[Copyrighted Material Omitted]
Appeal from the United States District Court for the Eastern District of Tennessee at Greeneville. No. 2:11-cr-00027-1, Robert Leon Jordan, District Judge.
Laura E. Davis, FEDERAL
DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Knoxville, Tennessee, for
Robert M. Reeves, UNITED STATES ATTORNEY'S OFFICE, Greeneville, Tennessee, for Appellee.
Before: BOGGS, BATCHELDER, and WHITE, Circuit Judges. BOGGS, J., delivered the opinion of the court, in which WHITE, J., joined.
BOGGS, Circuit Judge.
This case presents the question whether a conviction for third-degree burglary under New York law is categorically a " violent felony" under 18 U.S.C. § 924(e), commonly referred to as the Armed Career Criminal Act (ACCA). A jury convicted Paul Prater of being a felon in possession of ammunition, in violation of 18 U.S.C. § 922(g)(1). The district court determined that Prater qualified for an enhanced mandatory minimum sentence under the ACCA and an increased offense level under the Guidelines Manual. It relied on Prater's prior convictions for New York third-degree burglary and attempted third-degree burglary. The district court held that these offenses categorically qualify as violent felonies. Because this was error and because the district court did not apply the Supreme Court's " modified categorical approach" to determine whether the version of the crimes for which Prater was convicted qualified as a violent felony, Descamps v. United States, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013), we vacate the district court's sentence and remand for resentencing.
Following a jury trial, Paul Prater was convicted of being a felon in possession of ammunition, in violation of 18 U.S.C. § 922(g)(1). Prater's presentence report determined that U.S.S.G. § 2K2.1 provided the base offense level for the sentencing of offenses under 18 U.S.C. § 922(g). Because Prater had at least two prior felony convictions for what the Manual refers to as " crimes of violence," his base offense level was 24, under § 2K2.1(a)(2). The presentence report also determined that Prater qualified as an armed career criminal, under 18 U.S.C. § 924(e)(1), because he had at least three convictions for a " violent felony" committed on different occasions. This finding subjected Prater to a mandatory minimum sentence of fifteen years of imprisonment. § 924(e)(1). It also raised Prater's offense level to 33, under § 4B1.4(b)(3)(B). The presentence report assigned Prater twenty criminal-history points, which corresponded to a
criminal-history category of VI. An offense level of 33 and a criminal-history category of VI resulted in a guideline range of 235-293 months of imprisonment.
The presentence report identified four predicate convictions qualifying Prater as an armed career offender under § 924(e)(1): 1) a February 19, 1980, conviction for attempted third-degree burglary; 2) a February 24, 1988, conviction for third-degree robbery; 3) a February 24, 1988, conviction for third-degree burglary; and 4) a March 30, 2000, conviction for attempted third-degree burglary. All four convictions were in Niagara County Court in New York. Prater's two February 24, 1988, convictions were for conduct committed on different occasions.
Prater objected to the presentence report's classification of him as an armed career criminal under 18 U.S.C. § 924(e) and § 4B1.4. He stated that he relied on arguments previously raised. Prater briefly summarized these arguments: that his right to bear arms had been suspended, not revoked, under New York law; that § 922(g)(1) was vague and overbroad; and that the provision of the Armed Career Criminal Act, codified at § 922(e)(1), violated the Eighth Amendment prohibition on cruel and unusual punishment. The district court overruled Prater's objections. It determined that Prater was an armed career criminal because each of his predicate offenses qualified as a " violent felony" under § 924(e).
On January 8, 2013, the district court held a sentencing hearing. At sentencing, Prater renewed his previously raised objections but did not raise any new objections. The district court did not rule on Prater's objections, stating that it had already done so. It relied on the presentence report's determination that Prater's guideline range was 235-293 months. The district court also determined that Prater was subject to a 180-month mandatory minimum sentence. After allocution and a brief reference to the § 3553 factors, the district court sentenced Prater to 264 months of imprisonment.
On appeal, Prater argues that he lacked the predicate offenses necessary to qualify as an armed career criminal under § 924(e)(1) and § 4B1.4. He also argues that the sentencing court erred in deeming these same offenses " crimes of violence" when assigning Prater a base offense level under § 2K2.1. Specifically, he argues that his New York convictions for third-degree burglary and attempted third-degree burglary do not satisfy the statutory definition of " violent felony" under § 924(e)(2)(B) and the Manual's definition of " crime of violence" under § 4B1.2(a).
The issue is important because were Prater not sentenced as an armed career criminal, his base offense level would have been 24 under § 2K2.1(a)(2)--presuming Prater has the same criminal history score of 20 and, thus, is in criminal history category VI--and his guideline range would have been 100-125 months. He also would not be subject to the ACCA's 180-month mandatory minimum sentence. If Prater's challenged convictions qualify as neither " violent felonies" nor " crimes of violence," then Prater's base offense level would be 20 under § 2K2.1(a)(4) and his guideline range would be 70-87 months--well under the 264-month sentence that Prater received.
The parties dispute, as an initial matter, our standard of review on appeal. Prater asserts that we review do novo both whether a prior conviction constitutes a " violent felony" under § 924(e) and a " crime of violence" under the Manual.
Appellant Br. 8. The government agrees that review is ordinarily de novo but argues that we must review Prater's claims only for plain error because Prater failed to raise his appellate claims below. At issue is whether Prater raised his current claims before the sentencing court.
To preserve a claim and thus avoid plain-error review, a party must " object[t] to the court's action" and also provide " the grounds for that objection." Fed. R. Crim. P. 51(b). A party must " apprise the trial judge of the ground now asserted on appeal." United States v. Mayes, 512 F.2d 637, 653 (6th Cir. 1975). For a claim of error to " constitute a sufficiently articulated objection," a party must " object with that reasonable degree of specificity which would have adequately apprised the trial court of the true basis for his objection." United States v. Bostic, 371 F.3d 865, 871 (6th Cir. 2004); accord United States v. Indiviglio, 352 F.2d 276, 279 (2d Cir. 1965) (en banc) (origins of the reasonable-degree-of-specificity standard). The requirement that " the specific ground for objection be made clear is to afford the trial judge an opportunity to remedy any claimed error and to afford the government an opportunity to come forward with evidence relative to the claim." United States v. Bryant, 480 F.2d 785, 792 (2d Cir. 1973).
Here, Prater submitted to the probation office a two-paragraph statement objecting to the presentence report. In the first paragraph, Prater stated that he " objects to his designation as an Armed Career Criminal under 18 U.S.C. § 924(e) and USSG § 4B1.4." He proceeded to list the four predicate offenses relied on by the presentence report, providing the date of conviction, the offense of conviction, and the date of offense. For each conviction, Prater also cited to the specific paragraph of the presentence report that classified the conviction as a predicate for armed-career-criminal purposes. In the second paragraph, Prater stated that he " relies on the arguments previously raised on this issue" and referred to prior pleadings. Those prior pleadings do not touch on whether third-degree burglary and attempted third-degree burglary under New York law constitute " violent felonies." Prater himself summarized the arguments in those prior pleadings but did not mention his third-degree-burglary argument in this summary.
Although the second paragraph of Prater's objection statement discusses additional issues, the first paragraph, albeit barely, properly preserves Prater's violent-felony claim. First, the language of Prater's sentencing memorandum states that he " objects to his designation as an Armed Career Criminal under 18 U.S.C. § 924(e) and USSG § 4B1.4." (emphasis added). This can only mean that Prater objected to the presentence report because he did not believe that he was " a person who violate[d] section 922(g) of [Title 18 of the United States Code] and has three previous convictions by any court . . . for a violent felony or a serious drug offense, or both, committed on occasions different from one another." § 924(e)(1). Second, the probation officer, in responding to Prater's
objections in an addendum to the presentence report, felt it important to state that " [t]he appeals courts have found [Prater's convictions] to be qualifying convictions as 'crimes of violence.'" Third, the district court, in denying Prater's objections, specifically stated that " each of [Prater's] violations of New York law is a 'violent felony' for purposes of the ACCA." It also cited two Second Circuit cases that discuss whether certain crimes constitute violent felonies and crimes of violence. Thus, the district court clearly understood the basis for this objection and addressed it. Here, there is no need to consider whether Prater's objection " would have adequately apprised the trial court of the true basis of [the] objection," Bostic, 371 F.3d at 871, because it actually apprised the trial court of such. Because the first paragraph of Prater's sentencing memorandum did, in fact, apprise the trial court of the basis for his current claim on appeal--and thus afforded the sentencing court an opportunity to remedy the claimed error--we find that Prater's violent-felony is properly preserved.
The exchange between Prater's counsel and the district court at sentencing does not affect this conclusion. At sentencing, the district court asked Prater's counsel if he had reviewed the presentence report with Prater. Counsel informed the court that he had " no objections or complains other than what we previously raised." (emphasis added). The district court stated it had " already ruled on [Prater's] objections." It was only after noting that the court had previously addressed Prater's objections did the court ask Prater's counsel if he agreed that the ACCA imposed a 180-month mandatory minimum sentence. Although Prater's objection to his designation as an armed career criminal, contained in his objections to the presentence report, was sparse, the objection was clearly made, as the district court understood Prater's objection, addressed it on the merits, and overruled it.
Not so, however, with Prater's second claim, that the district court erred in determining his base offense level under § 2K2.1(a)(2), which required finding that he had at least two prior felony convictions for a " crime of violence." Nothing in the record could have suggested to the district court with a " reasonable degree of specificity," Bostic, 371 F.3d at 871, that a ground for Prater's objection was that his prior convictions did not constitute " crimes of violence" under § 4B1.2(a). We, therefore, review Prater's crime-of-violence claim for plain error.
Because Prater's violent-felony claim is preserved, we review de novo the district court's legal conclusions underlying its application of the armed-career-criminal adjustment under § 4B1.4 and of the mandatory minimum sentence under § 924(e)(1). See United States v. Bolds, 511 F.3d 568, 579 (6th Cir. 2007). Because Prater did not preserve his crime-of-violence claim, it is forfeited, and we review it for plain error. United States v. Vonner, 516 F.3d 382, 385 (6th Cir. 2008) (en banc).
The Guidelines Manual instructs sentencing courts, when calculating a defendant's guideline range, to determine the offense-guideline section applicable to the offense of conviction. § 1B1.1(a)(1). The presentence report, adopted by the district court without change, correctly determined that § 2K2.1 is the guideline section applicable to convictions under 18 U.S.C. § 922(g). See U.S.S.G. app A. This section assigns an offense level for defendants convicted of unlawful possession of ammunition. After a sentencing court determines
the appropriate offense-guideline section, the Manual instructs the court to determine the base offense level. § 1B1.1(a)(2). Section 2K2.1(a) specifies base offense levels based on the nature of a defendant's offense. The presentence report correctly determined that defendants receive a base offense level of 24 if they possess ammunition as a felon with at least two prior convictions for either a crime of violence or a controlled-substance offense. § 2K2.1(a)(2). The presentence report noted that Prater had prior felony convictions for attempted third-degree burglary and for third-degree robbery. In assigning Prater a base offense level of 24 under § 2K2.1(a)(2), the presentence report necessarily concluded that these prior convictions constituted " at least two felony convictions of . . . crime[s] of violence." § 2K2.1(a)(2). On appeal, Prater identifies this conclusion as error and argues that his prior convictions do not qualify as " crimes of violence."
After a sentencing court determines a defendant's base offense level, it must determine applicable adjustments based on criminal history. § 1B1.1(a)(6). These include whether a defendant qualifies as what the Manual refers to as a " career offender" or an " armed career criminal." § § 4B1.1, 4B1.4. In Prater's case, the presentence report determined that he met the Manual's definition of " armed career criminal" because he was " subject to an enhanced sentence under the provisions of 18 U.S.C. § 924(e)." § 4B1.4(a). Consequently, the presentence report adjusted Prater's offense level upward to level 33. Prater identifies this adjustment as error because, he argues, he did not qualify as an armed career criminal under § 4B1.4(a) and, thus, also under § 924(e).
Because we review Prater's armed-career-criminal claim de novo and his crime-of-violence claim only for plain error and because case law treats the two terms similarly, we first address whether ...