Case: 16-17680 Date Filed: 12/29/2017 Page: 1 of 17
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 16-17680 Non-Argument Calendar ________________________
D.C. Docket No. 7:16-cr-00130-MHH-JHE-1
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
DARYL TERRELL GILBERT,
Defendant-Appellee.
________________________
Appeal from the United States District Court for the Northern District of Alabama ________________________
(December 29, 2017)
Before MARTIN, JULIE CARNES, and ANDERSON, Circuit Judges.
PER CURIAM: Case: 16-17680 Date Filed: 12/29/2017 Page: 2 of 17
Defendant Daryl Terrell Gilbert was convicted of being a felon in possession
of a firearm, in violation of 18 U.S.C. § 922(g)(1). The district court initially
sentenced Defendant to 57 months pursuant to U.S.S.G. § 2K2.1(a)(2), which
applies when a defendant has two prior felony convictions for “crimes of
violence.” The court applied U.S.S.G. § 2K2.1(a)(2) after concluding that
Defendant’s 2014 conviction for first-degree robbery in violation of Alabama Code
§ 13A-8-41 and his 2013 conviction for second-degree robbery in violation of
Alabama Code § 13A-8-42 constituted crimes of violence. The court subsequently
determined that it had used the wrong rationale to find that Defendant’s robbery
convictions triggered § 2K2.1(a)(2), granted Defendant’s motion to correct his
sentence under Federal Rule of Criminal Procedure 35(a), and resentenced
Defendant to 36 months. The Government appeals, arguing that the district court
erred by granting Defendant’s Rule 35(a) motion. We agree with the Government,
and thus VACATE Defendant’s 36-month sentence and REMAND the case for
imposition of the 57-month sentence Defendant initially received.
I. BACKGROUND
Defendant was indicted in April, 2016 on one count of being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). As grounds for the
felon-in-possession charge, the indictment listed Defendant’s prior felony
convictions for (1) first-degree robbery in violation of Alabama Code § 13A-8-41
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and (2) second-degree robbery in violation of Alabama Code § 13A-8-42.
Defendant pled guilty to the charge.
The Presentence Report (“PSR”) determined that Defendant should be
sentenced under U.S.S.G. § 2K2.1(a)(2), which applies when a defendant violates
18 U.S.C. § 922(g)(1) after being convicted of two felony “crime[s] of violence.”
U.S.S.G. § 2K2.1(a)(2). Section 2K2.1(a)(2) incorporates the definition of “crime
of violence” set forth in U.S.S.G. § 4B1.2(a). See U.S.S.G. § 2K2.1 app. n.1. As
relevant here, the definition in § 4B1.2(a) contains an elements clause that
encompasses any offense that “has as an element the use, attempted use, or
threatened use of physical force against the person of another” and also an
enumerated offenses clause that encompasses any of a list of qualifying offenses,
including “robbery.” See U.S.S.G. § 4B1.2(a) (Aug. 1, 2016).
The PSR determined that Defendant’s prior Alabama robberies qualified as
crimes of violence for purposes of § 2K2.1(a)(2). Applying § 2K2.1(a)(2), the
PSR assigned Defendant a base offense level of 24. After subtracting three levels
for acceptance of responsibility, the PSR calculated Defendant’s total offense level
as 21. Based on Defendant’s long history of juvenile adjudications and his robbery
convictions as an adult, the PSR assigned Defendant a criminal history category of
IV, resulting in a recommended guidelines range of 57 to 71 months.
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Defendant objected to the PSR’s calculation of his offense level and
guidelines range, arguing that his Alabama robbery convictions did not
categorically qualify as crimes of violence for purposes of U.S.S.G. § 2K2.1(a)(2).
Specifically, Defendant argued that Alabama robbery does not necessarily involve
“violent, physical force” as required to satisfy the elements clause under Curtis
Johnson v. United States, 559 U.S. 133 (2010) (“Curtis Johnson”) and, further, that
Alabama robbery does not constitute generic robbery as required to satisfy the
enumerated offenses clause.1 Thus, Defendant continued, his offense level should
have been 12 rather than 21, placing him in a guidelines range of 21 to 27 months.
The Government disagreed, arguing that Alabama robbery categorically qualifies
as a crime of violence under both the elements clause and the enumerated offenses
clause.
At the sentencing hearing, the district court focused on the arguments made
by the parties under the elements clause. The court observed that Alabama robbery
appears on its face to satisfy the elements clause because it requires the use or
threatened use of force against a person in the course of committing a theft.
Based on its interpretation of state case law, however, the court determined that
Alabama robbery does not categorically satisfy the elements clause because it does 1 Defendant also argued that (1) his Alabama robbery convictions did not qualify under the enumerated offenses clause because, at the time of Defendant’s offense, robbery was only listed as a crime of violence in the commentary to U.S.S.G. § 4B1.2 rather than in the text of the guideline and (2) the robbery convictions did not qualify as a crime of violence under the residual clause of § 4B1.2. The parties do not address those arguments in this appeal. 4 Case: 16-17680 Date Filed: 12/29/2017 Page: 5 of 17
not necessarily involve “violent, physical force” as required by the Supreme Court
in Curtis Johnson. Nevertheless, the court concluded that Defendant’s Alabama
robberies were crimes of violence under the elements clause because, as described
in the PSR, Defendant had in fact used such force in committing the offenses.2
Thus, the court overruled Defendant’s objection, applied § 2K2.1(a)(2), and
sentenced Defendant to 57 months. The court did not make a ruling as to whether
Alabama robbery satisfies the enumerated offenses clause.
Defendant filed a timely motion to reduce his sentence pursuant to Rule
35(a) of the Federal Rules of Criminal Procedure. Defendant argued that the
district court’s reliance on the specific facts surrounding his robberies to classify
them as crimes of violence constituted clear error, warranting a reduction of his
sentence under Rule 35(a). The Government opposed the motion, noting that Rule
35(a) extends only to those cases in which a clear sentencing error would “almost
certainly result in a remand.” Citing this Court’s decision in United States v.
Lockley, 632 F.3d 1238 (11th Cir. 2011), the Government argued that Alabama
robbery arguably qualifies as a crime of violence under both the elements clause
and the enumerated offenses clause and, thus, that any error in Defendant’s
sentence would not “almost certainly” require a remand. The court rejected the
Government’s argument, and concluded that it had committed a clear sentencing
2 As the district court noted, in one robbery a gun was pressed to the victim’s face, and in the other, Defendant and his associates repeatedly struck the victim in the head. 5 Case: 16-17680 Date Filed: 12/29/2017 Page: 6 of 17
error by relying on the specific facts underlying Defendant’s robberies to classify
them as crimes of violence. The court refused to consider Lockley because that
case had not been cited during the original sentencing hearing.
Based on the above findings, the district court concluded that Defendant’s
guidelines range should have been 21 to 27 months. The court determined that an
upward variance was appropriate, given (1) Defendant’s long criminal history
beginning at a young age, (2) the seriousness of Defendant’s robbery convictions,
and (3) the fact that Defendant’s second robbery was committed while he was on
probation from the first. The court ultimately imposed a 36-month sentence.
The Government objected to the district court’s revised guidelines
calculation, and now appeals. The Government argues that (1) the district court
lacked the authority to vacate Defendant’s sentence under Rule 35 because this
Court’s case law supported the application of § 2K2.1(a)(2) and (2) Alabama
robbery is categorically a crime of violence under § 2K2.1(a)(2) because it
necessarily requires the use of “violent, physical force.”
II. DISCUSSION
A. Standard of Review
We review the district court’s ruling on Defendant’s Rule 35 motion de
novo. See United States v. Phillips, 597 F.3d 1190, 1194 n.9 (11th Cir. 2010).
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Likewise, we review de novo the district court’s interpretation of the Sentencing
Guidelines and its revised calculation of Defendant’s guidelines range. See id.
A district court is not permitted to modify a sentence it has imposed except
as expressly authorized by statute or by Rule 35 of the Federal Rules of Criminal
Procedure. See 18 U.S.C. § 3582(c). As relevant here, Rule 35(a) permits a
district court to “correct a sentence that resulted from arithmetical, technical, or
other clear error” if the error is raised within 14 days after sentencing. Fed. R.
Crim. P. 35(a). The court’s authority to modify a sentence under Rule 35(a) is:
intended to be very narrow and to extend only to those cases in which an obvious error or mistake has occurred in the sentence, that is, errors which almost certainly would result in a remand of the case to the trial court for further action . . . [It] is not intended to afford the court the opportunity to reconsider the application or interpretation of the sentencing guidelines or for the court simply to change its mind about the appropriateness of the sentence.
Fed. R. Crim. P. 35 advisory committee’s notes (1991). See also Phillips, 597 F.3d
at 1196 (“The writers of Rule 35(a) limited both its scope and its deadline to
promote the finality of sentences and enable the parties to appeal a sentence
promptly.”). An error must be “acknowledged and obvious” rather than “arguable”
in order to constitute clear error for purposes of Rule 35(a). United States v. Lett,
483 F.3d 782, 789 (11th Cir. 2007). Thus, clear error does not exist where there is
no binding precedent that resolves a sentencing issue and reasonable people could
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disagree as to its resolution. See id. at 789 (reversing the district court’s grant of
relief under Rule 35(a) where “[r]easonable arguments [could] be made on both
sides” of the determinative sentencing issue).
In addition, a sentencing error only warrants relief under Rule 35(a) if the
error would “almost certainly result in a remand of the case.” Id. at 787 (quoting
Fed. R. Crim. P. 35 advisory committee’s notes (1991)). Consequently, Rule 35(a)
does not apply if there is a reasonable argument that the sentence would be
affirmed in spite of the error. That is apparent from the history of Rule 35, which
formerly gave district courts broad discretion to correct an “illegal sentence at any
time” and a “sentence imposed in an illegal manner” within a specified time. See
Fed. R. Crim. P. 35(a) (1986). The former version of Rule 35 was repealed in
order to ensure more finality in sentencing. See Fed. R. Crim. P. 35 advisory
committee’s notes (1991) (noting that the earlier version of Rule 35 was repealed
to ensure the “finality of determinate sentencing”). The current version of Rule 35
still provides “an efficient and prompt method for correcting obvious technical
errors” that are promptly called to the district court’s attention, but it does not
permit the court to reexamine its reasoning or to simply “change its mind about the
appropriateness of the sentence.” Lett, 483 F.3d at 787 (quoting Fed. R. Crim. P.
35 advisory committee’s notes (1991)).
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C. Analysis
1. The district court’s rationale during Defendant’s initial sentencing was flawed.
At the initial sentencing hearing, the court rejected the Government’s
argument that Alabama robbery categorically qualifies as a crime of violence under
the elements clause and failed to address the Government’s argument that the
offense categorically satisfies the enumerated offenses clause. Nevertheless, the
court concluded that Defendant’s robberies constituted crimes of violence because,
as described in the PSR, Defendant had in fact used or threatened the use of violent
force during their commission. The court thus overruled Defendant’s objection to
the PSR, applied § 2K2.1(a)(2), and sentenced Defendant to 57 months.
Contrary to the analysis described above, courts are required to apply a
categorical approach to determine whether a prior conviction constitutes a crime of
violence and thus supports a sentence enhancement under § 2K2.1(a)(2). See
United States v. Garcia-Martinez, 845 F.3d 1126, 1129–30 (11th Cir. 2017)
(applying the categorical approach to determine whether the defendant’s prior
conviction qualified as a crime of violence for purposes of a sentencing
enhancement applicable under U.S.S.G. § 2L1.2). Under the categorical approach,
the particular facts surrounding a defendant’s conviction do not determine whether
the conviction qualifies as a crime of violence. See id. at 1130. What matters
instead is how the law defines the offense that the defendant was convicted of 9 Case: 16-17680 Date Filed: 12/29/2017 Page: 10 of 17
committing. See id. Thus, regardless of Defendant’s actual conduct during the
robberies at issue here, the enhancement provided for in § 2K2.1(a)(2) only applies
if the robberies, as defined by Alabama law, categorically satisfy either the
elements clause or the enumerated offenses clause. See Welch v. United States,
136 S. Ct. 1257, 1262 (2016) (“Under the categorical approach, a court assesses
whether a crime qualifies as a [crime of violence] in terms of how the law defines
the offense and not in terms of how an individual offender might have committed it
on a particular occasion.” (internal quotation marks omitted)).
In certain cases, courts may use a modified categorical approach to
determine whether a conviction qualifies as a crime of violence. See Mathis v.
United States, 136 S. Ct. 2243, 2249 (2016) (describing the modified categorical
approach and clarifying when it is applicable). The modified categorical approach
applies when a criminal statute is divisible, meaning that it “list[s] elements in the
alternative, and thereby define[s] multiple crimes.” Id. When that is the case, the
modified approach allows the sentencing court to examine a “limited class of
documents”—known as Shepard documents and including such items as the
indictment, jury instructions, and plea agreement—“to determine what crime, with
what elements, a defendant was convicted of” so that the court can then assess
whether the conviction categorically satisfies the definition of a crime of violence.
Id. The district court purported to apply the modified categorical approach during
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Defendant’s initial sentencing hearing, but it did not conduct any divisibility
analysis or otherwise explain why the modified categorical approach was
applicable.
Moreover, it is evident that the district court misconstrued the function and
the proper focus of the modified categorical approach. The Supreme Court has
repeatedly explained that the modified categorical approach does not permit a court
to consider the manner in which a defendant committed an offense to determine
whether his conviction of the offense qualifies as a crime of violence. See Mathis,
136 S. Ct. at 2257 (“For more than 25 years, we have repeatedly made clear that
application of ACCA [the “Armed Career Criminal Act”] involves, and involves
only, comparing elements.”).3 Rather, “the modified approach serves a limited
function: It helps effectuate the categorical analysis when a divisible statute,
listing potential offense elements in the alternative, renders opaque which element
played a part in the defendant’s conviction.” Descamps v. United States, 133 S. Ct.
2276, 2283 (2013).
2. The court’s analytical error did not warrant relief under Rule 35(a) because the error does not necessarily require a remand.
3 Mathis arose in the context of a sentencing enhancement that is applicable under the Armed Career Criminal Act (“ACCA”) when a defendant has three prior “violent felony” convictions, but its analytical framework applies to the enhancement required under § § 2K2.1(a)(2) when a defendant has been convicted of a firearm offense following two prior convictions for “crimes of violence.” See Garcia-Martinez, 845 F.3d at 1129–30 (applying the approach used in ACCA cases to a crime of violence enhancement applicable under U.S.S.G. § 2L1.2).
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Nevertheless, we agree with the Government that the district court erred by
granting relief under Rule 35(a). As indicated above, a district court’s authority to
vacate a sentence under Rule 35(a) is limited. See Lett, 483 F.3d at 788
(describing Rule 35(a) as setting forth “a narrow corrective power limited in scope
to those obvious errors that result in an illegal sentence”). Rule 35(a) does not
provide a mechanism for the court to reexamine its reasoning or simply “change its
mind” about a sentence it has imposed. See id. at 787. Rather, the court must
identify an error that is both clear—i.e., acknowledged and obvious—and that
would “almost certainly result in a remand of the case” in order to vacate a
sentence under Rule 35(a). Id. at 787 (quoting Fed. R. Crim. P. 35(a) advisory
committee’s notes (1991)).
If the district court arrived at the correct guidelines range in spite of its
analytical error, Defendant’s sentence likely would be affirmed on appeal rather
than remanded for correction. See United States v. Chitwood, 676 F.3d 971, 976–
81 (11th Cir. 2012) (affirming the defendant’s sentence, despite the district court’s
misapplication of the modified categorical approach, because the predicate offense
remained a crime of violence under the categorical approach); United States v.
Campa, 529 F.3d 980, 1013 (11th Cir. 2008) (“A sentencing error, under the
Guidelines, is harmless if a court considers the proceedings in their entirety and
determines that the error did not affect the sentence or had but very slight effect.”
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(internal quotation marks omitted)). As discussed below, there is no binding
precedent that specifically addresses whether Alabama robbery categorically
qualifies as a crime of violence for purposes of § 2K2.1(a)(2), and this Court has
held that the substantially similar crime of Florida robbery does so qualify.
Accordingly, there is no basis for finding that the analytical error committed during
Defendant’s initial sentencing would “almost certainly result in a remand” as
required to grant relief under Rule 35(a). See Lett, 483 F.3d at 790 (reversing the
district court’s Rule 35(a) modification where there was “no decision on point
from any court, and reasonable people could differ about the matter”).
The convictions at issue are for first-degree robbery in violation of Alabama
Code § 13A-8-41 and second-degree robbery in violation of Alabama Code § 13A-
8-42. Both offenses are enhanced versions of Alabama third-degree robbery,
which occurs when “in the course of committing a theft,” a person:
(1) Uses force against the person of the owner or any person present with intent to overcome his physical resistance or physical power of resistance; or
(2) Threatens the imminent use of force against the person of the owner or any person present with intent to compel acquiescence to the taking of or escaping with the property.
Ala. Code § 13A-8-43(a). Second-degree robbery occurs when a person commits
third-degree robbery and “is aided by another person actually present.” Id. § 13A-
8-42(a). First-degree robbery occurs when a person commits third-degree robbery
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and either “[i]s armed with a deadly weapon or dangerous instrument” or “[c]auses
serious physical injury to another.” Id. § 13A-8-41(a).
As mentioned, there is no binding authority resolving the issue whether a
conviction under the Alabama robbery statute categorically qualifies as a crime of
violence for purposes of the Guidelines. And it is evident from the discussion that
occurred during Defendant’s initial sentencing hearing that the issue is far from
settled. After considering the opposing arguments made by the parties, the district
court ultimately agreed with Defendant that Alabama robbery does not
categorically satisfy the elements clause, but only after noting that “on its face, the
use of the term ‘force’ within [Alabama Code §] 13A-8-43 would seem to align
well with the language that is used in” the Guidelines.
Moreover, this Court held in United States v. Lockley, 632 F.3d 1238 (11th
Cir. 2011) that a conviction under a similar Florida robbery statute categorically
qualified as a crime of violence under both the elements and the enumerated
offenses clause. Similar to Alabama Code § 13A-8-43, the Florida robbery statute
at issue in Lockley defined robbery as:
the taking of money or other property which may be the subject of larceny from the person or custody of another, with intent to either permanently or temporarily deprive the person or the owner of the money or other property, when in the course of the taking there is the use of force, violence, assault, or putting in fear.
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Fla. Stat. § 812.13(1). The Court noted that the “taking” referred to in the Florida
robbery statute, like the theft underlying Alabama robbery, “must be by the use of
force . . . so as to overcome the resistance of the victim, or by putting the victim in
fear so that the victim does not resist.” Lockley, 632 F.3d at 1242. The Court thus
identified the essential elements of Florida robbery as (1) a taking of money or
property from another person, (2) with the intent to permanently or temporarily
deprive the person of the money or property, while (3) using force or violence, or
threatening force or violence with an apparent ability to follow through on the
threat. Id. at 1242–43. These are essentially the same elements necessary to
sustain a conviction for Alabama robbery pursuant to Alabama Code § 13A-8-
43(a), and the degree of force required—force sufficient to overcome the victim’s
resistance—is defined in a similar way.
Having identified the essential elements of Florida robbery, the Court in
Lockley determined that those elements “hew almost exactly to the generic
definition of robbery” and that Florida robbery thus qualified as a crime of
violence under the enumerated offenses clause of the Guidelines. Id. at 1243. The
Court held further that Florida robbery satisfied the elements clause, as interpreted
by Curtis Johnson, because it required “either the use of force, violence, a threat of
imminent force or violence coupled with apparent ability, or some act that puts the
victim in fear of death or great bodily harm.” Id. at 1245. See also United States
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v. Fritts, 841 F.3d 937, 940–42 (11th Cir. 2016) (reaffirming that, under Lockley,
Florida robbery categorically qualifies as a violent felony under the ACCA). At
the least, it is arguable that the same reasoning applies here, supporting the
argument that Alabama robbery qualifies as a crime of violence under either (or
both) the elements clause and the enumerated offenses clause. See also United
States v. Wood, 209 F.3d 847, 851 (6th Cir. 2000) (“There is simply no ambiguity
in the language of the Alabama statute: to be guilty of robbery in the third degree a
defendant must either use force or threaten the imminent use of force against a
person sometime during the commission of a theft.”). And all we are determining
here is whether the district court’s original ruling was arguably correct. We make
no ruling on its ultimate merit.
The district court believed it could not consider Lockley when ruling on
Defendant’s Rule 35 motion because the case was not cited during Defendant’s
initial sentencing. But consideration of Lockley was essential to deciding whether
the court’s error in the initial sentencing proceeding would “almost certainly”
result in a remand, a requirement for granting Rule 35 relief. If Defendant’s initial
sentence arguably was valid in spite of the flawed rationale underlying the
sentence, then modification of the sentence under Rule 35(a) was not permitted.
Given Lockley, the district court did not clearly err in determining , at the initial
sentencing, that Defendant’s Alabama robbery convictions qualified as crimes of
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violence for purposes of the enhancement set forth in § 2K2.1(a)(2), or in applying
the enhancement in calculating Defendant’s guidelines range. Thus, the court was
not authorized to vacate Defendant’s sentence under Rule 35(a).
III. CONCLUSION
For the above reasons, we conclude that the district court erred by granting
Defendant’s Rule 35 motion and modifying the 57-month sentence it initially
imposed on Defendant. Accordingly, we VACATE Defendant’s 36-month
sentence and REMAND the case for imposition of the 57-month sentence
Defendant originally received.