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Lloyd v. United States

United States District Court, S.D. Georgia, Savannah Division

June 15, 2017

BRUCE LLOYD, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          REPORT AND RECOMMENDATION

         Guilty-plea convicted of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e), Bruce Lloyd has filed a 28 U.S.C. § 2255 motion asserting that counsel was ineffective for failing to argue that he was improperly sentenced under the Armed Career Criminal Act (ACCA).[1] Docs. 39 & 40; see docs. 1 (indictment); 26 (plea agreement); 35 (judgment for 188 months' incarceration). He seeks to neutralize his enhanced sentence, arguing that his prior convictions were improperly used to brand him an armed career criminal. He also contends his counsel was ineffective for failing to so argue at sentencing, and that she failed to appeal his sentence despite his asking. Docs. 39 & 40. The Government opposes. Doc. 45.

         I. ANALYSIS

         A. The ACCA

         The ACCA imposes an enhanced sentence upon § 922(g) felon-with-a-gun offenders who have at least three prior convictions “for a violent felony or a serious drug offense.” 18 U.S.C. § 924(e)(1). Plain vanilla, felon-in-possession convictions fetch a maximum 10 year sentence, see 18 U.S.C. § 922(a)(2), while the ACCA enhancement mandates a 15 year minimum (and a maximum of life). 18 U.S.C. § 924(e)(1).

         B. Background

         Lloyd pled guilty to possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g). Doc. 26. His Presentence Investigative Report (PSR) deemed him an armed career criminal, based upon two prior convictions for possession with intent to distribute and for the sale of marijuana and one prior conviction for robbery. See PSR at ¶¶ 34, 39 & 40. Counsel initially raised, but later withdrew after further review of the record, a contention that Lloyd's robbery conviction under O.C.G.A. § 16-8-40 did not qualify as a “violent crime” for ACCA enhancement. See PSR, Addendum; doc. 42 (sentencing hearing transcript) at 6-8 (noting the admitted factual basis of his robbery conviction involved the “use of force, ” so counsel was forced to withdraw her objection). Counsel also argued that Lloyd's two marijuana convictions, while “serious drug offenses” for ACCA enhancement purposes, should be considered less serious than if they had been for “crack, heroin, [or] cocaine.” Id. at 6. The Court, based on counsel's argument, sentenced Lloyd at the lowest end of the advisory guidelines, to run consecutively to any sentence imposed on pending state charges. Id. at 10 (sentencing movant to 188 months' imprisonment). Lloyd did not appeal his sentence. See doc. 36 (signed notice of post-conviction consultation, affirming movant's decision not to file an appeal after counsel fully explained the consequences of doing so[2]).

         C. Three ACCA Predicates

         i. Robbery

         Lloyd was convicted of robbery in violation of O.C.G.A. § 16-8-40. PSR at ¶ 34; doc. 45-1 (state criminal court plea hearing transcript) at 2-11. He disputes that the crime qualified as a “violent felony” for ACCA-enhancement at sentencing. Docs. 39 & 40. ACCA violent felonies must either (1) have “as an element the use, attempted use, or threatened use of physical force against the person of another” (elements clause), or (2) be “burglary, arson, or extortion, [or] involve [ ] the use of explosives” (enumerated (property) crimes clause). 18 U.S.C. § 924(e)(2)(B)(i); see Taylor v. United States, 495 U.S. 575, 585-97 (1990) (reviewing legislative history of the ACCA). Felonies that previously qualified under the residual clause -- those that “otherwise involve[d] conduct that presents a serious potential risk of physical injury to another” -- no longer count. Johnson v. United States, 576 U.S. __, 135 S.Ct. 2551, 2557 (2015).

         Robbery in Georgia can be committed in one three of ways: by use of force; by intimidation, threat or coercion, or placing a person in fear of immediate bodily injury; or by “sudden snatching.” O.C.G.A. § 16-8-40. Given the disjunctive listing of statutory elements, Georgia robbery cannot categorically qualify as a violent felony following Johnson. In re: Herman McClouden, No. 16-13525-J (11th Cir. July 12, 2016), copy available at McClouden v. United States, 2016 WL 5109530 at *4 (S.D. Ga. Sept. 20 2016). Instead, it must be analyzed under the modified categorical approach. Mathis v. United States, 136 S.Ct. 2243, 2249 (2016); Descamps v. United States, 570 U.S. __, 133 S.Ct. 2276, 2281 (2013) (the modified categorical approach is used when a statute is “divisible, ” such that it “sets out one or more elements of the offense in the alternative”).

         Robbery by intimidation occurs when “[a] person . . . with the intent to commit theft . . . takes property of another from the person of another or the immediate presence of another . . . by intimidation, by the use of threat or coercion, or by placing such person in fear of immediate serious bodily injury to himself or to another . . . .” O.C.G.A. § 16-8-40(a)(2). “A conviction for robbery by intimidation . . . requires proof that the theft was attended with such circumstances of terror -- such threatening by word or gesture, as in common experience, are likely to create an apprehension of danger, and induce a [person] to part with his property for the safety of his person.” Smith v. State, 247 Ga.App. 173 (2000). On the state statute's elements, that's a clear use of the “threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(1)(2)(B)(i); Brown v. United States, WL 7013531 at *3 (S.D. Ga. Nov. 7, 2016) (citing Cooks v. United States, 2015 WL 7069665 at *2 (S.D. Ga. Nov. 13, 2015) (“[R]obbery by intimidation contains as an element a threat, implicit or overt, which would likely create fear for the safety of the person being threatened. Although this definition does not include the word force, the natural corollary of an act that creates fear for the safety of a person is the threatened use of physical force against that person.”)).[3] See Hires, 825 F.3d at 1303 (“because [Brown's] convictions qualified under the elements clause, that settles the matter for Johnson-residual clause purposes regardless of whether those convictions would count were [he] being sentenced today.”).

         The guilty plea transcript reveals that Lloyd admitted the way he committed the robbery constituted “robbery by intimidation.”[4] Doc. 45-1 at 2-11; see United States v. Diaz-Calderone, 716 F.3d 1345, 1350 (11th Cir. 2013) (to establish the crime defendant was convicted of committing, the court may consult a transcript of the plea colloquy to determine “the factual basis for the plea which was confirmed by the defendant”). Here, the prosecutor proffered as the factual basis for movant's plea that Lloyd and his codefendant Frazier had approached the victim; Frazier held the victim at gunpoint, robbed him of $20, then forced him to drive to an ATM; then Frazier handed the gun to Lloyd to hold while he aided the victim in withdrawing money from the ATM. Doc. 45-1 at 2-5. Lloyd was later found with the gun, and eventually admitted under questioning that he had indeed been involved in the robbery. Id. at 5-6. Defense counsel affirmed that the factual recitation was “our understanding, Your Honor, ” and Lloyd pled “guilty” to, inter alia, the charge of “robbery.” Id. at 7; see Diaz-Calderone, 716 F.3d at 351 (counsel's admission of the factual basis for a plea “established a sufficient basis for the court's finding of fact that [movant] was indeed admitting that he did” what counsel acknowledged he did).

         As set forth by the Government, “defense counsel admitted that the factual basis for Lloyd's guilty plea to robbery involved holding the victim at gunpoint. . . . Robbing a victim at gunpoint necessarily ‘plac[es] such person in fear of immediate serious bodily injury' and so constitutes robbery by intimidation under O.C.G.A § 16-8-40(a)(2).” Doc. 45 at 9. That counts as one ACCA predicate violent felony. See generally Green v. United States, 2017 WL 819680 at *5 (S.D. Ga. Mar. 1, 2017) (Georgia robbery by intimidation remains ACCA predicate violent felony); Brown v. United States, 2016 WL 7013531 at *3 (S.D. Ga. Nov. 7, 2016) (same).[5]

         ii. ...


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