United States v. Ivory Vincent Pitts

394 F. App'x 680
CourtCourt of Appeals for the Eleventh Circuit
DecidedAugust 30, 2010
Docket09-15915
StatusUnpublished
Cited by2 cases

This text of 394 F. App'x 680 (United States v. Ivory Vincent Pitts) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Ivory Vincent Pitts, 394 F. App'x 680 (11th Cir. 2010).

Opinion

PER CURIAM:

Ivory Vincent Pitts appeals his 180-month sentence for one count of possession of a firearm and ammunition by a convicted felon, 18 U.S.C. § 922(g)(1). Pitts argues that the district court erred in enhancing his sentence pursuant to the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). Specifically, Pitts argues that the district court erred in: (1) determining that his 1978 California conviction for robbery with a firearm qualified as a “violent felony;” and (2) that his 2001 Florida cocaine conviction qualified as a “serious drug offense” under the ACCA. After reading the briefs and reviewing the record we find that these two prior convictions qualified as predicate offenses for the ACCA enhancement and affirm the district court’s sentence.

I. BACKGROUND

Pitts was adjudicated guilty of robbery with a firearm, pursuant to California Penal Code § 211, on November 28, 1978 for an offense he committed when he was 18 years old. The transcript of Pitts’s plea colloquy, which the government entered into evidence at sentencing, shows that Pitts also pled no contest to the allegation that he personally used a handgun during the commission of the robbery. Doc. 62-1 at 46.

Pitts was also adjudicated guilty of possession of cocaine with intent to sell or deliver, under Florida Statute § 893.13(l)(a)l, on July 9, 2001. The government entered the probable cause affida *682 vit, information, and judgment from this conviction into evidence during the sentencing. The probable cause affidavit listed the offense Pitts was being arrested for as “Delivery Cocaine” and detailed the police officer’s observations of Pitts conducting the sale of cocaine. Id. at 61-62. The information charged Pitts with “Poss/Sell/Deliver/Cocaine.” Id. at 59-60. The judgment listed the degree of the crime as “2F.” Id. at 64.

The district court found by a preponderance of the evidence that the California robbery was a violent felony and that the Florida drug conviction was a serious drug offense. Pitts disputes these findings and appeals the district court’s sentence under the ACCA.

II. STANDARD OF REVIEW

We review de novo whether a particular conviction is a qualifying offense for the purposes of sentencing as an armed career criminal. United States v. Day, 465 F.3d 1262, 1264 (11th Cir.2006) (per curiam).

III. DISCUSSION

Under the ACCA an individual convicted under 18 U.S.C. § 922(g) is subject to a mandatory minimum 15-year sentence if he has three prior federal or state convictions “for a violent felony or a serious drug offense, or both, committed on occasions different from one another.” 18 U.S.C. § 924(e)(1). In addition, for guideline calculation purposes, a defendant subject to the ACCA automatically receives an offense level of at least 33, and a criminal history category VI. U.S.S.G. § 4B1.4(b)(3)(B) and (c)(3).

A. Pitts’s California Robbery Conviction is a Violent Felony Under the ACCA

Section 924(e) defines “violent felony,” in part, as “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.” 18 U.S.C. § 924(e)(2)(B). In March 2010, following Pitts’s sentencing, the Supreme Court clarified that, within the definition of a “violent felony,” the term “ ‘physical force’ means violent force — that is, force capable of causing physical pain or injury to another person.” Johnson v. United States, 559 U.S. -, 130 S.Ct. 1265, 1271, 176 L.Ed.2d 1 (2010).

When determining whether an offense qualifies as a violent felony, courts ordinarily employ a “categorical approach,” in that they should “examine it 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.” Begay v. United States, 553 U.S. 137, 141, 128 S.Ct. 1581, 1584, 170 L.Ed.2d 490 (2008). However, when the statute of conviction contains language providing for conviction under circumstances that involve the use of violent force as well as circumstances that do not involve the use of such force, courts may use a “modified categorical approach.” Johnson, 130 S.Ct. at 1273 (quotation omitted). Under this approach, courts may determine the precise statutory basis for conviction — and its violent or non-violent nature — by consulting documents in the trial record, including, but not limited to, charging documents, transcripts of plea colloquies, and verdict forms. Id. Under either approach, an “armed robbery conviction is undeniably a conviction for a violent felony.” United States v. Dowd, 451 F.3d 1244, 1255 (11th Cir.2006).

“Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” CaLPenal Code *683 § 211. Pitts argues that, because a person convicted under California’s robbery statute could have used either force or fear, we cannot assume he used force during the robbery. Pitts then concludes that robbery using the method a fear does not qualify as a violent felony.

A violent felony includes the “threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)®. We cannot think of any other logical way for a defendant to place fear in the victim of a robbery other than by threatening physical harm. Therefore, the California robbery statute is categorically within the definition of violent felony for the purposes of the ACCA.

Pitts’s robbery conviction also qualifies as a violent felony under the modified categorical approach because he possessed a handgun during the robbery. Since we have determined that the California robbery statute is categorically a violent felony, we do not need to discuss the modified categorical approach, but we do so to be clear that the district court’s use of the California plea colloquy transcript was proper. See Dowd, 451 F.3d at 1255. Furthermore, a violent felony also includes any felony that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. §

Related

Ivory Vincent Pitts v. United States
4 F. 4th 1109 (Eleventh Circuit, 2021)
Jackson v. United States
923 F. Supp. 2d 1334 (M.D. Florida, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
394 F. App'x 680, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-ivory-vincent-pitts-ca11-2010.