[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
July 05, 2006
No. 05-15330 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-80024-CR-WJZ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTHONY B. HODGES,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 5, 2006)
Before TJOFLAT, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Anthony Hodges appeals his 192-month sentence for possession of a firearm
by a convicted felon, under 18 U.S.C. §§ 922(g)(1) and 924(e). The district court
sentence Hodges under the Armed Career Criminal Act, 18 U.S.C. § 924(e),
(“ACCA”) based on prior Florida state convictions for possession of cocaine with
intent to sell within 1,000 feet of a public housing facility, aggravated assault, and
battery. Hodges argues that the district court erred in applying a statutory
mandatory-minimum sentence under § 924(e) because this violated the law
announced in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d
621 (2005). Second, Hodges argues that his constitutional rights were violated
when the district court sentenced him under the enhanced penalties under the
ACCA and used prior convictions that were not alleged in an indictment or proven
to a jury.
Because Hodges did not make any objections to the presentence
investigation report (“PSI”) or at his sentencing hearing, review is for plain error.
United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.), cert. denied, 125
S.Ct. 2935 (2005). Under plain error, we “may not correct an error the defendant
failed to raise in the district court unless there is: (1) error, (2) that is plain, and (3)
that affects substantial rights.” Id. (quotation omitted). If these three conditions
have been met, we only exercise our discretion to reverse the error if “(4) [it]
seriously affects the fairness, integrity, or public reputation of judicial
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proceedings.” Id. (quotation omitted). When a defendant fails to object to facts in
the PSI, those facts are admitted. United States v. Shelton, 400 F.3d 1325, 1330
(11th Cir. 2005).
In Booker, the Supreme Court concluded that the mandatory nature of the
Sentencing Guidelines rendered them incompatible with the Sixth Amendment’s
guarantee to the right to a jury trial. 543 U.S. at 233-34, 125 S.Ct. at 749-51. The
Supreme Court also held that a fact, other than a prior conviction, that supports a
sentence exceeding the statutory maximum must be admitted by the defendant or
submitted to a jury and proved beyond a reasonable doubt. Id. at 244, 125 S.Ct.
at 756. Thus, there are two types of Booker error, (1) constitutional error of using
facts that were not proven to a jury to enhance a defendant’s sentence, and
(2) statutory error of sentencing under a mandatory Guideline. See Shelton, 400
F.3d at 1329-31.
I. Statutory Booker error
We have emphasized that there is no statutory error when a defendant is
sentenced under statutory mandatory minimums, as opposed to mandatory
minimums under the Guidelines. See id. at 1333 n.10. Under 18 U.S.C. § 924(e),
if a defendant is found to be an armed career criminal, his statutory mandatory
minimal sentence is enhanced to 15 years’ imprisonment.
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In this case, Hodges’s argument against the use of a statutory mandatory
minimum fails. We have expressly stated that district courts are still required to
sentence in accordance with these statutes after Booker. See Shelton, 400 F.3d
1325, 1333 n.10. The district court sentenced Hodges under 18 U.S.C. § 924(e),
and thus, Hodges’s argument against statutory mandatory-minimum sentencing is
without merit.
II. Constitutional Booker error
In addressing Hodges’s constitutional arguments under Booker, the analysis
begins with the relevant provisions of the ACCA. In order to enhance a sentence
under the ACCA, the sentencing court must find that the defendant had “three
previous convictions by any court [as listed in § 922(g)(1)] for a violent felony or a
serious drug offense, or both, committed on occasions different from one
another . . . .” 18 U.S.C. 924(e)(1). The term “violent felony” is defined in ACCA
as any crime that:
(i) has as an element the use, attempted use, or threatened use of
physical force against the person of another; or
(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). The term “serious drug offense” includes, “an offense
under State law, involving manufacturing, distributing, or possessing with intent to
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manufacture or distribute a controlled substance (as defined in section 102 of the
Controlled Substances Act (21 U.S.C. 802)) for which a maximum term of
imprisonment of ten years or more is prescribed by law.” 18 U.S.C.
§ 924(e)(2)(A)(ii). Cocaine is listed as a controlled substance. 21 U.S.C.
§ 802(17)(D). Under Florida law, possession of cocaine with intent to sell within
1,000 feet of a public housing facility has a maximum term of imprisonment of
30 years. Fla. Stat. §§ 775.082(3)(b), 893.03(2)(a)(4), 893.13(1)(f)(1).
In Almendarez-Torres v. United States, the Supreme Court held that the
government need not allege a prior conviction in the indictment nor prove it
beyond a reasonable doubt to a jury in order to use that conviction for purposes of
enhancing a sentence. 523 U.S. 224, 226-27 118 S.Ct. 1219, 1222, 140 L.Ed.2d
350 (1998). In United States v. Shepard, however, the Supreme Court noted the
difference between the “fact of a prior conviction” and a “fact about a prior
conviction,” for purposes of enhancing a sentence under the ACCA. 544 U.S. 13,
24-26, 125 S.Ct. 1254, 1262-63, 161 L.Ed.2d 205 (2005). The former is governed
by Almendarez-Torres and may be determined by the sentencing judge, while the
latter may only be found by the sentencing judge if based on a limited set of
documents laid out in Shepard. 544 U.S. at 26, 125 S.Ct. at 1263. In determining
whether a prior conviction qualifies as a violent felony–a fact about a
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conviction–for purposes of increasing a defendant’s sentence, a sentencing judge is
limited to examining “the statutory elements, charging document, any plea
agreement and colloquy or jury instructions, or comparable judicial record.”
United States v. Greer, 440 F.3d 1267, 1275 (11th Cir. 2006).
In Greer, we held that a district court may find the facts necessary to
determine that a prior conviction was a “violent felony” for purposes of defining an
individual as a armed career criminal. Id. at 1275-76. Specifically, we found that
“there [was] no Shepard problem because the violent nature of each prior
conviction, as ‘violent’ is defined in the ACCA, can be determined from the face of
the certified copy of the conviction document read along with the indictment and in
light of the statutory elements of the offense.” Id.
In this case, Hodges’s basic contention is that a district court errs when it,
instead of the jury, determines if a prior felony conviction is a “violent felony” for
purposes of the ACCA. We have expressly held that a district court may make this
determination, but the court is limited to certain documents in the record to make
that determination. Greer, 440 F.3d at 1267. Thus, the main thrust of Hodges
argument is in direct conflict with this Court’s precedent and necessarily fails, and
thus, there was no constitutional error when the judge, not the jury, made the
decision to determine if Hodges’s prior convictions were violent felonies.
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In so far as Hodges argues that the district court erred in its determination
that the prior convictions were felonies, this argument fails as well. Hodges did
not object to this determination in the PSI or before the sentencing court, and
therefore, he admitted these facts and waived any arguments contesting those facts.
See United States v. Shelton, 400 F.3d 1325, 1330 (11th Cir. 2005). Moreover, a
review of the convictions shows that they were for possession of cocaine with
intent to sell, aggravated assault, and battery. These convictions qualify as
predicate felonies under the ACCA because they were violent felonies or serious
drug offenses on their face and the proper documents that support this finding were
in the record. 18 U.S.C. § 924(e)(1) and (2); Greer, 440 F.3d at 1275-76. Thus,
the district court did not err, much less plainly err, in determining that Hodges’s
prior convictions were predicate felonies.
Accordingly, based on our review of the record and the parties’ briefs, we
affirm Hodges’s sentence.
AFFIRMED.
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