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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-10569
Non-Argument Calendar
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D.C. Docket No. 8:13-cr-00038-JSM-TBM-2
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ALONIZA J. WILLIAMS,
a.k.a. Cat,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(March 18, 2015)
Before MARCUS, JULIE CARNES, and JILL PRYOR, Circuit Judges.
PER CURIAM:
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In this appeal, Mr. Aloniza Williams challenges an enhancement to his
sentencing guidelines range under the Armed Career Criminal Act (“ACCA”). Mr.
Williams argues that his prior burglary convictions in Florida do not qualify as
violent felonies under either the enumerated clause or the residual clause of the
ACCA. After careful review, we affirm.
I.
On November 6, 2013, Mr. Williams and his co-defendant met with an
undercover law enforcement officer. Mr. Williams sold the officer a shotgun and a
rifle, while his co-defendant sold a bag of crack cocaine. On January 15, 2013,
they both were indicted on several charges related to the sale. Mr. Williams pled
guilty on June 10, 2013, by a written plea agreement to Count IV of the
indictment—being a felon in possession of a firearm—and the government agreed
not to pursue the remaining charges against him.
The presentence investigation report (“PSR”) calculated that Mr. Williams’s
base offense level was 20, which was then increased six levels because he had
three firearms at the time of the offense and because he possessed a firearm in
connection with another felony offense. The PSR also determined that Mr.
Williams qualified for an enhancement under the ACCA, 18 U.S.C. § 924(e),
based on four prior burglary convictions in Florida. After the enhancements, Mr.
Williams’s offense level was 31. He had a criminal history category of IV, which
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meant his sentencing guidelines range was 188 to 235 months. His offense carried
a 15-year minimum sentence. Mr. Williams filed a sentencing memorandum,
arguing that the mandatory minimum of 15 years was a sufficient sentence. The
government filed a motion requesting a two-level reduction in Mr. Williams’s
offense level based on his substantial assistance.
At the sentencing hearing, Mr. Williams made two objections to the PSR.
First, he objected to the factual statement that he had been previously convicted for
burglary “of a dwelling.” The government agreed that the offense of conviction
was simply burglary, and the district court struck the relevant language from the
report. Second, Mr. Williams objected to the PSR’s Chapter 4 enhancement under
the ACCA. The district court overruled the objection because the enhancement
was “appropriate.” Adopting the facts in the PSR, the district court then granted
the government’s motion for a two-level reduction, resulting in a guidelines range
of 151 to 188 months, and sentenced Williams to 151 months’ imprisonment.
II.
Normally, we review de novo the question of whether a defendant’s prior
convictions qualify as violent felonies under the ACCA. United States v. Petite,
703 F.3d 1290, 1292 (11th Cir. 2013). Where a party has failed to state the
grounds for an objection to a sentence, however, that objection is waived for
purposes of appeal, and we review for plain error. United States v. Jones, 899 F.2d
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1097, 1103 (11th Cir. 1990), overruled in part on other grounds by United States
v. Morrill, 984 F.2d 1136, 1137 (11th Cir. 1993) (en banc); see also United States
v. Frazier, 605 F.3d 1271, 1282 (11th Cir. 2010).
Mr. Williams objected to the ACCA enhancement at the sentencing hearing.
Although he did not state the legal grounds for his objection, the grounds are
arguably clear from the context of an immediately preceding discussion regarding
the elements of Mr. Williams’s prior burglary convictions. Assuming arguendo
that Mr. Williams sufficiently objected in the district court, his argument regarding
the ACCA enhancement fails even on de novo review.
III.
Under the ACCA, a defendant’s sentence may be enhanced if he previously
has been convicted of three violent felonies. A violent felony is a crime punishable
by more than one year in prison that, in relevant part, “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)(ii). A state burglary conviction qualifies under the ACCA’s
enumerated clause if the definition of the crime substantially corresponds to the
elements of generic burglary: “unlawful or unprivileged entry into, or remaining
in, a building or structure, with intent to commit a crime.” Taylor v. United States,
495 U.S. 575, 599, 602 (1990).
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Even if it does not correspond to generic burglary, a conviction may still
qualify under the ACCA’s residual clause. In evaluating a crime under the residual
clause, we employ a categorical approach and look only to the elements of
conviction, not to the particular facts of the defendant’s crime. James v. United
States, 550 U.S. 192, 202 (2007) (“[W]e 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 this particular offender.”); see also
Sykes v. United States, 564 U.S. ___, 131 S. Ct. 2267, 2272-73 (2011). We also
employ a comparative approach to determine whether the risk posed by the crime
of conviction “is comparable to that posed by its closest analog among the
enumerated offenses. . . .” James, 550 U.S. at 203; see also Petite, 703 F.3d at
1294 (“Using the categorical approach, the central inquiry is whether the offense
‘presents a serious potential risk of physical injury to another’ comparable to the
risk posed by the ACCA’s enumerated crimes.”) (quoting Sykes, 131 S. Ct. at
2273).
The parties here agree that burglary in Florida is broader than generic
burglary, so we must consider whether Mr. Williams’s convictions qualify under
the residual clause.1 According to the PSR, Mr. Williams’s ACCA enhancement
1
Mr. Williams argues that his convictions cannot qualify as violent felonies under the residual
clause because the record does not show whether he encountered anyone else during the crimes.
Thus, he argues, we cannot assess whether his crimes presented a danger of confrontation
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was based on four burglary convictions—one in 1994, two in 1996, and one in
2008. We consider each conviction in turn.
A.
The indictment specified that Mr. Williams’s 1994 conviction was under
Fla. Stat. § 810.02(3), which read at the time:
“If the offender does not make an assault or battery or is not armed, or does
not arm himself, with a dangerous weapon or explosive as aforesaid during
the course of committing the offense and the structure or conveyance entered
is a dwelling or there is a human being in the structure or conveyance at the
time the offender entered or remained in the structure or conveyance, the
burglary is a felony of the second degree. . . . Otherwise, burglary is a felony
of the third degree. . . .”
The statute also broadly defined burglary as “entering or remaining in a structure
or conveyance with the intent to commit an offense therein, unless the premises are
at the time open to the public or the defendant is licensed or invited to enter or
remain.” Fla. Stat. § 810.02(1). We cannot determine from the record on appeal
whether Mr. Williams was convicted of second-degree or third-degree burglary.
We previously have analyzed this statute and determined that third-degree
burglary qualifies as a violent felony under the ACCA’s residual clause. United
States v. Matthews, 466 F.3d 1271, 1275 (11th Cir. 2006). In Matthews, the
defendant was convicted of being a felon in possession of a firearm. He had been
convicted previously of third-degree burglary in Florida in 1985 and 1989. Id. at
between him and a third party. But the residual clause is focused on potential risk, not on the
dangers that actually came to fruition.
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1272. The defendant in Matthews argued that because third-degree burglary
concerned entry into the curtilage of a structure, rather than the structure itself, it
did not present the same risk of violence as generic burglary.
We held that third-degree burglary presented a potential risk of violence
because unlicensed entry, even into curtilage, “may bring [a burglar] into close
physical proximity with the same persons he might encounter were he to enter the
structure,” and his presence “could lead an innocent person to investigate why he is
there.” Id. at 1275. Such encounters with third parties could easily lead to
violence. See also James, 550 U.S. at 203 (“The main risk of burglary arises not
from the simple physical act of wrongfully entering onto another’s property, but
rather from the possibility of a face-to-face confrontation between the burglar and
a third party—whether an occupant, a police officer, or a bystander—who comes
to investigate.”).
Matthews controls this case because it concerned the same statute under
which Mr. Williams was convicted in 1994. Although it is unclear from the record
whether Mr. Williams was charged with second-degree or third-degree burglary in
1994, both crimes consisted of “entering or remaining in a structure or conveyance
with the intent to commit an offense therein.” Fla. Stat. § 810.02(1).2
2
The major distinction is that second-degree burglary involved entry into a dwelling or an
occupied structure, while third-degree burglary involved entry into an unoccupied structure. Fla.
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Accordingly, under Matthews, we hold that Mr. Williams’s 1994 conviction was a
dangerous felony for purposes of the ACCA, regardless of whether he was
convicted of second-degree or third-degree burglary.
B.
The PSR next relied on two burglary convictions from 1996, by which time
Florida’s burglary statute had undergone minor revisions. According to the
indictment, both of Mr. Williams’s convictions from 1996 were under the revised
Fla. Stat. § 810.02(4), which read:
(4) Burglary is a felony of the third degree . . . if, in the course of
committing the offense, the offender does not make an assault or battery and
is not and does not become armed with a dangerous weapon or explosive,
and the offender enters or remains in a:
(a) Structure, and there is not another person in the structure at the
time the offender enters or remains; or
(b) Conveyance, and there is not another person in the conveyance at
the time the offender enters or remains.
The statute broadly defined burglary as “entering or remaining in a dwelling, a
structure, or a conveyance with the intent to commit an offense therein, unless the
premises are at the time open to the public or the defendant is licensed or invited to
enter or remain.” Fla. Stat. § 810.02(1) (emphasis added). This broad definition
was the same as in the 1994 statute, save the addition of the word dwelling.
Stat. § 810.02(3). Second-degree burglary necessarily poses a greater risk of confrontation than
third-degree burglary, given that it involves occupied structures.
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Matthews also directs our analysis of this statute. The elements of third-
degree burglary in 1996 remained the same as they were in 1994: entry into an
unoccupied structure or conveyance with intent to commit an offense by an
unarmed burglar who does not commit assault or battery. While the 1996 statute
made these elements more explicit, we do not think the restructuring changes the
analysis of third-degree burglary under the ACCA. As in Matthews, there is a
significant potential risk of physical harm arising from unlawful entry into a
structure or conveyance because the burglar may encounter a third-party, such as
an innocent bystander or a police officer. This risk is sufficient to render the crime
violent for purposes of the ACCA.
C.
Mr. Williams also argues that his fourth burglary conviction in 2008 does
not qualify as a violent felony. We need not address this argument because the
ACCA only requires three prior convictions, which requirement is satisfied by his
convictions in 1994 and 1996. Even so, we previously have held that burglary as
defined by the Florida statute in effect in 2008 is a violent felony for purposes of
the ACCA. United States v. Kirk, 767 F.3d 1136, 1141 (11th Cir. 2014). Mr.
Williams argues that Kirk was wrongly decided, but we are bound by its precedent.
IV.
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Under the prior opinions of this Court, Mr. Williams’s prior burglary
convictions qualify as violent felonies. Accordingly, we affirm the district court’s
imposition of a sentencing enhancement under the ACCA.
AFFIRMED.
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