United States v. Sharp

21 F.4th 1282

UNITED STATES of America, Plaintiff-Appellant,

v.Ortaz SHARP, Defendant-Appellee.

No. 20-12574

United States Court of Appeals, Eleventh Circuit.

Filed: December 28, 2021

Jane Elizabeth McBath, Rachel Lyons, Gabriel Adam Mendel, U.S. Attorney Service - Northern District of Georgia, U.S. Attorney's Office, Atlanta, GA, for Plaintiff-Appellant.

Stephen Patrick Johnson, W. Matthew Dodge, Stephanie A. Kearns, Federal Defender Program, Inc., Atlanta, GA, for Defendant-Appellee.

Before Wilson, Lagoa, Circuit Judges, and Martinez,^* District Judge.

MARTINEZ, District Judge:

The government appeals Ortaz Sharp's 110-month sentence for possessing a firearm as a convicted felon. It argues that the district court erred in determining that Sharp did not qualify for an Armed Career Criminal Act ("ACCA") enhancement pursuant to 18 U.S.C. § 924(e)(1). The two issues before us are (1) whether the government waived its argument that Sharp's prior conviction for making terroristic threats under O.C.G.A. § 16-11-37 qualifies as an ACCA predicate offense by failing to raise the argument before the district court because it was foreclosed by binding precedent; and (2) whether the Georgia robbery statute is a predicate offense under the ACCA. We find that the government did not waive its argument. As such, we need not determine whether a conviction for robbery under Georgia law is an ACCA predicate offense. Sharp's sentence is vacated, and the case is remanded for resentencing in accordance with this order.

I. BACKGROUND

Sharp was charged by information with a single count of possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). He pled guilty to this charge pursuant to a plea agreement. According to the presentence investigation report ("PSI") prepared by a probation officer, Sharp was subject to an enhanced sentence as an Armed Career Criminal under 18 U.S.C. § 924(e)(1). The PSI identified Sharp's prior Georgia convictions that qualified as violent offenses under the ACCA as: robbery by force, burglary, and aggravated battery. In addition, the PSI contained a laundry list of prior convictions, including a conviction for making terroristic threats, in violation of O.C.G.A. § 16-11-37.

At Sharp's sentencing hearing, the government argued that Sharp was an Armed Career Criminal under § 924(e)(1), subject to a mandatory sentence of 15 years. The government's request for the enhancement was premised on the same three convictions listed in the PSI, namely, Sharp's Georgia convictions for robbery, burglary, and aggravated battery. The government did not argue that Sharp's terroristic threats conviction was a violent offense under the elements clause of the ACCA because, at the time of sentencing, this court's decision in United States v. Oliver (Oliver II ), 955 F.3d 887 (11th Cir. 2020) expressly held that a conviction under Georgia's terroristic threats statute did not qualify as an ACCA predicate offense. The district court did not touch on the issue, either.

After a thorough analysis, the district court determined that the Georgia robbery statute was indivisible and that it was not a predicate ACCA conviction. It ultimately found that Sharp was not an Armed Career Criminal under the ACCA because he did not have three qualifying predicate offenses. Sharp was therefore sentenced to 110 months' imprisonment, followed by three years of supervised release.

Ten days after Sharp's sentencing, we vacated Oliver II and held that Georgia's terroristic threats statute, O.C.G.A. § 16-11-37, is divisible, and that a threat "to commit any crime of violence" qualifies as a predicate offense under the ACCA. See United States v. Oliver (Oliver III ), 962 F.3d 1311, 1321 (11th Cir. 2020). In light of Oliver III , the government moved the district court to reconsider its finding that Sharp did not qualify as an Armed Career Criminal. According to the government, this intervening change in Circuit precedent merited reconsideration of the district court's ruling as to Sharp's status as an Armed Career Criminal.

Prior to the district court's ruling on the motion for reconsideration, the government filed its notice of appeal. The district court denied the motion for reconsideration without prejudice. In doing so, it stated that, while "the [g]overnment's position may be meritorious," the district court lacked jurisdiction to rule on the motion because the government filed a notice of appeal.¹

This appeal ensued.

II. STANDARD OF REVIEW

We review de novo whether a prior conviction is a predicate offense within the meaning of the ACCA. Oliver III , 962 F.3d at 1316. We have broad discretion to decide the limits of a remand for resentencing as may be just under the circumstances of the case. United States v. Martinez , 606 F.3d 1303, 1304 (11th Cir. 2010).

III. DISCUSSION

A defendant who is found guilty of possessing a firearm as a felon under 18 U.S.C. § 922(g)(1) can only be sentenced to a maximum of ten years, unless 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). Under the ACCA, a "violent felony" is defined as any crime punishable by a term of imprisonment exceeding one year that "has as an element the use, attempted use, or threatened use of physical force against the person of another." Id. § 924(e)(2)(B)(i). This provision is often referred to as the "elements clause." United States v. Owens , 672 F.3d 966, 968 (11th Cir. 2012). If a defendant who violated § 922(g)(1) has at least three qualifying "violent felony" convictions, the ACCA prescribes a mandatory minimum sentence of fifteen years. 18 U.S.C. § 924(e)(2)(B). The district court is required to impose this minimum sentence regardless of whether the government seeks application of the enhancement. See United States v. Symington , 781 F.3d 1308, 1313 (11th Cir. 2015).

To determine whether a prior conviction qualifies as a violent felony under the elements clause, we apply what has become known as the "categorical approach." Oliver III , 962 F.3d at 1316. Under this approach, we examine only " ‘the elements of the statute of conviction,’ not the ‘specific conduct of [a] particular offender.’ " United States v. Davis , 875 F.3d 592, 597 (11th Cir. 2017) (quoting Mathis v. United States , 579 U.S. 500, 136 S. Ct. 2243, 2248, 195 L.Ed.2d 604 (2016) ). "If 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,’ then the offense categorically qualifies as a violent felony under the ACCA's elements clause." Oliver III , 962 F.3d at 1316 (quoting Davis , 875 F.3d at 597 ). If not, our inquiry ends, "and the prior conviction does not count as a violent felony under the elements clause." Id.

The categorical approach, however, applies only when the statute in question is "indivisible." Id. at 1316–17. If a statute is "divisible," we apply the modified categorical approach. Id. Under the modified categorical approach, we consider a limited class of documents, including the indictment, jury instructions, or plea agreements and colloquy, to determine which of the multiple crimes listed in the alternatively phrased statute the defendant was convicted of committing. Id. at 1317. Because the modified categorical approach plays no role when a statute of conviction is indivisible, a court must first determine whether a statute is divisible before proceeding with an analysis under either approach. Id.

A "divisible" statute "lists multiple, alternative elements," which "effectively creates ‘several different ... crimes.’ "

Descamps v. United States , 570 U.S. 254, 264, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013) (quoting Nijhawan v. Holder , 557 U.S. 29, 41, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009) ). " ‘Elements’ are the ‘constituent parts’ of a crime's legal definition—the things the ‘prosecution must prove to sustain a conviction.’ " Mathis , 136 S. Ct. at 2248 (citing Element, Black's Law Dictionary (10th ed. 2014)). By contrast, an "indivisible" statute lists "means," which are "various factual ways of committing some component of the offense ...." Id. at 2249.

Following this framework, in Oliver III we held that Georgia's terroristic threats statute, O.C.G.A. § 16-11-37, is divisible. Oliver III , 962 F.3d at 1321. Applying the modified categorical approach, we determined that a threat "to commit any crime of violence" qualifies as a violent felony under the ACCA's elements clause. Id. at 1320–21. This ruling came only ten days after Sharp was sentenced.

The government argues on appeal that, pursuant to Oliver III , Sharp qualifies as an Armed Career Criminal because his conviction for terroristic threats is a violent felony under the ACCA. The government maintains that it was not required to argue that Sharp's terroristic threats conviction qualified as a predicate ACCA offense at the time of sentencing because the argument was foreclosed by Oliver II , which was binding precedent at the time. Sharp responds that the government waived this argument by not objecting at sentencing to the terroristic threats conviction not being treated as an ACCA predicate.

It is undisputed that, at the time of sentencing, Sharp's Georgia terroristic threats conviction did not qualify as an ACCA predicate offense. Thus, the question before us is whether the government may now rely on this conviction to argue that the ACCA enhancement applies to Sharp, when it failed to do so at the time of sentencing because the argument was foreclosed by binding Circuit precedent.

Our Circuit has not yet addressed this question, but we find guidance in our decision in Tribue v. United States , 929 F.3d 1326 (11th Cir. 2019). The district court in Tribue denied relief under 28 U.S.C. § 2255 concluding that although Tribue's conviction for fleeing and eluding no longer qualified as a violent felony under the ACCA, he...