United States v. Ricky Page, 662 F. App'x 337

Background

Ricky Page sold heroin in 2012 and was later found in possession of two firearms; charged with distribution and being a felon in possession.
Superseding indictment listed prior Kentucky convictions: facilitation to first-degree robbery, trafficking in a controlled substance, and first-degree robbery; additional priors (e.g., second-degree burglary) appeared in the record.
Page pleaded guilty under an 11(c)(1)(C) agreement calling for a 180-month sentence (the ACCA statutory minimum); the plea included a broad waiver of appeal except for claims of ineffective assistance or prosecutorial misconduct.
Probation designated Page as an armed career criminal (ACCA) producing a Guidelines range higher than 180 months; neither party objected and the district court adopted the ACCA designation and imposed 180 months.
On appeal Page argued (1) defects in the plea’s factual basis and (2) that ACCA should not apply (and counsel was ineffective for failing to challenge it). The court affirmed.

Issues

Issue	Plaintiff's Argument (Page)	Defendant's Argument (Gov't/District Court)	Held
Validity/scope of appellate waiver	Waiver infected by counsel’s deficient performance; thus appeal should proceed	Waiver knowingly and voluntarily signed; bars appeal except for ineffective-assistance claims	Waiver generally bars appeal, but court addresses ACCA issue and related ineffective-assistance claim because sentence implicates statutory-max issue and record suffices
Ineffective assistance for not contesting ACCA at plea/sentencing	Counsel performed deficiently; Page would not have pleaded if informed ACCA inapplicable	Record is sufficient and counsel’s conduct was not deficient as ACCA designation was lawful	Claim fails on the merits given that ACCA designation was proper under controlling law
Whether Kentucky facilitation to commit first-degree robbery is an ACCA violent-felony predicate	Facilitation can be broader than robbery; thus may not qualify under use-of-force prong	Sixth Circuit precedent holds Kentucky facilitation-to-robbery is indivisible and requires proof of completed robbery (use of force)	Court follows United States v. Elliott and holds facilitation to commit first-degree robbery is a violent felony under ACCA
Whether prior convictions must be charged to/jury-found to serve as ACCA predicates	Alleyne/other doctrine requires jury finding of facts increasing mandatory minimums, so priors must be charged/found	Almendarez-Torres permits judge to find prior-conviction fact for sentencing; Alleyne expressly left that decision intact	Court holds Almendarez-Torres remains controlling; judge may find prior convictions for sentencing; ACCA application proper

Key Cases Cited

Caruthers v. United States, 458 F.3d 459 (6th Cir. 2006) (discusses appeal waivers and when sentencing may exceed statutory maximum)
Elliott v. United States, 757 F.3d 492 (6th Cir. 2014) (holds Kentucky facilitation to commit first-degree robbery qualifies under ACCA use-of-force prong)
Ferguson v. United States, 669 F.3d 756 (6th Cir. 2012) (standard for reviewing ineffective-assistance claims on direct appeal)
Hill v. Lockhart, 474 U.S. 52 (1985) (prejudice standard for ineffective assistance in guilty-plea context)
Strickland v. Washington, 466 U.S. 668 (1984) (two-prong test for ineffective assistance of counsel)
Taylor v. United States, 495 U.S. 575 (1990) (categorical approach for determining violent-felony predicates)
Shepard v. United States, 544 U.S. 13 (2005) (limited documents may be consulted when statute is divisible)
Descamps v. United States, 570 U.S. 254 (2013) (distinguishes divisible vs. indivisible statutes under categorical approach)
Alleyne v. United States, 570 U.S. 99 (2013) (held facts increasing mandatory minimum must be found by jury, but preserved Almendarez-Torres exception for prior convictions)
Johnson v. United States, 576 U.S. 591 (2015) (invalidated ACCA residual clause, but left use-of-force and enumerated-clauses intact)