United States v. Ronnie J. Greer

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-11295 JANUARY 10, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________

D. C. Docket No. 04-00006-CR-1-CDL-4

UNITED STATES OF AMERICA,

Plaintiff-Appellee-Cross-Appellant,

versus

RONNIE J. GREER,

Defendant-Appellant-Cross-Appellee.

________________________

Appeals from the United States District Court
for the Middle District of Georgia
_________________________

(January 10, 2006)

Before BLACK, CARNES and PRYOR, Circuit Judges.

CARNES, Circuit Judge:
 The Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1), provides a

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

922(g) after three convictions for a violent felony or a serious drug offense. In this

case the jury convicted Ronnie J. Greer of violating 18 U.S.C. § 922(g)(1), and it

also found that he had been convicted of at least one of the three previous felonies

listed in the indictment. Those three listed state court convictions were for

separately committed offenses of terroristic threats. There is no dispute that court

documents introduced at trial not only proved those three convictions but also

proved that each was for a “violent felony” for ACCA purposes.

The district court nonetheless refused to impose the minimum mandatory

sentence on Greer because the jury had not determined—and it was never asked to

determine—whether Greer’s three previous convictions were for violent felony

crimes. The district court believed that United States v. Booker, 543 U.S. 220,

125 S. Ct. 738 (2005), and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348

(2000), require that the jury, and not the judge, find that a previous conviction was

for a violent crime for ACCA purposes. As a result of that belief, the district court

imposed a sentence of only 78 months, instead of the 180 months mandated by the

ACCA. Greer has appealed his conviction, and the government has cross-appealed

the 78-month sentence and the Booker ruling underlying it.

2
 I.

On July 6, 2002, a five-year-old boy, who was outside with his sister playing

on a utility trailer was killed when a pipe bomb that had been stored in a box on the

trailer exploded. Greer’s residence was next door, he had been overheard in the

past talking about “blowing people up,” and he was a former employee of a

business that used pipes consistent with the type used in the explosive device. He

quickly became a suspect. Three days after the fatal explosion federal and state

law enforcement officers searched Greer’s residence pursuant to a federal search

warrant. They did not find evidence that would support charging him in

connection with the bomb, but they did find live ammunition in his house,

including one pistol cartridge, two rifle cartridges, and a shotgun shell, all in plain

view on a table just inside the front door.

No guns were found in the house, but the ammunition was enough to charge

Greer with violation of 18 U.S.C. § 922(g)(1), which prohibits a felon from

possessing ammunition. To establish the “felon” part of the charge, the indictment

alleged that Greer had three prior felony convictions for making terroristic threats.

It also charged that the provisions of 18 U.S.C. § 924(e)(1) were applicable,

subjecting Greer to a fifteen-year minimum mandatory sentence upon conviction.

At trial, Jay Bagwell, who is a special agent for the Bureau of Alcohol,

3
Tobacco, Firearms and Explosives, and David Smith, who is an agent for the

Georgia Bureau of Investigation, testified about participating in the search of

Greer’s residence. They told the jury that four live rounds of ammunition, which

had traveled in interstate commerce, were found on a table inside the house.

Although Greer had not been at the house when it was searched, the agents

described documents and other items they found in the house that indicated Greer

lived there: mail; bills; letters Greer had written and signed; and a lot of notebooks

he had compiled. Some of the documents had recent dates on them. The agents

also told of signs—such as a well-stocked kitchen and toiletries in the

bathroom—indicating that the house was occupied.

Brad Donnelly, another ATF agent, testified that Greer had been convicted

in the state courts of Georgia three times for the felony of “terroristic threats.”

Those three separate convictions occurred in 1989, 1993, and 2000. Although that

state crime carries the possibility of years in prison, Greer received probation each

time.

After the government had presented its case in chief, Greer’s counsel failed

to move for a judgment of acquittal. Greer then testified as the only witness in his

defense. He admitted living in Cusseta, Georgia, at the residence that was

searched, and said that he had lived there since 1988. Greer admitted knowing that

4
ammunition was on the table. He first said that the bullets the agents found were

not at the house when he moved in four years before the search “unless they were

on the outside of the house,” but then said that “they could have been [sic] when I

moved into the house, the bullets were there.” In any event, he acknowledged

knowing the ammunition was there. The defense called no other witnesses.

The jury was instructed that it could convict Greer only if it found beyond a

reasonable doubt that he had knowingly possessed ammunition which had been

shipped or transported in interstate commerce, and before he possessed the

ammunition he had been convicted of a crime punishable by imprisonment for a

term in excess of one year. The jury found Greer guilty as charged.

As we have mentioned, the district court determined that the ACCA

minimum mandatory sentence of fifteen years could not be applied in this case in

light of the Booker decision. Having freed itself from the strictures of the ACCA,

the court calculated the guideline range to be 63–78 months imprisonment and

sentenced Greer to 78 months.

II.

Greer raises several contentions against his conviction. First, he asserts that

the government failed to prove beyond a reasonable doubt that he possessed the

ammunition found in his home. We review the sufficiency of the evidence de

5
novo, viewing the evidence and making all reasonable inferences in favor of the

verdict. United States v. Garcia, 405 F.3d 1260, 1269 (11th Cir. 2005).

When a defendant does not move for a judgment of acquittal at the close of

the evidence, he must shoulder a somewhat heavier burden: we will reverse the

conviction only where doing so is necessary to prevent a manifest miscarriage of

justice. United States v. Bender, 290 F.3d 1279, 1284 (11th Cir. 2002). “This

standard requires the appellate court to find that the evidence on a key element of

the offense is so tenuous that a conviction would be shocking.” Id. Greer did not

move for a judgment of acquittal, but we will put that failure aside here because it

does not matter. Even if he had moved for a judgment of acquittal, the result of

this appeal would be the same.

The only element of the crime defined in 18 U.S.C. § 922(g)(1) that Greer

argues was not proven beyond a reasonable doubt is knowing possession of the

ammunition. See generally United States v. Wright, 392 F.3d 1269, 1273 (11th

Cir. 2004), cert. denied, 125 S. Ct. 1751 (2005). The government need not prove

actual possession in order to establish knowing possession; it need only show

constructive possession through direct or circumstantial evidence. Id.

Constructive possession exists when the defendant exercises ownership, dominion,

or control over the item or has the power and intent to exercise dominion or

6
control. United States v. Gunn, 369 F.3d 1229, 1235 (11th Cir. 2004), cert. denied,

125 S. Ct. 324 (2004).

The ammunition was found in plain view on a table just inside the front

door. Even before Greer testified in the defense part of the case, there was

sufficient evidence that he lived in the house and had been there not long before

the search. There was no evidence in either the government’s case or the defense

case that anyone else lived in the house with Greer. His argument that the jury

could not reasonably find beyond a reasonable doubt from this evidence that he

knowingly possessed the ammunition is frivolous.

Greer also contends that the government failed to prove that venue was

proper in the Columbus Division of the Middle District of Georgia. The

government did not put in evidence that Cusseta, Georgia, where Greer lived and

the ammunition was found, was in the territorial jurisdiction of the district court;

there was no stipulation to venue; and there was no discussion of whether judicial

notice could be taken of the necessary facts relating to venue. The venue issue

simply was not raised at trial.

A defendant has a Sixth Amendment right to be tried in the district in which

he committed the offense. United States v. Roberts, 308 F.3d 1147, 1151 (11th

Cir. 2002). However, a defendant waives an objection to venue by failing to raise

7
it before trial, subject to the exception that objecting at the close of evidence is

soon enough if the indictment alleges an incorrect venue and the defendant was not

aware of that defect until the government presented its case. Id. at 1151–52. Greer

did not raise an objection to venue at trial or at the close of evidence, and thus any

venue issue was waived.

Greer’s final contentions involve his trial counsel’s failure to move the

district court for a judgment of acquittal and failure to object on venue grounds.

He says that those failures deprived him of effective assistance of counsel.

Generally, we do not address ineffective assistance claims on direct appeal, except

in the rare instance when the record is sufficiently developed for us to do so.

United States v. Verbitskaya, 406 F.3d 1324, 1337 (11th Cir. 2005). This is one

of those rare instances.

To prevail on a claim of ineffective assistance of counsel, Greer must prove:

(1) that his attorney’s performance fell below an objective standard of

reasonableness, and (2) that he was thereby prejudiced, that is, there is a reasonable

probability that but for counsel’s deficient performance, the result of his trial

would have been different. Id. at 1337–38 (11th Cir. 2005) (citing Strickland v.

Washington, 466 U.S. 688, 104 S. Ct. 2052 (1984)). The prejudice component

disposes of both of Greer’s ineffectiveness claims.

8
 As for the claim arising from his counsel’s failure to move for a judgment of

acquittal on the sufficiency of the evidence not relating to venue, it did not matter.

As we have already explained, the evidence the government presented during its

case was sufficient to convict Greer. His conviction would have been upheld even

if there had been a timely acquittal motion.

As for the claim arising from trial counsel’s failure to object on venue

grounds, “[t]he government must support its choice of venue only by a

preponderance of the evidence.” United States v. Smith, 918 F.2d 1551, 1557

(11th Cir. 1990) (internal quotation omitted). This burden can be met through

direct or circumstantial evidence and judicial notice can be used. United States v.

Males, 715 F.2d 568, 569–70, 570 n.2 (11th Cir. 1983) (holding that although there

was no direct testimony that the crime occurred in Dade County, Florida, venue

was established because there were sufficient references to the crime taking place

in Miami, and stating that this Court can take judicial notice of Miami’s location in

Dade County). Law enforcement officers testified during the government’s case

that the search was conducted and the live ammunition was found at Greer’s house,

located at 380 Highway 520 in Cusseta, Georgia. We take judicial notice that

Cusseta, Georgia is the county seat of Chattahoochee County which is within the

Columbus Division of the Middle District of Georgia. See 28 U.S.C. § 90(b)(3);

9
Males, 715 F.2d at 570 n.2. Had Greer’s trial counsel raised a venue objection at

trial, the district court would have taken judicial notice of the same fact, and we

would have upheld its action in doing so. Greer was not prejudiced in the least by

his counsel’s failure to bring up venue. This ineffective assistance of counsel

claim, like Greer’s other one, fails.

That is the end of Greer’s appeal. We turn now to the government’s cross-

appeal.

III.

The government’s cross-appeal puts at issue the district court’s refusal to

impose the fifteen-year mandatory minimum sentence the Armed Career Criminal

Act, 18 U.S.C. § 924(e), provides. Pursuant to the ACCA, any defendant who is

convicted of violating § 922(g), including § 922(g)(1), as Greer was, who has three

previous convictions for a violent felony, must be sentenced to not less than fifteen

years. The term “violent felony” is defined in the 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). Greer’s three previous convictions, each of which was

listed in the indictment, were all for making terroristic threats in violation of

10
O.C.G.A. § 16-11-37. As the district court explained, that Georgia statute prohibits

both violent and non-violent behavior, so proof that a defendant was convicted for

violating it does not prove that he has been convicted of a violent felony. United

States v. Greer, 359 F. Supp. 2d 1376, 1380–81 (M.D. Ga. 2005).

Greer did not admit at trial that he had three prior convictions for making

terroristic threats, but the uncontradicted evidence the government introduced at

sentencing proved that he did. Id. at 1381 n.7. The documentary evidence

included the indictments underlying the three prior convictions, and those

indictments show that each conviction was for threatening to commit a violent

crime, id., which means it is a “violent felony” conviction for ACCA purposes, see

§ 924(e)(2)(B)(i). As the district court put it, “substantial additional evidence

beyond the fact of the conviction is available in this case to prove that Defendant’s

three prior convictions were violent ones.” Id. at 1381. There is no factual

question.

On the legal question before us the Supreme Court decision that is closest is

the pre-Booker and pre-Apprendi decision in Almendarez-Torres v. United States,

523 U.S. 224, 118 S. Ct. 1219 (1998). In that case the Court held that the factual

issue of whether a defendant has been convicted of an “aggravated felony” for 8

U.S.C. § 1326(b)(2) enhancement purposes is not to be treated as an element of the

11
offense for constitutional purposes, and as a result the prior conviction is not

required to be alleged in the indictment. Id. at 226, 118 S. Ct. at 1222 (“[T]he

subsection is a penalty provision, which simply authorizes a court to increase the

sentence for a recidivist.”). The district court’s decision cannot be reconciled with

the full force of Almendarez-Torres. As we have said several times, unless and

until the Supreme Court specifically overrules Almendarez-Torres, we will

continue to follow it. E.g., United States v. Camacho-Ibarquen, 410 F.3d 1307,

1316 n.3 (11th Cir. 2005) (“[T]he Supreme Court has not explicitly overruled

Almendarez-Torres. As a result, we must follow Almendarez-Torres.”); United

States v. Guadamuz-Solis, 232 F.3d 1363 (11th Cir. 2000) (“Almendarez-Torres

remains the law until the Supreme Court determines that Almendarez-Torres is not

controlling precedent.”).

More than once we have specifically rejected the argument that Almendarez-

Torres was undermined by the Apprendi decision. See United States v. Marseille,

377 F.3d 1249, 1257–58 (11th Cir. 2004) (rejecting an Apprendi-based attack by a

defendant whose sentence was enhanced under the ACCA, U.S.S.G. §§ 4B1.1 and

4B1.4(a)); U.S. v. Miles, 290 F.3d 1341, 1348 (11th Cir. 2002) (rejecting an

Apprendi-based attack on life sentence imposed under the ACCA where the

indictment did not allege and jury did not find that the defendant had three prior

12
violent felony convictions).

Our decision in United States v. Shelton, 400 F.3d 1325, 1329 (11th Cir.

2005), is contrary to the implication of the district court’s ruling, which is that

Booker did what Apprendi did not—partially overrule the Almendarez-Torres

decision. In Shelton, we said this:

Shelton first argues that the district court erred when it
enhanced his sentence based on a judicial fact-finding of drug quantity
and based on his prior convictions. We readily dispense with that
issue. The Supreme Court consistently has rejected Shelton's
argument that a district court errs when it considers prior convictions
in sentencing a defendant under the Guidelines. 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 the government need not allege
in its indictment and need not prove beyond a reasonable doubt that a
defendant had prior convictions for a district court to use those
convictions for purposes of enhancing a sentence.” United States v.
Marseille, 377 F.3d 1249, 1257 (11th Cir.2004) (citation omitted).
This conclusion was left undisturbed by Apprendi, Blakely, and
Booker.

Moreover, in Booker, the Supreme Court reaffirmed its holding
in Apprendi. See Booker, 125 S.Ct. at 756 (opinion of Stevens, J.)
(reaffirming that “[a]ny 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)). Thus, a district court does not err by
relying on prior convictions to enhance a defendant's sentence.

400 F.3d at 1329. In a footnote attached to that passage in Shelton, we cited the

Sixth Circuit’s decision in United States v. Barnett, 398 F.3d 516, 525 (6th Cir.

13
2005), which held that “there is no language in Booker suggesting that the

Supreme Court, as part of its remedial scheme adopted in that case, intended to

alter the exception to Apprendi allowing district courts to consider the fact and

nature of prior convictions, without submitting those issues to the jury.” See also

United States v. Marcussen, 403 F.3d 982, 984 (8th Cir. 2005) (concluding that

Shepard v. United States, 543 U.S. ___, 125 S. Ct. 1254 (2005), “lends further

support to the rule that the sentencing court, not a jury, must determine whether

prior convictions qualify as violent felonies”).

To be fair, the district court’s decision in this case was issued before our

decision in Shelton. It also preceded our statement in United States v.

Orduno-Mireles, 405 F.3d 960, 962 (11th Cir. 2005), that “[p]ut another way,

because the prior-conviction exception remains undisturbed after Booker, a district

court does not err by relying on prior convictions to enhance a defendant's

sentence.” (footnote omitted). And it came before we, in United States v.

Gallegos-Aguero, 409 F.3d 1274, 1277 (11th Cir. 2005), found “no merit in [the]

argument that the Sixth Amendment requires that a jury, not a judge, must

determine whether [a] prior conviction is within the category of offenses specified

in [U.S.S.G.] § 2L1.2(b)(1)(A)(vii).”

The district court thought that even if Almendarez-Torres still permits a

14
judge to determine “the existence of a prior conviction,” the principles of Apprendi

extended through Booker forbid a judge from determining “the factual nature of a

prior conviction.” 359 F. Supp. 2d at 1379–80. That distinction between factual

existence and factual nature is not justified in view of our decisions describing the

non-effect of Apprendi and Booker on the Almendarez-Torres rule. It is not

justified by the language or reasoning of those three Supreme Court decisions or by

the constitutional principles underlying them.

The district court concluded that “[d]etermining the factual nature of a prior

conviction is materially different from simply finding the existence of a prior

conviction for recidivism purposes.” Id. at 1380. We disagree, or at least we

disagree that any difference points in the direction the district court thought. Both

determinations are factfindings, the one answering the existence question is more

purely factual than the one answering the nature question. There is no reason the

Constitution would permit a judge to decide whether the person the conviction

documents describe was the defendant but forbid the judge from deciding what

type of crime those same documents describe.

The district court described the finding of whether the defendant has been

convicted as “a simple ministerial determination” in contrast to the finding about

“the qualitative nature of the prior convictions.” Id. The former is no less a

15
factfinding than the latter, and neither is ministerial. Both determinations can be

problematic. Think of the less than perfect nature of some of the evidence that is

offered to show a prior conviction and to prove that it was the defendant who was

convicted. And think of the number of John Johnsons, Jim Smiths, and William

Browns there are in this country. If a judge may determine the facts about whether

the defendant has been convicted, a judge may determine the facts about the type

of crime for which he was convicted.

The district court gave a lot of thought to this issue, and the opinion it

published is not without its persuasive points. Realistically viewed, however, the

district court’s conclusion is less an application of existing precedent than a

prediction of what the Supreme Court will hold when it chooses to address this

issue in the future. Taking the principles stated in Apprendi and Booker and

projecting them forward, the district court envisioned the overruling of at least

some of the Almendarez-Torres decision. That prediction probably is correct; the

Supreme Court may well overrule Almendarez-Torres. See Shepard v. United

States, 543 U.S. __, 125 S. Ct. 1254, 1264 (2005) (Thomas, J., concurring)

(counting noses to come up with a majority of justices ready to overrule the

Almendarez-Torres decision); cf. Bass v. Bd. of County Comm'rs, 256 F.3d 1095,

1115 (11th Cir. 2001) (“You don't need a weatherman to know which way the

16
wind blows.”) (quoting Bob Dylan, Subterranean Homesick Blues, on Bringing it

All Back Home (Columbia 1965)).

The problem with lower courts basing decisions on predictions that the

Supreme Court will overturn one of its own decisions is that the Supreme Court

has repeatedly told us not to do it. Hohn v. United States, 524 U.S. 236, 252–53,

118 S. Ct. 1969, 1978 (1998) (“Our decisions remain binding precedent until we

see fit to reconsider them, regardless of whether subsequent cases have raised

doubts about their continuing vitality.”); Agostini v. Felton, 521 U.S. 203, 237,

117 S. Ct. 1997, 2017 (1997) (“We do not acknowledge, and we do not hold, that

other courts should conclude our more recent cases have, by implication, overruled

an earlier precedent.”); Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490

U.S. 477, 484, 109 S. Ct. 1917, 1921–25 (1989) (“If a precedent of this Court has

direct application in a case, yet appears to rest on reasons rejected in some other

line of decisions, the Court of Appeals should follow the case which directly

controls, leaving to this Court the prerogative of overruling its own decision.”).

We take that admonition seriously. See Eng’g Contractors Ass’n of S. Fla. Inc. v.

Metro. Dade County, 122 F.3d 895, 908 (11th Cir. 1997) (“Of course, we take that

admonition seriously.”); Brisentine v. Stone & Webster Eng’g Corp., 117 F.3d

519, 525 (11th Cir. 1997); Scala v. City of Winter Park, 116 F.3d 1396, 1399 n.2

17
(11th Cir. 1997) (following an earlier Supreme Court decision even though later

decisions of the Court had “cast some doubt” on it); Fla. League of Prof’l

Lobbyists, Inc. v. Meggs, 87 F.3d 457, 462 (11th Cir. 1996) (“We take this

admonition to heart, and we decline to take any step which might appear to

overrule [prior Supreme Court decisions].”).

We need not reach the alternative argument of the government that, even if

Almendarez-Torres were overruled by the Supreme Court, the mandatory

minimum sentence for a defendant who is not an armed career criminal is 120

months. See 18 U.S.C. §§ 922(g)(1), 924(a)(2); Harris v. United States, 536 U.S.

545, 568, 122 S. Ct. 2406. 2420 (2002).

IV.

The conviction is AFFIRMED. The sentence is VACATED and the case is

REMANDED for resentencing consistent with this opinion.

18