United States v. Bush

• Court: Court of Appeals for the Eleventh Circuit
• Decided: August 12, 2011
• Docket: 10-15590
• Status: Unpublished

Opinion

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT AUG 12, 2011 No. 10-15590 JOHN LEY CLERK Non-Argument Calendar ________________________

D.C. Docket No. 9:10-cr-80052-KAM-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ANTWON DENARD BUSH,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Southern District of Florida _________________________

(August 12, 2011)

Before HULL, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

Antwon Bush appeals the sentence imposed following his guilty plea to a

single-count of being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. §§ 922 (g)(1) and 924(e). The district court sentenced him

to 180 months in prison in accordance with the Armed Career Criminal Act

(“ACCA”) because Bush had been convicted of three violent felonies. On appeal,

Bush argues that the district court erred in enhancing his sentence because (i) his

prior conviction for burglary of an unoccupied structure was not a violent felony

and (ii) his prior convictions were not charged in the indictment or found by a jury.

After a thorough review of the record, we affirm.

Bush entered an unconditional plea to possession of a firearm and

ammunition and at the change-of-plea hearing admitted that he had previously

been convicted of burglary of a structure, aggravated assault on a police officer

with a deadly weapon and fleeing police, and burglary of an occupied dwelling.

Based on these facts, the probation officer determined that Bush qualified as

an armed career criminal under § 924(e) and U.S.S.G. § 4B1.4. The presentence

investigation report (PSI) quoted the indictment and judgment in connection with

the prior conviction for burglary of a structure as follows: Bush “did knowingly

enter or remain in a structure, the property of USA GROCERS, INC., with intent to

commit an offense therein.” According to the PSI, Bush smashed the glass of the

convenience store, entered the building, and took $183 in cash.

2 Bush’s status as an armed career criminal subjected him to a mandatory

minimum sentence of 180 months’ imprisonment. 18 U.S.C. § 924(e). Although

he did not object to the facts set forth in the PSI, Bush disputed that his prior

conviction for burglary of a structure was a qualifying offense under the ACCA.

He also objected on the ground that his prior convictions had not been charged in

the indictment. The district court overruled the objections, finding that the prior

burglary conviction qualified as a violent felony under the ACCA, and that the

government was not required to charge prior convictions in the indictment under

Almendarez-Torres v. United States, 523 U.S. 224 (1998). The court then

sentenced Bush to the mandatory minimum sentence.

I.

We review de novo a district court’s determination that a defendant’s prior

convictions constitute violent felonies under the ACCA. United States v.

Matthews, 466 F.3d 1271, 1273 (11th Cir. 2006). The ACCA defines a 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.

18 U.S.C. § 924(e)(2)(B).

3 In Taylor v. United States, the Supreme Court held that an offense

constituted “burglary” under the ACCA when “either its statutory definition

substantially corresponds to ‘generic’ burglary, or the charging paper and jury

instructions actually required the jury to find all the elements of generic burglary in

order to convict the defendant.” 495 U.S. 575, 602 (1990). The Supreme Court

held that a “generic” burglary for purposes of § 924(e) was one “having the basic

elements of unlawful or unprivileged entry into, or remaining in, a building or

structure, with intent to commit a crime.” Id. at 599.

Here, we conclude that the district court properly found that Bush’s prior

conviction for burglary of an unoccupied structure was a violent felony under the

ACCA. At sentencing, Bush conceded that his prior conviction was for a generic

burglary.1 But even if Bush’s prior conviction is not generic burglary, it still

qualifies as a crime of violence because the state indictment confirms that Bush

was charged with entering a structure with the intent to commit a crime therein,

which fits the definition of a generic burglary under Taylor. 495 U.S. at 599; see

also United States v. Ranier, 616 F.3d 1212, 1215 (11th Cir. 2010), cert. denied,

1 Although this was likely an error, and the offense is actually a non-generic burglary, it is an invited one and we need not address it. United States v. Love, 449 F.3d 1154, 1157 (11th Cir. 2006).

4 131 S.Ct. 968 (2011) (explaining that this court uses the modified categorical

approach to determine if a conviction under a non-generic burglary statute was

nonetheless for generic burglary). Therefore, the district court properly sentenced

Bush as an armed career criminal.

II.

We review constitutional sentencing issues de novo. United States v. Steed,

548 F.3d 961, 978 (11th Cir. 2008). In Almendarez-Torres, the Supreme Court

held that a prior conviction used to enhance a sentence under 8 U.S.C. § 1326(b)(2)

was not an element of the offense, and, thus, need not be alleged in the indictment

or found by a jury beyond a reasonable doubt. 523 U.S. 224, 226-27 (1998).

Because we are bound by the Supreme Court’s decision in Almendarez-Torres

until it is expressly overruled, Bush’s prior convictions did not have to be alleged

in the indictment or found by a jury. See United States v. Gibson, 434 F.3d 1234,

1246-47 (11th Cir. 2006). Therefore, the district court properly enhanced Bush’s

sentence pursuant to the ACCA.

Accordingly, we affirm.

AFFIRMED.