*1 еonclusory was too survive the motion the district court Thus, stage. dismiss for all the reasons failing to address request Seibert’s discussed, the district did not wе’ve counsel was harmless because appoint- dismissing for fail- err in Seibert’s claims ment was not counsel warranted. claim ure to which relief could granted. be reject claim Seibert’s district abused discretion
by failing appoint him Prison counsel. raising rights
ers civil claims no con Kilgo Ricks, right to
stitutional counsel. 1993). Ap
pointment counsel in civil cases must be circumstances,” by “exceptional
justified presence legal such as “facts UNITED STATES complex as [which] issues sо novel or prac the assistance of- require trained titioner,” may if the warranted pro litigant help presenting se needs the mer GERMAN, claim to the court. Id. Platano, Defendant- omitted). The district court has broad dis Appellant. making decision, cretion this and the plaintiff helped by fact would be require appoint
counsel does alone Perrin, of counsel. ment Bass v. United of Appeals, Statеs Court 1312, 1320 litigant, As a civil enti- Seibert was Kilgo, tled to counsel his claims. separate 193. He did not file a requesting motion in the district court
counsеl, requested but rather as a counsel Although complaint.
form of relief did not the re- address that omission was
quest, harmless present
this cir- exceptional case appoint-
cumstances necessitate the
ment of counsel. Id. no Seibert appointment
reasons counsel would necessary restate
have been other than to in his complaint, presumably
the facts magnitude either
highlight density, Although appointment his claims. Seibert, helpful have been
counsel many true for litigants
that is se pro exceptional
does not constitute an circum- Bass, Therefore,
stance.
842 JORDAN, ROSENBAUM, and
Before ANDERSON, Judges. PER CURIAM: appeals his Carlos German sentence, pled guilty after he firearm, being possession a felon in § 922(g)(1). He con- violation U.S.C. procedurally district court tends relying on a base offense level guideline range 24 to сalculate the conviction of Florida conviction of a crime of dwelling is not a sentencing guidelines. under the violence conviction not an argues that his He of vio- of a crime enumerated conviction the residual clause of lence and that оf “crime violence” uncon- definition He maintains that the stitutionally vague. procedural error district court’s warrants cannot be viеwed as harmless. reversal and prior con de novo whether a We review of a crime qualifies as a conviction viction Estrаda, United States v. 777 of violence. We sup any “for reason affirm sentence record, if not by the relied ported by the district court.” Unitеd States Hall, We review sentence under abuse-of-discretion States, v. United 552 U.S. standard. Gall 38, 51, S.Ct. 169 L.Ed.2d (2007). level for the crime The base offense Coats, Rivero, Benjamin Thomas Laura “if is 24 possession firearm unlawful Grove, Carol Daren any part of the Smachetti, Herman, Attor- Emily M. subsequent sustаining instant offense FL, Miami, Plaintiff-Ap- for ney’s convictions of either a least two pellee or a controlled substance crime Lеnamon, Terence M. Lena- Terence 2K2.1(a)(2); see also offense.” U.S.S.G. Miami, FL, mon, P.A., Defendant-Ap- comment, (n. 1) (refer- 2K2.1, pellant 4B1.2(a) defini- ring to violence”). “[cjrime German, tion of Pro Se term “crime of violence” means German’s Florida of bur conviction law, pun- glary fеderal or
offense under is a term crime of violence by imprisonment for a ex- under the ishable residual clause sentencing guidelinеs. year, one that— ceeding *3 Binding at precedent 1197. fore use, (1) at- has as an element the closes contention that the residuаl use, physi- or of tempted threatened use clause is unconstitutionally vague. id. another, against person cal force the оf at 1194-96. German does not dispute or he also a felony has of a (2) arson, burglary of a or dwelling, is controlled-substance offense. Thе district extortion, or explosives, involves use court did not err relying on a base presents involves conduct that otherwise offensе level purpose the of calcu potential injury risk of physical a serious lating guideline applicable the range. See to another. 2K2.1(a)(2). § The Government asserts that 4B1.2(a); § see also United States grounds also affirm the on the district 1185, 1193-94 court in this case stated thаt it would have in (referring to the final clause imposed same the sentence. We will affirm of “crime of violence” as the the definitiоn a on sentence based clause). harmless error residual guideline range if we know For on offenses committed or before сourt that the district imposed would have July “burglary” entering means regardless ruling the same sentence structure, remaining dwelling, or issue, on a the sеntence conveyance to com- or a with the intent reasonable if that issue even was decided therein, prem- mit an offense unless the in the defendant’s favor. United States public at open ises are the time to Keene, or invited to licensed The defendant has the burden remain. enter or establishing the of the unreasonableness 810.02(1)(a). Fla. The Florida crime Stat. guide- sentence had the сourt decided the burglary is “a crime lines issue defendant’s favor. See id. ... under be the residual clause at 1350. it ‘involves conduct that causе The district court determined physical injury to potential serious risk by relying if on of it erred a base ” Matchett, at another.’ 24, a was fensе level of 70-month sentence 4B1.2(a)(2)). (quoting U.S.S.G. appropriate. The district court stated that sentencing guidelines pos We held its decisiоn was based German’s firearms, unconstitutionally vague magazines, cannot of two session they merely advisory an to assist tool ammunition and his sale those items determining sentencing judges appro- informant the confidential on two different priate Id. at 1194-96. sentences. The furthеr dates. based vagueness on lack of criminal doctrine “rests decision on German’s “extensive life, apply adviso- history just noticе” and these about half his since ry guidelines because a cannot he’s 16 to defendant 32.” the district 3553(a) expect receive a stаt sentence within referenced the factors and applicable guideline range. 1194-95 “suffi Id. at ed that a 70-month sentence was cient, greater, necessary, to than but Rolle, Bethel, Brian need for the sentence Brian
reflect the Saunders, is, just how serious this offense rеflect Wendell adequate deterrence to Defendants. need afford conduct, respect for promote criminal : provide just punishment.” the law and unrea- A sentence was an Appeals, Court of United States sentence for sonable German. As out, criminal adult
pointed German has an begins age 16 record that with the Filed includes convic- commission dwelling, attempted tions
burglary, and sevеral substance controlled Thus even if the district court
offenses. range, the sen- was harmless reasonable.
tence was
ROSENBAUM, Judge,
concurring: I
I concur this decision. result only I contin- separately note
write analy- respectfully disagree with our
ue Matchett, v.
sis in United States 2015), for thе reasons I expressed in United States previously
2016) (Rosenbaum, J., dissenting from de- banc). rehearing
nial of en
UNITED STATES Cohen, Attorney’s Ellen L. Beach, FL, COOPER, Elwood Palm Interested West Rivero, Mary Party-Appellant, Laura Thomas Sal- Kathleen