Case: 12-11022 Date Filed: 10/31/2012 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 12-11022 Non-Argument Calendar ________________________
D.C. Docket No. 5:10-cr-00027-LGW-JEG-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARK ELDON CREWS,
Defendant-Appellant. ________________________
Appeal from the United States District Court for the Southern District of Georgia ________________________ (October 31, 2012)
Before CARNES, BARKETT, and WILSON, Circuit Judges.
PER CURIAM:
Mark Crews appeals his 180-month sentence for possession of a firearm as a
felon and armed career criminal, as determined by the Armed Career Criminal Act
(“ACCA”). See 18 U.S.C. §§ 922(g)(1), 924(e). Crews qualified as an armed Case: 12-11022 Date Filed: 10/31/2012 Page: 2 of 7
career criminal under the ACCA due to his prior convictions for burglarizing or
attempting to burglarize various businesses and his 180-month sentence was the
minimum sentence required by the ACCA. 18 U.S.C. § 924(e)(1). On appeal,
Crews argues that the ACCA is unconstitutional under the Fifth, Sixth, and Eighth
Amendments; that the district court erred in applying a four-level increase to
Crews’s offense level for use or possession of a firearm in connection with another
felony offense; and that his sentence is substantively unreasonable.
I.
Crews first argues that the ACCA and its implementing guidelines are
unconstitutional based on the Equal Protection Clause because the distinction
between generic (i.e., structure) and non-generic (i.e., non-structure) burglaries
bears no rational relationship to a legitimate government purpose. See Lofton v.
Sec’y of Dep’t of Children and Family Servs., 358 F.3d 804, 817-18 (11th Cir.
2004) (“[W]hen a challenged classification does not burden a fundamental right or
target a suspect class, we determine whether the classification is rationally related
to a legitimate state interest.). We review the constitutionality of statutes de novo.
United States v. Reynolds, 215 F.3d 1210, 1212 (11th Cir. 2000). For rational-
basis equal protection challenges, the “legislation must be sustained if there is any
conceivable basis for the legislature that the means they have selected will tend to
2 Case: 12-11022 Date Filed: 10/31/2012 Page: 3 of 7
accomplish the desired end[.]” Bah v. City of Atlanta, 103 F.3d 964, 967 (11th
Cir. 1997).
Under the ACCA, a person convicted under 18 U.S.C. § 922(g) is subject to
a mandatory minimum sentence of 15 years’ imprisonment if he has three prior
convictions for a violent felony or serious drug offense, committed on different
occasions. 18 U.S.C. § 924(e)(1). Regarding burglary, “[a]s the [ACCA] has been
interpreted, a conviction for ‘generic burglary’ counts as a violent felony, while a
conviction for ‘non-generic burglary’ does not.” United States v. Rainer, 616 F.3d
1212, 1213 (11th Cir. 2010). A “generic” burglary is “any crime, regardless of its
exact definition or label, having the basic elements of unlawful or unprivileged
entry into, or remaining in, a building or structure, with intent to commit a crime.”
Taylor v. United States, 495 U.S. 575, 599 (1990). A “non-generic” burglary is
one that “do[es] not include all of the elements essential to generic burglaries,”
including burglaries of boats, automobiles, and other non-buildings. Rainer, 616
F.3d at 1214.
The government has a legitimate interest in “prevent[ing] repeat offenders
from continuing to victimize society.” See United States v. Johns, 984 F.2d 1162,
1164 (11th Cir. 1993) (holding that sentencing criminals in part based on criminal
history is rationally related to a legitimate government interest). The Supreme
Court in Taylor determined that Congress targeted burglaries of buildings and
3 Case: 12-11022 Date Filed: 10/31/2012 Page: 4 of 7
structures because of the inherent potential for a violent confrontation, Taylor, 495
U.S. at 588,1 and also likely because such generic burglaries “were so often
committed by career criminals[,]” Id. at 597. Accordingly, we reject Crews’s
argument that the application of the ACCA to generic burglaries is not rationally
related to a legitimate government interest.
II.
Crews next argues that the ACCA and its implementing guidelines are
unconstitutional based on the Eighth Amendment’s prohibition against cruel and
unusual punishment because the sentencing scheme imposes a mandatory
minimum sentence without regard for the circumstances of the predicate
convictions. In noncapital cases, the Eighth Amendment forbids extreme
sentences that are grossly disproportionate to the crime. United States v. Farley,
607 F.3d 1294, 1343 (11th Cir. 2010); United States v. Lyons, 403 F.3d 1248,
1256 (11th Cir. 2005).
We have already held that the ACCA’s 15-year mandatory minimum
sentence is neither cruel and unusual punishment nor disproportionate to the
1 The Taylor Court stated that:
Congress singled out burglary (as opposed to other frequently committed property crimes such as larceny and auto theft) for inclusion as a predicate offense, . . . because of its inherent potential for harm to persons. The fact that an offender enters a building to commit a crime often creates the possibility of a violent confrontation between the offender and an occupant, caretaker, or some other person who comes to investigate.
495 U.S. at 588. 4 Case: 12-11022 Date Filed: 10/31/2012 Page: 5 of 7
offense of being a felon in possession of a firearm. See U.S. v. Reynolds, 215 F.3d
1210, 1214 (11th Cir. 2000) (affirming 180-month sentence imposed after
defendant’s guilty plea to possession of firearm by convicted felon in violation of
18 U.S.C. §§ 922(g)(1) and 924(e)). In determining this proportionality, we do not
focus on the circumstances related to the predicate convictions, “but rather on the
fact that a person with three or more violent felony or serious drug convictions
currently possesses a firearm.” Id. Likewise, we conclude here that Crews’s
sentence was not grossly disproportionate to the offense and thus did not violate
the Eighth Amendment’s prohibition against cruel and unusual punishment. See
id. at 1212-13.
III.
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Case: 12-11022 Date Filed: 10/31/2012 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 12-11022 Non-Argument Calendar ________________________
D.C. Docket No. 5:10-cr-00027-LGW-JEG-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARK ELDON CREWS,
Defendant-Appellant. ________________________
Appeal from the United States District Court for the Southern District of Georgia ________________________ (October 31, 2012)
Before CARNES, BARKETT, and WILSON, Circuit Judges.
PER CURIAM:
Mark Crews appeals his 180-month sentence for possession of a firearm as a
felon and armed career criminal, as determined by the Armed Career Criminal Act
(“ACCA”). See 18 U.S.C. §§ 922(g)(1), 924(e). Crews qualified as an armed Case: 12-11022 Date Filed: 10/31/2012 Page: 2 of 7
career criminal under the ACCA due to his prior convictions for burglarizing or
attempting to burglarize various businesses and his 180-month sentence was the
minimum sentence required by the ACCA. 18 U.S.C. § 924(e)(1). On appeal,
Crews argues that the ACCA is unconstitutional under the Fifth, Sixth, and Eighth
Amendments; that the district court erred in applying a four-level increase to
Crews’s offense level for use or possession of a firearm in connection with another
felony offense; and that his sentence is substantively unreasonable.
I.
Crews first argues that the ACCA and its implementing guidelines are
unconstitutional based on the Equal Protection Clause because the distinction
between generic (i.e., structure) and non-generic (i.e., non-structure) burglaries
bears no rational relationship to a legitimate government purpose. See Lofton v.
Sec’y of Dep’t of Children and Family Servs., 358 F.3d 804, 817-18 (11th Cir.
2004) (“[W]hen a challenged classification does not burden a fundamental right or
target a suspect class, we determine whether the classification is rationally related
to a legitimate state interest.). We review the constitutionality of statutes de novo.
United States v. Reynolds, 215 F.3d 1210, 1212 (11th Cir. 2000). For rational-
basis equal protection challenges, the “legislation must be sustained if there is any
conceivable basis for the legislature that the means they have selected will tend to
2 Case: 12-11022 Date Filed: 10/31/2012 Page: 3 of 7
accomplish the desired end[.]” Bah v. City of Atlanta, 103 F.3d 964, 967 (11th
Cir. 1997).
Under the ACCA, a person convicted under 18 U.S.C. § 922(g) is subject to
a mandatory minimum sentence of 15 years’ imprisonment if he has three prior
convictions for a violent felony or serious drug offense, committed on different
occasions. 18 U.S.C. § 924(e)(1). Regarding burglary, “[a]s the [ACCA] has been
interpreted, a conviction for ‘generic burglary’ counts as a violent felony, while a
conviction for ‘non-generic burglary’ does not.” United States v. Rainer, 616 F.3d
1212, 1213 (11th Cir. 2010). A “generic” burglary is “any crime, regardless of its
exact definition or label, having the basic elements of unlawful or unprivileged
entry into, or remaining in, a building or structure, with intent to commit a crime.”
Taylor v. United States, 495 U.S. 575, 599 (1990). A “non-generic” burglary is
one that “do[es] not include all of the elements essential to generic burglaries,”
including burglaries of boats, automobiles, and other non-buildings. Rainer, 616
F.3d at 1214.
The government has a legitimate interest in “prevent[ing] repeat offenders
from continuing to victimize society.” See United States v. Johns, 984 F.2d 1162,
1164 (11th Cir. 1993) (holding that sentencing criminals in part based on criminal
history is rationally related to a legitimate government interest). The Supreme
Court in Taylor determined that Congress targeted burglaries of buildings and
3 Case: 12-11022 Date Filed: 10/31/2012 Page: 4 of 7
structures because of the inherent potential for a violent confrontation, Taylor, 495
U.S. at 588,1 and also likely because such generic burglaries “were so often
committed by career criminals[,]” Id. at 597. Accordingly, we reject Crews’s
argument that the application of the ACCA to generic burglaries is not rationally
related to a legitimate government interest.
II.
Crews next argues that the ACCA and its implementing guidelines are
unconstitutional based on the Eighth Amendment’s prohibition against cruel and
unusual punishment because the sentencing scheme imposes a mandatory
minimum sentence without regard for the circumstances of the predicate
convictions. In noncapital cases, the Eighth Amendment forbids extreme
sentences that are grossly disproportionate to the crime. United States v. Farley,
607 F.3d 1294, 1343 (11th Cir. 2010); United States v. Lyons, 403 F.3d 1248,
1256 (11th Cir. 2005).
We have already held that the ACCA’s 15-year mandatory minimum
sentence is neither cruel and unusual punishment nor disproportionate to the
1 The Taylor Court stated that:
Congress singled out burglary (as opposed to other frequently committed property crimes such as larceny and auto theft) for inclusion as a predicate offense, . . . because of its inherent potential for harm to persons. The fact that an offender enters a building to commit a crime often creates the possibility of a violent confrontation between the offender and an occupant, caretaker, or some other person who comes to investigate.
495 U.S. at 588. 4 Case: 12-11022 Date Filed: 10/31/2012 Page: 5 of 7
offense of being a felon in possession of a firearm. See U.S. v. Reynolds, 215 F.3d
1210, 1214 (11th Cir. 2000) (affirming 180-month sentence imposed after
defendant’s guilty plea to possession of firearm by convicted felon in violation of
18 U.S.C. §§ 922(g)(1) and 924(e)). In determining this proportionality, we do not
focus on the circumstances related to the predicate convictions, “but rather on the
fact that a person with three or more violent felony or serious drug convictions
currently possesses a firearm.” Id. Likewise, we conclude here that Crews’s
sentence was not grossly disproportionate to the offense and thus did not violate
the Eighth Amendment’s prohibition against cruel and unusual punishment. See
id. at 1212-13.
III.
Crews further argues that the ACCA and its implementing sentencing
guidelines are unconstitutional based on the Sixth Amendment because Crews has
a right to have a jury find any factor that enhances his sentence, including his prior
convictions. Under the Sixth Amendment, a defendant has the right to demand that
a jury find him guilty of all the elements of the crime with which he is charged.
United States v. Booker, 543 U.S. 220, 230 (2005). In Almendarez-Torres v.
United States, the Supreme Court held that a prior conviction is not a fact that must
be alleged in the indictment or found by a jury beyond a reasonable doubt. 523
U.S. 224, 239-47 (1998). Thus, in United States v. Greer, we relied on
5 Case: 12-11022 Date Filed: 10/31/2012 Page: 6 of 7
Almendarez-Torres in holding that a district court did not violate the Eighth
Amendment in determining, based on the conviction documents, that the defendant
committed violent felonies for purposes of the ACCA. 440 F.3d 1267, 1275-76
(11th Cir. 2006). Likewise here, we reject Crews’s argument that the district court
violated the Sixth Amendment by sentencing him as an armed career criminal.
IV.
Crews also contends that the district court erred in applying a four-level
increase to his offense level for use or possession of a firearm in connection with
another felony offense. He argues that the district court based this increase on
information that did not have sufficient indicia of reliability to support its probable
accuracy because the presentence investigation report contained contradictory
information. Even assuming arguendo that the district court erred in applying the
four-level increase under § 2K2.1, the error was harmless, as the increase had no
effect on Crews’s ultimate offense level, which was determined by the application
of the ACCA. United States v. Sarras, 575 F.3d 1191, 1220 n.39 (11th Cir. 2009)
(holding that any error by a district court in applying a sentencing enhancement is
harmless if it did not change a defendant’s total offense level).
V.
Crews’s final argument on appeal is that his 180-month sentence was
substantively unreasonable under the sentencing factors in 18 U.S.C. § 3553(a)
6 Case: 12-11022 Date Filed: 10/31/2012 Page: 7 of 7
because it was greater than necessary to achieve the goals in § 3553(a)(2), given
that his criminal history was non-violent and involved non-residential burglaries.
Again, the judge sentenced Crew to the minimum required under the ACCA and
Crews does not assert that an exception to the ACCA minimum sentence applies
here. The district court did not err because it lacked any discretion to use the §
3553(a) factors to vary downward from the minimum sentence. See United States
v. Gomes, 621 F.3d 1343, 1346 (11th Cir. 2010) (holding that a district court
commits reversible error when it sentences a defendant to less than the statutory
minimum where no exception to the mandatory minimum applies).
Upon review of the record and consideration of the parties’ briefs, we
affirm.
AFFIRMED.