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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-10291
Non-Argument Calendar
________________________
D.C. Docket No. 3:10-cr-00017-MMH-JRK-1
UNITED STATES OF AMERICA,
lllllllllllllllllllllllllllllllllll lllllPlaintiff-Appellee,
versus
ANTHONY JEROME TERRY,
a.k.a. Flip,
lllllllllllllllllll lllllllllllllllllllllDefendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(November 6, 2012)
Before BARKETT, PRYOR, and FAY, Circuit Judges.
PER CURIAM:
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Anthony Jerome Terry appeals his 198-month total sentence, imposed after
he pled guilty to possession with intent to distribute cocaine and possession of a
firearm in furtherance of a drug trafficking crime. He argues that the district court
erred in finding that his prior Florida conviction for lewd and lascivious battery on
a minor constituted a crime of violence sufficient to support his career-offender
enhancement. For the reasons set forth below, we affirm Terry’s sentence.
I.
Terry pled guilty to possession with intent to distribute cocaine, in violation
of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (“Count Three”), and possession of a
firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C.
§ 924(c) (“Count Four”). His presentence investigation report (“PSI”) indicated
that, before committing the instant offenses, Terry had sustained Florida
convictions for lewd or lascivious battery on a minor and for sale or delivery of
cocaine. Regarding the battery conviction, the PSI stated that, in 2002, Terry went
into a 14-year-old’s bedroom and forced her to have sex with him. Further, it
stated that a medical evaluation of the victim showed that she had “tearing,
abrasion[s,] and lacerations near her vagina.”
The PSI indicated that Terry qualified as a career offender under U.S.S.G.
§ 4B1.1, resulting in an offense level of 32, because he had two prior convictions
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for either a “controlled substance offense” or a “crime of violence,” specifically,
his prior Florida cocaine and battery convictions. Terry received a 3-level
reduction for acceptance of responsibility, under U.S.S.G. § 3E1.1(a) and (b),
resulting in a total offense level of a 29. Terry’s classification as a career offender
placed him into a criminal history category VI. As to the firearm offense under
§ 924(c), Terry was subject to a mandatory minimum 60-month sentence, to run
consecutively to any other term of imprisonment. Because Terry was a career
offender with a conviction under § 924(c), the applicable guideline range
increased to 262 to 327 months under U.S.S.G. § 4B1.1(c)(2) and (c)(3).
Terry objected to the PSI on the ground that his Florida conviction for lewd
and lascivious battery, in violation of Fla. Stat. § 800.04(4), was not a proper
predicate for the career-offender enhancement because it was not a crime of
violence under the Sentencing Guidelines. He asserted that United States v.
Harris, 608 F.3d 1222 (11th Cir. 2010) held that a Florida conviction for sexual
battery of a child under the age of 16 does not fall within the residual clause of the
Armed Career Criminal Act (“ACCA”) because it imposes strict liability and does
not necessarily involve “purposeful, violent, and aggressive conduct.” As such,
his prior battery conviction, which is a strict liability offense, does not qualify as a
crime of violence because it does not require specific intent to use force against
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another person. Further, regarding the circumstances of his prior conviction, Terry
objected to the PSI’s factual assertion that he “went into the bedroom of his
girlfriend’s child and forced her to have sexual intercourse.”
Terry filed a sentencing memorandum, reiterating that he did not qualify as
a career offender. He argued that, under our “categorical approach” to review, the
district court should not consider anything other than the fact of conviction and the
elements of the offense. Moreover, even under the “modified categorical
approach,” he does not qualify as a career offender because he never admitted to
any allegations concerning forcible sex during his state plea proceedings.
At the sentencing hearing, Terry argued that, although our decision in
Harris “seemingly rais[ed] an invitation” to consider the specifics of the
underlying offense, the Supreme Court has established that, if the statute may be
reviewed under the categorical approach based only on the judgment and elements
of the offense, there is no need to consider any further evidence or documents.
However, he argued, even applying the modified categorical approach, the
court was not permitted to consider “hearsay police reports” under Shepard v.
United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). He asserted
that the government relied on statements that were made during Terry’s state plea
hearing, suggesting that the offense had involved violence, but those statements
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merely recited allegations from the police report. Terry’s public defender in that
proceeding did not object to the factual basis for his plea, but only for the purposes
of his state plea, and as such, he argued that his interaction with the state court was
insufficient to constitute an admission to any violent acts.
The government then introduced several documents into evidence, including
copies of the state information and judgment, Terry’s guilty plea, and the plea
hearing transcript. During the state plea hearing, the prosecutor described the
factual basis for the plea, stating:
[]Terry, did engage in sexual activity with the victim, a person 12
years of age or older but less than 16 years of age, by placing his
penis in or on her vagina.
She was at the time 14 years old. Victim reported that she was, in
fact, raped. There was a CPT medical evaluation done on this victim,
and she did have tears and abrasions and lacerations near her vagina
to corroborate that there had been some type of penetration to her.
And there was also semen removed from her vagina, and that was
sent off to Florida Department of Law Enforcement to be tested.
The state court asked Terry’s defense counsel if he had any objection to the
statement of facts, and counsel responded, “Not for the purposes of this plea.”
Terry argued that, unlike the Florida battery statute at issue in United States
v. Johnson, __ U.S. __, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010), which could be
violated in numerous ways, including touching, Terry was charged only with
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sexual activity, not sexual battery. Thus, the victim’s report of being raped was
not necessary for plea purposes.
As a preliminary matter, the court rejected Terry’s contention that it was
required to follow the categorical approach. Instead, Shepard and Johnson
instruct that, if the categorical approach does not resolve the issue, the court may
then turn to the modified categorical approach, under which the court must
determine whether the government’s Shepard-approved documents establish that
the “defendant’s conduct involved purposeful, violence, and aggressive conduct.”
The court noted that, in Harris, unlike the instant case, there was insufficient
evidence for the court to make that determination. Here, the government’s
Shepard-approved documents, including the relevant portions of the state plea
hearing, were sufficient to establish that Terry’s prior conviction fell within the
definition of a crime of violence under § 4B1.1 and § 4B1.2. The court found it
relevant that Terry had committed a forcible sex offense, which is specifically
enumerated in the application notes to § 4B1.2. However, ultimately, the court
applied the modified categorical approach in finding that Terry’s offense fell
within the career offender guideline’s residual clause, as an offense involving
conduct that presents a serious potential risk of physical injury to another, and, as
an offense involving purposeful, violent, and aggressive conduct.
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The court adopted the guideline calculations as contained in the PSI, and
noted that Terry faced a guideline range of 262 to 327 months’ imprisonment.
Terry moved for a downward variance based on the 18 U.S.C. § 3553(a)
sentencing factors, including his efforts to assist the government.
In consideration of Terry’s attempts to cooperate with the government, the
court granted the downward variance and imposed a 198-month total sentence,
consisting of 138 months’ imprisonment as to Count Three and a consecutive 60-
month sentence as to Count Four.
II.
We review de novo whether a particular conviction is a crime of violence
under the Sentencing Guidelines. United States v. Lockley, 632 F.3d 1238, 1240
(11th Cir.), cert. denied, 132 S.Ct. 257 (2011).
Pursuant to § 4B1.1, a defendant is considered a “career offender” and
subject to an enhanced sentence if:
(1) the defendant was at least eighteen years old at the time the
defendant committed the instant offense of conviction; (2) the instant
offense of conviction is a felony that is either a crime of violence or a
controlled substance offense; and (3) the defendant has at least two
prior felony convictions of either a crime of violence or a controlled
substance offense.
U.S.S.G. § 4B1.1(a). The term “crime of violence” is defined in the Sentencing
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Guidelines as any offense punishable by more than one year of imprisonment that:
(1) has as an element the use, attempted use, or threatened use of
physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves use of
explosive, or otherwise involves conduct that presents a serious
potential risk of physical injury to another.
U.S.S.G. § 4B1.2(a).
We have noted that, while not the same, the definitions of a crime of
violence in § 4B1.2 and a violent felony in the ACCA are “virtually identical.”
United States v. Archer, 531 F.3d 1347, 1350 n.1 (11th Cir. 2008). Accordingly,
decisions analyzing whether an offense is a “violent felony” under the ACCA
provide guidance when determining whether an offense qualifies as a “crime of
violence” under the career offender guideline. United States v. Alexander, 609
F.3d 1250, 1253 (11th Cir. 2010), cert. denied, 131 S.Ct. 1783 (2011).
“Under § 4B1.2 of the guidelines, any state or federal offense that is
punishable by more than one year of imprisonment can be a crime of violence if it
fits within one of three categories.” United States v. Chitwood, 676 F.3d 971, 975
(11th Cir. 2012). The first category includes crimes that have “as an element the
use, attempted use, or threatened use of physical force against the person of
another.” U.S.S.G. § 4B1.2(a)(1). The second category includes the enumerated
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crimes of “burglary of a dwelling, arson, or extortion” and those involving the
“use of explosives.” § 4B1.2(a)(2). The third category, sometimes referred to as
residual clause crimes, includes those that “otherwise involve[ ] conduct that
presents a serious potential risk of physical injury to another.” Id.; Chitwood, 676
F.3d at 975. In addition, the commentary to the Sentencing Guidelines elaborates
that a crime of violence also includes several specific crimes, including forcible
sex offenses. See U.S.S.G. § 4B1.2, comment. (n.1).
There are two ways in which we analyze whether a crime can fall within the
residual clause of § 4B1.2(a)(2). Chitwood, 676 F.3d at 975. The first is the
categorical approach, under which the court considers whether the elements of the
offense are of the type that would justify its inclusion in the definition of a crime
of violence, without inquiring into the specific conduct of the particular offender.
Id. at 975-76. The second way to identify the specific offense at issue is an
exception to the categorical approach, referred to as the “modified categorical
approach.” See United States v. Pantle, 637 F.3d 1172, 1175 (11th Cir.), cert.
denied, 132 S.Ct. 1091 (2012). Courts may apply the modified categorical
approach “when the law under which a defendant has been convicted contains
different statutory phrases—some of which qualify as crimes of violence and some
of which do not.” Id. (quotation and alteration omitted); Chitwood, 676 F.3d at
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976. Moreover, when applying the modified categorical approach, sentencing
courts, under Shepard, are “generally limited to examining the statutory definition,
charging document, written plea agreement, transcript of the plea colloquy, and
any explicit factual finding by the trial judge to which the defendant assented.”
See United States v. Palomino Garcia, 606 F.3d 1317, 1328 (11th Cir. 2010)
(applying U.S.S.G. § 2L1.2).
The Supreme Court, in Johnson, held that, for a prior conviction to qualify
as a violent felony under the elements clause of the ACCA, the offense must have
an element of “violent force” against the person of another. Johnson, 559 U.S. at
__, 130 S.Ct. at 1271. The Court defined violent force as “force capable of
causing physical pain or injury to another person.” Id. In so doing, the Court
rejected the established common-law meaning of “force,” which included even the
slightest offensive touching, because such an interpretation did not fit the statutory
context. Id. at __, 130 S.Ct. at 1270-73.
In Owens, we applied Johnson to analyze whether the offenses of second
degree rape and second degree sodomy under Alabama law qualified as violent
felonies under the elements clause. Owens, 672 F.3d at 970-72. Applying the
categorical approach, we noted that “forcible compulsion” was not required to
violate the second degree rape and second degree sodomy statutes, and the
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physical requirement of the statutes required only slight penetration with a non-
consenting victim, due to age or mental incapacity. Id. at 971. However, while
excluding a battery conviction from satisfying the elements clause as a categorical
matter, the Johnson decision left open the possibility that a battery conviction may
satisfy the elements clause under the modified categorical approach by looking to
the record of the conviction to determine if violent force was an element. See
Johnson, 559 U.S. at __, 130 S.Ct. at 1273. However, the “absence of records”
often frustrates the application of the modified categorical approach. Id.
Terry was convicted under the 2002 version of Fla. Stat. § 800.04(4), which
defined lewd or lascivious battery on a minor as:
A person who:
(a) Engages in sexual activity with a person 12 years of age or older
but less than 16 years of age; or
(b) Encourages, forces, or entices any person less than 16 years of age
to engage in sadomasochistic abuse, sexual bestiality, prostitution, or
any other act involving sexual activity.
Fla.Stat. § 800.04(4) (2000). Under Fla. Stat. § 800.04(2) and (3), the victim’s
consent and the perpetrator’s ignorance of the victim’s age are not defenses.
In Harris, we addressed whether a prior version of the same statute, Fla.
Stat. § 800.04(3)(1996), constituted a violent felony under the ACCA’s residual
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clause. Harris, 608 F.3d at 1225-27. The 1996 version of the statute stated that “a
person who [c]ommits an act defined as sexual battery under [Fla. Stat.
§] 794.011(1)(h) upon any child under the age of 16 years . . . is guilty of a felony
of the second degree.” Fla. Stat. § 800.04(3) (1996). Sexual battery meant “oral,
anal, or vaginal penetration by, or union with, the sexual organ of another.”
Harris, 608 F.3d at 1225. We employed the categorical approach to determine
how offenses under that statute ordinarily would be committed. Id. at 1227-29. In
doing so, we noted, “The proper inquiry is whether the conduct encompassed by
the elements of the offense, in the ordinary case, presents a serious potential risk
of injury to another.” Id. at 1228. The risk posed must be similar in kind and
degree to the risks posed by the enumerated crimes. Id. at 1227 (quotation and
alteration omitted). Specifically, we ask whether the conduct at issue is
“purposeful, violent and aggressive,” or whether “it is a more passive crime of
inaction.” Id. (quotation omitted).
Using the categorical approach, we determined that sexual battery of a
minor always posed a substantial risk of physical injury. Id. at 1230. We noted
that the Florida statute at issue “cover[ed] a wide array of conduct,” imposing
strict liability for some violations, but also covering “conduct that is undoubtedly
intentional or purposeful.” Id. at 1332. Nevertheless, we held that, as a strict
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liability offense that covered both violent and non-violent conduct, the Florida
statute was not similar in kind to the enumerated offenses to constitute a crime of
violence under the residual clause. Id. at 1230-33. In reaching this holding, we
emphasized that we had considered the statute categorically, and “without further
specifics” about the facts of the offense. Id. at 1232-33.
The district court did not err in finding that, under the modified categorical
approach, Terry’s prior conviction for lewd and lascivious battery on a minor,
under § 800.04(4), constituted a crime of violence sufficient to support his career-
offender enhancement. Terry correctly notes that, under the categorical approach,
we have held that a prior version of the same offense did not qualify as a crime of
violence. See Harris, 608 F.3d at 1228-33. The district court, however, was
permitted to apply the modified categorical approach because Terry’s statute of
conviction, § 800.04(4), contains different statutory phrases—some of which that
qualify as crimes of violence and some of which do not. See Pantle, 637 F.3d at
1175; Chitwood, 676 F.3d at 976. In fact, in Harris, we stated that Florida’s lewd
and lascivious battery statute can impose strict liability, but it can also criminalize
intentional conduct. Harris, 608 F.3d at 1232-33. Moreover, we indicated that we
had applied the categorical approach because we lacked specifics regarding the
circumstances underlying the prior conviction. See id. at 1233 (holding that, “a
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violation of Fla. Stat. § 800.04(3)(1996) generally—without further specifics—is
not a crime of violence”) (emphasis added).
Unlike in Harris, the district court here had access to “specifics” regarding
Terry’s prior conviction, beyond merely the statutory language and charging
document. The government submitted a transcript of Terry’s plea hearing, a
Shepard-approved document, showing that he agreed to the state’s factual basis
for his plea. See Palomino Garcia, 606 F.3d at 1328. Specifically, the state
prosecutor asserted that the 14-year-old victim had reported being raped and a
medical evaluation corroborated her report, showing that she had tears, abrasions,
and lacerations near her vagina. Terry argues that he agreed to the factual basis
for his plea in state court because he believed the guilty plea to be in his best
interest, not because he committed any forcible acts. Nonetheless, the district
court was permitted to rely on the plea hearing transcript, under the modified
categorical approach, in determining whether Terry’s prior offense constituted a
crime of violence. See Palomino Garcia, 606 F.3d at 1328. The victim’s report
that she was raped and the corroborating medical evidence supported the court’s
determination that Terry’s offense involved conduct that was “purposeful, violent,
and aggressive,” as opposed to passive conduct that was subject to strict liability.
See Harris, 608 F.3d at 1227.
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Terry’s reliance on Owens is unavailing because Owens involved our review
of Alabama’s second degree rape and second degree sodomy statutes, under the
categorical approach, to determine if those statutes satisfied the ACCA’s
“elements clause.” See Owens, 672 F.3d at 970-972. Even if Terry’s statute of
conviction, as a categorical matter, fails to satisfy the elements clause of the career
offender guideline, Owens did not preclude the district court from employing the
modified categorical approach to determine whether Terry’s prior offense satisfied
the career offender’s residual clause. See Johnson, 559 U.S. at __, 130 S.Ct. at
1273. Both Owens and Harris involved statutory review under the categorical
approach, but here, the district court properly found that, because it had further
specifics regarding Terry’s conduct, it was permitted to apply the modified
categorical approach in finding that his prior conviction qualified as a crime of
violence under § 4B1.2(a)(2)’s residual clause. In so doing, the district court did
not err in determining that Terry’s conduct of raping the 14-year-old victim, such
that she had tears and abrasions near her vagina, involved purposeful, violent, and
aggressive conduct.
For the foregoing reasons, we affirm Terry’s sentence.
AFFIRMED.
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