[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
July 07, 2005
No. 04-15359 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 03-20585-CR-WMH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TORREY STYLES,
Defendant-Appellant.
__________________________
Appeal from the United States District Court for the
Southern District of Florida
_________________________
(July 7, 2005)
Before BLACK, BARKETT and PRYOR, Circuit Judges.
PER CURIAM:
Torrey Styles (“Styles”) appeals his sentence of 210 months’ imprisonment,
following his conviction for possession of a firearm by a convicted felon, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Styles urges that the district court
committed three separate errors under United States v. Booker, 125 S.Ct. 738
(2005): (i) applying the sentencing guidelines in a mandatory fashion; (ii)
sentencing Styles under the Armed Career Criminal Act (“ACCA”) provisions of
18 U.S.C. § 924(e) where the indictment did not include Styles’ prior felony
convictions; (iii) finding that Styles’ prior convictions qualified as “violent
felonies” within the meaning of 18 U.S.C. § 924(e)(2)(b), where that
characterization was not charged in the indictment or found by a jury beyond a
reasonable doubt. Apart from Booker, Styles also urges that the district court
erred in concluding that it lacked the authority to depart downward pursuant to
U.S.S.G. § 5K2.11 and in concluding that Styles’ prior conviction for carrying a
concealed weapon qualified as a violent felony for ACCA purposes.
We conclude that while the district court committed no constitutional
Booker error in sentencing Styles, it did commit statutory Booker error in
sentencing under the mandatory guidelines scheme. Because the government has
failed to meet its burden of showing that this error was harmless, we vacate Styles’
sentence and remand for resentencing. Because the guidelines range will remain
an essential consideration in the district court’s discretionary sentencing, we also
clarify that the district court did possess authority to depart downward, pursuant to
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§ 5K2.11.
BACKGROUND
Styles was indicted for one count of firearm possession by a convicted
felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Following trial, a jury
returned a guilty verdict. The Presentence Investigation Report (“PSI”) concluded
that styles was subject to the ACCA enhancement, and set his base offense level at
33, pursuant to U.S.S.G. § 4B1.4(b)(3)(B). With a criminal history category of V,
the resulting sentencing range was 210 to 262 months’ imprisionment.
Styles filed several objections to the PSI, arguing in relevant part that the
rule in Blakely v. Washington, 124 S.Ct. 2531 (2004), applied to the federal
sentencing guidelines. The district court repeatedly commented that it would “like
to give [Styles] a break such as you’ve indicated, but I really don’t think I have
any choice.” The district court then told Styles that it was bound to give him a
sentence which was “more than I wish” and sentenced Styles to 210 months’
imprisonment, the bottom of the applicable guideline range. Styles timely
appealed.
STANDARD OF REVIEW
Because Styles raised his constitutional objection to the district court’s
application of the Sentencing Guidelines at sentencing, we review the issue de
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novo, and reverse “only if any error was harmful.” United States v. Paz, 405 F.3d
946, 948 (11th Cir. 2005). Constitutional Booker errors are harmless only where
the government can show, beyond a reasonable doubt, that the error did not
contribute to the defendant’s sentence. Id. For a non-constitutional Booker error
to be harmless, the government shoulders the somewhat lower burden of proving
that when the proceedings are viewed in their entirety, the error did not affect the
sentence, or had “but very slight effect.” United States v. Mathenia, 04-15250,
2005 U.S. App. LEXIS 9352 at *6 (11th Cir. May 23, 2005).
ACCA CLASSIFICATION AND VIOLENT FELONY FINDINGS
The Supreme Court has held that the government need not allege in the
indictment nor prove beyond a reasonable doubt the fact that a defendant had prior
convictions in order for a district court to use those convictions to enhance the
defendant’s sentence. United States v. Almendarez-Torres, 523 U.S. 224, 247
(1998); Shepard v. United States, 125 S.Ct. 1254, 1257 (2005). The Booker
decision itself confirms that the rule set forth in Almendarez-Torres remains good
law. See Booker, 125 S.Ct. at 756 (“Any fact (other than a prior conviction)
which is necessary to support a sentence exceeding the maximum authorized by
the facts established by a plea of guilty or a jury verdict must be admitted by the
defendant or proved to a jury beyond a reasonable doubt.”) (emphasis added); see
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also, United States v. Orduno-Mireles, 405 F.3d 960, 962-63 (11th Cir. 2005)
(holding that following Booker and Shepard, “Almendarez-Torres remains the law
until the Supreme Court determines that [it] is not binding precedent.”).
In light of this binding precedent, we reject Styles’ argument that his Fifth and
Sixth Amendment rights were violated when neither the indictment nor the jury
verdict included findings on the three predicate felonies that resulted in his ACCA
classification.1 See United States v. Marseille, 377 F.3d 1249, 1257 (11th Cir.
2004) (rejecting an argument that the district court erred under Blakely when it
enhanced the defendant's sentence under 18 U.S.C. § 924(e) and U.S.S.G. § 4B1.4,
based on his four prior convictions for violent and drug-related felonies that were
not alleged in the indictment).
We likewise find no merit in Styles’ argument that following Booker, a
district court may not find that a defendant’s predicate convictions qualify as
"violent felonies" within the meaning of 18 U.S.C. § 924(e)(2)(B). The question
of whether prior felonies qualify as "violent" remains a matter of law to be
determined by the court – not a question of fact to be found by the jury. This is
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Similarly, the district court properly held that Styles’ prior Florida conviction for carrying
a concealed weapon qualified as a violent felony under 18 U.S.C. § 924(e)(2)(b). A prior panel of
this Court has already answered this question in the affirmative. United States v. Hall, 77 F.3d 398,
402 (11th Cir. 1996). As the district court was bound by this decision, so are we.
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made clear by the Supreme Court's recent decision in Shepard v. United States,
125 S.Ct. 1254 (2005). Shepard confirms that "a court sentencing under [§
924(e)] could look to statutory elements, charging documents, and jury
instructions to determine whether an earlier conviction" qualified as a violent
felony. Shepard, 125 S.Ct. at 1257 (emphasis added). While Shepard thus limits
the types of material a court may consider in making its "violent felony"
determination, it in no way called into question a court's power to pass on this
matter of law. Accord United States v. Schlifer, 403 F.3d 849, 852-53 (7th Cir.
2005) (refusing to "parse out the recidivism inquiry" where appellant argued that
judge's findings as to whether prior convictions were for crimes of violence
violated Sixth Amendment); United States v. Marcussen, 403 F.3d 982, 984 (8th
Cir. 2005) (holding that Shepard "lends further support to the rule that the
sentencing court, not a jury, must determine whether prior convictions qualify as
violent felonies") (emphasis added).
STATUTORY BOOKER ERROR
While the district court thus committed no constitutional error, as a result of
Booker’s remedial holding, Booker statutory error exists when the district court
misapplies the sentencing guidelines by considering them as binding as opposed to
advisory. United States v. Shelton, 400 F.3d 1325, 1330-31 (11th Cir. 2005).
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There can be no dispute that the district court here committed statutory error.
Moreover, in light of the district court’s express statement that it would impose a
lower sentence if it had the discretion to do so, the government concedes that the
case should be remanded for resentencing.
§ 5K2.11 DOWNWARD DEPARTURE
While appellate review of a district court’s decisions on downward
departures is limited, we may determine de novo whether a district court erred in
concluding that it lacked authority to depart downward. United States v.
Hadaway, 998 F.2d 917, 919 (11th Cir. 1993); United States v. Gilbert, 138 F.3d
1371, 1373 (11th Cir. 1998).
Here, the district court determined that it lacked the authority to depart
under § 5K2.11. That section provides:
Sometimes, a defendant may commit a crime in order to avoid a
perceived greater harm. In such instances, a reduced sentence may be
appropriate, provided that the circumstances significantly diminish
society’s interest in punishing the conduct, for example, in the case of
a mercy killing. Where the interest in punishment or deterrence is not
reduced, a reduction in sentence is not warranted. For example,
providing defense secrets to a hostile power should receive no lesser
punishment simply because the defendant believed that the
government's policies were misdirected.
In other instances, conduct may not cause or threaten the harm
or evil sought to be prevented by the law proscribing the offense at
issue. For example, where a war veteran possessed a machine gun or
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grenade as a trophy, or a school teacher possessed controlled
substances for display in a drug education program, a reduced
sentence might be warranted.
U.S.S.G. § 5K2.11. In Hadaway, the defendant argued that he was entitled to a
§ 5K2.11 downward departure because his case was outside the heartland in that
he did not possess the intent to use the gun for an unlawful purpose. Hadaway,
998 F.2d at 919-20. Though the district court believed that it lacked the authority
to depart downward, we held that it “had the authority to depart downward if it
were persuaded that Hadaway’s case truly was ‘atypical . . . where conduct
significantly differs from the norm,’ or that Hadaway’s conduct threatened lesser
harms . . . .” Id. at 920 (internal citations omitted). Under Hadaway, the district
court here did have the authority to depart downward if it were persuaded by
Styles’s argument that his case was truly atypical or that his conduct threatened
lesser harms than the conduct that Congress sought to address. See Hadaway, 998
F.2d at 920.
Moreover, Booker recognizes that after judges calculate and consider the
applicable guidelines range, they have discretion to depart from that range and
impose a more lenient or more severe sentence, so long as the resulting sentence is
reasonable. Booker, 125 S.Ct. at 767; United States v. Crawford, 407 F.3d 1174,
1179 (11th Cir. 2005). As such, because Styles’ preserved Booker statutory error
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argument requires that we remand the case for resentencing under the guidelines
scheme that Booker has rendered advisory, the district court will be obligated to
recalculate the guidelines range, which remains an essential consideration in
sentencing. Shelton, 400 F.3d at 1332 n.9. In making this guideline calculation,
the district court may thus consider whether Styles’ case merits a discretionary
downward departure pursuant to § 5K2.11.
VACATED AND REMANDED FOR RESENTENCING.
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