United States v. Travis Wilson , 641 F. App'x 908 ( 2016 )

Case: 14-14813 Date Filed: 01/19/2016 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-14813
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D.C. Docket No. 0:14-cr-60061-JIC-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TRAVIS WILSON,
Defendant - Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(January 19, 2016)
Before MARCUS, JORDAN, and BLACK, Circuit Judges.
PER CURIAM:
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Travis Wilson, who pled guilty to possessing a firearm as a felon, see 18
U.S.C. § 922(g), appeals his 15-year sentence, which the district court imposed
pursuant to the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1). With the
benefit of oral argument, and following a review of the record, we reverse and
remand so that Mr. Wilson can be resentenced without the ACCA enhancement.1
For the ACCA to apply, a defendant like Mr. Wilson must have three or
more prior convictions for a “violent felony or a serious drug offense, or both,
committed on occasions different from one another.” 18 U.S.C. § 924(e)(1). Mr.
Wilson has four prior convictions. The government concedes that one of those
convictions—a 1997 conviction for escape—is not an ACCA predicate offense,
see Govt.’s Letter of Nov. 10, 2015, and Mr. Wilson concedes that his 2009
conviction for possession of cocaine with the intent to distribute qualifies as an
ACCA predicate offense. So, for the ACCA to apply, both of the remaining prior
convictions—one for robbery in 1997 and one for resisting arrest/battery on a law
enforcement officer in 2000—must be violent felonies or serious drug offenses.
“Whether a particular conviction is a crime of violence for purposes of the
ACCA is a question of law we consider de novo.” United States v. Canty, 570
F.3d 1251, 1254 (11th Cir. 2009). We apply this plenary standard here because
Mr. Wilson’s written and oral objections to being classified as an armed career
1
Because we write for the parties, we set out only what is necessary to explain our decision.
2
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criminal, though general and not detailed, were sufficient to preserve the issue for
appeal. See United States v. Smith, 39 F.3d 1143, 1146 (11th Cir. 1994). For
example, Mr. Wilson argued in his written objections that the 1997 robbery
conviction “d[id] not qualify as a predicate offense” under the ACCA. See D.E. 51
at 2 (Mr. Wilson’s sealed objections to the presentence investigation report).
Indeed, the district court understood the objection, and ruled that all of Mr.
Wilson’s prior convictions—including the 1997 robbery conviction—constituted
predicate convictions under the ACCA. See D.E. 67 at 6-7.2
The government “bears the burden of proving that a sentencing enhancement
under the ACCA is warranted.” United States v. Lee, 586 F.3d 859, 866 (11th Cir.
2009). We conclude, for a number of reasons, that the government did not carry its
burden with respect to the 1997 conviction for robbery, and therefore do not need
to address the 2000 conviction for resisting arrest/battery on a law enforcement
officer. First, the factual proffer prepared by the government (and signed by Mr.
Wilson) stated that this robbery conviction was under Fla. Stat. § 812.131 (robbery
by snatching), see D.E. 44 at 3, but § 812.131 had not been enacted in 1997, when
Mr. Wilson pled guilty. Second, the presentence investigation report did not
2
We note that the government, despite being served with Mr. Wilson’s written objections to the
presentence investigation report, did not respond to the objections. Had the government
introduced the proper documents concerning the 1997 robbery conviction at the sentencing
hearing, we would be able to determine whether it had met its burden under the ACCA.
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indicate the statute of conviction for the 1997 robbery, and therefore did not
correct the error in the factual proffer. See PSI at ¶ 43. So, at the time of
sentencing, it was not clear what statute Mr. Wilson was convicted of violating in
1997. Third, at sentencing the government did not introduce any documents to
prove that the 1997 robbery conviction qualified as a violent felony under the
ACCA. Fourth, given that the robbery by snatching statute did not exist in 1997, if
Mr. Wilson only committed a minimum-force “snatching” robbery (as described in
the factual proffer) he could not have been convicted under Florida’s general
robbery statute. See Messina v. State, 728 So. 2d 818, 819 (Fla. Dist. Ct. App.
1999) (“[P]urse snatching is not a robbery if no force was used other than that
necessary to take the victim’s purse.”).
We therefore vacate Mr. Wilson’s 15-year sentence and remand for the
district court to resentence Mr. Wilson without the ACCA enhancement. Under
the circumstances, we exercise our discretion to not allow the government to prove
on remand that the 1997 robbery conviction constituted a violent felony under the
ACCA. “Nothing prevented the government—which was aware of Mr. [Wilson’s]
objection—from putting on evidence concerning [the 1997 robbery conviction],
and a party who bears the burden on a contested sentencing issue will generally not
get to try again on remand if its evidence is found to be insufficient on appeal.”
United States v. Washington, 714 F.3d 1358, 1362 (11th Cir. 2013).
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VACATED AND REMANDED FOR RESENTENCING.
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