United States v. Sidney Willis Branson , 200 F. App'x 939 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCT 17, 2006
No. 06-11729 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00212-CR-J-20-MCR
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SIDNEY WILLIS BRANSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(October 17, 2006)
Before DUBINA, BLACK and HULL, Circuit Judges.
PER CURIAM:
Sidney Willis Branson appeals his 180-month sentence for possession of a
firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(e). He
asserts the district court erred by: (1) finding his 1988 and 1999 convictions for
“burglary of a structure” constituted “generic burglaries” under the Armed Career
Criminal Act (ACCA); and (2) finding his 1988 and 1999 convictions qualified as
predicate offenses under the ACCA. The district court did not err, and we affirm.
I.
Branson asserts the district court erred by finding his 1988 and 1999
convictions for “burglary of a structure” constituted “generic burglaries” under the
ACCA, 18 U.S.C. § 924(e), because: (1) given Florida’s inclusion of the term “the
curtilage thereof” in defining burglary of a structure, the Government’s sole
reliance on the judgments and charging documents underlying his prior convictions
did not meet its burden of proving he burglarized anything more than property
surrounding the structure in question; and (2) with respect to his 1999 conviction,
the district court impermissibly looked beyond the judgment, to the charging
document, which included a greater offense than that to which he actually pled
nolo contendere.
We review de novo whether a particular offense constitutes a violent felony
for purposes of the ACCA, 18 U.S.C. § 924(e). United States v. Wilkerson, 286
F.3d 1324, 1325 (11th Cir. 2002). Section 924(e) provides:
(1) In the case of a person who violates section 922(g) of this title and
has three previous convictions by any court referred to in section
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922(g)(1) of this title for a violent felony . . . such person shall
be . . . imprisoned not less than fifteen years . . . .
...
(2)(B) [T]he term “violent felony” means any crime punishable by
imprisonment for a term exceeding one year . . . that –
(i) has as an element the use, attempted use, or threatened use of
physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives,
or otherwise involves conduct that presents a serious potential
risk of physical injury to another . . .
In Taylor v. United States, 110 S. Ct. 2143, 2158, 2160 (1990), the Supreme
Court defined “burglary” for purposes of a § 924(e) enhancement as (1) “generic
burglary,” namely, an offense “having the basic elements of unlawful or
unprivileged entry into, or remaining in, a building or structure, with intent to
commit a crime,” or (2) an offense for which the charging paper and jury
instructions actually required the jury to find all of the elements constituting
generic burglary in order to convict the defendant. In Shepard v. United States, the
Supreme Court summarized its approach in Taylor:
Because statutes in some States . . . define burglary more broadly, as
by extending it to entries into boats and cars, we had to consider how
a later court sentencing under the ACCA might tell whether a prior
burglary conviction was for the generic offense. We held that the
ACCA generally prohibits the later court from delving into particular
facts disclosed by the record of conviction, thus leaving the court
normally to “look only to the fact of conviction and the statutory
definition of the prior offense.” We recognized an exception to this
“categorical approach” only for “a narrow range of cases where a jury
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[in a State with a broader definition of burglary] was actually required
to find all the elements of” the generic offense. We held the exception
applicable ‘if the indictment or information and jury instructions show
that the defendant was charged only with a burglary of a building,
and that the jury necessarily had to find an entry of a building to
convict . . . .” Only then might a conviction under a “nongeneric”
burglary statute qualify as an ACCA predicate.
125 S. Ct. 1254, 1257-58 (2005) (citations omitted, emphasis added). The Court in
Shepard ultimately held:
enquiry under the ACCA to determine whether a plea of guilty to
burglary defined by a nongeneric statute necessarily admitted
elements of the generic offense is limited to the terms of the charging
document, the terms of a plea agreement or transcript of colloquy
between judge and defendant in which the factual basis for the plea
was confirmed by the defendant, or to some comparable judicial
record of this information.
Id. at 1263 (emphasis added). The Court noted “[w]ith such material in a pleaded
case, a later court could generally tell whether the plea had ‘necessarily’ rested on
the fact identifying the burglary as generic, just as the details of instructions could
support that conclusion in the jury case, or the details of a generically limited
charging document would do in any sort of case.” Id. at 1260 (citation omitted).
At the time of the 1988 offense and 1994 offense underlying the 1999
conviction, Florida defined burglary as “entering or remaining in a structure or a
conveyance with the intent to commit an offense therein . . . .” § 810.02(1), Fla.
Stat. (1987), (1994). Under Florida law, the terms “structure” and “dwelling”
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include both the roofed area of a building and “the curtilage thereof.”
§ 810.011(1), (2), Fla. Stat (1987), (1994). The Supreme Court of Florida has
strictly construed the term “curtilage,” as used in § 810.02, to include only an
enclosed area surrounding the home or structure. State v. Hamilton, 660 So. 2d
1038, 1044-45 (Fla. 1995).
Florida’s burglary statute defines burglary broadly, to include burglary of
areas outside a structure, and the district court needed to consult the charging
document. See Shepard, 125 S. Ct. at 1263. Thus, the statute is non-generic.
United States v. Day, __ F.3d __, No. 05-15676, 2006 WL 2739348, at *3 (11th
Cir. Sept. 27, 2006). Accordingly, we must determine whether the district court
considered the appropriate portions of the record to determine whether Branson’s
prior convictions constituted “generic” burglaries.
As to his 1988 conviction, Branson pled nolo contendere to an information
that charged “unlawfully enter[ing] or remain[ing] in a certain structure, to-wit: a
storage shed,” with intent to commit theft within. Because this offense “ha[d] the
basic elements of unlawful or unprivileged entry into, or remaining in, a building
or structure, with intent to commit a crime,” it qualifies as a generic burglary under
the ACCA. See Taylor, 110 S. Ct. at 2158 (emphasis added). Although, under the
Florida burglary statute, Branson could have been convicted for burglary of only a
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structure’s curtilage, the charging document indicates that he did, in fact,
burglarize “a certain structure, to wit: a storage shed[.]” The district court
appropriately looked to the information and judgment underlying the 1988
conviction to determine whether it constituted a generic burglary for purposes of
the ACCA. See Shepard, 125 S. Ct. 1263. Accordingly, contrary to Branson’s
contention, because the offense underlying his 1988 conviction constitutes the third
predicate offense required for application of the ACCA enhancement, we affirm
application of the ACCA enhancement, and find it unnecessary to decide whether
Branson’s 1999 constituted a violent felony.1
II.
Branson also asserts the district court’s finding his 1988 and 1999
convictions qualified as predicate offenses under the ACCA violated his Sixth
Amendment rights because these findings were not made by a jury or admitted by
him, and the court relied on disputed portions of charging documents in making
these findings.
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Recently, we vacated and remanded a defendant’s sentence, holding the district court erred
in basing applicability of the ACCA enhancement only on the charging document from a prior
conviction because that document charged the defendant with a different offense than the one to
which he had pled nolo contendere. Day,__ F.3d __, 2006 WL 2739348, at *4. As to Branson’s
1988 conviction, the charging document and judgment included the same offense, thus Day is not
applicable.
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Because Branson raised a constitutional claim below, we review de novo
whether the district court applied a sentencing enhancement in violation of the
Sixth Amendment, reversing only for harmful error. See United States v. Paz, 405
F.3d 946, 948 (11th Cir. 2005). In Almendarez-Torres v. United States, the
Supreme Court held the government need not allege in its indictment and need not
prove beyond a reasonable doubt that a defendant had prior convictions in order for
the district court to use those convictions for purposes of enhancing a sentence.
118 S. Ct. 1219, 1222 (1998). After Apprendi v. New Jersey, 120 S. Ct. 2348,
2362-63 (2000), Blakely v. Washington, 134 S. Ct. 2531, 2537 (2004), United
States v. Booker, 125 S. Ct. 738, 756 (2005), and Shepard, we continue to apply
Almendarez-Torres. See United States v. Camacho-Ibarquen, 410 F.3d 1307,
1315-16 (11th Cir.), cert. denied, 126 S. Ct. 457 (2005).
To the extent Branson is contending the district court engaged in
impermissible fact-finding, we conclude the district court did not engage in
impermissible fact-finding when it determined the prior burglaries qualified as
violent felonies for purposes of enhancing Branson’s sentence under the ACCA.
We have held “Shepard does not bar judges from finding whether prior convictions
qualify for ACCA purposes; it restricts the sources or evidence that a judge
(instead of a jury) can consider in making that finding.” United States v. Greer,
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440 F.3d 1267, 1275 (11th Cir. 2006). In the instant case, the district court
considered only the terms of the charging documents and the judgments of
conviction in determining whether Branson’s burglary convictions constituted
qualifying convictions under the ACCA, which are permissible under Shepard.
Additionally, the imposition of the armed career criminal enhancement did
not implicate the Apprendi/Blakely/Booker line of cases, as those cases clearly
exempt prior convictions from the type of facts that must be admitted by the
defendant or proved to a jury beyond a reasonable doubt in order to support a
sentencing enhancement. We have held until the Supreme Court holds otherwise,
Almendarez-Torres remains good law. See United States. Orduno-Mireles, 405
F.3d 960, 963 (11th Cir. 2003). Accordingly, we reject Branson’s constitutional
claim.
AFFIRMED.
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