USCA11 Case: 22-14338 Document: 26-1 Date Filed: 11/13/2023 Page: 1 of 8
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-14338
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ORTAZ SHARP,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:19-cr-00450-LMM-1
____________________
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2 Opinion of the Court 22-14338
Before ROSENBAUM, BRASHER, and ABUDU, Circuit Judges.
PER CURIAM:
Ortaz Sharp appeals his fifteen-year prison sentence for pos-
session of a firearm as a convicted felon. He contends that the dis-
trict court erred in imposing the enhanced minimum penalty under
the Armed Career Criminal Act (“ACCA”). See 18 U.S.C. §
924(e)(1). In particular, he asserts that his prior Georgia convic-
tions for terroristic threats and burglary are not “violent felonies”
for purposes of the ACCA. After careful review, we affirm Sharp’s
sentence.
I.
In 2020, Sharp pled guilty to possession of a firearm as a con-
victed felon, in violation of 18 U.S.C. § 922(g)(1). Sharp’s presen-
tence investigation report (“PSR”) recommended that he qualified
for an enhanced minimum sentence under the ACCA. See 18
U.S.C. § 924(e)(1). The PSR cited three prior Georgia convictions
as predicate offenses: robbery by force, burglary, and aggravated
battery. The PSR also noted that Sharp had a Georgia conviction
for making terroristic threats.
The district court found that Sharp’s robbery conviction did
not qualify as a predicate offense and that, as a result, he lacked the
three qualifying offenses necessary to trigger the ACCA’s enhanced
minimum penalty of fifteen years. The court sentenced Sharp to
110 months’ imprisonment.
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22-14338 Opinion of the Court 3
At the time of Sharp’s sentencing, our precedent held that a
conviction under Georgia’s terroristic threats statute, O.C.G.A.
§ 16-11-37 (2010), was “indivisible,” and that the least culpable con-
duct made unlawful by the statute did not qualify as an ACCA pred-
icate offense. United States v. Oliver (“Oliver II”), 955 F.3d 887, 896–
97 (11th Cir. 2020). Ten days after sentencing, though, we vacated
Oliver II and, in its place, issued a new opinion holding that the stat-
ute was in fact “divisible,” and that a portion of the statute qualified
as a predicate crime under the ACCA. United States v. Oliver (“Oliver
III”), 962 F.3d 1311, 1321 (11th Cir. 2020).
The government appealed Sharp’s sentence, and we vacated
and remanded for resentencing in light of Oliver III. United States v.
Sharp, 21 F.4th 1282 (11th Cir. 2021). We rejected Sharp’s argu-
ment that the government had waived reliance on the terroristic-
threats conviction for purposes of the ACCA. Id. at 1286–87. And
we remanded with instructions for the court to “review evidence”
and “make factual findings about Sharp’s conviction under Geor-
gia’s terroristic threats statute, and whether this conviction quali-
fies as an ACCA predicate.” Id. at 1287–88.
On remand, the district court, after reviewing underlying
state-court records, concluded that Sharp’s terroristic-threats con-
viction qualified as an ACCA predicate “violent felony.” Citing Ol-
iver III, the court explained that the statute was divisible and that a
person could be found guilty of making terroristic threats either
“with the purpose of terrorizing another,” which would qualify as
a predicate offense, or with “reckless disregard of the risk of causing
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4 Opinion of the Court 22-14338
such terror,” which would not. See United States v. Gary, 74 F.4th
1332, 1335 (11th Cir. 2023) (“In Borden v. United States, [141 S. Ct.
1817 (2021)], the Supreme Court held that a criminal offense that
requires only a mens rea of recklessness cannot qualify as a ‘violent
felony’ under the ACCA.”). Based on its review of the indictment
and plea colloquy, and notwithstanding Sharp’s Alford plea 1, the
court found that Sharp had been charged and convicted under the
“purposeful,” rather than “reckless,” prong of the statute. The
court therefore concluded that the terroristic-threats conviction
was a violent felony, and that, as a result, Sharp had three violent
felonies under the ACCA.
The district court sentenced Sharp to 180 months’ imprison-
ment, the minimum sentence mandated by the ACCA, see 18
U.S.C. § 924(e)(1). Sharp now appeals.
II.
We review de novo whether a defendant’s prior conviction
qualifies as a predicate offense under the ACCA. United States v.
Deshazior, 882 F.3d 1352, 1354 (11th Cir. 2018). We review any un-
derlying factual findings for clear error. See United States v. Diaz-
Calderone, 716 F.3d 1345, 1348 (11th Cir. 2013).
1 “An Alford plea is a guilty plea where the defendant maintains a claim of
innocence to the underlying criminal conduct charged but admits that suffi-
cient evidence exists to convict him of the offense.” United States v. Ramirez-
Gonzalez, 755 F.3d 1267, 1273 (11th Cir. 2014).
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22-14338 Opinion of the Court 5
Under the ACCA, if a defendant violates § 922(g) and has at
least three prior convictions for a “violent felony” or a “serious
drug offense” committed on separate occasions, the mandatory
minimum sentence is fifteen years’ imprisonment. 18 U.S.C.
§ 924(e)(1). A “violent felony” must “ha[ve] as an element the use,
attempted use, or threatened use of physical force against the per-
son of another,” or be equivalent to the generic version of certain
enumerated crimes, including “burglary.” Id. § 924(e)(2)(B)(i), (ii).
To determine whether a prior conviction qualifies as a vio-
lent felony, we use a “categorical approach,” looking “only to the
statutory definitions of the prior offenses rather than the underly-
ing facts of the prior conviction.” Gary, 74 F.4th at 1334 (quotation
marks omitted). “[W]e must presume that the conviction rested
upon the least of the acts criminalized by the statute.” Oliver III,
962 F.3d at 1316. If this least culpable conduct does not necessarily
involve “the use, attempted use, or threatened use of physical
force,” the statute does not categorically qualify as an ACCA pred-
icate offense. Id. Where a statute is “divisible”—that is, where it
sets out one or more elements, rather than means, in the alterna-
tive—we may go a step further and consult a “limited class of doc-
uments, including the indictment, jury instructions, or plea agree-
ment and colloquy,” to determine which of the multiple, alterna-
tive crimes the defendant was convicted of committing. Id. at 1317.
A.
Sharp first challenges the district court’s classification of his
terroristic-threats conviction as a violent felony. In Oliver III, we
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6 Opinion of the Court 22-14338
held that Georgia’s terroristic-threats statute, § 16-11-37(a) (2010),
was divisible, “contain[ing] a list of divisible elements in the form
of alternative threats, each one of which constitutes a separate
crime.” 962 F.3d at 1320. And we concluded, based on the indict-
ment, that the defendant had been convicted “under the divisible
portion of § 16-11-37(a) that criminalizes a threat[] to commit any
crime of violence . . . with the purpose of terrorizing another.” Id.
We held that a conviction under this portion of § 16-11-37(a) had
as an element the threatened use of physical force and therefore
qualified as a violent felony under the ACCA. See id. at 1320–21.
Sharp was convicted under the same version of the terroris-
tic-threats statute at issue in Oliver III. And like the defendant in
Oliver III, Sharp pled guilty to an indictment charging him with
“threaten[ing] to commit a crime of violence . . . with the purpose
of terrorizing” another person. That offense, according to Oliver
III, is a violent felony. See id.
Sharp argues based on the plea colloquy that he nevertheless
“may have possessed a mens rea of recklessness.” See Gary, 74 F.4th
at 1335 (“[A] criminal offense that requires only a mens rea of reck-
lessness cannot qualify as a ‘violent felony’ under the ACCA.”). But
our inquiry looks “only to the statutory definitions of the prior of-
fenses rather than the underlying facts of the prior conviction.” Id.
at 1334. And here, as in Oliver III, the record indicates that Sharp
was convicted “under the divisible portion of § 16-11-37(a) that
criminalizes a threat[] to commit any crime of violence . . . with the
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22-14338 Opinion of the Court 7
purpose of terrorizing another,” not with “reckless disregard.” Ol-
iver III, 962 F.3d at 1319–20.
In short, in light of Oliver III, the district court correctly
found that Sharp’s terroristic-threats conviction qualified as an
ACCA predicate. 2
B.
Next, Sharp contends that his Georgia burglary conviction
does not qualify as a violent felony because it is broader than the
generic federal definition of burglary in two ways: the location ele-
ment and the unlawful-entry element. The government argues,
and we agree, that our decision in United States v. Gundy, 842 F.3d
1156 (11th Cir. 2016), forecloses Sharp’s argument.
In Gundy, we examined the Georgia burglary statute under
which Sharp was convicted. See id. at 1159. We held that the stat-
ute was divisible. Id. at 1167. And after reviewing the record, we
concluded that the defendant’s “burglary convictions involved
these three elements: (1) an unlawful entry (2) into a dwelling
house or building (3) with intent to commit a crime therein.” Id.
at 1169. We held that “[t]hese elements substantially conform to
the generic definition of burglary.” Id. Accordingly, we concluded
that the defendant’s burglary convictions qualified as violent
2 Sharp’s invocation of the rule of lenity is misplaced because there is “no am-
biguity for the rule of lenity to resolve.” Shular v. United States, 589 U.S. __,
140 S. Ct. 779, 787 (2020).
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8 Opinion of the Court 22-14338
felonies under the ACCA’s enumerated crimes clause. Id.; see 18
U.S.C. § 924(e)(2)(b)(ii).
Sharp acknowledges that Gundy is binding, even if wrongly
decided, but he maintains that it does not foreclose his argument
that the unlawful-entry element is overbroad, since that element
was not addressed in the opinion. As Sharp notes, though, “Gundy
himself raised this very objection to the Georgia burglary statute”
in his briefing on appeal. And “we have categorically rejected an
overlooked reason or argument exception to the prior-panel-prec-
edent rule.” In re Lambrix, 776 F.3d 789, 794 (11th Cir. 2015)
(“[U]nder this Court’s prior-panel-precedent rule, a prior panel’s
holding is binding on all subsequent panels unless and until it is
overruled or undermined to the point of abrogation by the Su-
preme Court or by this court sitting en banc.”). Thus, Gundy bars
Sharp’s challenge to the classification of his burglary conviction as
a violent felony.
III.
For these reasons, Sharp has not shown that the district
court erred in sentencing him as an armed career criminal under
the ACCA. See 18 U.S.C. § 924(e)(1).
AFFIRMED.