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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-14400
Non-Argument Calendar
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D.C. Docket Nos. 2:11-cr-00495-KOB-HGD-1,
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL HEATH THETFORD,
Defendant-Appellant.
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No. 13-14401
Non-Argument Calendar
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D.C. Docket No. 2:12-cr-00349-KOB-HGD-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
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MICHAEL HEATH THETFORD,
Defendant-Appellant.
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Appeals from the United States District Court
for the Northern District of Alabama
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(August 11, 2015)
Before TJOFLAT, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
In this consolidated appeal, Michael Thetford, pursuant to a plea agreement
containing a waiver-of-appeal clause, pleaded guilty in Case One to possession of a
firearm by a convicted felon, in violation of 18 U.S.C. § 922(g), and to conspiring
to commit and committing wire fraud, in violation of 18 U.S.C. §§ 1343, 1349, and
in Case Two to coercing a minor to engage in sexually explicit conduct, in
violation of 18 U.S.C. § 2251(a), and receipt of child pornography, in violation of
18 U.S.C. § 2252A(a)(2). The District Court thereafter sentenced Thetford to
concurrent prison sentences as follows: 318 months under the Armed Career
Criminal Act (“ACCA”), 18 U.S.C. § 924(e), for the firearm and child-coercion
offenses and 240 months for the wire-fraud and child-pornography offenses.
Thetford appeals his convictions on the ground that the Magistrate Judge denied
him the ability to represent himself because he was unable to access a law library.
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He appeals his sentences on the ground that he was improperly sentenced under the
ACCA. We address these appeals in order.
I.
During trial, Thetford repeatedly expressed his desire to proceed pro se.
Concerned by the perils of pro se representation but cognizant of Thetford’s
constitutional right to represent himself, the Magistrate Judge fashioned a
compromise. The judge allowed Thetford to proceed pro se, but arranged for a
Federal Public Defender to assist him as stand-by counsel. Thetford subsequently
filed a “Motion for Disposition of all Cases,” in which he stated that he had been
unable to access a law library in order to represent himself. The Magistrate Judge
denied the motion, explaining in the process that Thetford had no right to access a
law library since he had been given the option of being represented by counsel but
had rejected it.
Although Thetford now challenges the Magistrate Judge’s ruling, he failed
to appeal that ruling to the District Court. 1 We therefore lack jurisdiction to review
Thetford’s claim regarding access to a law library. See United States v. Brown,
441 F.3d 1330, 1352 (11th Cir. 2006); see also Fed. R. Crim. P. 59(b)(2) (stating
1
As it turned out—and at Thetford’s request—the Magistrate Judge re-appointed the
assistant public defender. A few days later Thetford entered into a plea agreement with the
Government and tendered the guilty pleas indicated above.
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that the failure to timely object to a magistrate judge’s recommended disposition
“waives a party’s right to review” that disposition).
II.
The ACCA provides that a person who violates 18 U.S.C. § 922(g) and has
three previous violent felony convictions (each committed on occasions different
from one another) is subject to a minimum term of fifteen years’ imprisonment. 18
U.S.C. § 924(e)(1). The ACCA defines a violent felony as:
any crime punishable by imprisonment for a term exceeding one year,
or any act of juvenile delinquency involving the use or carrying of a
firearm, knife, or destructive device that would be punishable by
imprisonment for such term if committed by an adult, that—
...
(ii) 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). The final clause of § 924(e)(2)(B)(ii)—crimes that
“otherwise involve[] conduct that presents a serious potential risk of physical
injury to another”—is known as the “residual clause.” See United States v.
Howard, 742 F.3d 1334, 1349 (11th Cir. 2014).
We review de novo the District Court’s determination that a conviction
qualifies as a violent felony under the ACCA. Id. at 1341. At issue here is
Thetford’s prior Alabama conviction for third-degree burglary. Under Alabama
law, “[a] person commits the crime of burglary in the third degree if he knowingly
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enters or remains unlawfully in a building with intent to commit a crime therein.”
Ala. Code § 13A-7-7.
The District Court found that the third-degree burglary conviction was a
generic burglary conviction.2 We held recently, though, that a § 13A-7-7 burglary
does not qualify as a generic burglary, and therefore does not constitute a
“burglary” under the ACCA. See Howard, 742 F.3d at 1349. The District Court
therefore erred in relying on Thetford’s § 13A-7-7 conviction in sentencing him
under the ACCA. And, while the government presented an alternative argument
that Thetford’s offense qualified as a violent felony under the ACCA’s residual
clause, it has since withdrawn that argument based upon that clause’s
unconstitutionality. See Johnson v. United States, 576 U.S. ___, ___, 135 S. Ct.
2551, 2563, ___ L. Ed. 2d ___ (2015) (holding that “imposing an increased
sentence under the residual clause of the Armed Career Criminal Act violates the
Constitution’s guarantee of due process”).
Accordingly, we vacate Thetford’s sentences and remand the cases for
resentencing.
AFFIRMED in part; VACATED and REMANDED in part.
2
The Supreme Court has held that the ACCA’s definition of “burglary” encompasses
“only a special subclass of burglaries” containing “at least the following elements: an unlawful
or unprivileged entry into, or remaining in, a building or other structure with intent to commit a
crime.” Taylor v. United States, 495 U.S. 575, 598, 110 S. Ct. 2143, 2158, 109 L. Ed. 2d 607
(1990). We refer to such a burglary as a “generic burglary.” See, e.g., United States v. Howard,
742 F.3d 1334, 1343 (11th Cir. 2014).
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