UNITED STATES, Plaintiff-Appellee, v. Jesse Lee STARK, Defendant-Appellant.
No. 07-2346.
United States Court of Appeals, Sixth Circuit.
Jan. 23, 2009.
935
BEFORE: CLAY and GIBBONS, Circuit Judges, and STAMP, District Judge.*
OPINION
FREDERICK P. STAMP, JR., Senior District Judge.
Defendant-appellant Jesse Lee Stark (“Stark“) pleaded guilty in the United States District Court for the Western District of Michigan to being a convicted felon in possession of a firearm in violation of
I. BACKGROUND
Stark was indicted on February 7, 2007, with a single count of felon in possession of a firearm in violation of
the Defendant knowingly waives the right to appeal any sentence within or below the range determined by the Court and the manner in which the sentence was determined on the grounds set forth in
18 U.S.C. § 3742 or any ground whatever, in exchange for the concessions made by the United States’ Attornеy‘s Office in this plea agreement.
Stark entered his guilty plea pursuant to the plea agreement on July 2, 2007, at which time the Assistant United States Attorney read for the record Stark‘s appellate waiver, and the district court confirmed Stark‘s understanding of such waiver through the following series of questions and answers:
THE COURT: Then lastly, Paragraph 11, which is on page 9. In that paragraph, you‘re waiving certain rights you have to appeal or file what‘s known as a collateral attack. You‘ve read and reviewed that and talked to your attorney about it?
DEFENDANT: Yes, sir.
THE COURT: And that‘s your decision?
DEFENDANT: Yes, sir.
THE COURT: Now you‘ve read and reviewed this entire agreement, correct?
DEFENDANT: Yes, sir.
THE COURT: And you indicated it‘s correct, it‘s accurate?
DEFENDANT: Yes, sir.
THE COURT: And you agree to everything that‘s in there?
DEFENDANT: Yes, sir.
Also at the plea hearing, the district court discussed the possibility of Stаrk‘s being characterized as an armed career criminal, stating, “Now I haven‘t actually read the statutes from those other states so there‘s always the possibility of some wiggle room in it. But I think it‘s probably pretty safe to say that he‘s probably going to be an armed career criminal at this point.”
Prior to his sentencing hearing, Stark objected tо the presentence investigation report prepared by the United States Probation Officer, which indicated that Stark had four previous convictions considered as violent felonies under the ACCA and its accompanying enhancement provision. Particularly, Stark‘s Objection No. 1 to the presentence investigation report stаted, in pertinent part, that he
objects to the North Carolina, Breaking, Entering and Larceny offenses being considered violent felonies. Therefore,
[his counsel] objects to Mr. Stark being considered an armed career criminal. If the offenses were not considered violent felonies, then Mr. Stark is not subject to an enhanced sentеnce under 18 U.S.C. § 924(e)(1) , because he will not have the three required felony convictions.
The convictions that Stark contests consist of three separate North Carolina felonies to which Stark pleaded guilty on June 1, 1998, including breaking or entering and larceny, each classified as a Class H felony, and all punishable by a maximum penalty of twenty-fivе months imprisonment.2
Stark appeared before the United States District Court for the Western District of Michigan on October 19, 2007, for sentencing, at which the district court found that Stark was an armed career criminal under the ACCA because each of his three convictions for breaking or entering were tantamount to burglary or consisted of offensеs that presented a potential risk of a physical injury to another. Accordingly, because of Stark‘s career criminal status, the district court sentenced Stark to a mandatory minimum fifteen-year sentence rather than the 168 to 210 months that Stark would have received if not for the applicability of the ACCA enhancement provisions.
Stark now appeals his conviction, arguing that his three felony convictions for breaking or entering buildings under North Carolina laws should be considered non-violent felonies. Stark, therefore, argues that the district court erred in finding that his three prior North Carolina convictions constituted either “generic burglary,” or presented a potential risk of a рhysical injury to another as defined by
II. ANALYSIS
A. Waiver
The government objected to this appeal based upon a waiver of appellate rights concerning the issue currently before this Court. Specifically, the government сontends that Stark agreed to a valid appellate waiver when he entered into the plea agreement that states, in pertinent part, that “[d]efendant knowingly waives the right to appeal any sentence within or below the range determined by the Court and the manner in which the sentence was determined on the grounds set forth in
In response, Stark contends that he is not appealing whether his sentence was within or below the guidelines range, or the manner in which the sentence was determined. Rather, Stark asserts that he is appealing his sentence because the district court erroneously applied both the law and the definition of “violent crime” when determining whether Stark‘s North Carolina convictions were crimes of violence. Thus, Stark claims that becаuse he did not waive his right to appeal an unreasonable sentence, a sentence imposed in violation of law, or whether his prior convictions met the criteria for the ACCA
It is well-established law that “a defendant in a criminal case may waive ‘any right, even a сonstitutional right,’ by means of a plea agreement.” United States v. Fleming, 239 F.3d 761, 764 (6th Cir. 2001) (citing United States v. Ashe, 47 F.3d 770, 775-76 (6th Cir. 1995)). A court will enforce an appellate waiver as long as the defendant entered into the waiver both knowingly and voluntarily. Fleming, 239 F.3d at 764.
What does remain unclear in today‘s jurisprudence, however, is whether a defendant waives his right to appeal a district court‘s application of the ACCA by еntering into a waiver of appellate rights. Courts have offered contrasting opinions on the issue. Compare United States v. Haskins, 198 Fed. Appx. 280, 281 (4th Cir. 2006) (unpublished) (“Additionally, [the defendant] concedes he was informed of the penalties that could be imposed as a result of his guilty plea, including the effect of an enhancement under the ACCA. We conclude the appеal waiver is valid and enforceable and that [the defendant‘s] challenge to the district court‘s enhancement under the ACCA clearly falls within the scope of the waiver.“), with DeRoo v. United States, 223 F.3d 919, 926 (8th Cir. 2000) (noting that “defendants cannot waive their right to appeal an illegal sentence or a sentence imposed in violation of the terms of an agreement“).
This Court has not issued an opinion on whether a valid waiver of appellate rights precludes a defendant from appealing an enhanced sentence pursuant to the ACCA. Nevertheless, this Court has at least addressed, if not decided, an issue identical to the one currently before this Court in United States v. Caruthers, 458 F.3d 459 (6th Cir. 2006), an opinion that can offer guidance tо the Court in this case. In Caruthers, the defendant‘s plea agreement stated that “[t]he defendant knowingly waives the right to appeal any sentence within the maximum provided in the offense level as determined by the Court or the manner in which that sentence was determined on the grounds set forth in
The defendant argued that even if the appellate waiver encompassed his appeal, the waiver, nevertheless, could not as a matter of law preclude attacking a sentencе on the grounds that it exceeded the statutory maximum. Id. This Court noted that “it is well settled in the federal courts that a defendant who waives his right to appeal does not subject himself to being sentenced entirely at the whim of the district court,” and that “an appellate waiver may not bar an appeal asserting that the sentence excеeds the statutory maximum.” Id. (internal citations omitted). Thus, this Court defined the issue before it as whether the defendant can challenge an enhanced sentence under the ACCA on grounds that it exceeds the statutory maximum. Id. at 472. Because the defendant‘s challenge failed on the merits, however, this Court assumed, without deciding, that the defendant‘s appellatе waiver was unenforceable. Id.
In this case, as we did in Caruthers, 458 F.3d at 459, we need not determine whether Stark‘s appeal challenges an enhanced sentence under the ACCA on the grounds that his sentence exceeds the statutory maximum, because, for the reasons discussed below, Stark‘s appeal fails on the merits. Thus, this Court assumes, without deciding, that Stark‘s appellatе waiver
B. ACCA Enhancement Provisions
Stark argues that the district court erred in ruling that his three previous convictions for breaking or entering under North Carolina law are “violent felonies” under
The ACCA provides the following:
In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisonеd not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under section 922(g).
(B) the term “violent felony” means any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that-
(i) has an element the use, attempted use, or threatened use of physical force against the рerson of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
a person has been convicted of burglary for purposes of a § 924(e) enhancement if he is convicted of any crime, regardless of its exact definition or label, having the basic elements оf unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.
Taylor, 495 U.S. at 599. Moreover, the Taylor court held that a prior conviction will constitute “burglary” under the § 924 enhancement provision if “either (1) its statutory definition substantially corresponds to generic burglary, or (2) the charging paper and jury instructions actually required the jury to find all the elements of a generiс burglary in order to convict the defendant.” Id. at 602 (internal quotations omitted) (numbers added).
Stark pleaded guilty to three prior North Carolina felony convictions for breaking or entering and larceny, in violation of
§ 14-54 Breaking or entering buildings generally.
(a) Any person who breaks or enters any building with intent to commit any felony or larceny therein shall be punished as a Class H felon.
(b) Any person who wrongfully breaks or enters any building is guilty of a Class 1 misdemeanor. (c) As used in this section, “building” shall be construed to include any dwelling, dwelling house, uninhabited house, building under construction, building within the curtilage of a dwelling house, and any other structure designed to house or secure within it any activity or property.
In each of Stark‘s three convictions, the arrest warrant and indictment stated that he broke into and entered a residence of another person. All three felonies were classified as Class H felonies, as mandated by the state statute.
In this appeal, Stark first contends that because his convictions for breaking or entering under
In United States v. Maness, 23 F.3d 1006 (6th Cir. 1994), this Court already rejected Stark‘s argument that an offense under
Furthermore, this Court finds Stark‘s second argument, that none of his convictions under
It seems to us to be implausible that Congress intended the meaning of “burglary” for purposes of
§ 924(e) to depend on the definition adopted by the State of conviction. That would mean that a person conviсted of unlawful possession of a firearm would, or would not, receive a sentence enhancement based on exactly the same conduct, depending on whether the State of his prior conviction happened to call that conduct “burglary.”
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment and the sentence imposed by the district court.