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United States v. Harris

United States Court of Appeals, Eleventh Circuit

October 29, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
RAYMON MARQUELL HARRIS, Defendant-Appellant.

          Appeal from the United States District Court for the Northern District of Alabama D.C. Docket No. 7:17-cr-00145-LSC-HNJ-1

          Before MARCUS, JULIE CARNES, and KELLY, [*] Circuit Judges.

          MARCUS, CIRCUIT JUDGE.

         Raymon 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[1] 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.

         I.

         Harris 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.

         Harris 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 plea:

. . . [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 casings.

         Harris 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 was accurate.

         At the 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' supervised release.

         Harris has timely appealed his sentence to this Court.

         II.

         We 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.

         Generally, 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).

         The 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 ...

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