NOT RECOMMENDED FOR PUBLICATION
File Name: 16a0548n.06
No. 15-6451 FILED
Sep 26, 2016
DEBORAH S. HUNT, Clerk
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
ON APPEAL FROM THE
)
UNITED STATES DISTRICT
v. )
COURT FOR THE WESTERN
)
DISTRICT OF KENTUCKY
RICKY PAGE, )
)
OPINION
Defendant-Appellant. )
BEFORE: GILMAN, GIBBONS, and STRANCH, Circuit Judges.
JANE B. STRANCH, Circuit Judge. Defendant Ricky Page pleaded guilty to charges
of distributing a controlled substance and being a felon in possession of a firearm. Page had
multiple prior convictions for felonies that involved either controlled substances or violence.
The government and Page agreed that Page would face a statutory minimum of fifteen years of
imprisonment. In the plea agreement, Page waived his right to appeal most aspects of his
conviction and sentence. The district court accepted the plea with its sentence of 180 months,
the statutory minimum under the Armed Career Criminal Act (ACCA). On appeal, Page argues
for the first time that the ACCA should not apply, and that his trial counsel was ineffective for
failing to challenge its applicability at the earlier stages of his case. For the following reasons,
we AFFIRM the judgment of the district court.
No. 15-6451, United States v. Page
I. BACKGROUND
On April 19, 2012, Page sold three grams of heroin to a confidential informant. The next
month, a search warrant was executed at Page’s residence and two firearms were located. The
superseding indictment filed against Page listed three previous felony convictions—for
facilitation to first-degree robbery, trafficking in a controlled substance, and first-degree
robbery—in support of charges for being a felon in possession of a firearm. In a written
agreement, Page pleaded guilty of distributing a controlled substance in violation of 21 U.S.C.
§ 841(a)(1) and § 841(b)(1)(C) and of being a felon in possession of a firearm in violation of
18 U.S.C. § 922(g) and § 924(e).
In the plea agreement under Rules 11(c)(1)(A) and (C) of the Federal Rules of Criminal
Procedure, Page waived his right to appeal his sentence unless based on claims of ineffective
assistance of counsel or prosecutorial misconduct. The government agreed to move to dismiss
several other charges. Both parties agreed that a custodial sentence of 180 months of
imprisonment was an appropriate disposition of the case. The district court explored the factual
basis of the plea, to which Page’s counsel did not object, before accepting the plea agreement.
The probation office calculated an offense level of 31 and criminal history category of VI under
the U.S. Sentencing Guidelines, leading to an advisory guideline range of 188 to 235 months in
custody. The probation office designated Page as an armed career criminal based on at least
three prior convictions for a violent felony or serious drug offense. Page had additional prior
convictions, including for second-degree burglary. Neither party objected to the offense and
criminal history findings and armed career criminal designation, which were adopted by the
district court. The district court sentenced Page to 180 months of imprisonment, the custodial
sentence agreed on by the parties and the statutory minimum under the ACCA.
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No. 15-6451, United States v. Page
Page timely appealed his conviction and sentence.
II. ANALYSIS
A. Waiver Of Right To Appeal
Page argues that there were defects in the factual basis of his guilty plea and that prior
convictions must be charged as predicate crimes and found as such by the jury to qualify him as
an armed career criminal. Neither argument was raised in the district court. The government
argues that the terms of the plea agreement prevent appeal of these issues.
The waiver clause in Page’s plea agreement reads:
Defendant is aware of his right to appeal his conviction and that 18 U.S.C. § 3742
affords a defendant the right to appeal the sentence imposed. Unless based on
claims of ineffective assistance of counsel or prosecutorial misconduct, the
Defendant knowingly and voluntarily waives the right (a) to directly appeal his
conviction and the resulting sentence pursuant to Fed. R. App. P. 4(b) and 18
U.S.C. § 3742, and (b) to contest or collaterally attack his conviction and the
resulting sentence under 28 U.S.C. § 2255 or otherwise.
(R. 44, ¶ 11 PageID 110) The district judge described the waiver clause and its effect to Page,
who affirmed that he understood the matter. Page also confirmed that he had adequate time to
talk with his trial counsel about the guilty plea, and was satisfied with the attorney’s advice.
The government urges us to forego review of substantive matters in this case based on the
waiver clause. Page does not directly address his waiver of the right to appeal his conviction and
sentence, other than to conclude that “the record makes clear that Mr. Page’s acquiescence to the
plea agreement was premised on his counsel’s deficient performance.” Presumably, Page asks
us to disregard the waiver clause because it is found in a plea agreement that was “itself . . .
infected by the ineffective assistance of trial counsel.”
We generally review the district court’s rulings for plain error regarding arguments that
were not brought at the trial court level. United States v. Caruthers, 458 F.3d 459, 473 (6th Cir.
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No. 15-6451, United States v. Page
2006). Page has fashioned part of his appeal around his trial counsel’s alleged ineffectiveness at
the plea and sentencing phases. We do not normally review ineffective assistance of counsel
claims on direct appeal because the record is usually insufficient for appellate review at this
stage. United States v. Ferguson, 669 F.3d 756, 762 (6th Cir. 2012). When the record is
sufficient for review of ineffective assistance of counsel claims, we review it de novo as a mixed
question of fact and law. Id. at 761. A plaintiff asserting ineffective assistance on a guilty plea
must show that “counsel’s performance was deficient and that the deficient performance
prejudiced his defense such that there is a ‘reasonable probability that, but for counsel’s errors,
he would not have pleaded guilty and would have insisted on going to trial.’” Id. at 762 (citing
Hill v. Lockhart, 474 U.S. 52 (1985) and Strickland v. Washington, 466 U.S. 668 (1984)).
A waiver of the right to appeal does not leave a defendant “entirely at the whim of the
district court.” Caruthers, 458 F.3d at 471 (quoting United States v. Martin, 961 F.2d 493, 496
(4th Cir. 1992)). And such a waiver does not preclude a defendant from challenging a sentence
as exceeding the statutory maximum. Id. at 472. In Caruthers, an appellant challenged his status
as an armed career criminal. The crime of being a felon in possession of a firearm is normally
punishable by a maximum of ten years, but is punishable by a minimum of fifteen years if the
ACCA applies. Id. (quoting 18 U.S.C. § 924(a)(2) and § 924(e)). Because the statutory
minimum for the ACCA is above the statutory maximum for a standard felon-in-possession
conviction, the Caruthers court determined that the sentence potentially exceeded the statutory
maximum and proceeded to evaluate the merits despite the appellate waiver. Id. We follow suit,
in part because judicial resources are put to more efficient use here by addressing the question of
whether Page is properly classified as an armed career criminal. To the extent that ineffective
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No. 15-6451, United States v. Page
assistance of counsel claims are based on Page’s designation as an armed career criminal, the
record is sufficient to resolve the claims at this time.
B. Armed Career Criminal Designation
Most of Page’s arguments, whether termed merits attacks or claims of ineffective
assistance of counsel, derive from his designation as an armed career criminal. To avoid his
enhanced sentence under the ACCA, Page urges us to overrule a published decision of this court
and abrogate a decision of the Supreme Court. Those cases remain good law and we affirm
Page’s designation as an armed career criminal.
1. Facilitation to Commit First-Degree Robbery as a Predicate
The ACCA establishes a statutory minimum of fifteen years of imprisonment for
defendants convicted of felon-in-possession laws while having three or more prior convictions
for serious drug offenses or violent felonies, both of which have multi-pronged definitions. See
18 U.S.C. § 924(e). Page concedes that his two prior convictions for drug trafficking and first-
degree robbery qualify as predicates under the ACCA. He argues that his trial counsel and the
district court erred in counting facilitation to commit robbery, first degree, under Kentucky law
as a violent-felony predicate under the ACCA. Prior convictions qualify as violent-felony
predicates under the ACCA if the crime has the same or narrower elements than the generic
definition of crimes listed in the enumerated felonies prong. See § 924(e)(2)(B)(ii). Prior
convictions qualify under the use of force prong if the crime “has as an element the use,
attempted use, or threatened use of physical force against the person of another.”
§ 924(e)(2)(B)(i). To determine whether a crime qualifies as a violent felony, courts use the
categorical approach by looking at the elements of the crime, not at the underlying facts of how
the defendant committed the crime. Taylor v. United States, 495 U.S. 575, 600 (1990). Courts
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No. 15-6451, United States v. Page
look at a limited set of documents from the underlying case if the statute is divisible, which
means the statute contains alternative elements, some of which would satisfy an ACCA prong
and others which would not. Shepard v. United States, 544 U.S. 13, 25–26 (2005). Courts do
not look at the underlying facts when the statute is indivisible. Descamps v. United States,
133 S. Ct. 2276, 2285 (2013).
This court previously decided in United States v. Elliott that facilitation to commit
robbery, first degree, in Kentucky qualifies as an ACCA predicate under the use of force prong.
757 F.3d 492, 496 (6th Cir. 2014). The court concluded that “no matter the facts, a defendant
cannot be convicted of facilitation of robbery, first degree, in Kentucky unless his conduct
actually aided the commission of the robbery, which means that the completed offense must be
proved. The completed offense of robbery, first degree, involved a theft committed through the
use or threatened immediate use of physical force upon another person . . .” Id.
Page argues that Elliott was wrongly decided in light of Descamps. He claims that
criminal facilitation in Kentucky can be committed without the use of force, making the statute
too broad to qualify under the use of force prong. But in Elliott, this court addressed a similar
argument and found that the elements at issue are those for facilitation to commit robbery, first
degree, not “facilitation in the abstract.” Id. at 495. The Elliott court, with Descamps in mind,
found that facilitation to commit robbery, first degree, in Kentucky was an indivisible statute that
satisfied the use of force prong. Id. at 496. Elliott was a published panel decision that controls
the outcome in this case “unless an inconsistent decision of the United States Supreme Court
requires modification or this Court sitting en banc overrules the prior decision.” Rutherford v.
Columbia Gas, 575 F.3d 616, 619 (6th Cir. 2009) (quoting Salmi v. Sec’y of Health & Human
Servs., 774 F.2d 685, 689 (6th Cir. 1985)). As discussed above, Descamps is not inconsistent.
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No. 15-6451, United States v. Page
Nor is Johnson v. United States, which struck the residual clause of the ACCA definition of
violent felony, but left the use of force prong intact. 135 S. Ct. 2551, 2563 (2015). Facilitation
to commit robbery, first degree, under Kentucky law therefore remains a violent felony for
ACCA purposes, and the district court and Page’s trial counsel committed no error, plain or
otherwise, in determining that was the case.
We also note that Page’s prior conviction for second-degree burglary would likely
provide the third predicate to qualify him as an armed career criminal. See United States v.
Jenkins, 528 F. App’x. 483, 485 (6th Cir. 2013) (holding second-degree burglary under
Kentucky law qualified as a violent felony under the enumerated crimes prong of the ACCA).
2. Predicate Crimes
Page also argues that his sentencing under the ACCA was improper because the predicate
crimes should have been presented to a grand jury and been part of the factual basis of the plea.
In Almendarez-Torres v. United States, 523 U.S. 224, 246 (1998), the Supreme Court held that
Congress can authorize a judge to find the fact of a prior conviction for sentencing matters. Page
argues that we should read a subsequent Supreme Court case, Alleyne v. United States, 133 S. Ct.
2151 (2013), as abrogating Almendarez-Torres. However, the Alleyne decision acknowledges
Almendarez-Torres and explicitly sets that case outside its holding. Id. at 2160 n.1 (“In
Almendarez-Torres . . . we recognized a narrow exception to this general rule for the fact of a
prior conviction. Because the parties do not contest that decision’s vitality, we do not revisit it
for purposes of our decision today.”) Indeed, this court has already rejected the argument that
Alleyne requires the nature or character of prior convictions to be found by a jury. Elliott,
757 F.3d at 496–97. The district court again committed no error when it found, based on the
factual basis established in the plea agreement and proceedings, that Page had at least three
predicate violent felonies or serious drug offenses.
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No. 15-6451, United States v. Page
III. CONCLUSION
Page appeals his conviction and sentence, although he waived his right to appeal most
aspects of his conviction and sentence. The appeal is without merit because Page was properly
classified as an armed career criminal based on his prior convictions for violent felonies and
serious drug offenses. As we have previously held, facilitation to commit robbery, first degree, in
Kentucky is a violent felony under the use of force prong of the Armed Career Criminal Act.
The district court properly determined that Page had at least three prior convictions that qualify
as ACCA predicates. To the extent Page claims ineffective assistance of counsel based on his
status as an armed career criminal, those claims are without merit. The district court did not err,
and the judgment is therefore AFFIRMED.
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