United States v. Terry J. Martin, 864 F.3d 1281

864 F.3d 1281

11th Cir.

2017

UNITED STATES of America, Plaintiff-Appellee, v. Terry J. MARTIN, Defendant-Appellant.

No. 16-11627

United States Court of Appeals, Eleventh Circuit.

July 27, 2017

1281

tratec pistol. See United States v. Shelton, 400 F.3d 1325, 1330 (11th Cir. 2005). As a result, everything necessary to support a determination that Gill‘s possession of the Intratec pistol was unlawful under Florida law was before the district court, except the Florida statute itself. And the government was not required to prove the contents of Florida law. See Gardner v. Collector of Customs, 73 U.S. (6 Wall.) 499, 508, 18 L.Ed. 890 (1867) (“The statute under consideration is a public statute. . . . It is one of which the courts take judicial notice, without proof. . . .“); Thornton v. United States, 2 F.2d 561, 562 (5th Cir. 1924) (“It was not necessary that the indictment should plead the Georgia statutes, as it was the duty of the trial court to take judicial notice of them.“). The presence in the record of evidence showing Gill possessed the eighth firearm distinguishes this case from United States v. Washington, 714 F.3d 1358 (11th Cir. 2013) and United States v. Campbell, 372 F.3d 1179 (10th Cir. 2004). In those cases, the factual record on appeal did not support the district court‘s decision to apply an enhancement. Washington, 714 F.3d at 1362-63; Campbell, 372 F.3d at 1182-83 & n.2. Here it does.

On June 15, 2017, Gill filed a letter with the Court purporting to provide us with supplemental authority. In that letter, Gill belatedly argues that the government has not shown that his possession of the eighth firearm was unlawful under Florida law because, under Florida law, the facts alleged in the PSR were not sufficient to show that he possessed that firearm. We are not persuaded by Gill‘s new argument. There was more that linked Gill to the eighth firearm in this case than joint custody of the safe in which the gun was found. In the safe with the firearm in question were drugs that Gill admitted belonged to him, as well as six other firearms that Gill does not deny he possessed. Those facts distinguish this case from the Florida authorities cited by Gill in his supplemental letter brief and support the conclusion that he possessed the eighth firearm.

AFFIRMED.

Holly Lynn Gershow, Linda Julin McNamara, Arthur Lee Bentley, III, Gregory T. Nolan, U.S. Attorney‘s Office, Tampa, FL, for Plaintiff-Appellee.

Howard C. Anderson, Federal Public Defender‘s Office, Tampa, FL, Rosemary Cakmis, Meghan Ann Collins, Donna Lee Elm, Federal Public Defender‘s Office, Orlando, FL, for Defendant-Appellant.

Before ED CARNES, Chief Judge, TJOFLAT, and WILLIAM PRYOR, Circuit Judges.

PER CURIAM:

Terry Martin pleaded guilty to being a felon in possession of a firearm and was sentenced to 48 months in prison. He appeals from that sentence, contending that the district court erred in calculating his base offense level under the United States Sentencing Guidelines. He argues that his earlier Florida conviction for felony fleeing to elude should not have counted as a crime of violence under U.S.S.G. § 2K2.1(a)(4)(A).

This Court has already held that a conviction for felony fleeing to elude under Fla. Stat. § 316.1935(2) qualified as a violent felony under the residual clause of the Armed Career Criminal Act. United States v. Petite, 703 F.3d 1290 (11th Cir. 2013). As we have explained in the past, “[i]n determining whether a conviction is a crime of violence under U.S.S.G. § 4B1.2, we also rely on cases interpreting the residual clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e), because the § 4B1.2 definition of ‘crime of violence’ and [the] ACCA‘s definition of ‘violent felony’ are substantially the same.” United States v. Chitwood, 676 F.3d 971, 975 n.2 (11th Cir. 2012). And § 2K2.1(a)(4)(A) directs district courts to look to § 4B1.2 to find the definition of “crime of violence” as used in that section. U.S.S.G. § 2K2.1 cmt. n.1 (2015). So it follows that an offense that is a violent felony under the ACCA is a crime of violence under § 2K2.1.

Of course, as Martin points out in his brief, the Supreme Court struck down the residual clause of the ACCA as unconstitutionally vague. Johnson v. United States, 576 U.S. ___, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). Martin argues that Johnson means that the residual clause of the sentencing guideline‘s definition of “crime of violence” is also unconstitutionally vague. But the Supreme Court has rejected that argument since Martin filed his brief with this Court. Beckles v. United States, 580 U.S. ___, 137 S.Ct. 886, 197 L.Ed.2d 145 (2017). As a result, Martin‘s conviction for felony fleeing to elude remained a crime of violence under the guidelines at the time he was sentenced.

Martin also contends that, because the Sentencing Commission has now amended the guidelines by removing the residual clause from the guidelines’ definition of “crime of violence,” U.S.S.G. App. C amt. 798 (2016), his conviction for felony fleeing to elude can no longer be used to increase his base offense level. But that Amendment had not yet become effective at the time Martin was sentenced. Id. And we typically apply the guidelines as they stood at the time a defendant was sentenced, not as they stand at the time we decide his appeal. United States v. Jerchower, 631 F.3d 1181, 1184 (11th Cir. 2011). We make an exception to that rule for clarifying amendments, id., but removing the residual clause was plainly not a mere clarification of the guidelines—it eliminated an entire class of offenses from the definition of “crime of violence.”

For all those reasons, the district court did not err by counting Martin‘s earlier Florida conviction for felony fleeing to elude as a crime of violence.

AFFIRMED.

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