United States v. Joseph Symington , 682 F. App'x 729 ( 2017 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-14896
Non-Argument Calendar
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D.C. Docket No. 1:13-cr-20405-WJZ-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSEPH SYMINGTON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(March 10, 2017)
Before MARTIN, ANDERSON, and DUBINA, Circuit Judges.
PER CURIAM:
This is the second time we have considered an appeal of this case. In the
first appeal, we held that the district court abused its discretion in denying Joseph
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Symington’s motion to withdraw his guilty plea. We vacated Symington’s
conviction and sentence and remanded the case to the district court with directions
that Symington be permitted to withdraw his guilty plea. United States v.
Symington, 781 F.3d 1308, 1314 (11th Cir. 2015). Symington now appeals his
subsequent 105-month sentence, imposed at the high end of the advisory guideline
range, after he pled guilty to one count of possession of a firearm by a convicted
felon, in violation of 18 U.S.C. § 922(g). Symington argues that the district court
erred in setting his base offense level pursuant to U.S.S.G. § 2K2.1(a)(2) because
his prior convictions for the Florida offense of fleeing and eluding no longer
qualify as a violent felony under the Armed Career Criminal Act (“ACCA”).
Symington also argues that his 105-month sentence was substantively
unreasonable in light of the 18 U.S.C. § 3553(a) factors.
A. Crime of Violence
We review de novo whether a prior conviction qualifies as a crime of
violence under the sentencing guidelines. United States v. Romo-Villalobos, 674
F.3d 1246, 1247 (11th Cir. 2012). Section 2K2.1(a)(2) of the Sentencing
Guidelines sets a higher base offense level for the offense of being a felon in
possession of a firearm if the defendant has sustained at least two prior felony
convictions for crimes of violence. U.S.S.G. § 2K2.1(a)(2). The career offender
guidelines define a “crime of violence” as any felony that (1) “has as an element
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the use, attempted use, or threatened use of physical force” (the elements clause);
(2) “is burglary of a dwelling, arson, or extortion, involves use of explosives” (the
enumerated offenses clause); or (3) “otherwise involves conduct that presents a
serious potential risk of physical injury to another” (the residual clause). Id.
§ 4B1.2(a)(1)–(2). Under our precedent, the Florida offense of fleeing and eluding
qualifies as a crime of violence under the residual clause of the career offender
guidelines. E.g., United States v. Orisnord, 483 F.3d 1169, 1183 (11th Cir. 2007).
The Armed Career Criminal Act (“ACCA”) provides enhanced penalties
when certain offenses are committed by defendants who have previous convictions
for “violent felonies.” 18 U.S.C. § 924(e)(1). The ACCA definition for violent
felony is almost identical to the definition of “crime of violence,” including its
residual clause. See id. § 924(e)(2)(B)(i)–(ii). Accordingly, “determining whether
a crime constitutes a ‘violent felony’ under the ACCA involves an inquiry
strikingly similar to that in determining whether a conviction is a ‘crime of
violence’ under U.S.S.G. § 4B1.1(a).” United States v. Harris, 586 F.3d 1283,
1285 (11th Cir. 2009). Generally, “decisions about one apply to the other.”
Gilbert v. United States, 640 F.3d 1293, 1309 n.16 (11th Cir. 2011) (en banc). In
the instant case, however, Symington raises a challenge to his sentence based on
the Supreme Court’s decision in Johnson, which is inapplicable to the residual
clause of the career offender guidelines.
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In Johnson v. United States, the Supreme Court invalidated the residual
clause of the ACCA as unconstitutionally vague. Johnson v. United States, 576
U.S. ___, ___, 135 S. Ct. 2551, 2562–63 (2015). Johnson’s invalidation of the
residual clause removed several offenses, including the Florida offense of fleeing
and eluding, from qualifying as an ACCA predicate offense. See United States v.
Adams, 815 F.3d 1291, 1292–93 (11th Cir. 2016) (per curiam). Johnson, however,
only applies to a “statute defining elements of crimes . . . [and] fixing sentences.”
Johnson, 576 U.S. at ___, 135 S. Ct. at 2556–57. As the advisory sentencing
guidelines do neither, the vagueness doctrine is inapplicable to the career offender
guidelines residual clause under U.S.S.G. § 4B1.2(a)(2). United States v. Matchett,
802 F.3d 1185, 1194–96 (11th Cir. 2015).
After reviewing the record, we conclude that the district court did not err in
setting Symington’s base offense level pursuant to U.S.S.G. § 2K2.1 because,
under our binding precedent, the Florida offense of fleeing and eluding qualifies as
a crime of violence under the residual clause of the career offender guideline.
Orisnord, 483 F.3d at 1183. As advisory guidelines are not subject to vagueness
challenges, our conclusion in Adams that the Florida offense of fleeing and eluding
is no longer an ACCA-qualifying offense under Johnson does not affect our
conclusion that fleeing and eluding remains a of crime of violence under the career
offender guideline. See Matchett, 802 F.3d at 1194–96.
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We also note that on January 27, 2016, the U.S. Sentencing Commission
submitted a proposed amendment to the career offender guideline that removes the
residual clause and replaces it with specific enumerated offenses. See Notice of
Submission to Congress of Amendment to the Sentencing Guidelines Effective
August 1, 2016, 81 Fed. Reg. 4741 (Jan. 27, 2016). Amendments to the
Sentencing Guidelines that are clarifying, as opposed to substantive, are applicable
retroactively and “should be considered on appeal regardless of the date of
sentencing.” United States v. Jerchower, 631 F.3d 1181, 1185 (11th Cir. 2011)
(internal quotation marks omitted). However, we do not consider proposed
amendments until they become effective, as they are still subject to Congressional
modification or disapproval. See 28 U.S.C. § 994(p). Accordingly, we need not
determine whether the proposed amendment is retroactive because the proposed
amendment has yet to become effective.
B. Substantive Unreasonableness
We review “all sentences—whether inside, just outside, or significantly
outside the Guidelines range—under a deferential abuse-of-discretion standard.”
Gall v. United States, 552 U.S. 38, 41, 128 S. Ct. 586, 591 (2007). The party
challenging the sentence bears the burden to show it is unreasonable in light of the
record and the § 3553(a) factors. United States v. Tome, 611 F.3d 1371, 1378
(11th Cir. 2010) (internal quotation marks omitted). And “[a]lthough we do not
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automatically presume that a sentence within the guidelines range is reasonable,
we ‘ordinarily . . . expect a sentence within the Guidelines range to be
reasonable.’” United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008) (alteration
in original) (quoting United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005)).
We consider “whether a sentence is substantively unreasonable under the totality
of the circumstances and in light of the 18 U.S.C. § 3553(a) factors.” United States
v. Johnson, 803 F.3d 610, 618 (11th Cir. 2015) (citations omitted). A sentence will
be vacated for substantive unreasonableness if “we are left with the definite and
firm conviction that the district court committed a clear error of judgment in
weighing the § 3553(a) factors.” United States v. Irey, 612 F.3d 1160, 1190 (11th
Cir. 2010) (en banc) (internal quotation marks omitted).
The district court must impose a sentence “sufficient, but not greater than
necessary to comply with the purposes” listed in 18 U.S.C. § 3553(a)(2), including
the need to reflect the seriousness of the offense, promote respect for the law,
provide just punishment for the offense, deter criminal conduct, and protect the
public. 18 U.S.C. § 3553(a)(2). In imposing a particular sentence, the district
court must also consider the nature and circumstances of the offense, the history
and characteristics of the defendant, the kinds of sentences available, the applicable
guideline range, the pertinent policy statements of the Sentencing Commission, the
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need to avoid unwarranted sentencing disparities, and the need to provide
restitution to victims. Id. § 3553(a)(1), (3)–(7).
We conclude from the record that Symington’s 105-month sentence is
substantively reasonable. Symington had an extensive criminal history, with 15
adult criminal convictions. Symington’s other convictions were for offenses
similar to the predicate offenses of battery and fleeing and eluding including
leaving the scene of a crash involving death after fatally striking a man with his
truck; battery; fleeing and attempting to elude while driving 81-miles-per-hour in a
30-mile-per-hour zone; and possession of a firearm. Symington repeatedly
violated his probation. As the district court noted, such conduct demonstrates
Symington’s unwillingness to cooperate with the law and a pattern of dangerous
conduct.
Based on the foregoing, we conclude that the district court did not abuse its
discretion and properly considered the § 3553 factors. Accordingly, we affirm
Symington’s sentence.
AFFIRMED.
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