           Case: 13-14555   Date Filed: 04/05/2017   Page: 1 of 9


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-14555
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 1:13-cr-20381-DMM-1



UNITED STATES OF AMERICA,

                                                     Plaintiff - Appellee,

                                  versus

TYRONE HART,

                                                     Defendant - Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     ________________________

                             (April 5, 2017)

    ON REMAND FROM THE UNITED STATES SUPREME COURT

Before MARTIN, JILL PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:
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      After Tyrone Hart pled guilty to being a felon in possession of a firearm, the

district court imposed an enhanced sentence under the Armed Career Criminal Act

(“ACCA”), 18 U.S.C. § 924(e). Hart appeals the district court’s decision to

classify and sentence him as an armed career criminal, contending that the district

court erred in finding that three of his prior criminal convictions were either violent

felonies or serious drug offenses under ACCA. After careful consideration, we

conclude that the district court erroneously determined that two of Hart’s burglary

convictions were violent felonies supporting this classification. Although

precedent at the time the district court sentenced Hart supported this classification,

intervening decisions by the Supreme Court and this Court have altered the

landscape. Thus, we vacate Hart’s sentence and remand for resentencing.

                              I.      BACKGROUND

      ACCA, which is at the center of this appeal, imposes a mandatory minimum

sentence of 15 years’ imprisonment on a defendant convicted of being a felon in

possession of a firearm under 18 U.S.C. § 922(g) who also has three prior state or

federal convictions for “a violent felony,” “a serious drug offense,” or both. Id.

§ 924(e)(1). The term “violent felony” includes “any crime punishable by

imprisonment for a term exceeding one year . . . that” has certain violent elements

(called the “elements clause”) or is one of a specific list of enumerated crimes (the

“enumerated crimes clause”). See id. § 924(e)(2)(B)(i),(ii). At the time the district



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court sentenced Hart, ACCA’s definition of violent felony also included a

“residual clause” covering a wide array of other convictions, but the Supreme

Court has since invalidated that provision. See Johnson v. United States, 135 S. Ct.

2551 (2015).

       Hart was charged with two counts of possessing firearms by a convicted

felon. Represented by appointed counsel David Tucker, Hart pled guilty to one of

these counts without a plea agreement. Before sentencing, the probation office

prepared a pre-sentence investigation report (“PSI”) for Hart that listed 15 prior

felony convictions punishable by imprisonment over one year. Among these

convictions were two for burglary, two for robbery, and three for narcotics

offenses, all in violation of Florida law and each of which the PSI classified as

qualifying offenses under ACCA. Given these seven ACCA predicate offenses,

the PSI classified Hart as an armed career criminal, subject to a 15 year minimum

sentence.

       Aside from this statutory minimum, the PSI calculated Hart’s offense level

as 301 and his criminal history category as VI. These scores would yield a

guidelines range of 168 to 210 months’ imprisonment, but Hart’s statutory

minimum sentence raised the low range to 180 months. Hart did not object to the

       1
         The base offense level for Hart’s violation of 18 U.S.C. § 922(g)(1), including
enhancements, was 22. His offense level rose to 33 as a result of his criminal history pursuant to
U.S.S.G. § 4B1.4(a). This level was then reduced to 30 as a result of his acceptance of
responsibility.


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PSI and filed a “Position on Sentencing” requesting the 15 year minimum sentence

allowed under ACCA. At his sentencing hearing, Hart once again requested the

minimum sentence ACCA allowed. The court imposed this sentence, and Hart

lodged no objections.

      Hart then filed, pro se, a notice of appeal. This Court appointed Tucker to

represent him on appeal. Tucker filed a motion to withdraw along with an Anders 2

brief arguing that there were no issues of arguable merit to appeal in Hart’s case.

Tucker attached what appeared to be copies of three Florida drug narcotics

convictions to his Anders brief. Hart filed a pro se response brief arguing that the

district court erred in classifying him as an armed career criminal because none of

his burglary, robbery, or narcotics convictions qualified as ACCA predicate

offenses under recent Supreme Court precedents. We granted Tucker’s motion to

withdraw and affirmed Hart’s conviction and sentence.

      Hart then petitioned the Supreme Court for a writ of certiorari. The

Supreme Court granted certiorari, vacated our judgment, and remanded the case to

this Court for further proceedings in light of its decision in Johnson invalidating

ACCA’s residual clause.




      2
          See Anders v. California, 386 U.S. 738 (1967).


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                            II.     STANDARD OF REVIEW

       Hart failed to object to his classification as an armed career criminal in the

district court, so we review for plain error. 3 “Our review under the plain error rule

is limited and circumscribed.” United States v. Jones, 743 F.3d 826, 829 (11th Cir.

2014) (internal quotation marks omitted). Plain error requires “(1) error, (2) that is

plain, and (3) that affects substantial rights” where the error also “(4) . . . seriously

affects the fairness, integrity, or public reputation of judicial proceedings.” Id.

(internal quotation marks omitted).

                                    III.    DISCUSSION

       The district court erred in determining that his two Florida burglary

convictions were violent felonies under ACCA, and this error was plain. Although

Florida burglary was considered a violent felony under ACCA’s residual clause at

the time of Hart’s sentencing, see James v. United States, 550 U.S. 192, 213 (2007)

(citing United States v. Matthews, 466 F.3d 1271, 1274 (11th Cir. 2006)), the

Supreme Court has since invalidated ACCA’s residual clause as void for

vagueness. See Johnson, 135 S. Ct. at 2563. And this Court has held that Florida


       3
          The government argues that we should not consider Hart’s request for resentencing at
all because he requested the 15 year sentence he received and therefore invited any error in that
sentence. We disagree. The doctrine of invited error applies when a defendant induces or invites
the district court to make an error. United States v. Love, 449 F.3d 1154, 1157 (11th Cir. 2006).
If a defendant invites error, we are precluded from reversing the erroneous ruling for plain error.
Id. Here, Hart did not invite error. He simply requested the lowest sentence that was legally
available at the time. The fact that Hart did not object to his classification as an armed career
criminal merely “shifts this appeal into the plain error review column.” Jones, 743 F.3d at 828.


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burglary is not a violent felony under ACCA’s enumerated crimes or elements

clauses. See United States v. Esprit, 841 F.3d 1235, 1240–41 (11th Cir. 2016).

Thus, the district court’s determination that Hart’s burglary convictions were

violent felonies under ACCA was error. “As for the plainness of that error, an

intervening decision by this Court or the Supreme Court squarely on point may

make an error plain.” Jones, 743 F.3d at 829–30 (internal quotation marks

omitted). Under Johnson and Esprit, the error here was plain.

      Hart has also shown that this error affected his substantial rights. To make

this showing, he must demonstrate a “reasonable probability” that he would have

received a lighter sentence but for the district court’s erroneous determination that

his Florida burglary convictions were violent felonies. Jones, 743 F.3d at 830.

Here, he has done so because, as we explain below, we cannot uphold his

classification as an armed career criminal without these burglary convictions. And

absent this classification, the maximum sentence the district court could impose on

remand is 10 years, substantially less than the 15 year sentence Hart received.

See 18 U.S.C. § 924(a)(2). Therefore, the error here affected Hart’s substantial

rights. See Jones, 743 F.3d at 830.

      We cannot uphold Hart’s classification as an armed career criminal absent

his burglary convictions even though the district court appears to have relied on

five other convictions in classifying him as an armed career criminal. Two of these



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convictions were for Florida robbery, which this Court has held qualifies as a

violent felony under ACCA notwithstanding the Supreme Court’s Johnson

decision. See United States v. Fritts, 841 F.3d 937, 940, 942 (11th Cir. 2016)

(holding that Florida robbery is a violent felony under ACCA’s elements clause).

Because Hart’s designation as an armed career criminal requires a third qualifying

offense, however, at least one of his narcotics convictions must qualify as a

“serious drug offense” for him to be eligible for the ACCA enhancement.

      Yet we cannot determine whether any of Hart’s three Florida narcotics

convictions qualify as serious drug offenses given the record before us. At

sentencing, the district court made no findings regarding Hart’s narcotics

convictions. To be sure, Hart’s PSI listed three Florida narcotics convictions as

serious drug offenses. But the PSI lacked information from which we could

conclude that these convictions actually qualify as serious drug offenses within the

meaning of ACCA. This lack of specificity matters because some Florida

narcotics convictions qualify as serious drug offenses under ACCA, while others

do not. Compare United States v. Smith, 775 F.3d 1262, 1266–68 (11th Cir. 2014)

(holding that Fla. Stat. § 893.13 qualifies as a serious drug offense under ACCA),

with United States v. Shannon, 631 F.3d 1187, 1188–90 (11th Cir. 2011) (holding




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that Fla. Stat. § 893.135 was not necessarily a “controlled substance offense” under

the Sentencing Guidelines 4).

       The PSI does include summaries of the facts of each of Hart’s offenses, but

we cannot rely on these summaries because they were derived from arrest

affidavits. See United States v. Rosales-Bruno, 676 F.3d 1017, 1022 (11th Cir.

2012) (holding that Florida arrest affidavits cannot be used to label a conviction a

qualifying offense under ACCA). Given the inadequacy of the record before us,

we are unable to determine whether Hart’s narcotics convictions qualify as serious

drug offenses.5 Absent these drug offenses, Hart’s two robbery convictions are

insufficient to support his classification as an armed career criminal. And without

this classification, the district court could not have imposed the sentence it did.

Therefore, Hart has demonstrated that the district court’s erroneous determination




       4
         While slightly more conduct is covered by ACCA’s definition of “serious drug offense”
than the Sentencing Guidelines’ definition of “controlled substance offense,” neither reaches
mere purchase of a controlled substance, which is what we must assume occurred here in the
absence of any findings of fact by the district court. See Shannon, 631 F.3d at 1189, 1190 n.3.
       5
           The government argues that we should look to the records of Hart’s Florida narcotics
convictions that Hart’s trial counsel attached to his Anders brief. But this Court “will not
ordinarily enlarge the record on appeal to include material not before the district court.” Kemlon
Prod. & Dev. Co. v. United States, 646 F.2d 223, 224 (5th Cir. 1981); see also Bonner v. City of
Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc) (holding decisions of the former Fifth
Circuit rendered prior to close of business on September 30, 1981 binding on this Court). Nor is
it the province of this Court to make findings about a prior conviction on appeal. See, e.g.,
United States v. Gibson, 434 F.3d 1234, 1254 (11th Cir. 2006) (“The Supreme Court’s decisions
. . . explicitly allow sentencing courts to find the fact of a defendant’s prior convictions . . . .”
(emphasis added)).


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that his burglary convictions qualified as violent felonies under ACCA affected his

substantial rights.

      Finally, we conclude that this error “seriously affected the fairness, integrity,

or public reputation of the judicial proceedings in this case.” Jones, 743 F.3d at

830. Hart “was given a mandatory minimum sentence that exceeds the statutory

maximum” that would apply absent his classification as an armed career criminal.

Id. We cannot determine whether this classification was appropriate given the

district court’s erroneous conclusion that Hart’s burglary convictions qualified as

violent felonies under ACCA. We therefore vacate Hart’s sentence and remand the

case for resentencing consistent with this opinion.

      VACATED and REMANDED.




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