UNITED STATES of America, Plaintiff-Appellee, v. Dereck Jerome BROWN, a.k.a. Detrick Brown, a.k.a. Black, Defendant-Appellant.
No. 14-11502
United States Court of Appeals, Eleventh Circuit.
Nov. 20, 2015.
Non-Argument Calendar.
1325
IV. CONCLUSION
For the past 18 years, Johnson has challenged the convictions and sentence of death entered against him in 1998. State and federal courts have already granted him evidentiary and other hearings and considerable, exhaustive review multiple times. During his many 1998-2015 proceedings, as well as these last-minute filings on the eve of his execution, Johnson has failed to show any grounds for federal relief.
Johnson‘s request for expedited review is GRANTED. His application for a COA as to the district court‘s order, his application for this Court‘s permission to file a second or successive petition, and his motion for a stay of execution are DENIED.
James Wesley Bryant, Stephanie A. Kearns, Federal Defender Program, Inc., Atlanta, GA, for Defendant-Appellant.
Before ED CARNES, Chief Judge, TJOFLAT and WILSON, Circuit Judges.
PER CURIAM:
Dereck Brown was convicted of violating
After a confidential informant purchased crack cocaine from Brown on several occasions, officers of the Waycross, Georgia police department executed a search warrant at Brown‘s residence. Inside they found Brown, a loaded handgun, 15 rounds of ammunition for the handgun, $923 in cash, and plastic bags containing what they suspected was crack cocaine and marijuana.
A federal grand jury charged Brown with possessing controlled substances with intent to distribute them, possessing a firearm in furtherance of a drug crime, and being a felon in possession of a firearm. He pleaded guilty to the felon-in-possession charge in exchange for the government‘s agreeing to seek dismissal of the other charges.
The presentence investigation report (PSR) determined that Brown was an armed career criminal under the ACCA because he had been convicted of three or more qualifying predicate offenses—twice for selling cocaine, which qualifies as a “serious drug offense” under
Brown objected to being classified as an armed career criminal. First, he contended that, because his two prior convictions for selling cocaine involved sales to the same person that took place just six minutes apart, they should not be considered separate offenses for purposes of the ACCA. Second, he contended that felony obstruction in Georgia was not a qualifying predicate offense under the ACCA because
The district court overruled Brown‘s objections and sentenced him as an armed career criminal. It first determined that the sales underlying his cocaine convictions were successive, not simultaneous, so that they constituted separate criminal episodes for purposes of the ACCA. The district court also concluded that felony obstruction under Georgia law qualifies as a “violent felony” under the ACCA‘s elements clause, meaning Brown‘s two felony obstruction convictions qualified as ACCA predicate offenses. Having addressed Brown‘s objections, the district court adopted the PSR‘s calculations and sentenced him to 210 months in prison—the bottom of his guidelines range. The court explained that, in sentencing Brown, it had considered the PSR, the parties’ statements, and the factors set out in
Brown challenges the sentence on three grounds. First, he asserts that the district court erred in concluding that felony obstruction, as Georgia defines it, is a violent felony under the ACCA. Second, he contends that the government did not prove that his two convictions for selling cocaine involved separate offenses. Finally, he argues that the 210-month sentence the district court imposed was substantively unreasonable.
None of Brown‘s contentions warrants resentencing. The district court correctly determined that felony obstruction under Georgia law is categorically a violent felony for purposes of the ACCA‘s elements clause. A felony is a violent felony under the elements clause if it “has as an element the use, attempted use, or threatened use of physical force against the person of another.”
When read together, two decisions establish that the Georgia crime of felony obstruction of justice categorically meets the “use, attempted use, or threatened use of physical force” requirement of the elements clause of the ACCA. The first decision is one in which we held that an attempt to employ physical force by “pushing, struggling, kicking and flailing arms and legs undeniably would” satisfy the elements clause. United States v. Romo-Villalobos, 674 F.3d 1246, 1250 (11th Cir.2012). The second decision is the one in the Jones case, which illustrates how substantial the violence element of the Georgia statute is. In resisting the officer, the defendant in that case had been “kicking and flailing around,” and had slung the officer “around like a dish rag.” Jones, 622 S.E.2d at 426. Still, the Georgia Court of Appeals held that a jury reasonably “could have concluded that, although [the defendant]
As for Brown‘s contention that the district court erred in treating as separate offenses his two prior convictions for selling cocaine, any error there was harmless. A defendant convicted of violating
Finally, Brown argues that his 210-month sentence—at the very bottom of his guidelines range—was substantively unreasonable because it greatly exceeded the sentence he would have received under the guidelines had he not been an armed career criminal. But the district court correctly determined that Brown was an armed career criminal and there was nothing unreasonable about sentencing him as one. It is also noteworthy that the district court: (1) expressly weighed the factors from
AFFIRMED.