United States v. Donald Santoriello

• Court: Court of Appeals for the Eleventh Circuit
• Decided: November 26, 2018
• Docket: 17-15327
• Status: Unpublished

Opinion

Case: 17-15327 Date Filed: 11/26/2018 Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-15327 Non-Argument Calendar ________________________

D.C. Docket No. 3:17-cr-00057-RV-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DONALD SANTORIELLO,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Northern District of Florida ________________________

(November 26, 2018)

Before WILSON, JORDAN and BLACK, Circuit Judges.

PER CURIAM: Case: 17-15327 Date Filed: 11/26/2018 Page: 2 of 5

Donald Santoriello appeals his 200-month sentence imposed after pleading

guilty to possession of a firearm by a convicted felon. Santoriello asserts the

district court erred in enhancing his sentence pursuant to the Armed Career

Criminal Act (ACCA) because the three underlying convictions counted by the

district court do not qualify as violent felonies. After review,1 we affirm

Santoriello’s sentence.

Under the ACCA, any person who violates 18 U.S.C. § 922(g) and has at

least three prior convictions for violent felonies or serious drug offenses receives a

mandatory minimum sentence of 15 years’ imprisonment. 18 U.S.C. § 924(e)(1).

The ACCA’s elements clause defines a “violent felony” as any crime punishable

by a term of imprisonment exceeding one year that “has an element the use,

attempted use, or threatened use of physical force against the person of another.”

18 U.S.C. § 924(e)(2)(B)(i).

Santoriello’s argument as to two of his underlying convictions is foreclosed

by binding precedent. This Court has held that both Florida second-degree murder

and aggravated assault categorically qualify as violent felonies under the elements

clause of the ACCA. United States v. Jones, __ F.3d __, No. 17-12240, 2018 WL

5291324 at *3 (11th Cir. Oct. 25, 2018) (second-degree murder); Turner v. Warden

We review de novo whether a particular conviction qualifies as a violent felony under 1

the ACCA. United States v. Braun, 801 F.3d 1301, 1303 (11th Cir. 2015). 2 Case: 17-15327 Date Filed: 11/26/2018 Page: 3 of 5

Coleman, F.C.I., 709 F.3d 1328, 1338 (11th Cir. 2013), abrogated on other

grounds by Johnson v. United States, 135 S. Ct. 2551 (2015) (aggravated assault). 2

Santoriello’s third underlying conviction is for first-degree robbery in New

York. Under New York law, “[a] person forcibly steals property and commits

robbery when, in the course of committing a larceny, he uses or threatens the

immediate use of physical force upon another person.” N.Y. Penal Law § 160.00.

A person commits first-degree robbery in New York when, during the crime or the

immediate flight afterwards, he or another participant: (1) “[c]auses serious

physical injury to any person who is not a participant in the crime”; (2) “[i]s

armed with a deadly weapon”; (3) “[u]ses or threatens the immediate use of a

dangerous instrument; or” (4) “[d]isplays what appears to be a . . . firearm . . . .”

N.Y. Penal Law § 160.15.

Santoriello’s argument that his New York conviction for first-degree robbery

does not qualify as an ACCA predicate fails. Because New York’s first-degree

robbery statute is divisible as it “sets out one or more elements of the offense in the

alternative,” we apply a modified categorical approach. See United States v.

Davis, 875 F.3d 592, 597 (11th Cir. 2017) (providing the modified categorical

2 We have rejected the argument that Turner is no longer good law. First, in United States v. Golden, we relied upon Turner’s holding to conclude post-Johnson that aggravated assault under Fla. Stat. § 784.021 is a crime of violence under the identical definition provided in the Sentencing Guidelines. 854 F.3d 1256, 1256-57 (11th Cir. 2017). More recently, in United States v. Deshazior, we confirmed that Turner is still binding, and therefore, a Florida conviction for aggravated assault is a violent felony under the ACCA’s elements clause. 882 F.3d 1352, 1355 (11th Cir. 2018). 3 Case: 17-15327 Date Filed: 11/26/2018 Page: 4 of 5

approach is used if a statute is divisible); United States v. Howard, 742 F.3d 1334,

1345-46 (11th Cir. 2014) (explaining divisibility); see also United States v. Jones,

878 F.3d 10, 16-17 (2d Cir. 2017) (“New York's first-degree robbery statute is

divisible and therefore subject to the modified categorical approach.”). Under the

modified categorical approach, this Court may consider certain documents in

determining which subsection of the statute Santoriello violated. Davis, 875 F.3d

at 597 (stating under the modified categorical approach, a district court may

examine a limited set of judicial documents “in order to determine which of the

multiple crimes listed in the statute the defendant was convicted of committing”).

In her reply to Santoriello’s objections to the PSI, the probation officer noted

that Santoriello was convicted under “New York Code 160.15. 01.” The probation

officer also noted and agreed with the Government’s assertion that Santoriello was

convicted under subsection (1) of the statute. Additionally, during the sentencing

hearing, the Government asserted that Santoriello agreed he was convicted under

subsection (1) and the court agreed the judgment reflected Santoriello was

convicted under that subsection. Santoriello did not object to either the assertions

made in the PSI addendum or the statements of the Government and court at

sentencing. This Court has stated if a defendant fails to object to the facts of his

prior convictions as contained in his PSI or PSI addendum, those facts are deemed

admitted. United States v. Bennett, 472 F.3d 825, 832-34 (11th Cir. 2006). Thus,

4 Case: 17-15327 Date Filed: 11/26/2018 Page: 5 of 5

Santoriello has admitted he was convicted under New York Penal Law § 160.15(1)

despite the fact the judgment for his conviction has not been included in the record

on appeal.

Subsection one of the New York first-degree robbery statute satisfies the

ACCA’s elements clause because that clause requires “force capable of causing

physical pain or injury to another person,” see Johnson v. United States, 559 U.S.

133, 140 (2010) (stating “the phrase ‘physical force’ means violent force—that is,

force capable of causing physical pain or injury to another person”), and the

applicable subsection of the statute requires that “serious physical injury” result

from the robbery, Jones, 878 F.3d at 17; N.Y. Penal Law § 160.15(1).

Accordingly, the district court did not err in finding that Santoriello has three

valid predicate convictions and qualifies as an armed career criminal.

AFFIRMED.