United States v. Royland Kicklighter

346 F. App'x 516
CourtCourt of Appeals for the Eleventh Circuit
DecidedSeptember 28, 2009
Docket09-10217
StatusUnpublished

This text of 346 F. App'x 516 (United States v. Royland Kicklighter) 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. Royland Kicklighter, 346 F. App'x 516 (11th Cir. 2009).

Opinion

PER CURIAM:

Royland Kicklighter appeals his 180-month sentence for distribution of methamphetamine, pursuant to 21 U.S.C. § 841(a)(1). He argues that the district court erred in deeming him to be eligible for the career offender enhancement under U.S.S.G. § 4B1.1. He also asserts that the court erred by applying that enhancement even though the government did not file an information regarding its intent to rely on his prior drug conviction, as required by 21 U.S.C. § 851. After reviewing the record, we find no error and thus AFFIRM his sentence.

I. BACKGROUND

In January 2006, Kicklighter pled guilty to one count of distribution of methamphetamine, in violation of 21 U.S.C. *518 § 841(a)(1). Because the offense involved at least 50, but less than 150, grams of methamphetamine, Kicklighter’s base offense level for the crime was 32. See U.S.S.G. § 2D 1.1 (c)(4) (Mar.2006). After a three-level sentence reduction for acceptance of responsibility, his total offense level was 29. According to the Presentence Investigation Report (“PSI”), Kick-lighter had three prior convictions — two for burglary of a residence and one for conspiracy to possess with intent to distribute marijuana — that were either crimes of violence or controlled substance offenses. As a result, Kicklighter qualified as a career offender, which changed his criminal history category from V to VI. See id. § 4Bl.l(a), (b).

Kicklighter filed a written objection to the PSI in which he asserted that the burglary convictions were not violent crimes and cited a prior district court ruling to that effect. At the sentencing hearing, the probation officer who compiled the PSI reaffirmed the career offender determination and noted that the district court order in question addressed a sentencing enhancement for possession of a firearm rather than the question of whether burglaries were violent crimes. Kicklighter’s counsel stated that, after reviewing the documentation, he agreed that the ruling addressed a different issue and that any concerns about the PSI had been resolved. Additionally, Kicklighter indicated that the reason he mentioned that ruling was because the earlier court had considered the firearm enhancement a crime of violence and he wanted to prove that he was not violent. He also stated that he knew of no other errors in the PSI. The district court then adopted the factual statements in the PSI as findings of fact.

The court noted that Kicklighter’s total offense level of 29 and criminal history category of VI yielded a guidelines range of 151 to 188 months of imprisonment. The court ultimately sentenced Kicklighter to 180 months of imprisonment. Kick-lighter’s counsel did not object to this sentence or to the court’s findings of fact or conclusions of law. Kicklighter appealed his sentence.

II. DISCUSSION

On appeal, Kicklighter raises two issues with respect to his sentence. He asserts that the district court erred by finding his two prior burglary convictions to be crimes of violence under U.S.S.G. § 4B1.1. He maintains that the statute under which he was convicted, O.C.G.A. § 16-7-1, encompasses conduct which both would and would not be considered a crime of violence under § 4B1.1, and that the court considered improper evidence in finding that his conviction was for a crime of violence. He also argues that the district court erred by imposing a career offender enhancement because the government did not provide notice of the convictions it intended to use in seeking an enhanced sentence, as required under 21 U.S.C. § 851.

A. Career Offender Enhancement

We review de novo a district court’s decision to classify a defendant as a career offender based on § 4B1.1. See United States v. Gibson, 434 F.3d 1234, 1243 (11th Cir.2006). However, if a defendant fails to raise an argument before the district court, we review it for plain error. See United States v. Be La Garza, 516 F.3d 1266, 1269 (11th Cir.2008). “Under plain error review, there must be (1) an error, (2) that is plain, (3) that affects the defendant’s substantial rights, and (4) that seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id.

*519 Section 4B1.1 deems a defendant to be a career offender if he was at least eighteen years old at the time he committed the offense for which he is being sentenced, that offense “is a felony that is either a crime of violence or a controlled substance offense,” and he “has at least two prior felony convictions of either a crime of violence or a controlled substance offense.” U.S.S.G. § 4Bl.l(a). The sentencing guidelines define a “crime of violence” as a state or federal offense punishable by imprisonment for more than a year that “(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” Id. § 4B1.2(a).

To determine whether an offense would qualify as a crime of violence under § 4B1.1, “a district court may look outside of the ‘offense of conviction’ to the conduct surrounding that conviction if ambiguities in the judgment make the crime of violence determination impossible from the face of the judgment itself.” United States v. Beckles, 565 F.3d 832, 842-43 (11th Cir.2009) (quotation marks and citation omitted). District courts thus may make additional fact findings “when the crime for which the defendant was convicted encompasses both conduct that constitutes a crime of violence and conduct that does not constitute a crime of violence.” Id. at 843. The court can base these fact findings “on undisputed statements in the PSI.” United States v. Bennett, 472 F.3d 825, 832 (11th Cir.2006) (per curiam). We deem facts contained in a PSI to be undisputed and admitted if a party does not assert a specific and clear objection to them before the sentencing court. See id.; see also Beckles, 565 F.3d at 844. The failure to make such a challenge “to conclusory statements in the PSI renders those statements undisputed and permits the sentencing court to rely upon them without error even if there is an absence of supporting evidence.” Beckles, 565 F.3d at 844.

The Georgia statute under which Kick-lighter was convicted of two burglaries, O.C.G.A.

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Related

United States v. Steven Gibson
434 F.3d 1234 (Eleventh Circuit, 2006)
United States v. Carl Bennett
472 F.3d 825 (Eleventh Circuit, 2006)
United States v. Ramirez
501 F.3d 1237 (Eleventh Circuit, 2007)
United States v. De La Garza
516 F.3d 1266 (Eleventh Circuit, 2008)
United States v. Campa
529 F.3d 980 (Eleventh Circuit, 2008)
United States v. Beckles
565 F.3d 832 (Eleventh Circuit, 2009)
Robert Young v. United States
936 F.2d 533 (Eleventh Circuit, 1991)

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Bluebook (online)
346 F. App'x 516, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-royland-kicklighter-ca11-2009.