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Case: 15-14809
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After pleading guilty, Charlie Jenkins appeals his 60-month sentence for
attempt to commit bank robbery, in violation of 18 U.S.C. 2113(a). On direct
appeal, Jenkins asserts that the district court erred in enhancing his sentence as a
career offender under U.S.S.G. 4B1.1. After review, we affirm.
I. BACKGROUND
A.
Offense Conduct
Pursuant to a plea agreement, Jenkins pled guilty to attempted bank robbery,
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frantically attempting to activate a silent alarm. The teller indicated that she
became fearful for her life after being given the robbery note. At some point while
the teller was away from her station, Jenkins left the bank without obtaining any of
the banks property.
B.
offense level as 20, pursuant to U.S.S.G. 2B3.1. The PSI assigned a two-level
increase under 2B3.1(b)(1) because the object of the offense involved the taking
of property of a financial institution, resulting in an adjusted offense level of 22.
The PSI also classified Jenkins as a career offender, pursuant to U.S.S.G.
4B1.1(a), which provides that a defendant is a career offender if (1) he was at
least 18 years old when he committed the offense of conviction; (2) the offense of
conviction is a felony that is either a crime of violence or a controlled substance
offense; and (3) he has at least two prior felony convictions for either a crime of
violence or a controlled substance offense. See U.S.S.G. 4B1.1(a). The PSI
identified these two qualifying prior Florida convictions: (1) a 1999 conviction for
robbery; 1 and (2) a 2002 conviction for Strong Arm Robbery.
As a result of the career offender designation, the PSI set Jenkinss offense
level at 32. See U.S.S.G. 4B1.1(b) (providing an offense level of 32 if, as in
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Jenkinss case, the statutory maximum for the offense of conviction is at least 20
years, but less than 25 years in prison). The PSI reduced Jenkinss offense level by
3 levels for acceptance of responsibility, pursuant to U.S.S.G. 3E1.1(a) and (b),
yielding a total offense level of 29.
As to criminal history, the PSI listed Jenkinss 1992 federal bank robbery
conviction and his above two prior Florida robbery convictions. Due to Jenkinss
career-offender status, the PSI raised his criminal history category from III to VI.
Based on his criminal history category of VI and an adjusted offense level of 29,
Jenkinss resulting advisory guidelines range was 151 to 188 months
imprisonment.
C.
Jenkinss Objections
Jenkins objected to the PSIs career-offender designation under 4B1.1(a).
Jenkins argued that his 1999 Florida robbery conviction was not a predicate crime
of violence as defined by 4B1.2(a). Specifically, Jenkins contended that at the
time of his conviction, Floridas robbery statute, Florida Statutes 812.13, would
include a robbery by mere sudden snatching, would not require the use, attempted
use, or threatened use of physical force, and would not present a serious risk of
physical injury to another, and thus would not be a generic robbery. Jenkins
pointed out that in 1999, after his conviction, the Florida Legislature enacted a
separate robbery by sudden snatching statute, Florida Statutes 812.131. Jenkins
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argued that before the new law in 1999, robberies by sudden snatching were
prosecuted under 812.13. Jenkins argued that the district court was required to
assume he was convicted of robbery by sudden snatching in 1999.
The probation officers Addendum to the PSI responded to Jenkinss
objections. The PSI Addendum stated, inter alia, that on June 17, 1999, Jenkins
was convicted of robbery under Florida Statute [] 812.13(2)(c). The PSI
Addendum explained that the carrying of a weapon is not an element of a
812.13(1) offense, but rather determined the degree of felony. See Fla. Stat.
812.13(2)(c) (making a violation of 812.13(1) a second degree felony if the
defendant carried no firearm, deadly weapon, or other weapon during the
robbery (emphasis added)). The PSI Addendum maintained that Jenkinss
812.13(1) conviction was a crime of violence under 4B1.2 regardless of
whether the offense included sudden snatching. 2
Based on the current record, we must reject the governments contention that Jenkinss
1999 conviction was for armed robbery, not just robbery. Paragraph 25 of the PSI initially
labeled Jenkinss 1999 conviction as an Armed Robbery, but did not include any citation to a
Florida statute of conviction or contain any description of the circumstances of the offense. The
government did not submit any Shepard documents. Jenkins objected to paragraph 25, arguing
that this robbery conviction was not a crime of violence. In response, the probation officers PSI
Addendum clarified that Jenkins was convicted under Florida Statute [] 812.13(2)(c), which
makes a robbery under 812.13(1) a second degree felony when the defendant did not carry a
weapon during the offense. Neither party objected to this statement in the PSI Addendum. See
United States v. Bennett, 472 F.3d 825, 833-34 (11th Cir. 2006) (explaining that a failure to
object to facts contained in the PSI and any addendum to the PSI admits those facts for
sentencing purposes).
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Sentencing Hearing
At sentencing, Jenkins acknowledged that the district court was bound by
this Courts recent decision in United States v. Matchett, 802 F.3d 1185 (11th Cir.
2015), which rejected a constitutional-vagueness challenge to 4B1.2(a)(2)s
residual clause. Jenkins reiterated all of his previous objections. Jenkins
contended that, because the government failed to produce Shepard documents to
the contrary, the district court was required to assume that his 1999 robbery
conviction was for a robbery by mere sudden snatching. The government
responded that Jenkinss instant 18 U.S.C. 2113(a) offense and his prior 1999
Florida robbery conviction were both crimes of violence under all three clauses of
U.S.S.G. 4B1.2(a).
The district court overruled Jenkinss objections. The district court found
that both Jenkinss 1999 Florida robbery conviction and his instant 18 U.S.C.
2113(a) offense for attempted bank robbery were crimes of violence under
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U.S.S.G. 4B1.2(a). The district court calculated Jenkinss total offense level as
29, his criminal history category as VI, and his advisory guidelines range as 151 to
188 months.
Jenkinss counsel requested, among other things, a downward departure
pursuant to U.S.S.G. 5H1.3 because of Jenkinss significant mental health
conditions. Counsel noted that Jenkins was arrested for his Florida robbery offense
in 1995, but his conviction was delayed until 1999 because he was not mentally
competent to stand trial and was institutionalized for several years. Counsel asked
for a 48-month sentence. The government agreed that a downward departure was
appropriate and left the extent of the departure to the district courts discretion.
After stating that it had considered the parties arguments, the PSI, the
Sentencing Guidelines, and the 18 U.S.C. 3553(a) factors, the district court found
that Jenkins had a documented history of severe mental disease that warranted a
5H1.3 downward departure. The district court imposed a 60-month sentence.
II. DISCUSSION
A.
changes a defendants offense level and sets a criminal history category of VI,
usually resulting in an increased advisory guidelines range. See U.S.S.G.
4B1.1(b). As noted earlier, to be a career offender, Jenkinss instant felony
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offense of conviction must be a crime of violence and he must have two prior
felony convictions for a crime of violence. See U.S.S.G. 4B1.1(a). Section
4B1.2(a) defines a crime of violence as a felony that: (1) has as an element the
use, attempted use, or threatened use of physical force (the elements clause); (2) is
specifically enumerated as a crime of violence within the guideline (the
enumerated offenses clause); or (3) otherwise involves conduct that presents a
serious potential risk of physical injury to another (the residual clause). Id.
4B1.2(a).3
B.
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could infer a threat of bodily harm from the defendants acts. United States v.
Kelley, 412 F.3d 1240, 1244 (11th Cir. 2005) (quotation marks omitted).
Robbery is listed as an enumerated offense for purposes of 4B1.2. See
U.S.S.G. 4B1.2, cmt. n.1; United States v. Lockley, 632 F.3d. 1238, 1241-42
(11th Cir. 2011). The term crime of violence also includes attempts to commit
an enumerated offense. U.S.S.G. 4B1.2, cmt. n.1. When an offense is
specifically enumerated as a crime of violence, this Court compare[s] the
elements of the crime of conviction to the generic form of the offense to
determine whether the prior conviction qualifies as a crime of violence. Lockley,
632 F.3d. at 1241-42.
The generic definition of robbery is the taking of property from another
person or from the immediate presence of another person by force or intimidation.
Id. at 1244 (quotation marks omitted). Under the generic approach, intimidation is
the fear of bodily harm. Id.
The elements of a 2113(a) offense are nearly identical to the elements of
generic robbery. Both 2113(a) and generic robbery at a minimum require the
taking to be by intimidation, i.e., a perceived threat of bodily harm. Therefore, we
conclude that bank robbery, or attempted bank robbery, under 2113(a), even
when perpetrated by means of intimidation, is an enumerated offense that qualifies
as a crime of violence under 4B1.2(a).
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Statutes 812.13(1) and (2)(c). Florida law, both now and in 1995 when Jenkins
was arrested, defined robbery as:
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As to the elements clause, the Court found that 812.13(1) requires either
the use of force or violence, the threat of imminent force or violence coupled with
apparent ability, or some act that puts the victim in fear of death or great bodily
harm. Id. at 1245. The Court stated that it found it inconceivable that any act
which causes the victim to fear death or great bodily harm would not involve the
use or threatened use of physical force within the meaning of 4B1.2(a)(1). Id.
Thus, a conviction under 812.13(1) also categorically qualifies under the
elements clause as a predicate for the career offender enhancement. Id. Under
Lockley, therefore, Jenkinss 1999 812.13(1) robbery conviction is a crime of
violence under U.S.S.G. 4B1.2(a).
On appeal, Jenkins argues that we are not bound by Lockley because it
addressed a 2001 robbery conviction under 812.13(1), after the Florida
Legislature enacted a separate robbery by sudden snatching statute, Florida
Statutes 812.131, on October 1, 1999. See Fla. Stat. 812.131; 1999 Fla. Laws
969; see also Lockley, 632 F.3d at 1246 & n.7 (distinguishing 812.13(1) from
its less-serious counterpart, Fla. Stat. 812.131(1) because 812.13(1) concerns
a far more aggressive and potentially violent form of robbery). According to
Jenkins, before the October 1999 enactment (and specifically when he was charged
in 1995), a taking by sudden snatching was prosecuted as a robbery under
812.13(1). Thus, Jenkins maintains, prior to October 1, 1999, 812.13(1)
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In the district court, Jenkins referred to the challenged Florida robbery conviction as his
1995 robbery conviction. In this Court, Jenkins refers to it as his pre-1999 conviction. It is
undisputed, however, that Jenkins was arrested in 1995, but was not convicted until June 1999.
The crux of Jenkinss argument is that he was arrested, charged, and convicted under 812.13(1)
before Floridas legislature enacted 812.131 in October 1999.
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that while the distinction may fairly be made, it saw no reason not to apply
Lockley to 1996 Florida robbery, even if robbery at that time could be
accomplished by mere snatching. Id. at 1312. Noting that the issue is not cut
and dried, however, the Court concluded that it need not reach the elements clause
issue because a snatching suffices under the [ACCAs] residual clause. Id. at
1313. 5
In addition to not reaching the issue, Welch is unpersuasive in light of the
Florida Supreme Courts reasoning in Robinson, which makes it clear that a
812.13(1) robbery has consistently required more force than a sudden
snatching. 692 So. 2d at 887. As the Welch Court noted, the defendant in that
case had pled guilty before Robinson was decided and in a judicial district,
namely the Fourth District Court of Appeal, that had not yet spoken definitively
on the question. Welch, 683 F.3d 1311 & nn.31-32. Jenkins, on the other hand,
was arrested and charged in Winter Haven, Florida, which is in Polk County,
within Floridas Second District Court of Appeal. The Second District had ruled
long before Jenkinss 1995 robbery arrest that more than a mere snatching was
Welch was decided before Johnson v. United States, 576 U.S. ___, ___, 135 S. Ct. 2551,
2557 (2015), which held that the ACCAs residual clause was unconstitutionally vague. In his
subsequent proceedings under 28 U.S.C. 2255, Welch argued that Johnson applies retroactively
on collateral review. The Supreme Court agreed and remanded Welchs 2255 proceedings to
this Court to determine whether the district courts denial of his 2255 motion was correct on
other grounds, noting that the parties continue to dispute whether Welchs strong-arm robbery
conviction qualifies as a violent felony under the elements clause of the Act. See Welch v.
United States, 578 U.S. ___, 136 S. Ct. 1257, 1268 (2016).
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Because Jenkins was convicted under 812.13(1), which does not include, and never
has included, sudden snatching, we have no occasion to address whether a Florida conviction for
taking property by sudden snatching, either before or after 1999, constitutes a crime of violence
under U.S.S.G. 4B1.2(a).
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The parties vigorously dispute whether Jenkinss current 18 U.S.C. 2113(a) conviction
and his prior 1999 Florida robbery conviction can or should still qualify as a crime of violence
under 4B1.2(a)(2)s residual clause in light of the Supreme Courts decision in Johnson v.
United States, 576 U.S. ___, 135 S. Ct. 2551 (2015), this Courts decision in United States v.
Matchett, 802 F.3d 1185 (11th Cir. 2015), and the Sentencing Commissions recent proposed
amendment, effective August 1, 2016, deleting the residual clause from 4B1.2(a)(2). Because,
for the reasons discussed above, we conclude that both of Jenkinss challenged convictions
qualify as crimes of violence under the enumerated offenses clause and the elements clause,
we need not address the issues raised as to the residual clause.
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