from the United States District Court for the Northern
District of Alabama D.C. Docket No. 7:17-cr-00145-LSC-HNJ-1
MARCUS, JULIE CARNES, and KELLY, [*] Circuit Judges.
MARCUS, CIRCUIT JUDGE.
Marquell Harris appeals a 210-month sentence imposed after he
pled guilty to one count of being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1). The
district court enhanced appellant's sentence under the
Armed Career Criminal Act ("ACCA") based, in part,
on his prior conviction for attempted first-degree assault
under Alabama Code § 13A-6-20(a), which the sentencing
court counted as a "violent felony" under the
ACCA's elements clause. On appeal, Harris argues that the
district court erred in concluding that his §
13A-6-20(a) conviction qualified as a violent felony because
(1) the government's proffered transcript of the plea
colloquy taken from his state conviction did not qualify as a
Shepard document and therefore could not be
considered by the sentencing court, and (2) the plea colloquy
itself failed to establish under which subsection of §
13A-6-20(a) he pled guilty, and some of the offenses
contained in § 13A-6-20(a) involve reckless assault and,
therefore, do not qualify as predicates for the ACCA. Harris
has raised no challenge to the other predicate convictions.
After careful review, we affirm.
was indicted for, and pled guilty to being a felon in
unlawful possession of a firearm, in violation of §
922(g)(1). Under 18 U.S.C. § 924(e), a person convicted
of violating § 922(g) is subject to a fifteen-year
minimum sentence as an armed career criminal if he has at
least three prior convictions for a "violent
felony" or a "serious drug offense." The
probation office determined that Harris was subject to this
enhancement based on his three prior Alabama felonies: two
2004 convictions for unlawfully distributing a controlled
substance, as "serious drug offenses"; and a 2011
conviction for attempted first-degree assault, as a
"violent felony." Only the last conviction is at
issue today and forms the basis of this appeal.
timely objected to the designation of his assault conviction
as a violent felony. At sentencing, the government offered
the transcript of a plea colloquy taken from the Alabama
state convicting court. The transcript showed that, after
Harris confirmed that he understood his rights and waived
them, the State proffered the following factual basis for the
. . . [O]n April the 5th, 2008, around three o'clock in
the morning, that [victims D.T.] and [M.T.] were at the Shell
station located at the intersection of Greensboro and
Skyland. While at the Shell station, this defendant's
brother, Keandre Harris, got into an altercation. During the
course of the altercation, witnesses including [M.T.] and
[D.T.], observed this defendant come out of his vehicle with
a pistol and began shooting at the two [victims]. . . .
[D.T.] was hit multiple times. [M.T.] was also hit by bullet
fragments and received injuries. . . . [As Harris's]
vehicle . . . was leaving the parking lot of the Shell
station, a police officer arriving at the scene attempted to
stop the vehicle, but it did not stop, and he fired shots at
the vehicle striking it three times. The vehicle was stopped
on Greensboro Avenue, and inside the vehicle being driven by
this defendant was a magazine for a .9 millimeter pistol that
was found on the floorboard . . . and a magazine in the
pistol that would hold twelve nine millimeter bullets. Seven
were missing from the gun. When police searched the scene at
the Shell station, they recovered seven .9 millimeter shell
pled guilty to attempted first-degree assault. And the state
court found that he entered the plea knowingly,
intelligently, and voluntarily. Notably, Harris was not asked
and never said whether the government's factual proffer
sentencing hearing for the instant § 922(g)(1) offense,
the district court overruled Harris's objections to the
ACCA enhancement, concluded that his attempted first-degree
assault conviction met the ACCA's definition for a
violent felony, and, therefore, determined that Harris had
three qualifying felonies under § 924(e)(1).
Accordingly, the court sentenced Harris to a term of
imprisonment of 210 months, followed by 5 years'
has timely appealed his sentence to this Court.
review de novo a district court's determination
that a defendant's prior conviction qualifies as a
violent felony under the ACCA. United States v.
Davis, 875 F.3d 592, 596 (11th Cir. 2017).
a defendant convicted of being a felon in possession of a
firearm under § 922(g)(1) is subject to a maximum
sentence of ten years' imprisonment. See 18
U.S.C. § 924(a)(2). But the ACCA mandates a minimum
sentence of 15 years' imprisonment for any defendant
convicted of being a felon in possession of a firearm who has
three prior convictions "for a violent felony or a
serious drug offense, or both, committed on occasions
different from one another." Id. §
924(e)(1). The government bears the burden of establishing
that an ACCA sentencing enhancement is warranted. United
States v. Lee, 586 F.3d 859, 866 (11th Cir. 2009).
ACCA defines the term "violent felony" as any crime
punishable by a term of imprisonment exceeding one year that:
(i) has as an element the use, attempted use, or threatened
use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a
serious potential ...