Pitts v. United States, 18-12096

4 F.4th 1109

Ivory Vincent PITTS, Petitioner-Appellant,

v.UNITED STATES of America, Respondent-Appellee.

No. 18-12096

United States Court of Appeals, Eleventh Circuit.

July 6, 2021

Timothy Day, Michael Caruso, Federal Public Defender, Federal Public Defender's Office, FORT LAUDERDALE, FL, for Petitioner - Appellant.

Aileen Cannon, Stephen Schlessinger, U.S. Attorney Service - SFL, MIAMI, FL, Emily M. Smachetti, U.S. Attorney's Office, MIAMI, FL, for Respondent - Appellee.

Before LUCK, ED CARNES, and MARCUS, Circuit Judges.

ED CARNES, Circuit Judge:

Ivory Pitts appeals the denial of his second or successive 28 U.S.C. § 2255 motion, challenging his sentencing enhancement under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B). He contends that two of the four convictions underlying that ACCA enhancement can no longer support it after the Supreme Court's decision in Johnson v. United States, 576 U.S. 591, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). Pitts is wrong as to at least one of those two, and that leaves three underlying convictions supporting the ACCA enhancement. Because three is enough, we affirm the denial of his second or successive § 2255 motion.

I. THE FACTS AND PROCEDURAL HISTORY

In June 2009 a federal grand jury indicted Ivory Pitts for distribution of a controlled substance in violation of 21 U.S.C. § 841(a)(1), and for being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). In exchange for the government's agreement to seek dismissal of the drug charge, Pitts pleaded guilty to the felon in possession charge. The district court accepted the plea and entered a judgment of conviction on that charge.

The 2009 presentence investigation report calculated a total offense level of 30 and a criminal history category of VI, which produced a guidelines range of 168 to 210 months. The PSR determined that Pitts’ prior convictions qualified him for an enhanced sentence as an armed career criminal under 18 U.S.C. § 924(e). To support the ACCA enhancement, the PSR relied on four of Pitts’ prior convictions: (1) a 1978 California conviction for robbery with a firearm; (2) 1982 California convictions for robbery and forcible rape; (3) a 1993 Florida conviction for delivery of cocaine; and (4) a 2001 Florida conviction for possession with intent to sell or deliver cocaine.¹ Because the statutory mandatory minimum sentence was 15 years, that became the bottom of his guidelines range, resulting in a range of 180 to 210 months.

Pitts objected to the PSR's use of his 1978 California robbery with a firearm conviction and his 2001 Florida drug conviction to enhance his sentence under the ACCA. He argued that there was insufficient evidence to establish that his 1978 conviction was for robbery with a firearm. The government responded that it would establish at sentencing that the 1978 robbery with a firearm and 2001 drug convictions were qualifying predicate offenses under the ACCA. It did just that, introducing copies of the state court records for Pitts’ 1978 California robbery conviction; the National Crime Information Computer report on Pitts; a probation officer's report; and a transcript of a sentencing hearing in that earlier state court case. Pitts again objected. While conceding that he had been convicted of a crime in California in 1978, he argued it wasn't the qualifying crime of robbery with a firearm. Pitts did not contest that his other prior convictions –– the 1982 robbery conviction and the 1993 drug conviction –– also qualified under the ACCA.

The district court did not alter any of the PSR findings. It overruled Pitts’ objections to use of the 1978 California robbery with a firearm conviction, finding that in 1978 he had been convicted in California of robbery with a firearm, which qualified as an ACCA predicate offense. It did not specify which ACCA clause it relied on to determine that the robbery conviction was a "violent felony." See generally 18 U.S.C. § 924(e)(2)(B). The court also overruled Pitts’ objections to the use of the 2001 Florida drug offense, finding that it qualified as a serious drug offense under the ACCA. The court also found, at least implicitly and as the PSR had recommended, that the 1982 California robbery and the 1993 Florida drug offense also counted under the ACCA. The result, by the district court's count, was four qualifying prior convictions for purposes of ACCA enhancement, which exceeded the statutory requirement of at least three. See 18 U.S.C. § 924(e)(1).

Application of the ACCA increased Pitts’ adjusted offense level, and as we have mentioned, his guidelines range increased from 168–210 months imprisonment to 180–210 months because of the 180-month ACCA mandatory minimum sentence. The court imposed that mandatory minimum sentence. Sentencing took place in 2009.

In his direct appeal, Pitts challenged the application of the ACCA. See United States v. Pitts, 394 F. App'x 680 (11th Cir. 2010) (unpublished). He argued "that the district court erred in: (1) determining that his 1978 California conviction for robbery with a firearm qualified as a ‘violent felony;’ and (2) that his 2001 Florida cocaine conviction qualified as a ‘serious drug offense’ under the ACCA." Id. at 681. We concluded that the 1978 robbery conviction was for a violent felony under the ACCA because the California robbery statute is categorically within the definition of a violent felony. Id. at 683 (citing 18 U.S.C. § 924(e)(2)(B)(i) ). We also agreed with the district court that the record showed that the 2001 Florida cocaine conviction qualified as a serious drug offense. Id. at 684. Having decided that the ACCA enhancement was proper, we affirmed the sentence. Id.

The next year, 2011, Pitts filed a 28 U.S.C. § 2255 motion to vacate his sentence, raising ineffective assistance of counsel claims that have nothing to do with this appeal. The district court denied the § 2255 motion with prejudice.

After Pitts lost on direct appeal and in his initial § 2255 motion, the Supreme Court held that the ACCA's residual clause in 18 U.S.C. § 924(e)(2)(B)(ii) is unconstitutionally vague. Johnson v. United States, 576 U.S. 591, 606, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). Later, it held that Johnson created a new substantive rule of constitutional law made retroactively applicable to cases on collateral review. Welch v. United States, ––– U.S. ––––, 136 S. Ct. 1257, 1268, 194 L.Ed.2d 387 (2016).

Those developments prompted Pitts to file with this Court an application for leave to file in the district court a second or successive § 2255 motion based on Johnson. We granted him leave to proceed, and Pitts filed his second § 2255 motion in the district court in 2016.

The magistrate judge issued a report recommending dismissal of that motion. The report accepted Pitts’ argument that his two prior California robbery convictions were no longer crimes of violence based on United States v. Dixon, 805 F.3d 1193 (9th Cir. 2015). But it also found that Pitts’ California forcible rape conviction was a violent felony under the ACCA, and that, adding it to his two drug convictions, Pitts had three qualifying predicate convictions. As a result, the report recommended that Pitts’ ACCA enhancement was valid even after the Johnson decision and his § 2255 motion should be denied. It also suggested that the district court "may wish to grant a certificate of appealability issue as to whether California's robbery and forcible rape offenses constitute[ ] ... crime[s] of violence to support a § 924(e) ACCA enhancement post- Johnson."

Pitts objected to the report and recommendation. He contended in the district court that the magistrate judge should not have concluded that applying the ACCA enhancement was correct. That was error, he argued, because California's rape statute included sex by means of "duress," which he asserted does not require the use or threatened use of force.

In response to that argument, the district court noted that the duress provision was added to California's statute in 1990, eight years after Pitts was convicted of forcible rape. The court adopted the magistrate judge's recommendation and denied Pitts’ second § 2255 motion in 2018. The court also denied a COA, rejecting the magistrate judge's suggestion that one be granted.

II. THE CERTIFICATE OF APPEALABILITY

Having lost in the district court and been denied a COA, Pitts moved for one in this Court. We granted him one on the issue of whether his conviction for forcible rape under the California Penal Code was a violent felony for purposes of the ACCA, 18 U.S.C. § 924(e)(2)(B). As it turns out, however, that is not the issue on which this appeal turns, or to which we turn to decide the appeal. The COA that was granted overlooks the fact that regardless of the forcible rape conviction, Pitts has two ACCA predicate convictions for serious drug offenses in addition to a 1978 robbery with a firearm conviction and a 1982 robbery conviction.

If we decided the question posed in the COA that was issued, it would not matter. If we were to decide that the forcible rape conviction was a violent felony for ACCA purposes, Pitts would lose. And if we were to decide that it was not a violent felony, he would also lose; he would lose because our decision that the rape conviction did not count would not affect the counting of his robbery convictions. Added to Pitts’ two drug offenses, which are undisputed ACCA predicate convictions, Pitts’ two robbery convictions make four, which is one more than is necessary for ACCA status. See 18 U.S.C. § 924(e)(1).

We could dismiss the COA as improvidently granted and dismiss the appeal for that reason. But in their briefs to this Court and at oral argument, the government and Pitts joined issue on whether the two robbery convictions were improperly counted as ACCA predicate offenses in light of the Supreme Court's Johnson decision. The government argues that they were properly counted as ACCA...