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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-13617
Non-Argument Calendar
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D.C. Docket No. 6:11-cr-00083-ACC-KRS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARLIE WARREN PENDLETON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(December 9, 2016)
Before TJOFLAT, MARTIN and ANDERSON , Circuit Judges.
PER CURIAM:
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A jury found Charlie Warren Pendleton guilty of possessing a firearm and
ammunition as a felon, in violation of 18 U.S.C. § 922(g)(1), and the District Court
sentenced him to prison for 180 months under the Armed Career Criminal Act
(“ACCA”),18 U.S.C. § 924(e). 1 Pendleton appeals his conviction on the ground
that the District Court misapplied the Speedy Trial Act 2 in calculating the
excludable time. He appeals his sentence on two grounds: (1) the Court erred in
using his prior conviction for threatening to discharge a destructive device as an
ACCA predicate offense because the offense did not qualify under the ACCA’s
enumerated offenses clause and the Shepard 3 documents did not show that the
elements of the statute he was convicted of established a violent felony, and (2) his
prior conviction for resisting a law enforcement officer with violence was
presumptively void because he was not represented by counsel during the
1
Pendleton was indicted on March 16, 2011. He was tried and convicted under a
superseding indictment returned on December 21, 2011. He was sentenced on November 1,
2012, to a prison term of 180 months. He appealed his sentence, but we dismissed the appeal
because it was untimely filed. United States v. Pendleton, No. 12-16565 (11th Cir. 2013.
Pendleton then moved the District Court pursuant to 28 U.S.C. § 2255 alleging that his attorney
rendered ineffective assistance of counsel under the Sixth Amendment in failing to file a timely
notice of appeal following his November 1, 2012 sentence. Doc. 172-1. The Court agreed,
granted his motion, Doc. 173, and entered an amended judgment incorporating the November 1,
2012 sentence. Doc. 176. Pendleton now appeals that judgment.
2
18 U.S.C. §§ 3161 et seq.
3
Shepard v. United States, 544 U.S. 13, 26, 125 S. Ct. 1254, 1263, 161 L. Ed. 2d 205
(2005) (holding that a court is limited to “the terms of the charging document, the terms of a plea
agreement or transcript of colloquy between judge and defendant in which the factual basis for
the plea was confirmed by the defendant, or to some comparable judicial record of this
information” when determining whether a non-generic criminal statute necessarily admits the
elements of the generic offense).
2
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sentencing for that offense. After considering the parties’ briefs and the record, we
affirm Pendleton’s conviction and sentence.
I.
We review de novo the District Court’s denial of Pendleton’s motion to
dismiss his indictment pursuant to the Speedy Trial Act. United States v. Harris,
376 F.3d 1282, 1286 (11th Cir. 2004). We review the Court’s findings of fact
regarding what qualifies as excludable time under the Act for clear error. Id. at
1286.
Early during the prosecution of this case, it became apparent to Pendleton’s
lawyer that he may not be competent to stand trial. The Speedy Trial Act error the
District Court allegedly committed was in excluding the delay (in excess of 10
days) incurred in having Pendleton taken to the Medical Center for Federal
Prisoners at Springfield, Missouri, for a mental competency determination.
The Speedy Trial Act provides that a defendant’s trial must commence
within 70 days of either the filing date of the indictment or the date of the
defendant’s initial court appearance related to the charge, whichever occurs later.
18 U.S.C. § 3161(c)(1). The speedy trial clock is tolled during certain periods of
delay. 18 U.S.C. § 3161(h). Section 3161(h) of the Act, which addresses the delay
at issue here, provides, in relevant part:
(h) The following periods of delay shall be excluded in computing the
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time within which an information or indictment must be filed, or in
computing the time within which the trial of any such offense must
commence:
(1) Any period of delay resulting from other proceedings
concerning the defendant, including but not limited to—
(A) delay resulting from any proceeding, including any
examinations, to determine the mental competency or
physical capacity of the defendant;
...
(D) delay resulting from any pretrial motion, from the
filing of the motion through the conclusion of the hearing
on, or other prompt disposition of, such motion;
. . . [and]
(F) delay resulting from transportation of any defendant
from another district, or to and from places of
examination or hospitalization, except that any time
consumed in excess of ten days from the date an order of
removal or an order directing such transportation, and the
defendant’s arrival at the destination shall be presumed to
be unreasonable
....
(4) Any period of delay resulting from the fact that the
defendant is mentally incompetent or physically unable to stand
trial.
Id. Additionally, any specific day that triggers the running of the speedy trial clock
is excluded from the 70-day period. United States v. Elkins, 795 F.2d 919, 922
(11th Cir. 1986).
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We find no error in the District Court’s denial of Pendleton’s motion to
dismiss his indictment under the Speedy Trial Act because fewer than 70 non-
excludable days had passed. Pendleton’s argument---that the days beyond 10 that
it took to transport him to the Medical Center at Springfield should not have been
excluded---fails because he was incompetent during that entire time. Hence, such
time was properly excluded under § 3161(h)(4). Pendleton’s argument that
incompetent defendants should still receive the benefit of § 3161(h)(1)(F)’s 10-day
limit on reasonable transportation reads into the statute a conflict between
§ 3161(h)(1)(F) and (h)(4) that does not exist. Though we have no precedent
directly on point, a plain reading of the statute does not necessitate the conclusion
that only one of the exclusions under § 3161(h) can apply at a time. According to
the statute’s plain language, any qualifying delay is excludable, regardless of
whether it would or would not qualify under a different subsection of the statute.
Thus, if a defendant is mentally incompetent under § 3161(h)(4), that time is
excludable even if there is also a transportation delay that is unreasonably long and
thus not excludable under § 3161(h)(1)(F). In this case, for example, 53 days
passed between June 23, 2011, when the District Court found Pendleton
incompetent, and August 16, 2011, when he arrived at the Springfield Medical
Center. Pendleton is correct that under § 3161(h)(1)(F) only 10 of the 53 days of
transportation were excludable from the calculation. 18 U.S.C. § 3161(h)(1)(F).
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However, because he had been declared incompetent, the entire 53 days was
excludable under § 3161(h)(4). 18 U.S.C. § 3161(h)(4). There being no Speedy
Trial Act violation, Pendleton’s conviction is affirmed.
II.
Pendleton argues that his conviction for threat to discharge a destructive
device, in violation of Fla. Stat. § 790.162, does not qualify as a violent felony
under the ACCA. 4 He did not present his objection to the District Court at
sentencing. We therefore review it for plain error. To satisfy that standard of
review, Pendleton must establish the occurrence of “(1) an error, (2) that is plain,
(3) that affects substantial rights (which usually means that the error was
prejudicial), and (4) that seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” United States v. Mangaroo, 504 F.3d 1350,
1353 (11th Cir. 2007). “A plain error is an error that is ‘obvious’ and is ‘clear
under current law.’” United States v. Humphrey, 164 F.3d 585, 588 (11th Cir.
1999).
Under the ACCA, a violent felony is “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; or
4
Pendleton concedes that § 790.162 is divisible and that some violations of the statute
would qualify as violent felonies.
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(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). Subpart (i) is sometimes referred to as the “elements
clause,” while subpart (ii) contains the “enumerated crimes.” United States v.
Owens, 672 F.3d 966, 968 (11th Cir. 2012). The Supreme Court, in Johnson v.
United States, held that the second clause of § 924(e)(2)(B)(ii), the residual clause,
is unconstitutionally vague, and therefore, imposing an enhanced sentence based
upon that provision denies due process. 135 S. Ct. 2551, 2563, 192 L. Ed. 2d 569
(2015).
To determine whether a crime falls under the ACCA definition of a violent
felony, we typically “compare the elements of the statute forming the basis of the
defendant's conviction with the elements of the ‘generic’ crime—i.e., the offense
as commonly understood.” Descamps v. United States, 570 U.S. ___, 133 S. Ct.
2276, 2281, 186 L. Ed. 2d 438 (2013). If these elements are “the same as, or
narrower than, those of the generic offense,” then any conviction under the statute
qualifies as a violent felony. Id. This is the “categorical approach.” Id.
But, the Supreme Court has also outlined an alternative approach that
applies to a narrow subset of cases, the modified categorical approach. See United
States v. Lockett, 810 F.3d 1262, 1266 (11th Cir. 2016). As the Supreme Court
explained in 2013, this approach only applies to “divisible statute[s].” Descamps,
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133 S. Ct. at 2281. A statute is divisible if it “sets out one or more elements of the
offense in the alternative—for example, stating that burglary involves entry into a
building or an automobile.” Id. (emphasis in original); see also Mathis v. United
States, 579 U.S. ___, ___, 136 S. Ct. 2243, 2251-54, 195 L. Ed. 2d 604 (2016)
(holding that courts may use the modified categorical approach only if the
non-generic terms in a state statute constitute elements of the offense, not simply
alternative means of committing the crime).
As previously noted, Pendleton expressly concedes that Fla. Stat. § 790.162
is divisible and has consequently waived any argument to the contrary. [Appellant
Br. at 42]; In re Egidi, 571 F.3d 1156, 1163 (11th Cir. 2009) (explaining that
“[a]rguments not properly presented in a party’s initial brief or raised for the first
time in the reply brief are deemed waived”). So, we assume that the modified
categorical approach applies here. Under this approach, we consult any Shepard
documents the Government submitted to determine which version of the crime the
defendant was convicted of. United States v. Braun, 801 F.3d 1301, 1305 (11th
Cir. 2015).5 If the crime that the defendant was convicted of “has as an element
the use, attempted use, or threatened use of physical force against the person of
another,” then the conviction qualifies as a violent felony for purposes of the
5
Shepard, 544 U.S. at 26, 125 S. Ct. at 1263 (2005) (holding that a court is limited to
“the terms of the charging document, the terms of a plea agreement or transcript of colloquy
between judge and defendant in which the factual basis for the plea was confirmed by the
defendant, or to some comparable judicial record of this information” when determining whether
a non-generic criminal statute necessarily admits the elements of the generic offense)
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ACCA under the elements clause. Id. at 1307; 18 U.S.C. § 914(e)(2)(B)(i).
Similarly, if the elements of the crime that the defendant was convicted of match
the generic elements of an enumerated offense, then the conviction qualifies as a
violent felony for purposes of the ACCA under the enumerated crimes clause.
United States v. Ramirez-Flores, 743 F.3d 816, 820 (11th Cir. 2014).
We find no plain error in the Court’s finding that Pendleton’s prior
conviction for threatening to discharge a destructive device qualified as a violent
felony for purposes of the ACCA enhancement. Whether a conviction under
§ 790.162 qualifies as a violent felony through the enumerated clause of the
offense that “involves use of explosives” is a matter of first impression. 18 U.S.C.
§ 924(3)(2)(B)(ii). Consequently, there can be no error that is plain or obvious, the
second factor of the plain error standard. Humphrey, 164 F.3d at 588. But
assuming that it is, we do not invoke the standard because the error does not
“seriously affect[ ] the fairness, integrity, or public reputation of judicial
proceedings.” Mangaroo, 504 F.3d 1353.
III.
Pendleton argues that his prior conviction for resisting a law enforcement
officer with violence was presumptively void because he was not represented by
counsel in the sentencing in that case. United States v. Barrington, 648 F.3d 1178,
1195 (11th Cir. 2011). According to him, the Florida court’s omission of the name
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of his court-appointed attorney from the judgment established that he was not
represented by counsel and that his conviction is invalid under Gideon v.
Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963) (holding that the
Sixth Amendment, which grants defendants a right to counsel in all criminal
prosecutions, applies to the states through the Fourteenth Amendment), and cannot
be used as the basis for a sentence enhancement in a later case, such as the one
here. Burgett v. Texas, 389 U.S. 109, 115, 88 S. Ct. 258, 262, 19 L. Ed. 2d 319
(1967). Contrary to Pendleton’s argument, overwhelming evidence supports the
District Court’s factual finding that he received the assistance of appointed counsel
in the state proceedings underlying his conviction for resisting an officer with
violence. The evidence included a court order appointing the Public Defender at
Pendleton’s initial appearance on the charge; court minutes showing that was being
represented by counsel; a plea agreement signed by him and counsel; and counsel’s
motion for attorney’s fees made on the date of his sentencing. In sum, we find no
clear error in the Court’s finding that Pendleton received the representation of
counsel throughout the case and, in particular, at sentencing, where the court
imposed the sentence reflected in Pendleton’s plea agreement.
For the foregoing reasons, Pendleton’s conviction and sentence are
AFFIRMED.
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