United States v. Antonio Kilpatrick Heard , 677 F. App'x 636 ( 2017 )

Case: 15-10612 Date Filed: 02/23/2017 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-10612
Argument Calendar
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D.C. Docket No. 1:13-cr-00040-TWT-GGB-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee
Cross Appellant,
versus
ANTONIO KILPATRICK HEARD,
Defendant-Appellant
Cross Appellee.
________________________
Appeals from the United States District Court
for the Northern District of Georgia
_______________________
(February 23, 2017)
Before WILLIAM PRYOR, JORDAN, and BALDOCK, * Circuit Judges.
PER CURIAM:
*
Honorable Bobby R. Baldock, United States Circuit Judge for the Tenth Circuit, sitting by
designation.
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This appeal raises three issues: (1) whether the Georgia burglary statute, Ga.
Code Ann. § 16-7-1 (2011), includes the elements of generic burglary such that a
conviction for violating the statute can qualify as a predicate offense under the
Armed Career Criminal Act, 18 U.S.C. § 924(e); (2) whether Antonio Heard’s
sentence is substantively unreasonable; and (3) whether Heard was denied due
process when the district court considered testimony that included hearsay
statements of an unidentified inmate that established that Heard made threats
against federal agents. Heard argues that generic burglary within the meaning of
the Armed Career Criminal Act includes an element of breaking and entering but
that the Georgia statute for his prior conviction does not contain that element. The
district court adopted this conclusion. Heard also argues that his sentence was
substantively unreasonable in the light of the conditions of his presentence
detention and that Heard suffered a violation of due process because the hearsay
statements were unreliable.
The government argues, and we agree, that our decision in United States v.
Gundy, 842 F.3d 1156 (11th Cir. 2016), which interpreted the same burglary
statute, decides the first issue. After reviewing the record in Gundy, 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
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the generic definition of burglary.” Id. That is, convictions under the Georgia
burglary statute may sometimes serve as predicate offenses under the Armed
Career Criminal Act because the Georgia burglary statute is divisible and includes
the elements of generic burglary. Id. The contrary determination by the district
court that generic burglary requires an element of breaking and entering conflicts
with our decision in Gundy. We vacate Heard’s sentence and remand to the district
court with instructions to determine whether the record establishes that Heard was
convicted of generic burglary. See Shepard v. United States, 544 U.S. 13, 26
(2005). Because we vacate his sentence, Heard’s argument that his sentence is
substantively unreasonable is moot.
The district court did not err when it relied on the testimony of Agent Lance
Greer. The authority of a district court to consider at sentencing hearsay statements
from unidentified declarants is well established. E.g., United States v. Rodriguez,
765 F.2d 1546, 1554–55 (11th Cir. 1985). Heard has not proved that this appeal
includes circumstances that made the testimony unreliable. He has not cited
evidence in the record that contradicts the hearsay statements, see United States v.
Reme, 738 F.2d 1156, 1167 (11th Cir. 1984), and the hearsay statements included
indicia of reliability such as the unidentified inmate’s status as Heard’s former
cellmate, Rodriguez, 765 F.2d at 1555, and the specificity of the statements
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concerning whom Heard targeted with his threats and how Heard intended to
achieve his threatened action.
We VACATE the sentence of the district court and REMAND for
resentencing but AFFIRM the determination that the district court can consider the
hearsay statements.
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