[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-13097 JULY 15, 2009
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D.C. Docket No. 07-00152-CR-VEH-RRA
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID SCOTT LEWIS YOUNG,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the
Northern District of Alabama
_________________________
(July 15, 2009)
Before CARNES, HULL and WILSON, Circuit Judges.
PER CURIAM:
David Scott Lewis Young (“Young”) appeals his 120-month sentence for
being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).
After review, we vacate Young’s sentence and remand for resentencing.
I. Factual Background
Young pled guilty to being a felon in possession of a firearm, in violation of
18 U.S.C. § 922(g)(1), and did so without a written plea agreement. At the plea
hearing, the government offered the following factual basis for the plea:
The government would expect the evidence to show that on or about
April 6, 2007, deputies from the Madison County [Alabama] Sheriff’s
Office responded to a burglary call at 244 Wilson Manley Road, at
Owens Cross Roads, Alabama. The homeowner found Mr. Young
inside the residence and chased him. Deputies responded to and located
Young near Williams Service Station on Gene Carpenter Road in Owens
Cross Roads. Deputies observed Young to be in possession of a firearm,
a Smith and Wesson 9 millimeter pistol stolen from the above referenced
residence.
When the district court asked Young whether the brief outline of the facts was
“substantially correct,” he answered affirmatively. And when the district court
asked whether he did the things that the government said that he did, Young said
that he did.
As to sentencing, the base offense level for Young’s offense—being a felon
in possession of a firearm—turned on whether he had one or more prior felony
convictions for a “crime of violence.” Compare U.S.S.G. § 2K2.1(a)(2) (setting a
base offense level of 24 if defendant has “at least two felony convictions of . . . a
crime of violence”), with U.S.S.G. § 2K2.1(a)(4) (setting a base offense level of
20 if defendant has “one felony conviction of . . . a crime of violence”). The
2
Presentence Investigation Report (“PSI”) set Young’s base offense level at 24,
pursuant to U.S.S.G. § 2K2.1(a)(2), because Young had two prior felony
convictions for a “crime of violence”—namely, two Alabama convictions for
escape.
As to the nature of the two convictions, the PSI reported that Young was
convicted “on March 4, 2002, for Escape 1st, in the Coosa County, Alabama,
Circuit Court (CC01-132); and on September 29, 2003, for Escape 2nd, in the
Madison County, Alabama, Circuit Court (CC03-2837). Therefore, the base
offense level is 24.” In the district court, the parties did not dispute that the
September 29, 2003 escape conviction was a “crime of violence,” but they hotly
disputed whether the March 4, 2002 conviction was a “crime of violence.” The
PSI, in paragraph 28, described Young’s March 4, 2002 escape conviction as
failing to report back to a “work release center” as follows:
According to the United States Probation Office in the Middle District
of Alabama, on February 16, 2001, the defendant was an inmate at the
Alexander City, Alabama, Work Release Center in Coosa County,
Alabama. On that day, the defendant failed to check back in at the work
center after work, and he was subsequently placed on escape status. The
defendant surrendered himself at the work release center the following
day.
The PSI recommended increasing Young’s offense level to 29 by adding:
(1) two levels, pursuant to U.S.S.G. § 2K2.1(b)(4)(A), because the firearm was
3
stolen; (2) four levels, pursuant to U.S.S.G. § 2K2.1(b)(6), because Young
committed the felony possession crime while committing the felony offense of
burglary; and (3) two levels, pursuant to U.S.S.G. § 3C1.2, because Young
“recklessly created a substantial risk of death or serious bodily injury to another
person when he fled from the officers, held a pistol to his head, and caused
officers to prepare to fire their weapons;” and by then subtracting: (4) two levels,
pursuant to U.S.S.G. § 3E1.1(a), for accepting responsibility; and (5) one level,
pursuant to U.S.S.G. § 3E1.1(b), because Young “timely provided complete
information concerning his involvement in the offense, or timely notified
authorities of his intent to enter a guilty plea.” Young’s total adjusted offense
level of 29 and criminal history category of VI yielded an advisory guidelines
range of 151 to 188 months in prison. Because the guideline range exceeded the
statutory maximum of 120 months, see 18 U.S.C. 924(a)(2), the statutory
maximum became the guideline sentence, pursuant to U.S.S.G. § 5G1.1(a).
Young made several written objections to the PSI prior to sentencing. First,
Young argued that his base offense level should have been 20—not 24—because
his March 4, 2002 escape conviction was not a “crime of violence.” Young’s
counsel pointed out that Young’s escape conviction was a walkaway while he was
on work release. His counsel directed the court to paragraph 28 of the PSI, which
4
described Young’s escape as a failure to check back in at the work release center
after work and stated that Young surrendered to the center the following day.
Although the government argued that the district court could not look beyond the
charged escape offense, the government did not introduce the indictment or
sentence relating to this state escape conviction. Indeed, neither the PSI nor the
government ever identified the Alabama statute under which Young was convicted
(either in the district court or on appeal).1
When the district court heard Young’s objection, the Supreme Court had not
yet rendered its decision in Chambers v. United States, 555 U.S. —, 129 S. Ct. 687
(2009), which concluded that a failure to report to a penal institution crime is not a
“violent felony” under the Armed Career Criminal Act (“ACCA”).2 129 S. Ct at
1
The most that the PSI said was “Escape 1st.” Perhaps we could surmise that “Escape 1st”
meant escape in the first degree, and we have located an Alabama statute providing that:
A person commits the crime of escape in the first degree if:
(1) He employs physical force, a threat of physical force, a deadly weapon
or a dangerous instrument in escaping or attempting to escape from
custody; or
(2) Having been convicted of a felony, he escapes or attempts to
escape from custody imposed pursuant to that conviction.
See Ala. Code § 13A-10-31(a) (1975). Even if this was the correct statute, we still would not
know what subsection Young violated, and the government bears the burden of showing that
Young’s escape conviction was a “crime of violence.” See United States v. Young, 527 F.3d
1274, 1277 (11th Cir.), cert. denied, – U.S. –, 129 S. Ct. 616 (2008).
2
In this Circuit, there is no material difference between the ACCA’s use of the phrase
“violent felony” and the guidelines’ use of the phrase “crime of violence.” See United States v.
Harrison, 558 F.3d 1280, 1291-92 (11th Cir. 2009); United States v. Archer, 531 F.3d 1347,
1350 n.1 (11th Cir. 2008). The phrases are coterminous. Harrison, 558 F.3d at 1291 (noting that
the phrases are “identical . . . in all material respects”). Although these cases discuss the phrase
5
693. At the 2008 sentencing hearing, both the government and the district court
relied on United States v. Gay, 251 F.3d 950 (11th Cir. 2001),3 which held that “a
prior escape conviction qualifies as a ‘crime of violence.’” 251 F.3d at 954. In
response to Young’s objection, the government argued that Gay was controlling.
Although the district court looked to the undisputed facts of Young’s underlying
escape conviction outlined in the PSI (i.e., Young failed to report back to a work
release center) and treated them as true, it overruled Young’s objection based on
Gay.
In addition to the crime-of-violence issue, Young also argued at sentencing
that: (1) the application of the two-level enhancement for the stolen firearm and
the four-level enhancement for using the firearm in a burglary constituted
improper double counting; (2) the two-level enhancement for obstruction of
justice should not have applied because his three-hour standoff with the police
posed no risk of harm to anyone other than himself; and (3) any enhancement
based on facts to which Young did not admit ran afoul of Apprendi v. New Jersey,
“crime of violence” in U.S.S.G. § 4B1.2(a), “crime of violence” means the same thing in
U.S.S.G. § 2K1.1(a)(2), the guideline provision setting the base offense level here, as it does in §
4B1.2(a). See U.S.S.G. § 2K2.1 cmt. n.1 (stating that “‘[c]rime of violence’ has the meaning
given that term in § 4B1.2(a) and Application Note 1 of the Commentary to § 4B1.2.”
3
The Georgia statute at issue in Gay made it illegal to “‘intentionally escape[] from . . .
custody,’” or “‘intentionally fail[] to return as instructed to lawful custody.’” Gay, 251 F.3d at
952-53 (quoting O.C.G.A. § 16-10-52(a)(1), (5)).
6
530 U.S. 466, 120 S. Ct. 2348 (2000), and Blakely v. Washington, 542 U.S. 296,
124 S. Ct. 2531 (2004).
The district court overruled each objection and adopted the factual
statements contained in the PSI. It found Young’s offense level was 29 and his
criminal history category was VI, yielding an advisory guidelines imprisonment
range of 120 months. After considering the 18 U.S.C. § 3553(a) factors, the
district court imposed a 120-month sentence. Young appeals.
II. Discussion
Young raises a number of challenges to his sentence. We address each in
turn.
A. Crime-of-Violence Issue
Relying on Chambers, Young argues that the district court erred by treating
his March 4, 2002 escape conviction as a “crime of violence” within the meaning
of U.S.S.G. § 2K2.1(a)(2) and setting his base offense level at 24. As we note
above, the Supreme Court in Chambers held that the failure to report to a penal
institution crime is not a “violent felony” within the meaning of the ACCA. 129
S. Ct at 693. Because the ACCA defines a “violent felony” the same way as the
guidelines define a “crime of violence,” Young argues that Chambers means that
7
his escape conviction is not a “crime of violence” within the meaning of the
guidelines.4
On appeal, the government concedes that Young was improperly sentenced
in light of Chambers. The government’s brief states: “[T]he government is unable
to meaningfully distinguish Young’s escape conviction from that at issue in
Chambers. Thus, Young’s conviction for failing to report back to a work release
center should not have been deemed a ‘crime of violence’ under the Sentencing
Guidelines.” Appellee’s Br. at 9. In addition, no party claims on appeal that the
district court improperly looked to the facts in the PSI that showed the conduct in
Young’s March 4, 2002 escape conviction was a failure to report back to a work
release center.5 In fact, the government did not introduce a judgment of conviction
or tell the district court which Alabama escape statute Young violated. It is thus
not surprising that the government now concedes that it cannot show that Young’s
March 4, 2002 escape conviction is a “crime of violence.”
4
See supra note 2.
5
In other words, neither party raises an issue under Shepard v. United States, 544 U.S. 13,
125 S. Ct. 1254 (2005). Thus, nothing we say here expresses any opinion on whether
information contained in the PSI implicates our precedents with respect to Shepard-approved
documents. See United States v. Lopez-Garcia, 565 F.3d 1306, 1323 (11th Cir. 2009) (noting
that even though “[w]e have yet to specifically address whether reliance on a PSI is permissible
under Shepard, . . . it is not necessary [where defendant] does not contend that the district court’s
reliance on the PSI was erroneous . . . [and] does [not] dispute in any significant way the facts set
forth in the PSI”); see also United States v. Beckles, 565 F.3d 832, 844 (11th Cir. 2009).
8
Therefore, given the undisputed facts in the PSI, the government’s
concession, and the defendant’s explicit stipulation and reliance on the facts of the
PSI,6 we conclude that Young’s March 4, 2002 offense consisted only of his
failure to report back to his work release center while he was incarcerated and
does not constitute a “crime of violence.” We vacate his sentence on this ground
alone.7
B. Sentence Enhancement Challenges
Young also raises a number of challenges to the district court’s application
of the sentencing enhancements.8 First, he argues that the district court’s
6
At the sentencing hearing, Young’s attorney directed the court to the:
presentence report paragraph 28 wherein it states the details of the escape first in
Coosa County and indicates . . . that he was at the Alexander work release facility,
and he failed to check back in at the work release center after work, and he was
placed on escape status, and he surrendered himself at the work release center the
following day. So that would be our support for that the factual basis for that case.
7
Because the government concedes that it cannot distinguish Young’s case from
Chambers, we need not address whether Chambers requires us to overrule our precedent in Gay.
8
We review de novo a district court’s interpretation and application of the Sentencing
Guidelines. United States v. Louis, 559 F.3d 1220, 1224 (11th Cir.), cert. denied, 129 S. Ct.
2453 (2009); United States v. Miranda, 348 F.3d 1322, 1330 (11th Cir. 2003). We review de
novo a claim that the district court double counted a sentencing factor. United States v. Dudley,
463 F.3d 1221, 1226 (11th Cir. 2006). And “[w]e review the district court’s findings of fact
related to the imposition of sentencing enhancements . . . for clear error.” United States v.
Clarke, 562 F.3d 1158, 1165 (11th Cir. 2009). “Under this standard, we will not disturb a district
court’s findings unless we are left with a definite and firm conviction that a mistake has been
committed.” Id. (quotation marks omitted).
9
enhancements under U.S.S.G. § 2K2.1(b)(4)(A) and (b)(6) constituted
impermissible double counting.
“‘Impermissible double counting occurs only when one part of the
Guidelines is applied to increase a defendant’s punishment on account of a kind of
harm that has already been fully accounted for by application of another part of the
Guidelines.’” United States v. Dudley, 463 F.3d 1221, 1226-27 (11th Cir. 2006)
(quoting United States v. Matos-Rodriguez, 188 F.3d 1300, 1309 (11th Cir.
1999)). Unless the guidelines direct otherwise, this Court presumes “that the
Sentencing Commission intended separate guideline sections to apply
cumulatively.” Id. at 1227. “‘Double counting a factor during sentencing is
permitted if the Sentencing Commission . . . intended that result and each
guideline section in question concerns conceptually separate notions relating to
sentencing.’” Id. (quoting United States v. Stevenson, 68 F.3d 1292, 1294 (11th
Cir. 1995)) (alteration in original). Further, “[t]he offense level adjustments from
more than one specific offense characteristic within an offense guideline are
applied cumulatively (added together) unless the guideline specifies that only the
greater (or greatest) is to be used.” U.S.S.G. § 1B1.1 cmt. n.4(A).
The district court did not err in applying the two-level enhancement under
U.S.S.G. § 2K2.1(b)(4)(A). Young contends that it is impermissible double
10
counting to apply the § 2K2.2(b)(4)(A) enhancement based on the firearm being
stolen because the basis for his conviction was being a felon in possession of a
firearm. In his view, the theft and the possession “were one in the same.”
However, the enhancement, which was based on Young’s theft of a firearm, was
not fully accounted for by Young’s base offense level, which was based on
Young’s being a felon in possession of a firearm, U.S.S.G. § 2K2.1(a)(2). A felon
can impermissibly possess a firearm without stealing it. Thus, Young’s
enhancement for stealing the firearm that he impermissibly possessed does not
constitute impermissible double counting.
Young also argues that the district court erred by applying a four-level
enhancement, under U.S.S.G. § 2K2.1(b)(6), for possession of “any firearm . . . in
connection with another felony offense.” The felony in this case was Young’s
burglary of a home. In the plea colloquy, Young admitted that detectives
responded to a burglary call at the home of another person in Owens Cross Roads,
Alabama, that he was in the home, that he was chased out by the homeowner, and
that he was in possession of a firearm he stole from that residence. Young does
not argue that these facts are insufficient to show, by a preponderance of the
evidence, that he committed the felony offense of burglary. See United States v.
Smith, 480 F.3d 1277, 1280-81 (11th Cir. 2007) (noting that the government has
11
the burden of proving, “by a preponderance of the evidence, the facts necessary to
support [a] sentencing enhancement”). Rather, Young argues that this
enhancement is duplicative with U.S.S.G. § 2K2.1(b)(4)(A), which imposes a two-
level enhancement for possession of a stolen firearm.
We find no impermissible double counting in this regard either. The four-
level increase, under § 2K2.1(b)(6), accounts for the fact that Young possessed the
gun in connection with his burglary of a home in Owens Cross Roads, Alabama.
The two-level increase, under § 2K2.1(b)(4)(A), for possessing a stolen gun does
not account for the harm involved with possessing a gun in the course of
burglarizing a dwelling. Possessing a stolen gun is one thing. But possessing a
stolen gun that one obtains by burglarizing a dwelling is quite another. And the
guidelines reflect that difference.9
Lastly, Young asserts that he should not have received a two-level increase
under U.S.S.G. § 3C1.2 for reckless endangerment during flight, because his
conduct was more akin to the behavior outlined in U.S.S.G. § 3C1.1, which deals
with obstructing or impeding the administration of justice. Section 3C1.2
authorizes a two-level increase “[i]f the defendant recklessly created a substantial
9
The § 2K2.1(b)(6) enhancement applies when “a defendant who, during the course of a
burglary, finds and takes a firearm, even if the defendant did not engage in any other conduct
with that firearm.” U.S.S.G. § 2K2.1 n.14(B).
12
risk of death or serious bodily injury to another person in the course of fleeing
from a law enforcement officer.”
For starters, at the plea hearing, Young admitted that law enforcement
officials were forced to engage in a “three-hour stand-off with Young who was
threatening to shoot himself with a firearm before surrendering the firearm to
deputies.” The PSI confirms this, too. The PSI states that “the officers on the
scene had their own firearms pointed at [Young] because [he] threatened suicide
by putting the firearm to his head. After three hours of negotiation, [Young]
subsequently released the firearm and was placed into custody. According to the
government, the firearm was loaded.” The PSI further states that the incident
occurred in congested areas where the general public was at risk:
Not knowing whether or not [Young] would fire or attempt to fire at
other individuals, the officers aimed their own firearms at [Young] for
protection and security purposes. According to [Investigator] Chaffin,
the instant offense occurred during the middle of the day, behind a
congested service station, with a hardware store located next to the
service station. There were individuals who were at the service station
at the time of the instant offense. This conduct also occurred on a
congested four-lane road where the general public was at risk to be fired
upon.10
10
Young did not object to the facts contained in the paragraphs of the PSI where this
information was contained.
13
The district court adopted the facts of the PSI and specifically noted that
“the particular facts of this case did create a substantial risk of death or serious
bodily injury to another person, and [Young] was clearly fleeing.” These findings
are supported by the record and thus are not clearly erroneous. We find no
reversible error.
C. Constitutional Error
Young argues that, pursuant to Apprendi and Blakely, his sentence violates
the Sixth Amendment because he was never charged with or convicted by a jury of
a burglary, but yet his sentence was enhanced under U.S.S.G. § 2K2.1(b)(6), for
possession of a firearm “in connection with another felony offense.”11
Under Apprendi, 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. 530 U.S. at 490, 120 S. Ct. at 2362-63. And under Blakely, the
“statutory maximum” is the maximum sentence a judge may impose based solely
on facts admitted to by the defendant or reflected by the jury’s verdict. 542 U.S. at
303-04, 124 S. Ct. at 2537. Here, Young’s actual sentence does not exceed the
11
We review constitutional sentencing issues de novo. See United States v. Paz, 405 F.3d
946, 948 (11th Cir. 2005).
14
statutory maximum. Thus, Apprendi and Blakely do not apply.12 Furthermore,
Young admitted to the facts underlying the basis for the burglary enhancement and
was sentenced under an advisory guidelines regime. Therefore, his sentence does
not violate the Sixth Amendment. See United States v. Rodriguez, 398 F.3d 1291,
1300 (11th Cir. 2005). After review, we find no error under Apprendi or
Blakely.13
In conclusion, we vacate Young’s sentence solely based on the crime-of-
violence issue and remand for resentencing.
VACATED AND REMANDED.
12
Indeed, in his brief, Young concedes that his position is not legally tenable and
emphasizes that he only “preserves the issue in the event that the Supreme Court revisits” the
issue.
13
Young raises a challenge to the substantive reasonableness of his 120-month sentence.
But given that his sentence is vacated and his case is remanded for resentencing, we need not
evaluate the substantive reasonableness issue at this time. See United States v. McVay, 447 F.3d
1348, 1356 (11th Cir. 2006).
15