United States v. Lusion Yoshua Rice

• Court: Court of Appeals for the Eleventh Circuit
• Decided: August 14, 2019
• Docket: 17-12366
• Status: Unpublished

Opinion

Case: 17-12365 Date Filed: 08/14/2019 Page: 1 of 9

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-12365 ________________________

D.C. Docket No. 1:16-cr-00224-RDP-HGD-1

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

DAVID ANDREW HUNT,

Defendant - Appellant.

________________________

No. 17-12366 ________________________

D.C. Docket No. 2:16-cr-00095-RDP-JHE-1

LUSION YOSHUA RICE, Case: 17-12365 Date Filed: 08/14/2019 Page: 2 of 9

No. 17-12919 ________________________

D.C. Docket No. 7:16-cr-00408-LSC-HNJ-1

DENDRICK DEMOND HALL,

Appeals from the United States District Court for the Northern District of Alabama ________________________

(August 14, 2019)

Before JORDAN, GRANT, and SILER,∗ Circuit Judges.

PER CURIAM:

The defendants in these consolidated appeals—David Hunt, Lusion Rice, and

Dendrick Hall—appeal their sentences under the Armed Career Criminal Act, 18

∗The Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting by designation. 2 Case: 17-12365 Date Filed: 08/14/2019 Page: 3 of 9

U.S.C. § 924(e), and the United States Sentencing Guidelines, including U.S.S.G. §

4B1.2(a). Following oral argument, we affirm.

I

Mr. Hunt and Mr. Rice challenge the district courts’ rulings that their Alabama

robbery convictions qualify as predicate felonies under ACCA, and argue that

Alabama robbery is not a “violent felony” under ACCA’s elements clause. See §

924(e)(2)(B)(i). Specifically, they contend that the use-of-force element in

Alabama’s robbery statute merely requires the offender to use enough force (or

threat of force) to overcome the victim’s resistance, and that such force does not

amount to violent force within the meaning of ACCA. See Ala. Code § 13A-8-43.

After the defendants filed their briefs, we addressed the use-of-force element

in Alabama robbery. We ruled in In re Welch, 884 F.3d 1319, 1324 (11th Cir. 2018),

that first-degree robbery in Alabama is a violent felony under § 924(e)(2)(B)(i),

ACCA’s elements clause. See also Stokeling v. United States, 139 S. Ct. 544, 555

(2019) (holding that Florida robbery was a “violent felony” under § 924(e)(2)(B)(i)

even though the Florida statute only required force sufficient to overcome the

victim’s resistance). Mr. Hunt and Mr. Rice correctly note that Welch was decided

in the context of a second and successive application, but it nevertheless constitutes

binding precedent. See United States v. St. Hubert, 909 F.3d 335, 345 (11th Cir.

2018).

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Based on Welch (and, to a lesser degree, Stokeling), we affirm the district

courts’ rulings that Alabama robbery is an ACCA predicate offense. Although Mr.

Hunt and Mr. Rice were convicted of second- and third-degree robbery, Alabama’s

statutory scheme utilizes the same use-of-force element for all three degrees of

robbery. Welch therefore governs. See Welch, 884 F.3d at 1324 (citing the use-of-

force element for third-degree robbery, Ala. Code § 13A-8-43).

II

Mr. Hall and Mr. Rice also challenge the district courts’ rulings that Mr. Hall’s

first-degree Alabama robbery conviction and Mr. Rice’s second- and third-degree

Alabama robbery convictions are not “crime[s] of violence” under the career

offender guideline, U.S.S.G. § 4B1.2(a).

The career offender guideline has the same elements clause as § 924(e).

Therefore, our ruling in Welch regarding § 924(e)’s elements clause forecloses Mr.

Rice’s and Mr. Hall’s challenge regarding § 4B1.2(a). See United States v. Fritts,

841 F.3d 937, 940 (11th Cir. 2016) (citing United States v. Lockley, 632 F.3d 1238,

1245 (11th Cir. 2011)).

III

Mr. Rice argues that his Michigan carjacking conviction is not a violent felony

under ACCA. We disagree.

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Michigan’s carjacking statute requires the taking of a vehicle from another

“by force or violence, or by threat of force or violence, or by putting the other person

in fear.” See Mich. Comp. Laws § 750.529a (2003). Mr. Rice contends that

Michigan carjacking is not a violent felony because Michigan caselaw allows the

state to show that the defendant “put[ ] the other person in fear” without the use or

threat of physical force. Id.

The Michigan courts have apparently not explained what is required to put

another person in fear under § 750.529a. In the one Michigan carjacking case cited

by Mr. Rice, the evidence showed that the defendant aggressively slid toward the

driver of the car and tried to push him out. See People v. Terry, 569 N.W.2d 641,

644–45 (Mich. App. 1997). That case therefore does not support Mr. Rice’s

contention that “putting in fear” under § 750.529a can be accomplished without

physical force or the threatened use of such force.

At least three of our sister circuits have ruled that the “in fear” element

contained in a Michigan robbery statute—which is similar to that used in Michigan’s

carjacking statute—encompasses the use or threatened use of physical force. See

Chaney v. United States, 917 F.3d 895, 900 (6th Cir. 2019) (Michigan attempted

unarmed robbery); United States v. Tirrell, 120 F.3d 670, 680–81 (7th Cir. 1997)

(Michigan unarmed robbery); United States v. Lamb, 638 F. App’x 575, 576–77 (8th

Cir.) (Michigan unarmed robbery), vacated on other grounds, 137 S. Ct. 494 (2016).

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The district court relied on the Sixth Circuit’s decision in Chaney, and we conclude

that it was right to do so in the absence of any Michigan caselaw holding that

“putting in fear” can be accomplished without force or threatened use of force. See

United States v. Rice, No. 2:16-cr-00095, 2017 WL 1247402,*6–7 (N.D. Ala. 2017)

(citing Chaney, 917 F.3d at 900). Cf. United States v. Green, No. 17-14940, 2019

WL 2191114, at *2 (11th Cir. May 21, 2019) (holding that Florida carjacking, which

contains an alternative “putting in fear” element, is a violent felony under the

ACCA).

IV

Mr. Hall argues that his 60-month sentence for violating 18 U.S.C. § 922(g),

the felon in possession of a firearm statute, was substantively unreasonable because

it was greater than is necessary to serve the statutory sentencing factors in 18 U.S.C.

§ 3553(a). Based on an offense level of 17 and a criminal history category of III,

Mr. Hall’s guideline range was 30–37 months’ imprisonment, and pursuant to a plea

agreement, the government recommended a sentence at the low end of the guideline

range. At sentencing, however, the district court sentenced Mr. Hall to 60-months

imprisonment, between his guideline range and the 10-year statutory maximum

penalty for a felon in possession conviction. See 18 U.S.C. § 924(a)(2).

At the sentencing hearing, the district court explicitly noted that its role in

sentencing under § 3553(a) was to impose a sentence that was “sufficient but not

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more than necessary to accomplish the sentencing goals set forth in the federal

statutes.” See Sentencing Transcript, D.E. 27 at 11. The court then concluded that

an upward variance was appropriate and a 60-month sentence was warranted in light

of Mr. Hall’s criminal history and history of using firearms during illegal activity.

See id. at 12. The court cited the fact that Mr. Hall had been previously charged with

robbery three times, was convicted of first-degree robbery once, and his first-degree

robbery conviction involved the use of a firearm. See id. at 11–12. Weighing these

facts, the court said:

When I see a robbery in the first degree charge and then somebody having a gun again, it’s clear to me that they believe they are untouchable in the system and they can do anything they want to do. And that[’s] just simply not the case. Do I need to give you a maximum? No. I don’t. But I don’t believe a guideline sentence is appropriate in this case. I believe the more appropriate sentence to give you in this instance would be 60 months in prison when I consider the nature and circumstances in your continuing conduct with firearms and violating the law.

Id. at 12. On appeal, Mr. Hall argues that the district court focused on his prior

robbery conviction involving a firearm to the exclusion of other § 3553(a) factors

and that considering his prior conviction in weighing the § 3553(a) factors was

duplicative because that conviction was accounted for in his offense level and

criminal history category.

The district court did not abuse its discretion in varying upward from the

sentencing guidelines and imposing a 60-month sentence. See Gall v. United States, 7 Case: 17-12365 Date Filed: 08/14/2019 Page: 8 of 9

552 U.S. 38, 51 (2007). Merely because the court imposed a sentence above the

guideline range does not mean the sentence is substantively unreasonable. See id. at

47 & n.3. “We will not remand for resentencing unless we are left with the definite

and firm conviction that the district court committed a clear error of judgment in

weighing the § 3553(a) factors by arriving at a sentence that lies outside the range

of reasonable sentences dictated by the facts of the case.” United States v. Croteau,

819 F.3d 1293, 1309 (11th Cir. 2016). The weight given to any specific § 3553(a)

factor is committed to the sound discretion of the district court. See United States v.

Clay, 483 F.3d 739, 743 (11th Cir. 2007). Moreover, we have said that if the

imposed sentence is below the statutory maximum sentence, like Mr. Hall’s sentence

in this case, that is a factor indicating that the imposed sentence is reasonable. See

United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008) (per curiam).

Here, the district court clearly articulated why it varied from the guidelines

and imposed a 60-month sentence. See D.E. 27 at 12. Its explanation “set forth

enough to satisfy [us] that he has considered the parties’ arguments and has a

reasoned basis for exercising his own legal decisionmaking authority.” See Rita v.

United States, 551 U.S. 338, 356 (2007). Moreover, the district court did not engage

in “[i]mpermissible double counting” when it weighed Mr. Hall’s past convictions

and misuse of firearms—which increased Mr. Hall’s offense level and criminal

history—because it viewed Mr. Hall’s prior acts under other § 3553(a) factors,

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specifically the need to afford adequate deterrence and protect the public from

further crimes. See United States v. Cubero, 754 F.3d 888, 894 (11th Cir. 2014).

V

For the foregoing reasons, the defendants’ sentences are affirmed.

AFFIRMED.