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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-10713
Non-Argument Calendar
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D.C. Docket No. 7:16-cr-00003-HL-TQL-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LEDELL L. ELLIS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(June 13, 2018)
Before TJOFLAT, NEWSOM and HULL, Circuit Judges.
PER CURIAM:
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After pleading guilty to possession of a firearm by a convicted felon, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), defendant Ledell Ellis appeals
his 71-month sentence. Ellis argues that the district court erred in categorizing his
prior Georgia conviction for party to the crime of aggravated assault as a “crime of
violence” under the Sentencing Guidelines. In response, the government contends
Ellis’s conviction qualifies and that the district court did not err. To understand the
issues requires a complete review of both the procedural background and our
relevant precedent.
I. BACKGROUND
On October 17, 2015, two officers of the Quitman, Georgia Police
Department conducted a traffic stop on a gray Dodge Neon after noticing that the
driver was not wearing a seatbelt. As one of the officers approached the vehicle,
he noticed that the person sitting in the passenger seat—later identified as
defendant Ellis—was holding a white towel over his lap. The officer then heard
Ellis drop something on the vehicle’s floorboard. Upon inspection, the officers
discovered that the dropped object was a firearm. The officers removed both the
driver and Ellis from the vehicle and secured the firearm in question—a Glock,
Model 26, 9mm semiautomatic pistol with an extended magazine containing 33
rounds of ammunition.
2
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On February 10, 2016, a federal grand jury returned an indictment charging
Ellis with a single count of possession of a firearm by a convicted felon, in
violation of 18 U.S.C. 922(g) and 18 U.S.C. 924(a)(2). Ellis pled guilty to the
single count on October 12, 2016.
Using the 2016 Sentencing Guidelines, Ellis’s Presentence Report (“PSR”) 1
calculated his total offense level to be 21, consisting of: (1) a base offense level of
22 under U.S.S.G. § 2K2.1(a)(3) because the firearm was capable of accepting a
large capacity magazine and because Ellis had previously been convicted of a
crime of violence; (2) a two-level increase under § 2K2.1(b)(4)(A) because the
firearm was stolen; (3) a two-level decrease for acceptance of responsibility under
§ 3E1.1(a); and (4) a one-level decrease for entering a plea of guilty in a timely
manner under § 3E1.1(b).
As to the § 2K2.1(a)(3) base offense level, the PSR identified as the crime of
violence Ellis’s 2011 conviction in Glynn County, Georgia for party to the crime
of aggravated assault, Docket No. CR1100383-063. As to this conviction, the
criminal history portion of the PSR stated that Ellis and a codefendant were
indicted on thirteen counts and that Ellis pled guilty to one count of aggravated
assault and one count of burglary, and the remaining counts were nolle prossed.
The PSR further stated that “[w]ith respect to the counts of conviction, court
1
Ellis’s initial PSR was revised twice. Here, we recount the calculations set forth in the
third and final PSR, because that is what the district court used in sentencing Ellis.
3
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records show Ellis assaulted Barry Pierre with a handgun and entered the dwelling
house of Frederick Stanley, all on August 18, 2010.”
The PSR calculated Ellis’s criminal history points to be nine, yielding a
criminal history category of IV. This resulted in an advisory guidelines range of
57 to 71 months’ imprisonment.
At his January 2017 sentencing hearing, Ellis objected to his base offense
level of 22. Ellis contended, inter alia, that his prior Georgia conviction for party
to the crime of aggravated assault could not qualify as a “crime of violence” as
defined in U.S.S.G. § 4B1.2. Ellis did not dispute that Georgia aggravated assault
constituted a crime of violence. Instead, Ellis argued that, under the categorical
approach, Georgia’s party to a crime statute—O.C.G.A. § 16-2-20—criminalizes
conduct that falls outside of U.S.S.G. § 4B1.2’s definition of a crime of violence.
Specifically, Ellis argued that a defendant can be convicted under Georgia’s party
to a crime statute for “advis[ing], encourag[ing], or counsel[ing]” another to
commit aggravated assault and that such conduct falls outside the definition of a
crime of violence. Ellis argued that O.C.G.A. § 16-2-20 was a divisible statute, but
that the state court indictment and plea suggested that Ellis’s codefendant in the
state case was the one who shot the victim and did not show how Ellis was a “party
to” the aggravated assault under OCGA § 16-2-20. 2
2
As discussed later, a problem here is that at sentencing the parties and the district court
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The district court overruled Ellis’s objection, calculated Ellis’s advisory
guidelines range of 57 to 71 months using a base offense level of 22, and sentenced
Ellis to 71 months of imprisonment.
II. DISCUSSION
On appeal, Ellis advances two arguments. First, Ellis argues that Georgia
aggravated assault is not a crime of violence under § 4B1.2 of the Sentencing
Guidelines. Ellis did not raise this argument during his sentencing hearing. 3
Second, Ellis repeats the argument he made at his sentencing hearing: that his
Georgia aggravated assault conviction does not qualify as a crime of violence
because it was for being a party to the crime. 4
Under the Sentencing Guidelines, a defendant’s base offense level is 22 if
his firearm offense involved a semiautomatic firearm that was capable of accepting
a large capacity magazine and he committed the firearm offense after sustaining a
discussed and referred to the contents of several state court documents, including the indictment
and some plea records, but those documents were not formally admitted into evidence.
3
We review this issue for plain error because Ellis did not raise it during his sentencing
hearing. See United States v. Massey, 443 F.3d 814, 819 (11th Cir. 2006) (holding that specific
objections to a sentence must be clearly raised before the district court in order to be properly
preserved for appeal, and that a defendant “fails to preserve a legal issue for appeal if the factual
predicates of an objection are included in the sentencing record, but were presented to the district
court under a different legal theory”). Moreover, as explained below, this claim also fails under
a de novo standard of review because of this Court’s decision in United States v. Morales-
Alonso, 878 F.3d 1311 (11th Cir. 2018).
4
We review this issue de novo because Ellis raised the argument during his sentencing
hearing. United States v. Lockley, 632 F.3d 1238, 1240 (11th Cir. 2011).
5
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felony conviction for a crime of violence or controlled substance offense. U.S.S.G.
§ 2K2.1(a)(3). Section 4B1.2, in turn, defines “crime of violence” as any offense
under federal or state law, punishable by imprisonment for a term exceeding one
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 murder, voluntary manslaughter, kidnapping, aggravated
assault, a forcible sex offense, robbery, arson, extortion, or the
use or unlawful possession of a firearm described in 26 U.S.C.
§ 5845(a) or explosive material as defined in 18 U.S.C.
§ 841(c).
U.S.S.G. § 4B1.2(a) (emphasis added).5 The first prong of this definition is
commonly referred to as the elements clause, while the second prong is a list of
enumerated crimes (“enumerated crimes clause”). See United States v. Lockley,
632 F.3d 1238, 1240-41 (11th Cir. 2011).
Application Note 1 of the commentary to § 4B1.2 explains that a crime of
violence or a controlled substance offense “include[s] the offenses of aiding and
abetting, conspiring, and attempting to commit such offenses.” U.S.S.G. § 4B1.2
cmt. n.1. This list of inchoate offenses in the commentary “is not exhaustive” and
“is not necessarily limited to aiding and abetting, conspiring, and attempting.”
United States v. Lange, 862 F.3d 1290, 1294-96 (11th Cir. 2017) (concluding that
5
Effective August 1, 2016, Amendment 798 to the Sentencing Guidelines eliminated the
residual clause in § 4B1.2(a)(2). See U.S.S.G. app. C, amend. 798.
6
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the definition of controlled substance offense “as informed by Application Note 1,
is broad enough to encompass” principle liability under Florida law, which makes
liable as a principle one who “aides, abets, counsels, hires, or otherwise procures”
an offense that is committed or attempted to be committed).
To determine whether a state crime categorically qualifies as a crime of
violence under the enumerated crimes clause, we apply the categorical approach.
See Mathis v. United States, 579 U.S. ___, ___, 136 S. Ct. 2243, 2248 (2016).
Under the categorical approach, we assess whether the elements of the crime of
conviction sufficiently match the elements of any generic offense listed in the
enumerated crimes clause. Id. In doing so, we look at how the state statute of
conviction defines the offense at issue rather than looking at the conduct
underlying the defendant’s conviction. See Welch v. United States, 578 U.S. ___,
___, 136 S. Ct. 1257, 1262 (2016) (“Under the categorical approach, a court
assesses whether a crime qualifies as a violent felony 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.” (internal quotation marks omitted)). When
applying the categorical approach, a court must presume that a conviction rested
upon nothing more than the least of the acts criminalized. Moncrieffe v. Holder,
569 U.S. 184, 190-91, 133 S. Ct. 1678, 1684 (2013).
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In certain cases, however, we apply a modified version of the categorical
approach that allows us to look at “a limited class of documents to determine what
crime, with what elements, a defendant was convicted of” in order to “compare
that crime, as the categorical approach commands, with the relevant generic
offense.” Mathis, 579 U.S. at ___, 136 S. Ct. at 2249. It is appropriate to apply
the modified categorical approach only when the statute of conviction is
“divisible” in that it “list[s] elements in the alternative, and thereby define[s]
multiple crimes.” Id. A statute that merely lists alternative means of committing a
single crime is not divisible, however. Id.
A. Georgia Aggravated Assault
Ellis’s first argument—that Georgia aggravated assault is not a crime of
violence as defined by § 4B1.2 of the Sentencing Guidelines—fails in light of this
Court’s recent decision in United States v. Morales-Alonso, 878 F.3d 1311 (11th
Cir. 2018).
Morales-Alonso concerned a defendant’s challenge to a 16-level
enhancement under § 2L1.2(b)(1)(A)(ii) of the 2015 Sentencing Guidelines. Id. at
1312-13. That enhancement applies to a defendant who has been previously
deported after being convicted of a felony “crime of violence.” U.S.S.G.
§ 2L1.2(b)(1)(A)(ii). The commentary to § 2L1.2 defined the term “crime of
violence” to mean:
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[A]ny of the following offenses under federal, state, or local law:
murder, manslaughter, kidnapping, aggravated assault, forcible sex
offenses . . . , statutory rape, sexual abuse of a minor, robbery, arson,
extortion, extortionate extension of credit, burglary of a dwelling, or
any other offense under federal, state, or local law that has as an
element the use, attempted use, or threatened use of physical force
against the person of another.
U.S.S.G. § 2L1.2 cmt. n.1(B)(iii) (2015) (emphasis added).6
Because Morales-Alonso had been convicted of Georgia aggravated assault
prior to an earlier deportation, the district court applied the enhancement. Morales-
Alonso, 878 F.3d at 1313. On appeal, Morales-Alonso argued that Georgia
aggravated assault did not qualify as a “crime of violence,” but this Court
disagreed. Id. at 1317-20.
This Court first recited the definition of generic aggravated assault: “a
criminal assault accompanied by the aggravating factors of either the intent to
cause serious bodily injury to the victim or the use of a deadly weapon.” Id. at
1315 (quoting United States v. Palomino Garcia, 606 F.3d 1317, 1332 (11th Cir.
2010)) (emphasis omitted). This Court then turned to Georgia’s aggravated assault
statute, which at the time of Morales-Alonso’s conviction defined “aggravated
assault” as an assault committed:
(1) With intent to murder, to rape, or to rob;
6
In 2016, the Sentencing Commission amended § 2L1.2, and a revised version of the
crime-of-violence definition for § 2L1.2 now appears in note 2 of the commentary. See U.S.S.G.
app. C, amend. 802. The revised definition also lists aggravated assault as an enumerated
offense. See U.S.S.G. § 2L1.2 cmt. n.2.
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(2) With a deadly weapon or with any object, device, or instrument
which, when used offensively against a person, is likely to or
actually does result in serious bodily injury; or
(3) [Against a] person or persons without legal justification by
discharging a firearm from within a motor vehicle toward a
person or persons.
O.C.G.A. § 16-5-21(a) (2012).
This Court held that the Georgia aggravated assault statute was divisible.
Morales-Alonso, 878 F.3d at 1316. Using the modified categorical approach, this
Court looked to available documents—known as Shepard 7 documents—to
determine that Morales-Alonso was convicted of violating O.C.G.A. § 16-5-
21(a)(2) because he assaulted his victim by throwing a brick at and striking the
victim. Id. at 1316–17.
This Court then compared the elements of subsection (a)(2) with generic
aggravated assault, holding that that subsection (a)(2) contains substantially the
same elements as generic aggravated assault. Id. at 1317-19. Morales-Alonso
argued that subsection (a)(2) was broader than the definition of generic aggravated
assault because subsection (a)(2) criminalized assaults committed with “object[s],
device[s], or instrument[s],” whereas the generic definition of aggravated assault
only concerned assaults committed with deadly weapons. Id. at 1319-20. But this
Court rejected that argument, finding that Georgia law defined subsection (a)(2) as
7
Shepard v. United States, 544 U.S. 13, 125 S. Ct. 1254 (2005).
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requiring the use of a deadly weapon, which includes the use of “object[s],
device[s], or instrument[s]” that are not per se deadly, but are deadly because of
the manner in which they are used. Id. This meant that an aggravated assault
under subsection (a)(2) counts as generic aggravated assault because it requires
(1) an assault (2) that is committed either with a per se deadly weapon or with an
“object, device, or instrument” that constitutes a deadly weapon because of the
manner in which it is used in a particular case. Id.
Though Morales-Alonso concerned § 2L1.2 of the Sentencing Guidelines, its
analysis extends to § 4B1.2. This is because both § 2L1.2 and § 4B1.2 define
“crime of violence” by listing the generic offense of “aggravated assault.” Thus,
our determination that Georgia aggravated assault qualifies as a “crime of
violence” under § 2L1.2 means that it also qualifies as a “crime of violence” under
§ 4B1.2.
This would resolve the aggravated assault issue but for the fact that the
documents expressly discussed at the sentencing hearing were not introduced into
evidence. On the other hand, we recognize that Ellis did not make the current
aggravated assault argument before the district court. The government contends
the documents will show Ellis pled guilty to aggravated assault under O.C.G.A.
§ 16-5-21(a)(2), the same as the defendant in Morales Alonso, and moves this
Court to supplement the record on appeal to include the documents. Given that
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this is a direct appeal and the documents were actually discussed, but not formally
introduced into evidence, we conclude the better course is to remand this case to
the district court: (1) to allow the parties to put these and any other relevant
Shepard documents into evidence; and then (2) for the district court, as the Court
did in Morales-Alonso, to apply the modified categorical approach to look to the
Shepard documents and determine under which portion of the divisible aggravated
assault statute Ellis was convicted. See Mathis, 579 U.S. at ___, 136 S. Ct. at
2249. 8
B. Georgia Party-To-A-Crime
The parties also dispute whether the party-to-a-crime feature of Ellis’s
aggravated assault conviction means his conviction does not qualify.
Under Georgia’s party-to-a-crime statute, “every person concerned in the
commission of a crime is a party thereto and may be charged and convicted of
commission of the crime.” O.C.G.A. § 16-2-20(a). A person is concerned in the
commission of a crime if he: (1) directly commits the crime; (2) intentionally
causes some other person to commit the crime under such circumstances that the
other person is not guilty of any crime; (3) intentionally aids or abets the crime; or
(4) “intentionally advises, encourages, hires, counsels, or procures another to
commit the crime.” Id. § 16-2-20(b).
8
Accordingly, the government’s motion to supplement the appellate record is DENIED.
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In this regard, we note that the comparable federal statute as to aiding and
abetting has essentially the same language. Specifically, federal law punishes “as a
principal” anyone who “commits an offense against the United States or aids,
abets, counsels, commands, induces or procures its commission” or who “willfully
causes an act to be done which if directly performed by him or another would be
an offense against the United States.” 18 U.S.C. § 2(a)-(b). With respect to
whether a prior federal conviction qualifies as a crime of violence under 18 U.S.C.
§ 924(c)(3)(A), this Court has concluded that the fact that the defendant “was
charged under the aiding and abetting statute is of no moment” because under § 2,
“‘[a] person who aids, abets, counsels, commands, induces or procures the
commission of an offense is punishable as a principle,’ and so ‘the acts of the
principle become those of the aider and abettor as a matter of law.’” In re Watts,
829 F.3d 1287, 1289-90 (11th Cir. 2016) (quoting In re Colon, 826 F.3d 1301,
1305 (11th Cir. 2016)).
As he did in his sentencing hearing, Ellis argues that Georgia’s party-to-a-
crime statute criminalizes conduct that falls outside § 4B1.2’s definition of a crime
of violence. Ellis contends that, even though a crime of violence includes “aiding
and abetting,” Georgia’s party-to-a-crime statute is broader than “generic aiding
and abetting” because it does not require that the defendant intend the full scope of
the underlying offense or take an affirmative act in furtherance of the underlying
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offense. See Cash v. State, 297 Ga. 859, 864, 778 S.E. 2d 785, 790 (Ga. 2015)
(concluding that even though the defendant was not aware that his codefendant
would commit the assault using a firearm, the defendant was still liable as a party
to the crime of aggravated assault because he “shared a criminal intent to commit
an assault upon” the victim, and is therefore “chargeable with the foreseeable acts
undertaken by [his codefendant]”).
The government disagrees and responds that under Georgia law, the conduct
of a defendant who was a party to an aggravated assault is legally the same as one
who principally commits an aggravated assault. See O.C.G.A. § 16-2-
21(providing that a person who is a party to a crime can be indicted for and
convicted of commission of the crime); Brinson v. State, 261 Ga. 884, 884, 413
S.E. 2d 443, 444 (Ga. 1992); see also Gonzales v. Duenas-Alvarez, 549 U.S. 183,
189-90, 195, 127 S. Ct. 815, 820-21, 823 (2007) (explaining that “American
jurisdictions [have] eliminated the distinction among” principals and aiders and
abettors who are present at the scene of the crime or help the principal before the
crime, and instead have adopted the doctrine that an aider and abettor is criminally
responsible “for any crime that ‘naturally and probably’ results from his intended
crime,” citing as an example Georgia’s party-to-a-crime statute). The government
thus argues, much as this Court reasoned in In re Watts, that, because Ellis is guilty
of aggravated assault, the manner in which Ellis was a party to that crime is
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immaterial to whether his conviction is for a crime of violence. The government
further points out that Georgia law requires proof of a common criminal intent, and
that mere presence at the scene or approval of the crime is insufficient to establish
that someone was a party to the crime. See Jordan v. State, 272 Ga. 395, 396, 530
S.E.2d 192, 194 (Ga. 2000); see also United States v. Cammorto, 859 F.3d 311,
315-18 (4th Cir. 2017) (rejecting an argument that Georgia’s party-to-a-crime
statute sweeps more broadly that the federal law on aiding and abetting).
In light of our decision to remand Ellis’s case to the district court to examine
the Shepard documents and determine which subsection of O.C.G.A. § 16-5-21
Ellis pled guilty to violating, we also remand the party-to-a-crime issue in this
appeal. On remand, the district court shall permit the parties to brief this issue and
shall consider the Shepard documents and any arguments the parties make in
determining whether Ellis’s Georgia conviction for party to the crime of
aggravated assault qualifies as a crime of violence under U.S.S.G. § 4B1.2.
VACATED AND REMANDED.
15