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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-12365
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D.C. Docket No. 1:16-cr-00224-RDP-HGD-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DAVID ANDREW HUNT,
Defendant - Appellant.
________________________
No. 17-12366
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D.C. Docket No. 2:16-cr-00095-RDP-JHE-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LUSION YOSHUA RICE,
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Defendant - Appellant.
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No. 17-12919
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D.C. Docket No. 7:16-cr-00408-LSC-HNJ-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DENDRICK DEMOND HALL,
Defendant - Appellant.
________________________
Appeals from the United States District Court
for the Northern District of Alabama
________________________
(August 14, 2019)
Before JORDAN, GRANT, and SILER,∗ Circuit Judges.
PER CURIAM:
The defendants in these consolidated appeals—David Hunt, Lusion Rice, and
Dendrick Hall—appeal their sentences under the Armed Career Criminal Act, 18
∗The Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting by
designation.
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U.S.C. § 924(e), and the United States Sentencing Guidelines, including U.S.S.G. §
4B1.2(a). Following oral argument, we affirm.
I
Mr. Hunt and Mr. Rice challenge the district courts’ rulings that their Alabama
robbery convictions qualify as predicate felonies under ACCA, and argue that
Alabama robbery is not a “violent felony” under ACCA’s elements clause. See §
924(e)(2)(B)(i). Specifically, they contend that the use-of-force element in
Alabama’s robbery statute merely requires the offender to use enough force (or
threat of force) to overcome the victim’s resistance, and that such force does not
amount to violent force within the meaning of ACCA. See Ala. Code § 13A-8-43.
After the defendants filed their briefs, we addressed the use-of-force element
in Alabama robbery. We ruled in In re Welch,
884 F.3d 1319, 1324 (11th Cir. 2018),
that first-degree robbery in Alabama is a violent felony under § 924(e)(2)(B)(i),
ACCA’s elements clause. See also Stokeling v. United States,
139 S. Ct. 544, 555
(2019) (holding that Florida robbery was a “violent felony” under § 924(e)(2)(B)(i)
even though the Florida statute only required force sufficient to overcome the
victim’s resistance). Mr. Hunt and Mr. Rice correctly note that Welch was decided
in the context of a second and successive application, but it nevertheless constitutes
binding precedent. See United States v. St. Hubert,
909 F.3d 335, 345 (11th Cir.
2018).
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Based on Welch (and, to a lesser degree, Stokeling), we affirm the district
courts’ rulings that Alabama robbery is an ACCA predicate offense. Although Mr.
Hunt and Mr. Rice were convicted of second- and third-degree robbery, Alabama’s
statutory scheme utilizes the same use-of-force element for all three degrees of
robbery. Welch therefore governs. See Welch, 884 F.3d at 1324 (citing the use-of-
force element for third-degree robbery, Ala. Code § 13A-8-43).
II
Mr. Hall and Mr. Rice also challenge the district courts’ rulings that Mr. Hall’s
first-degree Alabama robbery conviction and Mr. Rice’s second- and third-degree
Alabama robbery convictions are not “crime[s] of violence” under the career
offender guideline, U.S.S.G. § 4B1.2(a).
The career offender guideline has the same elements clause as § 924(e).
Therefore, our ruling in Welch regarding § 924(e)’s elements clause forecloses Mr.
Rice’s and Mr. Hall’s challenge regarding § 4B1.2(a). See United States v. Fritts,
841 F.3d 937, 940 (11th Cir. 2016) (citing United States v. Lockley,
632 F.3d 1238,
1245 (11th Cir. 2011)).
III
Mr. Rice argues that his Michigan carjacking conviction is not a violent felony
under ACCA. We disagree.
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Michigan’s carjacking statute requires the taking of a vehicle from another
“by force or violence, or by threat of force or violence, or by putting the other person
in fear.” See
Mich. Comp. Laws § 750.529a (2003). Mr. Rice contends that
Michigan carjacking is not a violent felony because Michigan caselaw allows the
state to show that the defendant “put[ ] the other person in fear” without the use or
threat of physical force.
Id.
The Michigan courts have apparently not explained what is required to put
another person in fear under § 750.529a. In the one Michigan carjacking case cited
by Mr. Rice, the evidence showed that the defendant aggressively slid toward the
driver of the car and tried to push him out. See People v. Terry,
569 N.W.2d 641,
644–45 (Mich. App. 1997). That case therefore does not support Mr. Rice’s
contention that “putting in fear” under § 750.529a can be accomplished without
physical force or the threatened use of such force.
At least three of our sister circuits have ruled that the “in fear” element
contained in a Michigan robbery statute—which is similar to that used in Michigan’s
carjacking statute—encompasses the use or threatened use of physical force. See
Chaney v. United States,
917 F.3d 895, 900 (6th Cir. 2019) (Michigan attempted
unarmed robbery); United States v. Tirrell,
120 F.3d 670, 680–81 (7th Cir. 1997)
(Michigan unarmed robbery); United States v. Lamb, 638 F. App’x 575, 576–77 (8th
Cir.) (Michigan unarmed robbery), vacated on other grounds,
137 S. Ct. 494 (2016).
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The district court relied on the Sixth Circuit’s decision in Chaney, and we conclude
that it was right to do so in the absence of any Michigan caselaw holding that
“putting in fear” can be accomplished without force or threatened use of force. See
United States v. Rice, No. 2:16-cr-00095,
2017 WL 1247402,*6–7 (N.D. Ala. 2017)
(citing Chaney, 917 F.3d at 900). Cf. United States v. Green, No. 17-14940,
2019
WL 2191114, at *2 (11th Cir. May 21, 2019) (holding that Florida carjacking, which
contains an alternative “putting in fear” element, is a violent felony under the
ACCA).
IV
Mr. Hall argues that his 60-month sentence for violating
18 U.S.C. § 922(g),
the felon in possession of a firearm statute, was substantively unreasonable because
it was greater than is necessary to serve the statutory sentencing factors in
18 U.S.C.
§ 3553(a). Based on an offense level of 17 and a criminal history category of III,
Mr. Hall’s guideline range was 30–37 months’ imprisonment, and pursuant to a plea
agreement, the government recommended a sentence at the low end of the guideline
range. At sentencing, however, the district court sentenced Mr. Hall to 60-months
imprisonment, between his guideline range and the 10-year statutory maximum
penalty for a felon in possession conviction. See
18 U.S.C. § 924(a)(2).
At the sentencing hearing, the district court explicitly noted that its role in
sentencing under § 3553(a) was to impose a sentence that was “sufficient but not
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more than necessary to accomplish the sentencing goals set forth in the federal
statutes.” See Sentencing Transcript, D.E. 27 at 11. The court then concluded that
an upward variance was appropriate and a 60-month sentence was warranted in light
of Mr. Hall’s criminal history and history of using firearms during illegal activity.
See id. at 12. The court cited the fact that Mr. Hall had been previously charged with
robbery three times, was convicted of first-degree robbery once, and his first-degree
robbery conviction involved the use of a firearm. See id. at 11–12. Weighing these
facts, the court said:
When I see a robbery in the first degree charge and then
somebody having a gun again, it’s clear to me that they
believe they are untouchable in the system and they can do
anything they want to do. And that[’s] just simply not the
case. Do I need to give you a maximum? No. I don’t. But
I don’t believe a guideline sentence is appropriate in this
case. I believe the more appropriate sentence to give you
in this instance would be 60 months in prison when I
consider the nature and circumstances in your continuing
conduct with firearms and violating the law.
Id. at 12. On appeal, Mr. Hall argues that the district court focused on his prior
robbery conviction involving a firearm to the exclusion of other § 3553(a) factors
and that considering his prior conviction in weighing the § 3553(a) factors was
duplicative because that conviction was accounted for in his offense level and
criminal history category.
The district court did not abuse its discretion in varying upward from the
sentencing guidelines and imposing a 60-month sentence. See Gall v. United States,
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552 U.S. 38, 51 (2007). Merely because the court imposed a sentence above the
guideline range does not mean the sentence is substantively unreasonable. See
id. at
47 & n.3. “We will not remand for resentencing unless 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 by arriving at a sentence that lies outside the range
of reasonable sentences dictated by the facts of the case.” United States v. Croteau,
819 F.3d 1293, 1309 (11th Cir. 2016). The weight given to any specific § 3553(a)
factor is committed to the sound discretion of the district court. See United States v.
Clay,
483 F.3d 739, 743 (11th Cir. 2007). Moreover, we have said that if the
imposed sentence is below the statutory maximum sentence, like Mr. Hall’s sentence
in this case, that is a factor indicating that the imposed sentence is reasonable. See
United States v. Gonzalez,
550 F.3d 1319, 1324 (11th Cir. 2008) (per curiam).
Here, the district court clearly articulated why it varied from the guidelines
and imposed a 60-month sentence. See D.E. 27 at 12. Its explanation “set forth
enough to satisfy [us] that he has considered the parties’ arguments and has a
reasoned basis for exercising his own legal decisionmaking authority.” See Rita v.
United States,
551 U.S. 338, 356 (2007). Moreover, the district court did not engage
in “[i]mpermissible double counting” when it weighed Mr. Hall’s past convictions
and misuse of firearms—which increased Mr. Hall’s offense level and criminal
history—because it viewed Mr. Hall’s prior acts under other § 3553(a) factors,
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specifically the need to afford adequate deterrence and protect the public from
further crimes. See United States v. Cubero,
754 F.3d 888, 894 (11th Cir. 2014).
V
For the foregoing reasons, the defendants’ sentences are affirmed.
AFFIRMED.
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