[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-15915 ELEVENTH CIRCUIT
AUGUST 30, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 09-60141-CR-JIC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
IVORY VINCENT PITTS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(August 30, 2010)
Before CARNES, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Ivory Vincent Pitts appeals his 180-month sentence for one count of
possession of a firearm and ammunition by a convicted felon, 18 U.S.C. §
922(g)(1). Pitts argues that the district court erred in enhancing his sentence
pursuant to the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e).
Specifically, Pitts argues that the district court erred in: (1) determining that his
1978 California conviction for robbery with a firearm qualified as a “violent
felony;” and (2) that his 2001 Florida cocaine conviction qualified as a “serious
drug offense” under the ACCA. After reading the briefs and reviewing the record
we find that these two prior convictions qualified as predicate offenses for the
ACCA enhancement and affirm the district court’s sentence.
I. BACKGROUND
Pitts was adjudicated guilty of robbery with a firearm, pursuant to California
Penal Code § 211, on November 28, 1978 for an offense he committed when he
was 18 years old. The transcript of Pitts’s plea colloquy, which the government
entered into evidence at sentencing, shows that Pitts also pled no contest to the
allegation that he personally used a handgun during the commission of the robbery.
Doc. 62-1 at 46.
Pitts was also adjudicated guilty of possession of cocaine with intent to sell
or deliver, under Florida Statute § 893.13(1)(a)1, on July 9, 2001. The government
entered the probable cause affidavit, information, and judgment from this
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conviction into evidence during the sentencing. The probable cause affidavit listed
the offense Pitts was being arrested for as “Delivery Cocaine” and detailed the
police officer’s observations of Pitts conducting the sale of cocaine. Id. at 61–62.
The information charged Pitts with “Poss/Sell/Deliver/Cocaine.” Id. at 59–60.
The judgment listed the degree of the crime as “2F.” Id. at 64.
The district court found by a preponderance of the evidence that the
California robbery was a violent felony and that the Florida drug conviction was a
serious drug offense. Pitts disputes these findings and appeals the district court’s
sentence under the ACCA.
II. STANDARD OF REVIEW
We review de novo whether a particular conviction is a qualifying offense
for the purposes of sentencing as an armed career criminal. United States v. Day,
465 F.3d 1262, 1264 (11th Cir. 2006) (per curiam).
III. DISCUSSION
Under the ACCA an individual convicted under 18 U.S.C. § 922(g) is
subject to a mandatory minimum 15-year sentence if he has three prior federal or
state convictions “for a violent felony or a serious drug offense, or both, committed
on occasions different from one another.” 18 U.S.C. § 924(e)(1). In addition, for
guideline calculation purposes, a defendant subject to the ACCA automatically
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receives an offense level of at least 33, and a criminal history category VI.
U.S.S.G. § 4B1.4(b)(3)(B) and (c)(3).
A. Pitts’s California Robbery Conviction is a Violent Felony Under the ACCA
Section 924(e) defines “violent felony,” in part, as “any crime punishable by
imprisonment for a term exceeding one year . . . that– (i) has as an element the
use, attempted use, or threatened use of physical force against the person of
another.” 18 U.S.C. § 924(e)(2)(B). In March 2010, following Pitts’s sentencing,
the Supreme Court clarified that, within the definition of a “violent felony,” the
term “‘physical force’ means violent force—that is, force capable of causing
physical pain or injury to another person.” Johnson v. United States, 559 U.S. __,
130 S. Ct. 1265, 1271 (2010).
When determining whether an offense qualifies as a violent felony, courts
ordinarily employ a “categorical approach,” in that they should “examine it in
terms of how the law defines the offense and not in terms of how an individual
offender might have committed it on a particular occasion.” Begay v. United
States, 553 U.S. 137, 141, 128 S. Ct. 1581, 1584 (2008). However, when the
statute of conviction contains language providing for conviction under
circumstances that involve the use of violent force as well as circumstances that do
not involve the use of such force, courts may use a “modified categorical
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approach.” Johnson, 130 S. Ct. at 1273 (quotation omitted). Under this approach,
courts may determine the precise statutory basis for conviction—and its violent or
non-violent nature—by consulting documents in the trial record, including, but not
limited to, charging documents, transcripts of plea colloquies, and verdict forms.
Id. Under either approach, an “armed robbery conviction is undeniably a
conviction for a violent felony.” United States v. Dowd, 451 F.3d 1244, 1255
(11th Cir. 2006).
“Robbery is the felonious taking of personal property in the possession of
another, from his person or immediate presence, and against his will, accomplished
by means of force or fear.” Cal. Penal Code § 211. Pitts argues that, because a
person convicted under California’s robbery statute could have used either force or
fear, we cannot assume he used force during the robbery. Pitts then concludes that
robbery using the method a fear does not qualify as a violent felony.
A violent felony includes the “threatened use of physical force against the
person of another.” 18 U.S.C. § 924(e)(2)(B)(i). We cannot think of any other
logical way for a defendant to place fear in the victim of a robbery other than by
threatening physical harm. Therefore, the California robbery statute is
categorically within the definition of violent felony for the purposes of the ACCA.
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Pitts’s robbery conviction also qualifies as a violent felony under the
modified categorical approach because he possessed a handgun during the robbery.
Since we have determined that the California robbery statute is categorically a
violent felony, we do not need to discuss the modified categorical approach, but we
do so to be clear that the district court’s use of the California plea colloquy
transcript was proper. See Dowd, 451 F.3d at 1255. Furthermore, a violent felony
also includes any felony that “otherwise involves conduct that presents a serious
potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii).
Robbery, especially one involving a handgun, is a type of crime that ordinarily
poses the potential for serious physical risk to the victim and it is similar to the
enumerated crimes in 18 U.S.C. § 924(e)(2)(B)(ii). See Begay, 553 U.S. at 142,
128 S. Ct. at 1584–85. Therefore, the California robbery statute also falls within
this residual clause of the violent felony definition. See id.
B. Pitts’s Florida Drug Conviction was a Serious Drug Offense
Section 924(e) defines “serious drug offense” as either a federal drug offense
punishable by a maximum term of 10 years’ imprisonment or longer, or “an
offense under State law, involving manufacturing, distributing, or possessing with
intent to manufacture or distribute, a controlled substance,” also punishable by a
maximum term of 10 years’ imprisonment or longer. 18 U.S.C. § 924(e)(2)(A).
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State court convictions for simple possession are not serious drug offenses under
the ACCA. United States v. Hansley, 54 F.3d 709, 718 (11th Cir. 1995).
In United States v. Spell, upon which Pitts relies, the defendant challenged
his career criminal enhancement on the grounds the judgment reflected only that he
was convicted of burglarizing a structure, as opposed to a dwelling. 44 F.3d 936,
937–38 (11th Cir. 1995) (per curiam). We held that district courts may only
inquire into conduct surrounding a prior conviction when it is impossible to make a
qualifying-offense determination from the face of the judgment itself. Id. at 939.
Even then, the inquiry is “limited to examining easily produced and evaluated
court documents, including the judgment of conviction, charging papers,” and
other records. Id. (vacating and remanding the case for the district court to
establish that the defendant had been convicted of the charged offense).
The judgment for Pitts’s Florida cocaine conviction is slightly ambiguous
because it lists the offense as “Poss/Sell/Del Cocaine.” Further, the information
lists the offense statute as “893.032A4" which codifies cocaine as a controlled
substance, not the actual statute under which Pitts was convicted. However, the
information lists the degree of the crime as “2F,” a second degree felony. Under
Florida law, mere possession of cocaine is a third degree felony. Fla. Stat. §
893.13(6)(a). Thus, Pitts must have been convicted of sale or delivery of cocaine,
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both of which qualify as a serious drug offense for the purposes of the ACCA. 18
U.S.C. § 924(e)(2)(A)(ii). Furthermore, the probable cause affidavit and
information specify that Pitts was arrested for and charged with the sale or delivery
of cocaine. These documents are sufficient support for the district court’s finding
that the Florida drug conviction qualified as a serious drug offense.
IV. CONCLUSION
The district court appropriately considered Pitts’s prior convictions and the
supporting documents associated with those convictions in determining whether
the convictions qualified for inclusion in the ACCA. Therefore, we find that the
ACCA enhancement was proper and affirm the district court’s sentence.
AFFIRMED.
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