United States v. Daniel Lashay Carley

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-13385 ELEVENTH CIRCUIT
FEBRUARY 2, 2009
Non-Argument Calendar
________________________ THOMAS K. KAHN
CLERK

D. C. Docket No. 07-00483-CR-T-24MAP

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DANIEL LASHAY CARLEY,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Middle District of Florida
_________________________

(February 2, 2009)

Before BIRCH, BARKETT and HULL, Circuit Judges.

PER CURIAM:

Daniel Lashay Carley appeals his concurrent 140-month sentences after
pleading guilty to (1) conspiracy to distribute 5 kilograms or more of cocaine, in

violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii)(II), and 846, and (2) possession

with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C.

§ 841(a)(1), (b)(1)(B)(ii)(II).

On appeal, Carley argues that the district court erred in sentencing him as a

career offender under United States v. Archer, 531 F.3d 1347 (11th Cir. 2008),

because his prior Florida state conviction for carrying a concealed firearm does not

constitute a predicate offense for determining career-offender status under

U.S.S.G. § 4B1.1.

We review the district court’s application of the guidelines de novo.

United States v. Gibson, 434 F.3d 1234, 1243 (11th Cir. 2006). In addition, the

decision to classify a defendant as a career offender is a question of law we review

de novo. Id.

A district court may enhance a defendant’s sentence as a career offender

if (1) the defendant was at least eighteen years old at the
time the defendant committed the instant offense of
conviction; (2) the instant offense of conviction is a
felony that is either a crime of violence or a controlled
substance offense; and (3) the defendant has at least two
prior felony convictions of either a crime of violence or a
controlled substance offense.

U.S.S.G. § 4B1.1(a). The Guidelines define a “crime of violence” as a crime

2
punishable by imprisonment for more than a 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).

In Begay v. United States, 553 U.S. __, 128 S.Ct. 1581, 170 L.Ed.2d 490

(2008), the Supreme Court addressed whether a conviction for felony driving

under the influence constituted a “violent felony” for purposes of the Armed

Career Criminal Act (“ACCA”). The Supreme Court concluded that such crimes

were violent felonies only to the extent that they were “roughly similar, in kind as

well as in degree of risk posed,” to the crimes enumerated in the ACCA, namely,

burglary, arson, extortion, and crimes involving the use of explosives. Id. at __,

128 S.Ct. at 1584-85. Applying this standard to felony driving under the

influence, the Supreme Court held that the offense was not a violent felony

because a conviction for driving under the influence did not require a showing of

purposeful, violent, aggressive conduct, but was more comparable to strict liability

crimes where no intent was required. Id. at __, 128 S.Ct. at 1586-87.

3
In United States v. Gilbert, we held that “carrying a concealed weapon in

violation of Florida law is a ‘crime of violence’ under U.S.S.G. § 4B1.2(1).”1 138

F.3d 1371, 1372 (11th Cir. 1998), abrogated by, Begay, 553 U.S. __, 128 S.Ct.

1581. However, applying the Begay standard, we recently decided that Gilbert

had been abrogated and held that the crime of carrying a concealed weapon could

no longer be considered a crime of violence under the Sentencing Guidelines.

Archer, 531 F.3d at 1352. In light of Archer’s holding that carrying a concealed

weapon does not constitute a crime of violence and the government’s concession

of error, we vacate the sentence and remand for resentencing.

Upon review of the record on appeal, and upon consideration of the parties’

briefs on appeal, we find reversible error.

VACATED AND REMANDED.

1
The guideline referred to as U.S.S.G. § 4B1.2(1) in Gilbert is listed as § 4B1.2(a) under
the 2007 version of the Guidelines, which apply to the instant case.