United States v. Hicks

100 F.4th 1295

UNITED STATES of America, Plaintiff-Appellee, v. Sanchez Marquitte HICKS, Defendant-Appellant.

No. 23-10280

Non-Argument Calendar

United States Court of Appeals, Eleventh Circuit

Filed: April 30, 2024

Appeal from the United States District Court for the Northern District of Georgia, D.C. Docket No. 1:21-cr-00074-TWT-LTW-1

Jessica Morris, Gabriel Adam Mendel, Lawrence R. Sommerfeld, U.S. Attorney Service - Northern District of Georgia, DOJ-USAO, Northern District of Georgia, Atlanta, GA, for Plaintiff-Appellee.

Joseph Austin, W. Matthew Dodge, Stephanie A. Kearns, Federal Defender Program, Atlanta, GA, for Defendant-Appellant.

Before Newsom, Anderson, and Hull, Circuit Judges.

Hull, Circuit Judge:

After pleading guilty, Sanchez Hicks appeals his sentence of 96 months' imprisonment for two counts of possession of a firearm by a felon. On appeal, Hicks argues that his two prior Georgia convictions for aggravated assault with a deadly weapon do not qualify as a "crime of violence" under U.S.S.G. § 2K2.1(a)(2), which references the crime-of-violence definition in U.S.S.G. § 4B1.2(a), and thus the district court erred in calculating his base offense level.

In United States v. Morales-Alonso, 878 F.3d 1311, 1313-20 (11th Cir. 2018), this Court held that a Georgia conviction for aggravated assault with a deadly weapon qualifies as a "crime of violence" under U.S.S.G. § 2L1.2, which uses a crime-of-violence definition contained in its commentary. The Morales-Alonso Court held that Georgia's aggravated assault with a deadly weapon crime contains substantially the same elements as generic aggravated assault. Id. at 1317, 1320.

Both § 4B1.2(a) and § 2L1.2's commentary contain enumerated offenses clauses that use materially identical language to define a "crime of violence" as a list of offenses, and "aggravated assault" appears in both lists. For the reasons explained herein, we conclude that Hicks's challenge to his base offense level fails.

I. BACKGROUND

A grand jury indicted Hicks on two counts of possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Count One charged that Hicks possessed a firearm on May 26, 2017, and Count Two charged that he possessed a firearm on January 25, 2019. Hicks entered a non-negotiated plea of guilty to both counts.

At sentencing, Hicks did not dispute that he had two Georgia aggravated assault convictions from 2009 and 2015. The 2009 conviction was for assaulting two persons "with a deadly weapon, to wit: a handgun" by shooting them. The 2015 conviction was for "an assault upon [a] person . . . with a handgun" during an attempted armed robbery.

Given these two Georgia aggravated assault convictions, the presentence investigation report ("PSI") recommended a base offense level of 24 pursuant to U.S.S.G. § 2K2.1(a)(2). Under § 2K2.1(a)(2), a base offense level of 24 applies when the defendant committed his firearm offense after two felony convictions for a "crime of violence" as defined in § 4B1.2(a), which includes "aggravated assault." See U.S.S.G. §§ 2K2.1(a)(2) & cmt. n.1, 4B1.2(a)(2). Hicks objected to the PSI's base offense level of 24, arguing that his two Georgia convictions were not "crimes of violence." Hicks maintained that Morales-Alonso did not foreclose his particular challenge.

The district court overruled Hicks's objection to § 2K2.1(a)(2)'s base offense level, finding it was bound by our Morales-Alonso holding that a Georgia conviction for aggravated assault with a deadly weapon qualifies as a crime of violence. After making adjustments not relevant to this appeal, the district court calculated a total offense level of 23, which with Hicks's criminal history category of VI, yielded an advisory guidelines range of 92 to 115 months' imprisonment. The district court imposed a 96-month sentence on each felon-firearm conviction, to be served concurrently.

II. DISCUSSION

A. Standard of Review

We review de novo the interpretation and application of the Sentencing Guidelines. United States v. Dupree, 57 F.4th 1269, 1272 (11th Cir. 2023) (en banc). We also review de novo whether an offense is a "crime of violence" within the meaning of the Sentencing Guidelines. United States v. Harrison, 56 F.4th 1325, 1330 (11th Cir. 2023).

B. Crime of Violence Under § 2K2.1(a)(2)

The Sentencing Guidelines assign a base offense level of 24 for an offense involving the possession of a firearm and/or ammunition by a convicted felon if the defendant committed the instant offense after sustaining at least two felony convictions for a "crime of violence." U.S.S.G. § 2K2.1(a)(2). Section 2K2.1 cross references U.S.S.G. § 4B1.2(a) for the definition of a "crime of violence." U.S.S.G. § 2K2.1, cmt. n.1.

In turn, § 4B1.2(a) defines "crime of violence" as follows:

(a) CRIME OF VIOLENCE.—The term "crime of violence" means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that—

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (2) is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. § 5845(a) or explosive material as defined in 18 U.S.C. § 841(c).

U.S.S.G. § 4B1.2(a) (emphasis added). The second clause, referred to as an enumerated offenses clause, includes "aggravated assault" in the list of offenses that are crimes of violence. Id. § 4B1.2(a)(2).

C. Morales-Alonso

In Morales-Alonso, this Court squarely addressed a Georgia conviction for aggravated assault with a deadly weapon under O.C.G.A. § 16-5-21(a)(2). 878 F.3d at 1313-20. Morales-Alonso involved the definition of crime of violence applicable to U.S.S.G. § 2L1.2 (2015). Id. at 1313 & n.2.

Like § 4B1.2(a)(2), § 2L1.2's definition of "crime of violence," found in its commentary, contained an enumerated offenses clause, stating as follows:

"Crime of violence" means any of the following offenses under federal, state, or local law: murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses (including where consent to the conduct is not given or is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced), statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling, or any other offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another.

U.S.S.G. § 2L1.2, cmt. n.1(B)(iii) (2015) (emphasis added); see Morales-Alonso, 878 F.3d at 1314. While Morales-Alonso addressed the enumerated offenses clause applicable to § 2L1.2, not the one found in § 4B1.2(a)(2), both clauses use materially identical language to define "crime of violence" as a list of offenses, and both lists include the offense of "aggravated assault." Compare U.S.S.G. § 2L1.2, cmt. n.1(B)(iii) (2015), with id. § 4B1.2(a)(2).

In Morales-Alonso, this Court held that a Georgia conviction for aggravated assault with a deadly weapon under O.C.G.A. § 16-5-21(a)(2) qualified as a crime of violence under the enumerated offenses clause in § 2L1.2's definition of "crime of violence." 878 F.3d at 1313-20. Applying our prior decision in United States v. Palomino Garcia, 606 F.3d 1317 (11th Cir. 2010), the Morales-Alonso Court explained that generic aggravated assault has two essential elements: (1) a criminal assault (2) that is accompanied by either the intent to cause serious bodily injury to the victim or the use of a deadly weapon. Id. at 1315.

The Morales-Alonso Court then looked to Georgia's aggravated assault statute, O.C.G.A. § 16-5-21(a)(2), and concluded that (1) it was divisible as to its aggravator component, and (2) the defendant was convicted of the version of aggravated assault that involved the use of a deadly weapon. Id. at 1316-17. Next, the Court determined that O.C.G.A. § 16-5-21(a)(2) was not further divisible, so its essential elements were "(1) an assault, (2) that is committed '[w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.' " Id. at 1317.

Comparing those elements to the elements of generic aggravated assault, the Morales-Alonso Court "conclude[d] that Georgia aggravated assault with a deadly weapon or other qualifying 'object, device, or instrument' in violation of O.C.G.A. § 16-5-21(a)(2) contains substantially the same elements as generic aggravated assault." Id. The Court rejected the defendant's argument that the Georgia statute was categorically broader than the generic offense because it also encompassed assault "with an 'object, device, or instrument' that is 'likely to or actually does result in serious bodily injury.' " Id. at 1317-20. The Court held that Georgia aggravated assault under O.C.G.A. § 16-5-21(a)(2) "satisfies the enumerated offenses clause" of § 2L1.2. See generally id. at 1313-20.

D. Hicks's Claim

Hicks argues that a Georgia conviction for aggravated assault with a deadly weapon does not qualify as a "crime of violence" under the enumerated offenses clause in § 4B1.2(a)(2). Specifically, Hicks contends that the Georgia offense requires a mens rea of only recklessness, whereas generic aggravated assault requires a mens rea of "extreme indifference to human life," which Hicks terms "extreme indifference recklessness." Hicks's challenge is that the Georgia offense is categorically broader than the generic offense. Hicks's claim fails for several reasons.

First, our Court's holding in Morales-Alonso forecloses Hicks's claim. The Morales-Alonso Court held that Georgia aggravated assault with a deadly weapon qualifies as a crime of violence under the enumerated offenses clause because it has "substantially the same" elements as generic...