United States v. Kendrick George

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
August 16, 2006
No. 05-14691 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 05-00032-CR-T-26-TGW

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

KENDRICK GEORGE,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Middle District of Florida
_________________________

(August 16, 2006)

Before ANDERSON, CARNES and PRYOR , Circuit Judges.

PER CURIAM:

Kendrick George appeals his 180-month sentence, arguing for the first time
that the district court’s sentencing of him as an armed career criminal, without his

admitting, or a jury finding, that he had three prior violent felony convictions, is

unconstitutional. On appeal, he argues that the fact-finding to establish that his

conviction for escape from confinement was a “violent felony” under the Armed

Career Criminal Act (ACCA) “went beyond a simple ministerial determination as

to whether [he had] previously been convicted of a crime.” According to George,

determining the factual nature of a prior conviction, as required in this case, is

reserved for a jury under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738,

160 L.Ed.2d 621 (2005) and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531,

159 L.Ed.2d 403 (2004).

To preserve a Booker error for appellate review, a defendant must either (1)

refer to the Sixth Amendment, or Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct.

2348, 147 L.Ed.2d 435 (2000) or the Apprendi-line of cases, (2) raise the right to

have the jury decide the disputed fact, or (3) raise a challenge to the role of the

judge as fact-finder with regard to sentencing. United States v. Dowling, 403 F.3d

1242, 1246 (11th Cir. 2005), cert. denied, 126 S.Ct. 462 (2005). In the district

court, George argued that United States v. Webb, 139 F.3d 1390 (11th Cir. 1998)

and United States v. Spell, 44 F.3d 936 (11th Cir. 1995) allowed the court to look

beyond the judgment of conviction to the underlying conduct to see that George’s

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escape conviction involved the failure to return from work release and, thus, was

not a violent felony. He did not argue that Booker, Blakely, or Shepard v. United

States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) required a jury to

determine whether his conviction was a “violent felony,” nor that classification of

his conviction as such violated his constitutional rights. Rather, he argued that

Webb and Spell allowed the court to look beyond the conviction to the underlying

conduct. George’s “attorney clearly understood the judge’s role as the fact-finder

by a preponderance of the evidence, and never challenged that.” Dowling, 403

F.3d at 1246. Therefore, George, despite objecting to the classification of his

conviction for escape from confinement as a “violent felony” for purposes of the

ACCA, failed to preserve the constitutional issue below.

Where a defendant fails to preserve an issue below, this Court reviews for

plain error. United States v. Martinez, 407 F.3d 1170, 1173 (11th Cir. 2005). 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. If all three

conditions are met, an appellate court may then exercise its discretion to notice a

forfeited error, but only if (4) the error seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” Id. (internal quotations and citation

omitted).

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“The Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1), provides

a mandatory minimum sentence of fifteen years for anyone who violates 18 U.S.C.

§ 922(g)[, by illegally possessing a firearm] after three convictions for a violent

felony or a serious drug offense.” United States v. Greer, 440 F.3d 1267, 1269

(11th Cir. 2006). See also 18 U.S.C. § 924(e). Guideline § 4B1.4 implements

§ 924(e). See U.S.S.G. § 4B1.4, comment. (n. 4).

In Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140

L.Ed.2d 350 (1998), the Supreme Court held that a prior conviction is not a fact

which must be alleged in the indictment or found by a jury beyond a reasonable

doubt. See United States v. Shelton, 400 F.3d 1325, 1329 (11th Cir. 2005). In its

subsequent decisions in Apprendi, as well as Blakely and Booker, the Supreme

Court reaffirmed the holding in Almendarez-Torres. See Shelton, 400 F.3d at

1329. In Apprendi, the Court held that “[o]ther than the fact of a prior conviction,

any fact that increases the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury, and proved beyond a reasonable doubt.”

Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63. The Court revisited Apprendi in

Blakely v. Washington, clarifying “that the ‘statutory maximum’ for Apprendi

purposes is the maximum sentence a judge may impose solely on the basis of the

facts reflected in the jury verdict or admitted by the defendant[;]” it did not disturb

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Apprendi’s exception for prior convictions. Blakely, 542 U.S. at 303, 124 S.Ct. at

2537 (emphasis in original). Subsequently, in Booker, the Court held that Blakely

applied to the Federal Sentencing Guidelines and reaffirmed its holding in

Apprendi. Booker, 543 U.S. at 243-44, 125 S.Ct. at 755-56. Then in Shepard, the

Supreme Court limited the types of evidence a district court can constitutionally

consider to determine whether a prior burglary conviction qualifies as a “violent

felony” for purposes of the ACCA, where the statutory definition of burglary

includes both violent and non-violent conduct. Shepard, 544 U.S. at __, 125 S.Ct.

at 1262-63.

Upon review of the record and the parties’ briefs, we find no reversible

error. In George’s case, he is not arguing that the district court consulted improper

sources of evidence. Thus, Shepard does not apply. Indeed, we have held that

“Shepard does not bar judges from finding whether prior convictions qualify for

ACCA purposes; it restricts the sources of evidence that a judge (instead of a jury)

can consider in making that finding.” Greer, 440 F.3d at 1275. Therefore, the

district court did not commit constitutional error in determining that George’s

conviction for escape from confinement qualified as a violent felony.

Moreover, George is incorrect when he argues that “[t]he fact of the

conviction alone does not unambiguously establish that a conviction for [escape

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from confinement] is a violent felony for purposes of § 924(e)(1).” We have held

that “a prior escape conviction qualifies as a ‘crime of violence’ under the career

offender guideline.” United States v. Gay, 251 F.3d 950, 954 (11th Cir. 2001). In

Gay, we reasoned that: (1) the statutory offense of escape does not contain

ambiguities that make the “crime of violence” determination impossible from the

judgment; (2) escape, by its nature, “presents a serious potential risk of physical

injury to another[;]” and (3) every other circuit that decided the issue found that

escape had inherent potential for serious risk of physical injury to another. 251

F.3d at 953-955. It is true that the definition of “violent felony” for purposes of the

ACCA is not identical to “crime of violence” for the purpose of classifying a

defendant as a career offender under the guidelines. See U.S.S.G. § 4B1.4,

comment. (n.1) (“It is to be noted that the definition[] of ‘violent felony’ . . . in 18

U.S.C. § 924(e)(2) [is] not identical to the definition[] of “crime of violence” . . .

used in [U.S.S.G.] § 4B1.1 (Career Offender) . . . .”). Nevertheless, the pertinent

part of the definitions are identical: “conduct that presents a serious potential risk

of physical injury to another.” See 18 U.S.C. § 924(e)(2)(B)(ii); U.S.S.G. §

4B1.2(a)(2). Therefore, classification of escape from confinement as a “crime of

violence” supports the conclusion that any error committed by the district court in

finding that George’s prior conviction for escape from confinement constituted a

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“violent felony” for purposes of the ACCA was not plain. In fact, other circuits

have held that “walk-away” escapes are violent felonies for the purposes of the

ACCA. See, e.g., United States v. Childs, 403 F.3d 970, 971-72 (8th Cir. 2005)

(persuasive authority); United States v. Maddox, 388 F.3d 1356, 1369 (10th Cir.

2004) (persuasive authority). Thus even if the district court committed error, it

was not plain error. The judgment of the district court is

AFFIRMED.