United States v. Harlem Slaughter Turner, III

• Court: Court of Appeals for the Eleventh Circuit
• Decided: November 5, 2019
• Docket: 18-14068
• Status: Unpublished

Opinion

Case: 18-14068 Date Filed: 11/05/2019 Page: 1 of 7

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-14068 Non-Argument Calendar ________________________

D.C. Docket No. 8:17-cr-00361-SCB-AEP-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HARLEM SLAUGHTER TURNER, III,

Defendant-Appellant.

________________________

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

(November 5, 2019)

Before WILSON, WILLIAM PRYOR, and BRANCH, Circuit Judges.

PER CURIAM:

Harlem Slaughter Turner, III, appeals his 188-month sentence for possession

of a firearm and ammunition by a convicted felon, in violation of 18 U.S.C. Case: 18-14068 Date Filed: 11/05/2019 Page: 2 of 7

§§ 922(g)(1) and 924(e). On appeal, he argues that the district court erred when it

qualified him as an armed career criminal under § 924(e)(1), because he lacked the

requisite three qualifying convictions. He also argues—despite his sentence-

appeal waiver—that the district court erred when it applied a four-level

enhancement under the Sentencing Guidelines, U.S.S.G. § 2K2.1(b)(6)(B), and

when it engaged in impermissible “double counting” to enhance his sentence.

After careful review of the parties’ briefs and the record, we affirm.

I.

Under the Armed Career Criminal Act (ACCA), a convicted felon found

guilty of possession of a firearm under § 922(g)(1) is subject to a mandatory

minimum sentence of 15 years’ imprisonment if he has at least three prior

convictions for violent felonies committed on different occasions. § 924(e)(1).

During sentencing in this case, the district court concluded that Turner qualified as

an armed career criminal under § 924(e)(1) because he had at least three qualifying

convictions. Turner seeks to undermine the district court’s conclusion by disputing

the qualifications of his prior convictions listed in the Presentence Investigation

Report (PSR). Ultimately, he is unsuccessful; the district court did not err.

We review de novo both whether a conviction constitutes an ACCA violent

felony, United States v. Braun, 801 F.3d 1301, 1303 (11th Cir. 2015), and whether

2 Case: 18-14068 Date Filed: 11/05/2019 Page: 3 of 7

prior offenses meet the ACCA’s different-occasions requirement, United States v.

Longoria, 874 F.3d 1278, 1281 (11th Cir. 2017) (per curiam).

A violent felony includes “any crime punishable by imprisonment for a term

exceeding one year . . . that . . . has as an element the use, attempted use, or

threatened use of physical force against the person of another.” § 924(e)(2)(B)(i).

A conviction may qualify as an ACCA violent felony regardless of whether the

government identified the conviction in the indictment. See United States v.

Deshazior, 882 F.3d 1352, 1358 (11th Cir. 2018), cert. denied, 139 S. Ct. 1255

(2019). Further, a defendant cannot attack the validity of a prior state conviction

that otherwise qualifies as a violent felony, unless the attack is based on a violation

of his right to counsel. Custis v. United States, 511 U.S. 485, 487 (1994).

We have the luxury of standing on prior panels’ shoulders as we decide

whether each of Turner’s prior convictions constitutes an ACCA violent felony.

Based on our precedent,1 Florida armed robbery is categorically a violent felony

under the ACCA’s elements clause. United States v. Fritts, 841 F.3d 937, 942–44

(11th Cir. 2016). So too is Florida attempted robbery. United States v. Joyner,

882 F.3d 1369, 1378–79 (11th Cir. 2018), cert. denied, 139 S. Ct. 1256 (2019); see

1 “Under the well-established prior panel precedent rule of this Circuit, the holding of the first panel to address an issue is the law of this Circuit, thereby binding all subsequent panels unless and until the first panel's holding is overruled by the Court sitting en banc or by the Supreme Court.” Smith v. GTE Corp., 236 F.3d 1292, 1300 n.8 (11th Cir. 2001); see also United States v. Lee, 886 F.3d 1161, 1163 & n.3 (11th Cir. 2018) (per curiam), petition for cert. filed, (U.S. July 23, 2019) (No. 19-5331). 3 Case: 18-14068 Date Filed: 11/05/2019 Page: 4 of 7

also Lee, 886 F.3d at 1163 n.1 (stating that “Florida strong-arm robbery, armed

robbery, and attempted robbery are all treated the same for purposes of analyzing

the ACCA’s elements clause”). Turner’s PSR indisputably listed three armed

robberies and one attempted armed robbery, surpassing the three violent felonies

required for ACCA purposes.

But identifying at least three violent felonies is not enough. The defendant

must also have committed the underlying crimes “on occasions different from one

another.” § 924(e)(1). Thus, the government must identify at least three “separate

and distinct criminal episode[s],” indicated by differences in time and place.

United States v. Sneed, 600 F.3d 1326, 1329 (11th Cir. 2010) (internal quotation

mark omitted). Successive crimes constitute separate criminal episodes under the

ACCA, but simultaneous crimes do not. Longoria, 874 F.3d at 1281.

Here, the district court properly determined that Turner qualified as an

armed career criminal. According to the PSR, Turner had the following Florida

convictions: (1) armed robbery, committed on May 2, 1995; (2) armed robbery,

committed on May 4, 1995; (3) armed robbery, or armed kidnapping, committed

on May 4, 1995; (4) aggravated battery with a deadly weapon, or attempted armed

robbery, committed on May 11, 1995; and (5) aggravated battery with a deadly

weapon, committed on June 11, 2010. We count at least three violent felonies:

Turner’s three armed robberies and one attempted armed robbery. See Fritts, 841

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F.3d at 942–44 (armed robbery); Joyner, 882 F.3d at 1378–79 (attempted robbery).

And at least three of those crimes occurred during three separate criminal episodes:

May 2, 1995; May 4, 1995; and May 11, 1995. See Sneed, 600 F.3d at 1329.

Therefore, we conclude that at least2 three convictions qualify Turner as an armed

career criminal: (1) the May 2 armed robbery; (2) either of the two May 4 armed

robberies; and (3) the May 11 attempted armed robbery.

But Turner attempts to poke several holes in his classification as an armed

career criminal. First, he argues that we should not rely on his May 2 conviction

for armed robbery because the government violated due process by effectively

failing to notify him that that conviction would support a sentence enhancement.

This argument is meritless because it rests on the fallacious premise that the

government must identify a conviction in the indictment. See Deshazior, 882 F.3d

at 1358.

As for his May 11 attempted armed robbery, Turner acknowledges his guilty

plea but argues that the Fifth, Sixth, and Eighth Amendments preclude our reliance

on that conviction because he can show evidence that he was in custody during the

2 Given our analysis, we need not address the parties’ arguments about (1) whether the May 4, 1995 convictions happened on different occasions; (2) whether the May 4, 1995 armed kidnapping qualifies as a violent felony; or (3) whether the June 11, 2010 aggravated battery with a deadly weapon qualifies as a violent felony. 5 Case: 18-14068 Date Filed: 11/05/2019 Page: 6 of 7

crime’s commission. But such an attack on that conviction is futile because Turner

does not allege a violation of his right to counsel. See Custis, 511 U.S. at 487.

Thus, the district court properly sentenced Turner as an armed career

criminal under the ACCA.

II.

Turner also appeals his sentence because, he argues, the district court erred

by applying a four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) and by

engaging in impermissible “double counting” to enhance his sentence. The

government seeks dismissal of Turner’s § 2K2.1(b)(6)(B) and double-counting

arguments because Turner knowingly and voluntarily waived his right to appeal his

sentence on these bases. Turner replies that his challenges trigger one of the four

exceptions to the waiver because his sentence violates the Eighth Amendment. 3

We disagree; his challenges do not fit the exception and are thus barred by the

waiver.

Turner’s attacks on his sentence masquerade as Eighth Amendment

challenges, but not well. In his initial brief, Turner neither identifies nor discusses

the Eighth Amendment as a basis for appeal. Granted, in the “Summary of

Argument” section, he makes a passing reference to how the district court’s

3 Turner does not dispute that he made the waiver knowingly and voluntarily or that the waiver was valid. 6 Case: 18-14068 Date Filed: 11/05/2019 Page: 7 of 7

impermissible double counting led to “a constitutionally impermissible and

excessive sentence.” But no more is said about that. And even after the

government argued that his waiver barred his § 2K2.1(b)(6)(B) and double-

counting arguments, Turner replied with a major heading for those arguments that

fails to reference the Eighth Amendment. At no point does he cite legal authority

regarding the Eighth Amendment or analyze an Eighth Amendment issue. He

assumes that superficially invoking the exception is enough. It is not. Cf. Williams

v. United States, 396 F.3d 1340, 1342 (11th Cir. 2005) (holding that a sentence-

appeal waiver precluded a defendant from circumventing the waiver “simply by

recasting a challenge to his sentence . . . [and] thus rendering the waiver

meaningless”).

To entertain Turner’s attempted work-around of his waiver is to deprive “the

government of the benefit that it has bargained for and obtained in the plea

agreement containing the . . . waiver.” See United States v. Buchanan, 131 F.3d

1005, 1008 (11th Cir. 1997) (per curiam). This we will not do. We will enforce

the waiver without requiring the government to brief the merits of Turner’s

§ 2K2.1(b)(6)(B) and double-counting arguments on appeal. See id.

Accordingly, we affirm the sentence.

AFFIRMED.