USA v. Antouin Barker
Filing
Opinion issued by court as to Appellant Antouin L. Barker. Decision: Affirmed in part, Vacated in part and Remanded. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.
Case: 14-12317
Date Filed: 03/07/2016
Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-12317
Non-Argument Calendar
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D.C. Docket No. 8:13-cr-00224-VMC-AEP-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTOUIN L. BARKER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(March 7, 2016)
Before MARCUS, ROSENBAUM and JULIE CARNES, Circuit Judges.
PER CURIAM:
Antouin L. Barker appeals his conviction and sentence as a felon in
possession of a firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and
924(e)(1). On appeal, he argues that: (1) the district court erred by denying his
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motion to suppress, since the police impermissibly exceeded the scope of the
traffic stop; and (2) the district court erred by sentencing him under the Armed
Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), because his previous
convictions for third-degree burglary are not violent felonies within the meaning of
the ACCA. After careful review, we affirm in part, vacate in part, and remand for
resentencing.
When reviewing a district court’s denial of a motion to suppress, we review
its factual findings for clear error and its application of the law to those facts de
novo. United States v. Ransfer, 749 F.3d 914, 921 (11th Cir.), cert. denied, 135
S.Ct. 392 (2014). We construe the facts in the light most favorable to the party
prevailing in the district court -- here, the government. Id. We usually review de
novo the constitutionality of a statute, but arguments raised for the first time on
appeal are reviewed for plain error. United States v. Wright, 607 F.3d 708, 715
(11th Cir. 2010). To show plain error, the defendant must show (1) an error, (2)
that is plain, and (3) that affected his substantial rights. United States v. Turner,
474 F.3d 1265, 1276 (11th Cir. 2007).
If the defendant satisfies the three
conditions, we may exercise our discretion to recognize the error if it “seriously
affects the fairness, integrity, or public reputation of judicial proceedings.” Id. We
review de novo whether a particular conviction qualifies as a violent felony under
the ACCA. United States v. Kirk, 767 F.3d 1136, 1138 (11th Cir. 2014) (per
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curiam), vacated on other grounds, No. 14-9227 (U.S. June 30, 2015). An error
may become plain as the result of an intervening decision of this Court or the
Supreme Court that is squarely on point. United States v. Pielago, 135 F.3d 703,
711 (11th Cir. 1998).
First, we are unpersuaded by Barker’s claim that the district court erred by
denying his motion to suppress. Once the police have made a lawful stop, an
officer’s inquiries into matters unrelated to the justification of the stop do not
convert the encounter into something other than a lawful seizure, so long as those
inquiries do not measurably extend the duration of the stop. Arizona v. Johnson,
555 U.S. 323, 333 (2009); United States v. Griffin, 696 F.3d 1354, 1361–62 (11th
Cir. 2012). “This is because such questions, absent a prolonged detention, do not
constitute a ‘discrete Fourth Amendment event.’”
Griffin, 696 F.3d at 1362
(quoting Muehler v. Mena, 544 U.S. 93, 101 (2005)). There is, of course, no
bright-line rule for when a stop has been prolonged. Id. Instead, we assess the
length of the stop as a whole, including any extension of the encounter, by
undertaking a fact-bound, context-dependent analysis of all the circumstances
concerning the stop and the unrelated questions. Id.
Here, Deputy Jennifer Wells -- one of two deputies who stopped Barker -testified that she only stood with Barker for “a very short time,” and the time from
the beginning of the traffic stop to the patdown was “[j]ust a couple of minutes.”
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Likewise, the other deputy, Brian Jackson testified that the entire incident only
lasted three or four minutes. Deputy Jackson asked Barker only two questions -whether he had any weapons on him and whether he would consent to a search -and Barker responded with either a one- or two-word answer. On this record,
Jackson’s unrelated questions did not measurably prolong the detention, and the
district court did not err in denying the motion to suppress. See id. at 1361-62.
We find merit, however, in Barker’s claim that the district court erred by
sentencing him under the ACCA.
The ACCA mandates a minimum 15-year
sentence of imprisonment for a defendant who has three previous convictions for
“a violent felony or a serious drug offense.” 18 U.S.C. § 924(e)(1). A “violent
felony” is any crime that “has as an element the use, attempted use, or threatened
use of physical force against the person of another” (the “elements clause”), or is a
“burglary, arson, [] extortion, [or] involves use of explosives” (the “enumerated
offense clause”). 18 U.S.C. § 924(e)(2)(B)(i)–(ii). The statute also includes a
“residual clause” that makes any felony beyond those enumerated a violent felony
if it “involve[s] conduct that presents a serious potential risk of physical injury to
another.” Kirk, 767 F.3d at 1139 (quoting 18 U.S.C. § 924(e)(2)(B)(ii)). However,
in 2015, the Supreme Court invalidated the residual clause as unconstitutionally
vague in Johnson v. United States, 135 S.Ct. 2551, 2556–57, 2563 (2015).
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In this case, Barker’s presentence investigation report (“PSI”) advised that
Barker had committed four previous violent felonies (one more than the three
necessary for application of the ACCA) -- one for delivery of cocaine, one for
aggravated battery, and two for burglary of a structure. Barker objected to whether
his two convictions for burglary of a structure constituted “violent felonies” for
purposes of the ACCA’s residual clause and enumerated offense clause. The
district court determined, however, that Barker’s burglary convictions were
predicate offenses under the residual clause, and sentenced him under the ACCA.
Although the low end of the guidelines’ range was 235 months’ imprisonment, the
district court varied downward to impose a prison term of 188 months.
While Barker’s appeal was pending, the Supreme Court decided in Johnson
that the residual clause was unconstitutional. In light of Johnson, we conclude that
the district court erred in sentencing Barker based on his previous burglary
convictions under the now-invalid residual clause of the ACCA and remand for
resentencing.1 In supplemental briefing following Johnson, the government has
argued (as it did before the district court and in its original brief to this Court) that
1
Although Barker did not object to the constitutionality of the residual clause in district
court, the intervening decision of Johnson establishes that the district court plainly erred by
sentencing him based on the residual clause. See Pielago, 135 F.3d at 711 (“[A]n intervening
decision of this Court or the Supreme Court squarely on point may make an error plain.”).
Moreover, we apply the law as it exists at the time of appellate consideration. United States v.
Thompson, 422 F.3d 1285, 1301 (11th Cir. 2005).
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Barker’s burglary convictions are predicate offenses under the ACCA’s
enumerated offense clause.
We leave it to the district court in the first instance to determine on remand
whether a sentencing enhancement may be sustained in these circumstances under
the enumerated clause of the ACCA. He must be resentenced without reference to
the residual clause. “[W]hen a criminal sentence is vacated, it becomes void in its
entirety; the sentence -- including any enhancements -- has been wholly nullified
and the slate wiped clean.” United States v. Stinson, 97 F.3d 466, 469 (11th Cir.
1996) (quotation omitted). “Consequently, when a sentence is vacated and the
case is remanded for resentencing, the district court is free to reconstruct the
sentence utilizing any of the sentence components.” Id.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
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