[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 11, 2009
No. 08-10659
THOMAS K. KAHN
________________________ CLERK
D.C. Docket No. 06-00147-CR-J-33-MCR
UNITED STATES OF AMERICA
Plaintiff-Appellee,
versus
MYRON CHRISTOPHER CANTY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(June 11, 2009)
Before CARNES, HULL, and COX, Circuit Judges.
COX, Circuit Judge:
We consider in this appeal whether a defendant’s sentence was properly
enhanced pursuant to the Armed Career Criminal Act, 18 U.S.C. § 924(e) (“the
ACCA” or “the statute”). We hold that, pursuant to recent decisions of the Supreme
Court and this court, convictions for carrying a concealed firearm should not be
treated as violent felonies under the statute. And, concluding that the record does not
support a finding of three violent felonies or serious drug crimes necessary to apply
the ACCA enhancement, we vacate the sentences and remand for resentencing.
I. FACTUAL BACKGROUND
After pleading guilty to possession of counterfeit federal reserve notes in
violation of 18 U.S.C. § 472, and being a felon in possession of a firearm in violation
of 18 U.S.C. § 922(g)(1), Myron Canty’s sentence was enhanced pursuant to the
ACCA, which called for a fifteen-year mandatory minimum sentence. The ACCA
provides that, when a defendant sentenced for a violation of 18 U.S.C. § 922(g) has
three or more prior convictions for violent felonies or serious drug crimes “committed
on occasions different from one another,” the mandatory minimum prison sentence
is fifteen years. 18 U.S.C. § 924(e)(1).
The presentence investigation report (PSR) prepared by the probation office
recommended sentencing Canty as an armed career criminal. The PSR listed all of
Canty’s prior convictions but did not specify which of these convictions were violent
felonies or serious drug offenses under the ACCA. At the sentencing hearing, the
Government made no objections to the PSR and pursued an ACCA sentence.
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Canty objected to the PSR because it included facts and circumstances of
Canty’s prior crimes taken from arrest and booking reports. Canty argued that
because arrest and booking reports are not documents the court may rely upon to
determine whether a defendant’s prior crimes are proper predicate convictions for
application of the ACCA, the PSR should not include facts taken from those reports.
In support of this argument, Canty cited Shepard v. United States, 544 U.S. 13, 125
S. Ct. 1254 (2005), which limits a sentencing court to examination of the charging
document, the terms of a plea agreement, the transcript of a plea colloquy in which
the factual basis for the plea was confirmed by the defendant, or “some comparable
judicial record of this information” to determine if the crime to which a defendant has
pleaded guilty fits the definitions of crimes upon which an ACCA enhancement can
rest. Shepard, 544 U.S. at 26, 125 S. Ct. at 1263.
The Government responded to Canty’s Shepard objection by adopting the
addendum to the PSR. The relevant part of that addendum states:
It is the [Probation] Office’s understanding of Shepard, that the case
limits the sentencing court to consideration of [the charging document,
terms of a plea agreement, the transcript of a plea colloquy or other such
documentation] when the facts from the police report are used to support
a conviction; strictly speaking, in Shepard, a conviction relied upon to
enhance the defendant’s sentence pursuant to the Armed Career
Criminal Act. The holding in that case does not appear to be applicable
to this defendant. The affected paragraphs are reported for the Court’s
perusal and consideration, as likely “circumstances” of the arrest – not
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in support of the conviction for reasons of aggravating the otherwise
applicable sentence.
(PSR Addendum at 1.) The Government further stated that the objected-to facts “are
not being presented to prove the underlying qualifying convictions, but merely to
advise the court of the circumstances of the arrest in question.” (R.3 at 6.) The
Government then offered four certified copies of state convictions that were entered
in evidence as Exhibits 1 through 4. Exhibit 1 is a Florida judgment of conviction,
file-stamped August 5, 2002, for three crimes: felon in possession of a firearm,
carrying a concealed firearm, and obstructing or opposing an officer. Exhibit 2 is a
Florida judgment of conviction, file-stamped January 29, 1998, for three crimes:
escape while transporting, possession of cocaine, and obstructing or opposing an
officer with violence. Exhibit 3 is a Florida judgment of conviction, also file-stamped
January 29, 1998, for possession of cocaine with intent to sell or deliver. Exhibit 4
is a Florida judgment of conviction, file-stamped May 25, 1995, for two crimes:
carrying a concealed firearm and possession of a weapon in the vicinity of a school.
Each of the exhibits records that Canty pleaded guilty or nolo contendere to the
crimes. The court overruled Canty’s Shepard objection, finding that, in light of the
Government’s submission of Exhibits 1 through 4, Shepard did not apply to Canty’s
case.
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Canty also objected that his two convictions for carrying a concealed firearm
and his conviction for escape should not be classified as violent felonies for purposes
of enhancing the sentence pursuant to the ACCA. The Government responded that
Eleventh Circuit precedent held that these crimes were properly considered violent
felonies, and the court overruled the objection on that ground.1
Finally, Canty objected that his Sixth Amendment rights would be violated if
his sentence were enhanced based upon facts not stipulated to or proven to a jury
beyond a reasonable doubt. The court overruled the objection.
Canty was sentenced, pursuant to the ACCA, to 186 months in prison on each
count, to be served concurrently (the fifteen-year mandatory minimum under the
ACCA called for a sentence of 180 months). The Government did not request, and
the court did not make, findings as to how many violent felony or serious drug
convictions Canty had or whether those crimes were committed on occasions separate
from one another. Nor did the court state which of the convictions reflected on
1
The Government’s response brief relied on United States v. Taylor, 489 F.3d 1112 (11th
Cir. 2007), for the proposition that our circuit’s precedent held that escape was categorically a
violent felony under the ACCA. After the Government filed its brief, however, the Supreme
Court vacated our opinion in Taylor and remanded the case to us for reconsideration in light of
Chambers v. United States, 555 U.S. ___, 129 S. Ct. 687 (2009). Taylor v. United States, __
U.S. __, 129 S. Ct. 990 (2009) (mem.). On remand, we vacated the sentence and remanded the
case to the district court for resentencing because the government no longer sought an ACCA
enhancement for the defendant’s sentence. United States v. Taylor, No. 06-13139, 2009 WL
418638, at *1 (11th Cir. Feb. 20, 2009).
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Exhibits 1 through 4 it relied upon in determining that Canty’s sentence should be
enhanced pursuant to the statute.
II. ISSUE ON APPEAL & CONTENTIONS OF THE PARTIES
Canty appeals his sentences, arguing that they should not have been enhanced
pursuant to the ACCA because carrying a concealed firearm and escape are not
properly considered violent felonies under the statute.2 The Government
acknowledges that, after Begay v. United States, 553 U.S. __, 128 S. Ct. 1581 (2008),
and this court’s subsequent decision in United States v. Archer, 531 F.3d 1347, 1352
(11th Cir. 2008), carrying a concealed firearm should not be treated as an ACCA
violent felony. The Government argues, however, that we should consider escape a
violent felony for purposes of the sentencing enhancement. And, the Government
defends the sentences on the basis that, even when the concealed firearms convictions
are disregarded, Defendant has three violent felony or serious drug offense
convictions that make the ACCA 15-year mandatory minimum applicable. The
Government identifies these three convictions as escape while transporting
(documented on Exhibit 2 offered at the sentencing hearing), obstructing or opposing
2
Canty also argues that his Sixth Amendment right to trial by jury was violated when his
sentence was enhanced by the facts of his prior convictions – facts which he did not admit and were
not found by a jury. Canty acknowledges that success in this argument is foreclosed by Almendarez-
Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219 (1998). Therefore, we do not discuss it
further.
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an officer with violence (also documented on Exhibit 2), and possession with intent
to sell cocaine (documented on Exhibit 3).
III. STANDARD OF REVIEW
Whether a particular conviction is a violent felony for purposes of the ACCA
is a question of law we consider de novo, United States v. Day, 465 F.3d 1262, 1264
(11th Cir. 2006), as is whether crimes were committed on “occasions different from
one another,” within the meaning of the ACCA. United States v. Pope,132 F.3d 684,
689 (11th Cir. 1998).
IV. DISCUSSION
We agree with the parties that carrying a concealed weapon is not a violent
felony that may be used as a predicate conviction to enhance a defendant’s sentence
under the ACCA. See Archer, 531 F.3d at 1352 (holding that carrying a concealed
weapon can not be a “crime of violence” under the U.S. Sentencing Guidelines and
stating, “This court has repeatedly read the definition of a ‘violent felony’ under §
924(e) of the Armed Career Criminal Act as ‘virtually identical’ to the definition of
a ‘crime of violence’ under U.S.S.G. § 4B1.2.”). Therefore, as the parties recognize,
in order for Canty’s ACCA sentence to be affirmed, his crimes of escape, obstructing
or opposing an officer with violence, and possession with intent to sell cocaine all
must be considered violent felonies or serious drug offenses. Canty does not dispute
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that his drug conviction is a serious drug offense as defined by the statute. But, the
parties disagree as to whether Canty’s other two convictions should be counted as
violent felonies under the statute.
Canty argues that, after Begay, his escape conviction should not be considered
a conviction for a violent felony. And, he argues that, even if that crime is considered
a violent felony, the Government has not shown and cannot show that it was
committed on an occasion different from the crime of obstructing or opposing an
officer with violence because both crimes were committed on the same day. The
Government argues that escape is properly considered a violent felony under Eleventh
Circuit precedent, and that Begay should not change that rule. And, the Government
argues, even though both crimes were committed on the same day, the record
demonstrates that Canty committed his escape crime on an occasion different from
his crime of obstructing or opposing an officer with violence.
We need not decide whether Begay requires us to reconsider our precedent
holding that escape is, categorically, a violent felony because we find that, even if we
continue to consider it as such, the record in this case does not support a sentencing
enhancement under the ACCA. In order for ACCA enhancement to be proper, the
defendant must have been convicted of three violent felonies or serious drug crimes
“committed on occasions different from one another.” 18 U.S.C. § 924(e)(1). We
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have interpreted that phrase to require that the crimes were committed successively
rather than simultaneously. Pope, 132 F.3d at 692. Exhibits 2 and 3, the records of
conviction on which the Government now relies, contain no information that would
allow a court to conclude that Canty’s crimes of escape and obstructing or opposing
an officer with violence were committed successively rather than simultaneously.
Both crimes were committed on the same day and are evidenced by a single judgment
of conviction, Exhibit 2. Recognizing this, the Government urges us to rely on facts
in the PSR that “conclusively establish that Canty had committed the offenses
successively – not simultaneously – and that Canty had a meaningful opportunity to
cease his criminal activity during the temporal break between the offenses. . . .”
(Appellee’s Br. at 12 n.2.)
Canty argues that, after the Supreme Court’s decision in Shepard, courts can
rely on facts taken only from Shepard-approved documents to determine whether the
crimes to which a defendant pleaded guilty were committed on occasions different
from one another. Accordingly, he argues that the court cannot rely on facts from the
PSR to conclude his crimes were committed on different occasions because the
relevant facts in the PSR were taken from non-Shepard-approved documents. He
argues further that the circuit courts of appeals that have decided this question have
held that the only documents a court may consider in determining whether those
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crimes were committed on occasions different from one another are Shepard-
approved documents.3 In response to Canty’s argument that relying on the facts in
the PSR that were taken from arrest records and police reports would violate the rule
in Shepard and his Sixth Amendment rights, the Government argues that Shepard
does not speak directly to the determination of whether crimes were committed on
occasions different from one another. The Government further argues that, unless
and until this court decides the question differently en banc, we must follow United
States v. Richardson, 230 F.3d 1297, 1299-1300 (11th Cir. 2000), which holds that
a sentencing court does not err in looking to police reports and arrest records to make
that determination.
We do not decide what impact Shepard has on the holding of Richardson,
however, because even if we considered Richardson controlling, we would not apply
it in this case. The Government explicitly waived reliance on the PSR facts taken
from documents other than Exhibits 1 through 4 to support the ACCA sentencing
enhancement. The PSR addendum stated, “The affected paragraphs are reported for
the Court’s perusal and consideration, as likely ‘circumstances’ of the arrest – not in
support of the conviction for reasons of aggravating the otherwise applicable
sentence.” (PSR Addendum at 1.) In response to Canty’s Shepard objection, the
3
In support of this argument, Canty cites, among other cases, United States v. Fuller, 453
F.3d 274 (5th Cir. 2006), and United States v. Taylor, 413 F.3d 1146 (10th Cir. 2005).
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Government explicitly adopted the addendum’s position and also said that the
objected-to facts were “not being presented to prove the underlying qualifying
convictions, but merely to advise the court of the circumstances of the arrest in
question.” (R.3 at 6.) Thus, the Government waived its right to assert that, consistent
with Richardson, this court should consider the PSR facts to determine that Canty’s
escape and obstructing or opposing an officer with violence crimes were committed
on occasions different from one another and therefore constitute two predicate
convictions for purposes of ACCA enhancement.
As a fall-back position, the Government proposes that we remand to the district
court with an instruction that the Government be given a second opportunity to prove
that Canty’s convictions support an enhancement pursuant to the ACCA.
We require litigants to make all their objections to a sentencing court’s findings
of fact, conclusions of law, and the manner in which the sentence was imposed at the
initial sentencing hearing. United States v. Jones, 899 F.2d 1097, 1102-03 (11th Cir.
1990), cert. denied, 498 U.S. 906, 111 S. Ct. 275 (1990), overruled on other grounds,
United States v. Morrill, 984 F.2d 1136, 1137 (11th Cir.1993) (en banc) (“Where the
district court has offered the opportunity to object and a party is silent or fails to state
the grounds for objection, objections to the sentence will be waived for purposes of
appeal, and this court will not entertain an appeal based upon such objections unless
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refusal to do so would result in manifest injustice.”); see also United States v. Weir,
51 F.3d 1031, 1032 (11th Cir. 1995) (same). The rule applies to the defense and the
prosecution alike. See Weir, 51 F.3d at 1032-33. And, remand for further findings
is inappropriate when the issue was before the court and the parties had an
opportunity to introduce relevant evidence. United States v. Simons, 206 F.3d 392,
399 n.11 (4th Cir. 2000).
Here, when given the opportunity, the Government failed to voice any
objection that the sentencing court had not made any findings as to which of Canty’s
convictions were predicates for the ACCA enhancement or whether the crimes were
committed on occasions different from one another. Indeed, the Government not
only did not object; it adopted the PSR, which did not state which of Canty’s
convictions were predicates for the ACCA enhancement and whether the crimes were
committed on occasions different from one another. More importantly, the
Government explicitly disclaimed reliance on any facts derived from sources outside
Exhibits 1 through 4 to meet its burden to prove the applicability of the sentencing
enhancement. Accordingly, the Government is not entitled to a remand so that it can
present additional evidence and seek additional findings of fact and conclusions of
law to support the ACCA enhancement when it failed to offer such evidence and seek
those findings and conclusions during the initial sentencing hearing and did not
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object to the manner in which the sentence was imposed. The Government is entitled
to an opportunity to offer evidence and seek rulings from the sentencing court in
support of an enhanced sentence. But, the Government is entitled to only one such
opportunity, and it had that opportunity at the sentencing hearing.
V. CONCLUSION
For the foregoing reasons, we hold that Canty’s sentences may not be enhanced
pursuant to the ACCA. We vacate the sentences and remand to the district court for
resentencing consistent with this opinion.
SENTENCES VACATED AND CASE REMANDED FOR RESENTENCING.
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