USA v. Lamonterie Bank

Filing

OPINION and JUDGMENT filed : The judgment of the district court is AFFIRMED. Decision for publication pursuant to local rule 206. Boyce F. Martin , Jr. (DISSENTING), Deborah L. Cook (AUTHORING) and Raymond M. Kethledge, Circuit Judges.

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0141p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 11-5443
v.
>
,
LAMONTERIE BANKS,
Defendant-Appellant. N
Appeal from the United States District Court
for the Western District of Tennessee at Memphis.
No. 2:10-cr-20125-1—Bernice Bouie Donald, District Judge.

Decided and Filed: May 18, 2012
Before: MARTIN, COOK, and KETHLEDGE, Circuit Judges.
_________________
COUNSEL
ON BRIEF: David M. Bell, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Memphis, Tennessee, for Appellant. C. David Biggers, Jr., ASSISTANT UNITED
STATES ATTORNEY, Memphis, Tennessee, for Appellee.
COOK, J., delivered the opinion of the court, in which KETHLEDGE, J., joined.
MARTIN, J. (pp. 6–8), delivered a separate dissenting opinion.
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OPINION
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COOK, Circuit Judge. Defendant LaMonterie Banks appeals his sentence of 180
months’ imprisonment, challenging the applicability of an enhancement under the
Armed Career Criminal Act (“ACCA”). See 18 U.S.C § 924(e). Concluding that the
district court correctly sentenced him as an armed career criminal under the ACCA, we
affirm.

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Banks pled guilty to being a felon in possession of a firearm under 18 U.S.C.
§ 922(g). A presentence report (“PSR”) noted that three of his prior convictions—two
for aggravated burglary and one for robbery—qualified as “violent felonies,” triggering
the armed-career-criminal sentencing enhancement under the ACCA. See 18 U.S.C.
§ 924(e)(1) (setting a minimum of fifteen years’ imprisonment for those who violate
§ 922(g) and “ha[ve] three previous convictions . . . for a violent felony . . . committed
on occasions different from one another”). Arguing that the ACCA defines “violent
felony” more narrowly for crimes committed as a minor, Banks objected to the PSR’s
classification of his adult conviction for robbery (committed at the age of seventeen) as
a violent felony. He also argued that the Eighth Amendment categorically prohibits
applying an ACCA sentencing enhancement triggered by an offense committed as a
minor, where the enhancement increases the maximum sentence to life without parole.
Rejecting these contentions, the district court sentenced Banks to the statutory minimum
under the ACCA: 180 months’ imprisonment. Banks appeals, raising the same two
arguments.
We review de novo a district court’s legal conclusions under the ACCA and a
defendant’s Eighth Amendment challenge to a sentence. United States v. Hill, 440 F.3d
292, 295 (6th Cir. 2006); United States v. Caver, 470 F.3d 220, 247 (6th Cir. 2006). The
statute defines “violent felony” to mean “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,” subject to an additional
requirement outlined in subsections (i) and (ii) of § 924(e)(2)(B). See 18 U.S.C.
§ 924(e)(2)(B).

Banks does not contest that his robbery conviction meets the

requirement described in those subsections. Instead, he claims that the robbery fails to
qualify as an “act of juvenile delinquency involving the use or carrying of a firearm,
knife, or destructive device.” See id. This matters not. The statute employs the
disjunctive “or,” such that regardless of whether Banks’s robbery qualifies as an “act of
juvenile delinquency,” his adult conviction for that robbery falls under the definition of
“violent felony” as a “crime punishable by imprisonment for a term exceeding one year.”

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See Tenn. Code Ann. §§ 39-13-401(b), 40-35-111(b)(3) (setting the minimum penalty
for robbery at three years’ imprisonment); United States v. Taylor, 301 F. App’x 508,
522 (6th Cir. 2008) (citing United States v. Spears, 443 F.3d 1358, 1360–61 (11th Cir.
2006); United States v. Lender, 985, F.2d 151, 156 (4th Cir. 1993)) (holding that, under
the disjunctive definition of violent felony, the first part of the definition applies to adult
convictions, even if the conviction involves an act committed as a juvenile).
The dissent would have us review an issue Banks failed to raise before the
district court or this court: whether Banks’s robbery conviction “has as an element the
use, attempted use, or threatened use of physical force against the person of another,”
under subsection (i). We decline to review this forfeited argument. See United States
v. Corp, 668 F.3d 379, 387–88 (6th Cir. 2011) (deeming argument forfeited where party
did not “object with that reasonable degree of specificity which would have adequately
apprised the trial court of the true basis for his objection” (internal quotation marks and
citation omitted)).
Furthermore, the Eighth Amendment permits the application of the ACCA
enhancement to this case. Relying on Graham v. Florida, 130 S. Ct. 2011 (2010), Banks
insists that using an offense committed as a juvenile to enhance the maximum penalty
to life without parole, see United States v. Wolak, 923 F.2d 1193, 1199 (6th Cir. 1991)
(recognizing life imprisonment as the maximum penalty under the ACCA, since the
statute sets no upper limit), categorically violates the Eighth Amendment’s prohibition
against cruel and unusual punishment. But Graham v. Florida only categorically
prohibited sentencing a juvenile to life without parole when neither the current
conviction nor the predicate convictions involved a homicidal offense; the Supreme
Court has yet to categorically prohibit courts from considering juvenile-age offenses
when applying enhancements to an adult’s conviction. See United States v. Graham
(“Donald Graham”), 622 F.3d 445, 462–63 (6th Cir. 2010) (collecting cases from other
circuits concluding that Graham v. Florida limited its holding to juvenile offenders,
leaving untouched the practice of considering juvenile-age criminal history when
sentencing an adult offender). Furthermore, in Donald Graham, we permitted a court

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to rely on a juvenile-age offense to enhance an adult-age offense’s maximum penalty to
life without parole, expressly declining to extend Graham v. Florida to adult offenders.
See id. at 463. We cannot disturb this holding absent en banc review.
Banks’s attempts to distinguish this case fail. He argues that Donald Graham
addressed enhancements under 18 U.S.C. § 841(b)(1) rather than the ACCA. But the
case’s reasoning, concerning the constitutionality of enhancing maximum penalties for
adult offenders to life without parole based on juvenile criminal history, applies equally
to enhancements under the ACCA. Furthermore, though Donald Graham reviewed its
Eighth Amendment challenge for plain error, the case adopted the reasoning of our sister
circuits in determining that no constitutional error, let alone plain error, occurred. See
622 F.3d at 462–63. And Banks’s remaining arguments, relying on circumstances
particular to him, fail to demonstrate the need for a categorical ban.
To create a categorical prohibition against the possibility of life without parole
for adult offenders with juvenile-age criminal history, Banks needs to demonstrate a
mismatch between the culpability of the offenders and the severity of the punishment,
whether in the form of “objective indicia of national consensus” regarding the
inappropriateness of the punishment or some other reason to doubt that “the challenged
sentencing practice serves legitimate penological goals.” Graham, 130 S. Ct. at 2023,
2026 (citations omitted). But Banks offers no data to suggest national consensus. His
critiques of the penological goals served (adapted from Graham’s critique of sentencing
practices involving juveniles) translate poorly to adults. See Appellant Br. 20–21
(claiming that “the case for retribution is not as strong with a minor as with an adult,”
that juveniles “will be less susceptible to deterrence,” and that “it would be misguided
to equate the failings of a minor with those of an adult” (citations, internal quotation
marks, and alteration omitted)). Banks, 33 years old at the time of his felon-inpossession offense, remained fully culpable as an adult for his violation and fully
capable of appreciating that his earlier criminal history could enhance his punishment.
Because Banks fails to distinguish Donald Graham, we decline to categorically prohibit

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the consideration of juvenile-age offenses when determining the applicability of the
ACCA’s sentencing enhancement.
Failing a categorical challenge, Banks could only bring an Eighth Amendment
challenge targeting his particular circumstances. Yet he offers no argument to suggest
that his actual sentence—the statutory minimum of fifteen years—is grossly
disproportionate to his crime and record. See United States v. Hill, 30 F.3d 48, 50 (6th
Cir. 1994) (concluding that the Eighth Amendment “only prohibit[s] extreme sentences
that are grossly disproportionate to the crime” (internal quotation marks omitted)
(quoting Harmelin v. Michigan, 501 U.S. 957, 1001 (1991))).
Accordingly, we AFFIRM.

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DISSENT
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BOYCE F. MARTIN, JR., Circuit Judge, dissenting. I agree with the majority’s
conclusion that Banks’s arguments regarding his adult conviction as a juvenile and his
Eighth Amendment challenge both fail. I do not agree with the premise upon which the
majority’s conclusion implicitly rests, and upon which Banks’s sentence explicitly rests:
that Banks’s conviction for robbery counts as a “violent felony” under the Armed Career
Criminal Act. For this reason, I would vacate his sentence and remand for resentencing.
In 1995, Banks was indicted for aggravated robbery. That charge was amended
to robbery, for which he was tried and convicted as an adult. Tennessee defines robbery
as “the intentional or knowing theft of property from the person of another by violence
or putting the person in fear.” Tenn. Code § 39-13-401(a). Aggravated robbery, Tenn.
Code § 39-13-402, is defined as robbery:
(1) Accomplished with a deadly weapon or by display of any article used
or fashioned to lead the victim to reasonably believe it to be a deadly
weapon; or
(2) Where the victim suffers serious bodily injury.
The burden is on the United States to prove that the predicate offense of which
Banks was convicted is a violent felony for sentencing purposes. United States v.
Bernal-Aveja, 414 F.3d 625, 628 (6th Cir. 2005). As we have explained, United States
v. Armstead, 467 F.3d 943, 947-48 (6th Cir. 2006) (quoting Shepard v. United States,
544 U.S. 13, 26 (2005)):
Since Shepard, to determine whether a prior conviction pursuant to a
guilty plea constitutes a crime of violence, the sentencing court must,
first, decide whether the statutory definition, by itself, supports a
conclusion that the defendant was convicted of a crime of violence. If
the statutory definition embraces both violent and non-violent crimes or
is otherwise ambiguous, the court, second, may look to the “charging
document, the terms of a plea agreement or transcript of colloquy
between judge and defendant in which the factual basis for the plea was
confirmed by the defendant, or to some comparable judicial record of this

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information” to determine whether the violent or non-violent aspect of
the statute was violated.
In its Sentencing Memorandum submitted before the district court, the United
States concludes that robbery under the Tennessee statute is necessarily a crime of
violence because it “has as an element the use of physical force against another.” While
the Tennessee robbery statute may be violated by committing theft by the use of
violence, it may also be violated without violence, by committing theft by putting the
victim in fear. Thus, robbery under the Tennessee statute “embraces both violent and
non-violent crimes,” id., and is therefore ambiguous for purposes of determining whether
a violation of the statute is a violent felony under the Act. We previously reached the
same conclusion in a recent unpublished decision. United States v. Fraker, No 10-5721,
2012 WL 284251, at *2 (6th Cir. Jan. 31, 2012).
Where the statute is ambiguous, the government carries the additional burden of
proving that Banks did, in fact, engage in violence in committing the crime. See Taylor
v. United States, 495 U.S. 575, 601 (1990); see also Fraker, 2012 WL 284251, at *2.
Under Shepard, where the statute is ambiguous the sentencing court may consider
certain factual evidence “to determine whether the violent or non-violent aspect of the
statute was violated.” Armstead, 467 F.3d at 948. In arguing that the predicate offense
here was a violent felony, the United States relied solely on the presentence report’s
description of Banks’s indictment. Review of the sentencing hearing transcript reveals
that the district court based its consideration of whether the robbery conviction counts
as a violent felony for sentencing purposes solely on the presentence report. The report
describes Banks’s indictment for aggravated robbery. The relevant language of the
report follows:
According to indictment #95-11487, on July 26, 1995, the defendant did
unlawfully, intentionally, knowingly, and violently, by use of a deadly
weapon, to wit: a handgun, obtain from Tony Graves [enumerated items
of Graves’s property].
Under Tennessee law, aggravated robbery is robbery accomplished by the use of a
deadly weapon; robbery alone has no deadly weapon requirement. Although the

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indictment recited the elements of the aggravated robbery rule, Banks was ultimately
convicted of robbery, not aggravated robbery. And, as I discussed, the Tennessee
robbery statute is ambiguous as to whether robbery is a violent felony for sentencing
purposes under the Act.
Two prior cases provide guiding precedent. In Bernal-Aveja, the defendant was
indicted for aggravated burglary but pled guilty to the lesser-included offense of
burglary. 414 F.3d at 627. The elements of the lesser-included offense in that case left
open the question of whether the offense of which the defendant was actually convicted
was a crime of violence. Id. We thus held “the indictment alone [was] insufficient to
meet the government’s burden of proving [the defendant] was previously convicted of
a ‘crime of violence.’” Id. at 628. We reached a consistent conclusion in Armstead. 467
F.3d at 949 (“Because no other evidence of violent conduct was before the [sentencing]
court, we conclude that the finding of a crime of violence based on the indictments alone
was error.”).
Here, the district court relied on the presentence report’s characterization of an
indictment that described a crime of which Banks was not convicted to determine that
the crime of which he was convicted is a violent felony. Under Bernal-Aveja and
Armstead, I believe this was error. I would vacate Banks’s sentence and remand for
resentencing.