United States v. Ferguson

100 F.4th 1301

UNITED STATES of America, Plaintiff-Appellee, v. B'Quan FERGUSON, Defendant-Appellant.

No. 22-12013

United States Court of Appeals, Eleventh Circuit

Filed: April 30, 2024

Appeal from the United States District Court for the Southern District of Georgia, D.C. Docket No. 4:21-cr-00157-WTM-CLR-1

James C. Stuchell, U.S. Attorney Service - Southern District of Georgia, U.S. Attorney's Office, Savannah, GA, for Plaintiff-Appellee.

Kurtis Charles Bronston, The Law Office of Kurtis C. Bronston, Savannah, GA, for Defendant-Appellant.

Before Jordan, Lagoa, and Tjoflat, Circuit Judges.

Lagoa, Circuit Judge:

B'Quan Ferguson appeals his 180-month sentence following his conviction for one count of possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1). On appeal, Ferguson contends that the district court erred in finding that his prior Georgia conviction under O.C.G.A. § 16-10-32(b) for threatening physical harm to a witness qualifies as a "violent felony" under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). After careful consideration of the parties' arguments and with the benefit of oral argument, we conclude that Ferguson's prior conviction qualifies as a violent felony and we affirm the district court's judgment.

I. BACKGROUND

On October 31, 2020, B'Quan Ferguson was driving in Savannah, Georgia, when local police officers recognized him as the subject of an ongoing investigation. The officers observed Ferguson park at a tire shop and walk to a nearby convenience store. When Ferguson returned, the officers were waiting by his vehicle, and they inquired whether Ferguson owned the car. Ferguson answered that it was his brother's car, but a record check revealed that Ferguson had a suspended license and that the vehicle had no insurance and an expired registration. At that point, the officers observed a pistol grip sticking out from underneath the front passenger's seat. Ferguson was cited for driving with a suspended license and without insurance, and the vehicle was towed.

Officers obtained a search warrant for the vehicle and found a pistol under the front passenger seat. A search warrant for Ferguson's DNA, coupled with a DNA test on the firearm, confirmed that Ferguson's DNA was present on the pistol. Officers obtained an arrest warrant for Ferguson for the possession of a firearm by a convicted felon, which they executed on December 27, 2020.

A grand jury charged Ferguson with one count of possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1). Ferguson pled guilty to the charge under a written plea agreement.

The probation officer's presentence investigation report (PSI) concluded that Ferguson qualified as an armed career criminal under ACCA based on prior convictions for possession with intent to distribute, conspiracy to possess with intent to distribute, and threatening a witness. Based on an offense level of twenty-four and a criminal history category of VI, Ferguson's initial guideline range was 168 to 210 months' imprisonment. But because Ferguson qualified as an armed career criminal, ACCA mandated a fifteen-year minimum sentence. The guideline range was thus 180 to 210 months.

According to the PSI, the facts underlying Ferguson's conviction for threatening a witness involved an individual named Sylvester Harris. After threatening Harris with a gun, Ferguson was indicted and charged under O.C.G.A. § 16-10-32(b) with having "threatened physical harm" toward Sylvester Harris with "the intent to hinder, delay, prevent, and dissuade" Harris from testifying in an official proceeding. Ferguson pled guilty to the offense and was sentenced to five years' imprisonment in that case.

At sentencing in this case, Ferguson objected to the PSI's conclusion that he was an armed career criminal. Ferguson argued that his Georgia conviction for threatening a witness did not qualify as a violent felony for the purposes of ACCA enhancement.¹ The government answered that, because ACCA's definition of "violent felony" simply requires a felony plus the threat of "something more than non-consent," a felony conviction for threatening "physical harm" constitutes a "violent felony" under ACCA. The district court overruled Ferguson's objection, applied the ACCA enhancement, and sentenced Ferguson to 180 months' imprisonment.

This timely appeal ensued.

II. STANDARD OF REVIEW

We review de novo whether a defendant's prior conviction qualifies as a crime of violence for purposes of ACCA. United States v. Matthews, 3 F.4th 1286, 1291 (11th Cir. 2021).

III. ANALYSIS

Ferguson challenges the district court's determination that a conviction for threatening a witness under Georgia law qualifies as a violent felony under ACCA. He contends that the Georgia statute under which he was convicted is indivisible and cannot serve as an ACCA predicate because it criminalizes both threats of economic and physical harm. He also argues that, even if the statute is divisible, a threat of physical harm under the statute does not constitute a violent felony for ACCA purposes. Specifically, Ferguson reasons that the Georgia statute can be violated by misdemeanor conduct that constitutes no more than an offensive touching. For the following reasons, we disagree.

A. Categorical and Modified Categorical Approaches

ACCA provides that a defendant who is convicted of possessing a firearm as a felon must receive a fifteen-year mandatory-minimum sentence if he has three or more prior convictions for "a violent felony or a serious drug offense, or both." 18 U.S.C. § 924(e)(1). ACCA defines "violent felony" as:

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.

Id. § 924(e)(2)(B). The first clause, § 924(e)(2)(B)(i), is commonly referred to as ACCA's "elements" clause. United States v. Oliver, 962 F.3d 1311, 1316 (11th Cir. 2020).

"Under this provision, 'use' requires active employment of physical force." Id. (citing Leocal v. Ashcroft, 543 U.S. 1, 9, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004)). The Supreme Court has clarified that "the phrase 'physical force' means violent force—that is, force capable of causing physical pain or injury to another person." Id. (quoting Johnson v. United States, 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010)).

O.C.G.A. § 16-10-32(b), the statute at issue in this appeal, makes it a felony to threaten a witness in order to prevent that witness from testifying. Specifically, the statute provides:

Any person who threatens or causes physical or economic harm to another person or a member of such person's family or household, threatens to damage or damages the property of another person or a member of such person's family or household, or attempts to cause physical or economic harm to another person or a member of such person's family or household with the intent to hinder, delay, prevent of dissuade any person from:

(1) attending or testifying in an official proceeding;

. . .

shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than two years nor more than ten years or by fine of not less than $10,000.00 nor more than $25,000.00, or both.

Id. Because O.C.G.A § 16-10-32(b) does not criminalize burglary, arson, extortion, or any of the other crimes enumerated in § 924(e)(2)(B)(ii), we must decide whether a conviction under O.C.G.A § 16-10-32(b) qualifies as a violent felony under ACCA's elements clause. See Oliver, 962 F.3d at 1316.

To determine whether a state conviction qualifies as a "violent felony" under ACCA, we employ a "categorical approach." Id.; accord Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). The categorical approach asks whether "the 'least of the acts criminalized' by the statute of conviction has an element requiring 'the use, attempted use, or threatened use of physical force against the person of another." United States v. Sharp, 21 F.4th 1282, 1285 (11th Cir. 2021) (quoting Oliver, 962 F.3d at 1316). If so, then the conviction categorically qualifies as a violent felony; if not, then the conviction categorically does not qualify as a violent felony. Id.

Because the categorical approach asks only whether the statute of conviction categorically fits within ACCA's definition of "violent felony," a court should look only to the "elements of the statute of conviction" rather than the "specific conduct of a particular offender." United States v. Davis, 875 F.3d 592, 597 (11th Cir. 2017) (alteration adopted) (quoting Mathis v. United States, 579 U.S. 500, 510, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016)); see Moncrieffe v. Holder, 569 U.S. 184, 190, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013) ("[A] state offense is a categorical match with a generic federal offense only if a conviction of the state offense ' "necessarily" involved . . . facts equating to [the] generic [federal offense].' " (alterations in original) (quoting Shepard v. United States, 544 U.S. 13, 24, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) (plurality opinion))).

But sometimes, a statute "lists multiple, alternative elements, and so effectively creates 'several different crimes,' " only one of which categorically qualifies as a violent felony. Descamps v. United States, 570 U.S. 254, 263-64, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013) (alterations adopted) (quoting Nijhawan v. Holder, 557 U.S. 29, 41, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009)). Such statutes are called "divisible" statutes. Id. at 257, 133 S.Ct. 2276. In such cases, courts apply the "modified categorical approach." Id. at 263-64, 133 S.Ct. 2276. The modified categorical approach is simply the categorical approach applied to one of a divisible statute's listed crimes. Id. at...