USCA11 Case: 20-12574 Date Filed: 12/28/2021 Page: 1 of 12
[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-12574
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
ORTAZ SHARP,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:19-cr-00450-LMM-1
____________________
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2 Opinion of the Court 20-12574
Before WILSON, LAGOA, Circuit Judges, and MARTINEZ,* District
Judge.
MARTINEZ, District Judge:
The government appeals Ortaz Sharp’s 110-month sentence
for possessing a firearm as a convicted felon. It argues that the district court erred in determining that Sharp did not qualify for an
Armed Career Criminal Act (“ACCA”) enhancement pursuant to
18 U.S.C. § 924(e)(1). The two issues before us are (1) whether the
government waived its argument that Sharp’s prior conviction for
making terroristic threats under O.C.G.A. § 16-11-37 qualifies as an
ACCA predicate offense by failing to raise the argument before the
district court because it was foreclosed by binding precedent; and
(2) whether the Georgia robbery statute is a predicate offense under the ACCA. We find that the government did not waive its argument. As such, we need not determine whether a conviction for
robbery under Georgia law is an ACCA predicate offense. Sharp’s
sentence is vacated, and the case is remanded for resentencing in
accordance with this order.
I. BACKGROUND
Sharp was charged by information with a single count of
possessing a firearm as a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1). He pled guilty to this charge pursuant to a plea
*Honorable Jose E. Martinez, United States District Judge for the Southern
District of Florida, sitting by designation.
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20-12574 Opinion of the Court 3
agreement. According to the presentence investigation report
(“PSI”) prepared by a probation officer, Sharp was subject to an enhanced sentence as an Armed Career Criminal under
18 U.S.C. §
924(e)(1). The PSI identified Sharp’s prior Georgia convictions that
qualified as violent offenses under the ACCA as: robbery by force,
burglary, and aggravated battery. In addition, the PSI contained a
laundry list of prior convictions, including a conviction for making
terroristic threats, in violation of O.C.G.A. § 16-11-37.
At Sharp’s sentencing hearing, the government argued that
Sharp was an Armed Career Criminal under § 924(e)(1), subject to
a mandatory sentence of 15 years. The government’s request for
the enhancement was premised on the same three convictions
listed in the PSI, namely, Sharp’s Georgia convictions for robbery,
burglary, and aggravated battery. The government did not argue
that Sharp’s terroristic threats conviction was a violent offense under the elements clause of the ACCA because, at the time of sentencing, this court’s decision in United States v. Oliver (Oliver II),
955 F.3d 887 (11th Cir. 2020) expressly held that a conviction under
Georgia’s terroristic threats statute did not qualify as an ACCA
predicate offense. The district court did not touch on the issue,
either.
After a thorough analysis, the district court determined that
the Georgia robbery statute was indivisible and that it was not a
predicate ACCA conviction. It ultimately found that Sharp was not
an Armed Career Criminal under the ACCA because he did not
have three qualifying predicate offenses. Sharp was therefore
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sentenced to 110 months’ imprisonment, followed by three years
of supervised release.
Ten days after Sharp’s sentencing, we vacated Oliver II and
held that Georgia’s terroristic threats statute, O.C.G.A. § 16-11-37,
is divisible, and that a threat “to commit any crime of violence”
qualifies as a predicate offense under the ACCA. See United States
v. Oliver (Oliver III), 962 F.3d 1311, 1321 (11th Cir. 2020). In light
of Oliver III, the government moved the district court to reconsider
its finding that Sharp did not qualify as an Armed Career Criminal.
According to the government, this intervening change in Circuit
precedent merited reconsideration of the district court’s ruling as
to Sharp’s status as an Armed Career Criminal.
Prior to the district court’s ruling on the motion for reconsideration, the government filed its notice of appeal. The district
court denied the motion for reconsideration without prejudice. In
doing so, it stated that, while “the [g]overnment’s position may be
meritorious,” the district court lacked jurisdiction to rule on the
motion because the government filed a notice of appeal. 1
This appeal ensued.
II. STANDARD OF REVIEW
We review de novo whether a prior conviction is a predicate
offense within the meaning of the ACCA. Oliver III, 962 F.3d at
1The government does not appeal the district court’s denial of its motion for
reconsideration.
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20-12574 Opinion of the Court 5
1316. We have broad discretion to decide the limits of a remand
for resentencing as may be just under the circumstances of the case.
United States v. Martinez, 606 F.3d 1303, 1304 (11th Cir. 2010).
III. DISCUSSION
A defendant who is found guilty of possessing a firearm as a
felon under 18 U.S.C. § 922(g)(1) can only be sentenced to a maximum of ten years, unless he has three or more prior convictions
for “a violent felony or a serious drug offense, or both.”
18 U.S.C.
§ 924(e)(1). Under the ACCA, a “violent felony” is defined as any
crime punishable by a term of imprisonment exceeding one year
that “has as an element the use, attempted use, or threatened use
of physical force against the person of another.”
Id. §
924(e)(2)(B)(i). This provision is often referred to as the “elements
clause.” United States v. Owens,
672 F.3d 966, 968 (11th Cir. 2012).
If a defendant who violated § 922(g)(1) has at least three qualifying
“violent felony” convictions, the ACCA prescribes a mandatory
minimum sentence of fifteen years.
18 U.S.C. § 924(e)(2)(B). The
district court is required to impose this minimum sentence regardless of whether the government seeks application of the enhancement. See United States v. Symington,
781 F.3d 1308, 1313 (11th
Cir. 2015).
To determine whether a prior conviction qualifies as a violent felony under the elements clause, we apply what has become
known as the “categorical approach.” Oliver III, 962 F.3d at 1316.
Under this approach, we examine only “‘the elements of the statute
of conviction,’ not the ‘specific conduct of [a] particular offender.’”
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United States v. Davis, 875 F.3d 592, 597 (11th Cir. 2017) (quoting
Mathis v. United States,
136 S. Ct. 2243, 2248 (2016)). “If the ‘least
of the acts criminalized’ by the statute of conviction has an element
requiring ‘the use, attempted use, or threatened use of physical
force against the person of another,’ then the offense categorically
qualifies as a violent felony under the ACCA’s elements clause.”
Oliver III, 962 F.3d at 1316 (quoting Davis,
875 F.3d at 597). If not,
our inquiry ends, “and the prior conviction does not count as a violent felony under the elements clause.”
Id.
The categorical approach, however, applies only when the
statute in question is “indivisible.” Id. at 1316–17. If a statute is
“divisible,” we apply the modified categorical approach.
Id. Under
the modified categorical approach, we consider a limited class of
documents, including the indictment, jury instructions, or plea
agreements and colloquy, to determine which of the multiple
crimes listed in the alternatively phrased statute the defendant was
convicted of committing. Id. at 1317. Because the modified categorical approach plays no role when a statute of conviction is indivisible, a court must first determine whether a statute is divisible
before proceeding with an analysis under either approach. Id.
A “divisible” statute “lists multiple, alternative elements,”
which “effectively creates ‘several different . . . crimes.’” Descamps
v. United States, 570 U.S. 254, 264 (2013) (quoting Nijhawan v.
Holder,
557 U.S. 29, 41 (2009)). “‘Elements’ are the ‘constituent
parts’ of a crime’s legal definition—the things the ‘prosecution
must prove to sustain a conviction.’” Mathis,
136 S. Ct. at 2248
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(citing Element, Black’s Law Dictionary (10th ed. 2014)). By contrast, an “indivisible” statute lists “means,” which are “various factual ways of committing some component of the offense . . . .”
Id.
at 2249.
Following this framework, in Oliver III we held that Georgia’s terroristic threats statute, O.C.G.A. § 16-11-37, is divisible. Oliver III, 962 F.3d at 1321. Applying the modified categorical approach, we determined that a threat “to commit any crime of violence” qualifies as a violent felony under the ACCA’s elements
clause. Id. at 1320–21. This ruling came only ten days after Sharp
was sentenced.
The government argues on appeal that, pursuant to Oliver
III, Sharp qualifies as an Armed Career Criminal because his conviction for terroristic threats is a violent felony under the ACCA.
The government maintains that it was not required to argue that
Sharp’s terroristic threats conviction qualified as a predicate ACCA
offense at the time of sentencing because the argument was foreclosed by Oliver II, which was binding precedent at the time. Sharp
responds that the government waived this argument by not objecting at sentencing to the terroristic threats conviction not being
treated as an ACCA predicate.
It is undisputed that, at the time of sentencing, Sharp’s Georgia terroristic threats conviction did not qualify as an ACCA predicate offense. Thus, the question before us is whether the government may now rely on this conviction to argue that the ACCA enhancement applies to Sharp, when it failed to do so at the time of
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sentencing because the argument was foreclosed by binding Circuit precedent.
Our Circuit has not yet addressed this question, but we find
guidance in our decision in Tribue v. United States, 929 F.3d 1326
(11th Cir. 2019). The district court in Tribue denied relief under
28
U.S.C. § 2255 concluding that although Tribue’s conviction for fleeing and eluding no longer qualified as a violent felony under the
ACCA, he nevertheless qualified as an Armed Career Criminal because he still had three qualifying serious drug offenses.
Id. at 1327.
Tribue appealed this decision, primarily arguing that the government effectively waived reliance on the use of other convictions
outside those identified as ACCA predicates in the PSI.
Id. at 1332.
We rejected Tribue’s argument for three reasons. First, we
noted that at the original sentencing, Tribue admitted responsibility for all of the convictions listed in the PSI, so there was no dispute as to the factual existence of all the convictions. Id. at 1328–
1329, 1332. Second, Tribue did not object to his ACCA enhancement.
Id. Third, we reasoned that
there is no requirement that the government prospectively address whether each and every conviction
listed in the criminal history section of a PSI is an
ACCA predicate in order to guard against potential
future changes in the law and avoid later claims that
it has waived use of those convictions as qualifying
ACCA predicates. In other words, when there is no
objection by the defendant to the three convictions
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identified as ACCA predicates, the government bears
no burden to argue or prove alternative grounds to
support the ACCA enhancement.
Id. We further noted that “the government [in Tribue] did not
waive reliance on other convictions in the PSI as ACCA predicates
simply by not objecting to the PSI on the grounds that Tribue had
more qualifying convictions than the three” identified in the PSI as
supporting the ACCA enhancement.
Id.
Although not directly on point, we find the analysis in
Tribue instructive. Indeed, the same underlying concerns presented in Tribue are reflected here. The government is not required to exhaustively address whether each conviction in the PSI
qualifies as an ACCA predicate in order to preserve the argument
and guard against an intervening change in the law. Tribue, 929
F.3d at 1332. While, unlike Tribue, Sharp objected to the ACCA
enhancement at sentencing, at that time, the terroristic threats conviction did not qualify as a “violent felony” under the ACCA. It
follows, then, that the government had no alternative grounds on
which to rest its argument that Sharp qualified as an Armed Career
Criminal, other than those it presented to the district court. Just as
Sharp could not have expected that we would later hold that his
terroristic threats conviction qualified as a violent felony, neither
could the government. See
id. We cannot require the government
to make an argument that was not available to it at the time. Notwithstanding, our holding is limited to cases such as this one,
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where an intervening change in the law occurs within the period
of time allotted for filing a notice of appeal.
Without citing to any authority, Sharp suggests that if the
government believed Oliver II was wrongly decided, it should have
argued so before the district court. Sharp would effectively have
us rule that the government must anticipate all potential changes
in the law, or at the very least, argue before the district court that
it does not agree with binding precedent. That is simply too far a
stretch. We will not impose this burden on either the government
or the district courts, who would be obliged to address a myriad of
frivolous and futile objections.
We acknowledge that, in some instances, we have ruled that
the government has waived reliance on the use of a conviction outside the three convictions identified as ACCA predicates in a PSI.
See United States v. Canty, 570 F.3d 1251 (11th Cir. 2009); Bryant
v. Warden, FCC Coleman-Medium,
738 F.3d 1253 (11th Cir. 2013),
overruled on other grounds by McCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc.,
851 F.3d 1076 (11th Cir. 2017) (en banc); United
States v. Petite,
703 F.3d 1290 (11th Cir. 2013). Yet, these cases are
materially distinguishable from the circumstances presented here.
In those cases, the government’s reliance on the additional conviction as an ACCA predicate was not foreclosed by binding precedent
at the time of sentencing. In other words, the government could
have argued that the defendant’s other convictions qualified as
ACCA predicates but failed to do so. Conversely, here, the argument was not available to the government. This alone suffices to
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support a finding against waiver. But, notably, unlike in Bryant,
the district court here “did not review all of [Sharp’s] convictions,
much less make any finding about all of them.” See Tribue,
929
F.3d at 1334. The district court only made findings as to the convictions listed in the PSI as ACCA predicates, and primarily focused
on Sharp’s conviction for robbery by force.
Accordingly, we must remand this case to the district court
to address whether Sharp qualifies as an Armed Career Criminal in
light of Oliver III. On remand, the district court must make factual
findings about Sharp’s conviction under Georgia’s terroristic
threats statute, and whether this conviction qualifies as an ACCA
predicate. Because the district court did not have the opportunity
to review evidence as to Sharp’s terroristic threats conviction, on
remand, both the government and Sharp may submit evidence regarding the same. See United States v. Washington, 714 F.3d 1358,
1362 (11th Cir. 2013) (explaining that this court has discretion to
permit the government to present evidence at resentencing in situations where the issue was not previously before the district
court); Martinez,
606 F.3d at 1305 (“[A] reviewing panel may remand for limited purposes, for broader purposes, or to permit further evidence to be presented on the second round even when a
party has been given an opportunity but fails to do so in the first
round.”).
IV. CONCLUSION
We hold that the government did not waive its argument
that Sharp’s conviction qualified as a predicate crime of violence
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under the ACCA, where, as here, the argument was foreclosed by
binding precedent at the time of sentencing and the change in law
occurred within the time to file a notice of appeal. Because we find
that the government did not waive this argument, we need not address whether the Georgia robbery statute constitutes an ACCA
predicate offense. Based on the foregoing, Sharp’s sentence is vacated, and the case is remanded for resentencing consistent with
this opinion.
REVERSED IN PART AND REMANDED FOR
RESENTENCING.
