant and
Sergeant Bryant, during which Bryant asked Defendant a few general
questions about his status, was not the impetus for Defendant’s
subsequent statement regarding the presence of firearms in Hicks’
home. We agree that nothing in the record suggests a reasonable
officer under these circumstances would have understood that
general questions directed at Defendant’s status prior to his
arrest would elicit Defendant’s comment regarding his anger towards
Hicks for failing to remove the rifles from the home. Defendant
remained calm from the outset of the ordeal. He exhibited
knowledge of the criminal justice system when he told Bryant prior
to commenting about the rifles that he wanted to speak with an
attorney before talking to him at the police station. We cannot
say a reasonable officer in Sergeant Bryant’s position would have
anticipated Defendant’s comment as a result of their exchange. Cf.
Innis, 446 U.S. at 302 n.8 (recognizing that an officer’s knowledge
“concerning the unusual susceptibility of a defendant to a
particular form of persuasion might be an important factor in
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determining whether the [officer] should have known that [his]
words or actions were reasonably likely to elicit an incriminating
response”). Accordingly, because Sergeant Bryant’s questions
during that exchange did not constitute the “functional equivalent”
of interrogation, Defendant’s statement made during transport to
the sheriff’s station did not violate his Fifth Amendment right to
be free from self-incrimination.
B.
Next we consider the statement to which Defendant did not
object in the district court. Defendant did not move to suppress
the initial statement he made to Officer Omiecinski regarding
the rifle in the child’s bedroom.2 At best then, our review
of this belated challenge is for plain error. “Plain error is a
very stiff standard that is famously difficult to meet.” United
States v. Rodriguez, 759 F.3d 113, 118 (1st Cir. 2014) (internal
citation, quotation marks, and ellipsis omitted). To meet this
“rigorous standard,” Defendant “must identify: 1) an error 2) that
was clear and obvious 3) that affected his substantial rights, and
2
In his written motion to suppress, Defendant did not
challenge the admissibility of his statement to Omiecinski. At the
suppression hearing, Defendant confirmed the absence of any
challenge to this statement. The district court asked Defendant’s
counsel “which statements are you concerned with?” Counsel
responded: “There is one statement I’m concerned about primarily
which is the statement made in [Sergeant Bryant’s] car. There is
tangentially the statement that’s later made at the jail about use
of the drugs, but I don’t see any real relevance of that to this
case.”
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4) that seriously impaired the fairness, integrity, or public
reputation of the judicial proceeding.” United States v. Farrell,
672 F.3d 27, 29 (1st Cir. 2012).
Here, we bypass the initial question of whether Defendant was
“in custody” for purposes of Miranda at the time he answered
Officer Omiecinski’s inquiry about the presence of firearms in the
home, and proceed to the plain error standard’s latter three
requirements. To satisfy the standard’s second requirement,
Defendant must show that any error was clear and obvious under the
established law at the time of our consideration. Id. at 36. To
satisfy the standard’s third requirement, Defendant must establish
prejudice or, in other words, an error that “likely affected the
outcome of the district court proceedings.” Rodriguez, 759 F.3d at
118 (emphasis in original) (internal quotation marks omitted).
Finally, under the fourth requirement, any error that is plain and
affected Defendant’s substantial rights must have caused a
miscarriage of justice. Id. (noting that we have used the phrases
“caused a miscarriage of justice” and “seriously undermined the
integrity or public reputation of judicial proceedings”
interchangeably).
1.
We first ask whether any error the district court may have
committed in failing to suppress Defendant’s statement to Officer
Omiecinski was plain. In Miranda, the Supreme Court described
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“custodial interrogation” as “questioning initiated by law
enforcement officers after a person has been taken into custody or
otherwise deprived of his freedom of action in any significant
way.” Miranda, 384 U.S. at 444. We have said that the level of
physical control officers exercise over a suspect “carries the most
weight” in determining whether such suspect was “in custody” at the
time of interrogation. United States v. Mittel-Carey, 493 F.3d 36,
40 (1st Cir. 2007). To be sure, when Omiecinski handcuffed
Defendant, he deprived Defendant of his freedom of action, thereby
exercising a significant degree of physical control over him. See
id. (identifying some factors that inform the “in custody”
question as 1) where the suspect was questioned, 2) the number of
officers present, 3) the degree of physical restraint placed upon
the suspect, and 4) the character of the interrogation). But, we
have never held that the use of handcuffs necessarily renders a
probationer in custody for Miranda purposes. Nor has the Supreme
Court so held.
Notably, our sister circuits appear divided on the issue of
whether the use of handcuffs necessarily renders a criminal suspect
in custody for Miranda purposes. Indeed, the D.C. Circuit recently
referred to the question (without answering it) of whether the use
of handcuffs renders a suspect in custody within the meaning of the
Fifth Amendment as a “constitutional thicket.” United States v.
Brinson-Scott, 714 F.3d 616, 621 (D.C. Cir. 2013) (“The parties
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focus their arguments on the significance of the handcuffs, an
issue about which some of our sister circuits have reached opposite
conclusions.” (citing cases)); see also Oregon v. Elstad, 470 U.S.
298, 309 (1985) (recognizing that “the task of defining ‘custody’
[for Miranda purposes] is a slippery one”).
Making the question still more problematic is the fact that
this case arises in a probationary context where a condition of
Defendant’s probation required him to answer his probation
officer’s questions in the course of what undoubtedly was a lawful
home visit. Moreover, Officer Omiecinski told Defendant “he was
not under arrest,” but merely being placed in handcuffs as a safety
precaution, and if everything checked out okay he would be “free to
go.” “To a greater or lesser degree,” probationers “enjoy . . .
only conditional liberty properly dependent on observance of
special probation restrictions.” Griffin v. Wisconsin, 483 U.S.
868, 874 (1987) (internal quotation marks, brackets, and ellipsis
omitted). Surely a probationer suspected of recidivism has no more
rights than the ordinary criminal suspect referred to by the D.C.
Circuit.3
3
A reported case presenting a factual scenario somewhat
similar to ours is United States v. Newton, 369 F.3d 659 (2d Cir.
2004). In that case, the Second Circuit, applying de novo review,
held a parolee was “in custody” for Miranda purposes. The court
identified “the handcuffs” as the “problematic factor.” Id. at
675. The court deemed the presence of three parole officers and
three police officers relatively insignificant. The court’s
discussion, however, at least partially distinguishes that case
from this one:
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Fortunately, under plain error review we need not decide
whether Defendant was “in custody” for purposes of Miranda when he
informed Officer Omiecinski about the rifle in the child’s bedroom.
We need only conclude that whether Defendant was “in custody” for
purposes of Miranda at the time he answered Omiecinski’s inquiry
about the presence of firearms in the home is subject to reasonable
debate under the present state of the law, making the answer far
from clear or obvious. Accordingly, any Fifth Amendment violation
that may have occurred when Omiecinski failed to administer
Defendant a Miranda warning prior to questioning him about firearms
in the residence was not plain.
2.
Furthermore, we fail to see how any violation of Defendant’s
Fifth Amendment right to be free from self-incrimination prejudiced
Defendant or constituted a miscarriage of justice as demanded by
the third and fourth requirements of the plain error standard
The record does not indicate whether Newton was told that
the specific reason for a safety concern in his case was
that the officers were searching for a gun. Thus, we
cannot assume that a reasonable person in his situation
would have understood that the handcuffing would likely
last only until the officers had completed their search.
Neither can we assume an understanding that removal or
maintenance of the handcuffs depended on the outcome of
the search rather than on the suspect’s responding to
questions posed. . . . [H]andcuffing Newton, though
reasonable to the officers’ investigatory purpose under
the Fourth Amendment, nevertheless placed him in custody
for purposes of Miranda.
Id. at 677 (emphasis added).
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respectively. Here, Defendant’s conditions of probation permitted
the officers on the scene to search for drugs, a search to which
Defendant no longer objects and that undoubtedly would have
revealed the presence of the firearms in the home. Omiecinski’s
suspicion became all the more real when Hicks, who was not
restrained, informed Omiecinski of the rifle in the bathroom off
the master bedroom.
Thus, even absent Defendant’s statement to Officer Omiecinski,
the evidence is quite sufficient to sustain his conviction for
possessing firearms in violation of 18 U.S.C. § 922(g)(1). Just
recently in United States v. Ridolfi, 768 F.3d 57, 62 (1st Cir.
2014), we explained in upholding a § 922(g) conviction:
Constructive possession of a firearm may be established
when a person knowingly has the power and intention at a
given time of exercising dominion and control over it
either directly or through others. Constructive
possession may be sole or joint and does not require
actual ownership of the firearm. However, a person must
have actual knowledge of the weapon in order to have
constructive possession.
(internal brackets, citations, and quotation marks omitted).
Of course, “mere presence with or proximity to weapons, or
association with another who possesses a weapon, is not enough” to
sustain a § 922(g) conviction. Id. at 768 F.3d at 61–62. To
establish Defendant’s constructive possession of the firearms
inside the residence, he must have had knowledge of those firearms.
And while “knowledge can be inferred in some circumstances from
control of the area,” United States v. Booth, 111 F.3d 1, 2 (1st
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Cir. 1997) (per curiam), we need not rely on any such permissible
inference in this case. Defendant on the way to the sheriff’s
station plainly stated to Sergeant Bryant that he knew the firearms
were inside the residence. We have already held that this
statement did not infringe Defendant’s right to be free from self-
incrimination. Therefore, we fail to see how the district court’s
failure to suppress Defendant’s initial statement to Officer
Omiecinski “affected his substantial rights” or “seriously impaired
the fairness, integrity, or public reputation” of his criminal
proceedings. Rodriguez, 759 F.3d at 118.
III.
Next, we turn to Defendant’s sentencing and, in particular,
his objection to being labeled an armed career criminal and
sentenced to a mandatory minimum fifteen years in prison.
According to the Presentence Investigation Report, Defendant is an
armed career criminal subject to an enhanced sentence pursuant to
18 U.S.C. § 924(e), otherwise known as the Armed Career Criminal
Act (ACCA). Among other things, § 924(e)(1) provides that where a
defendant (1) is convicted of being a felon in possession of a
firearm in violation 18 U.S.C. § 922(g)(1), and (2) has three prior
“violent felony” convictions, the defendant shall be imprisoned not
less than fifteen years. Subsection (e)(2)(B) defines “violent
felony” as “any crime punishable by imprisonment for a term
exceeding one year” that “is burglary, arson, or extortion,
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involves the use of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to another.”4
Id. § 924(e)(2)(B)(ii) (emphasis added).
Where the statute of conviction is “indivisible,” we employ a
“categorical approach” to determine whether such crime constitutes
a “violent felony” under the residual clause of subsection
(e)(2)(B):
Under this approach, we look only to the fact of
conviction and the statutory definition of the prior
offense, and do not generally consider the particular
facts disclosed by the record of conviction. That is, we
consider whether the elements of the offense are of the
type that would justify its inclusion within the residual
provision, without inquiring into the specific conduct of
th[e] particular offender.
James v. United States, 550 U.S. 192, 202 (2007) (internal
emphasis, citations, and quotation marks omitted).
Alternatively, where a statute is “divisible,” or comprises
multiple, alternative versions of a crime not all of which qualify
as an ACCA predicate, we apply a “modified categorical approach” to
determine which crime formed the basis of a defendant’s conviction.
See Descamps v. United States, 133 S. Ct. 2276, 2283–85 (2013).
Where a defendant has pled guilty, this approach permits us to look
beyond the statute of conviction to the indictment, as well as to
4
Defendant’s argument that the ACCA’s residual clause is void
for vagueness is meritless. See James v. United States, 550 U.S.
192, 210 n.6 (2007); United States v. Anderson, 745 F.3d 593, 596
(1st Cir. 2014). But see Derby v. United States, 131 S. Ct. 2858,
2859–60 (2011) (Scalia, J., dissenting from denial of cert.).
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any plea agreement and plea colloquy, to determine whether a
particular conviction qualifies under the ACCA. Id.
A.
The § 924(e) predicate to which Defendant objects on appeal
arises out of his 2007 Florida conviction for vehicular flight in
violation of Florida Statutes § 316.1935(1):5
It is unlawful for the operator of any vehicle, having
knowledge that he or she has been ordered to stop such
vehicle by a duly authorized law enforcement officer, [1]
willfully to refuse or fail to stop the vehicle in
compliance with such order, or [2] having stopped in
knowing compliance with such order, willfully to flee in
an attempt to elude the officer, and a person who
violates this subsection commits a felony of the third
degree . . . .
Defendant does not dispute that the “[r]isk of violence is
inherent to vehicle flight,” and for good reason. See Sykes v.
United States, 131 S. Ct. 2267, 2274 (2011) (holding Indiana’s
vehicular flight crime constitutes a “violent felony” under the
ACCA). In Sykes, the Supreme Court explained:
Confrontation with police is the expected result of
vehicle flight. It places property and persons at
serious risk of injury.
. . . . Between the confrontations that initiate and
terminate the incident, the intervening pursuit creates
5
The two predicate convictions which Defendant does not object
to on appeal are (1) a 2003 Florida conviction for burglary of a
dwelling (the record provides no statutory cite), and (2) a 2007
Florida conviction for vehicular flight to elude police in
violation of Florida Statutes § 316.1935(2). Defendant objected to
his convictions under both § 316.1935(1) and (2) in the district
court as improper predicates under the ACCA, but objects only to
his conviction under subsection (1) on appeal.
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high risks of crashes. . . . It is well known that when
offenders use motor vehicles as their means of escape
they create serious potential risks of physical injury to
others.
Id. Subsequently, in United States v. Travis, 747 F.3d 1312, 1317
(11th Cir. 2014), the Eleventh Circuit held that “vehicle flight”
in violation of Florida Statutes § 316.1935(1) constitutes a crime
of violence for purposes of the sentencing guidelines.6
B.
Surely the Eleventh Circuit knows more about Florida law than
we do. So instead of making a futile argument that a conviction
for vehicular flight under § 316.1935(1) does not constitute a
“violent felony” within the meaning of the ACCA, Defendant argues
subsection (1) is a divisible statute which may be violated absent
vehicular flight under the subsection’s second provision. Without
citation to authority, Defendant says a motorist violates the
statute by fleeing on foot after having been stopped by police.
And, according to Defendant, because the state indictment under
which he was charged does not refer to vehicular flight, his
conviction under subsection (1) does not constitute a “violent
6
“We have repeatedly noted that the ‘substantial similarity’
between the definition of ‘violent felony’ for sentencing
enhancement purposes under the ACCA and the definition of ‘crime of
violence’ under the Guidelines’ career offender provision [U.S.S.G.
§ 4B1.2(a)] makes decisions interpreting one phrase frequently
persuasive in interpreting the other.” United States v. Ramirez,
708 F.3d 295, 301 n.4 (1st Cir. 2013) (internal quotation marks,
brackets, and ellipsis omitted).
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felony” within the meaning of § 924(e). We disagree.7
To be sure, § 316.1935(1) provides alternative means by which
a motorist may violate the statute. To elude police, the motorist
may flee outright, or stop and then flee. But, as we read the text
of the statute, either means is sufficient to qualify as an ACCA
predicate because both require vehicular flight. And that renders
the modified categorical approach inapplicable to Defendant’s case.
See Descamps, 133 S. Ct. at 2285. We thus need not address whether
fleeing on foot constitutes a “violent felony” under the ACCA.
Absent its first provision, subsection (1) reads: “It is unlawful
for the operator of any vehicle, . . . having stopped in knowing
compliance with [the] order [of law enforcement], willfully to flee
in an attempt to elude the officer . . . .” Fla. Stat.
§ 316.1935(1) (emphasis added). One who flees on foot surely acts
unlawfully but does not do so as the “operator of any vehicle” and
therefore does not violate the statute. See Florida Standard Jury
Instruction (Criminal) 28.6 (2013) (recognizing vehicular flight as
an element of § 316.1935(1) in all instances).
For all the foregoing reasons, the judgment and sentence of
the district court are AFFIRMED.
7
We also disagree with Defendant’s argument that prior
convictions used to enhance a sentence pursuant to the ACCA must be
charged in the indictment. See United States v. Paladin, 748 F.3d
438, 451–52 (1st Cir. 2014).
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