           Case: 14-14813   Date Filed: 01/19/2016   Page: 1 of 5




                                                     [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-14813
                      ________________________

                  D.C. Docket No. 0:14-cr-60061-JIC-1



UNITED STATES OF AMERICA,

                                                     Plaintiff - Appellee,

versus

TRAVIS WILSON,

                                                     Defendant - Appellant.

                      ________________________

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

                            (January 19, 2016)

Before MARCUS, JORDAN, and BLACK, Circuit Judges.

PER CURIAM:
                   Case: 14-14813        Date Filed: 01/19/2016       Page: 2 of 5


          Travis Wilson, who pled guilty to possessing a firearm as a felon, see 18

U.S.C. § 922(g), appeals his 15-year sentence, which the district court imposed

pursuant to the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1). With the

benefit of oral argument, and following a review of the record, we reverse and

remand so that Mr. Wilson can be resentenced without the ACCA enhancement.1


          For the ACCA to apply, a defendant like Mr. Wilson must have three or

more prior convictions for a “violent felony or a serious drug offense, or both,

committed on occasions different from one another.” 18 U.S.C. § 924(e)(1). Mr.

Wilson has four prior convictions. The government concedes that one of those

convictions—a 1997 conviction for escape—is not an ACCA predicate offense,

see Govt.’s Letter of Nov. 10, 2015, and Mr. Wilson concedes that his 2009

conviction for possession of cocaine with the intent to distribute qualifies as an

ACCA predicate offense. So, for the ACCA to apply, both of the remaining prior

convictions—one for robbery in 1997 and one for resisting arrest/battery on a law

enforcement officer in 2000—must be violent felonies or serious drug offenses.


          “Whether a particular conviction is a crime of violence for purposes of the

ACCA is a question of law we consider de novo.” United States v. Canty, 570

F.3d 1251, 1254 (11th Cir. 2009). We apply this plenary standard here because

Mr. Wilson’s written and oral objections to being classified as an armed career
1
    Because we write for the parties, we set out only what is necessary to explain our decision.
                                                   2
                Case: 14-14813      Date Filed: 01/19/2016      Page: 3 of 5


criminal, though general and not detailed, were sufficient to preserve the issue for

appeal. See United States v. Smith, 39 F.3d 1143, 1146 (11th Cir. 1994).                  For

example, Mr. Wilson argued in his written objections that the 1997 robbery

conviction “d[id] not qualify as a predicate offense” under the ACCA. See D.E. 51

at 2 (Mr. Wilson’s sealed objections to the presentence investigation report).

Indeed, the district court understood the objection, and ruled that all of Mr.

Wilson’s prior convictions—including the 1997 robbery conviction—constituted

predicate convictions under the ACCA.             See D.E. 67 at 6-7.2


       The government “bears the burden of proving that a sentencing enhancement

under the ACCA is warranted.” United States v. Lee, 586 F.3d 859, 866 (11th Cir.

2009). We conclude, for a number of reasons, that the government did not carry its

burden with respect to the 1997 conviction for robbery, and therefore do not need

to address the 2000 conviction for resisting arrest/battery on a law enforcement

officer. First, the factual proffer prepared by the government (and signed by Mr.

Wilson) stated that this robbery conviction was under Fla. Stat. § 812.131 (robbery

by snatching), see D.E. 44 at 3, but § 812.131 had not been enacted in 1997, when

Mr. Wilson pled guilty.        Second, the presentence investigation report did not


2
 We note that the government, despite being served with Mr. Wilson’s written objections to the
presentence investigation report, did not respond to the objections. Had the government
introduced the proper documents concerning the 1997 robbery conviction at the sentencing
hearing, we would be able to determine whether it had met its burden under the ACCA.


                                              3
              Case: 14-14813     Date Filed: 01/19/2016   Page: 4 of 5


indicate the statute of conviction for the 1997 robbery, and therefore did not

correct the error in the factual proffer. See PSI at ¶ 43. So, at the time of

sentencing, it was not clear what statute Mr. Wilson was convicted of violating in

1997. Third, at sentencing the government did not introduce any documents to

prove that the 1997 robbery conviction qualified as a violent felony under the

ACCA. Fourth, given that the robbery by snatching statute did not exist in 1997, if

Mr. Wilson only committed a minimum-force “snatching” robbery (as described in

the factual proffer) he could not have been convicted under Florida’s general

robbery statute. See Messina v. State, 728 So.2d 818, 819 (Fla. Dist. Ct. App.

1999) (“[P]urse snatching is not a robbery if no force was used other than that

necessary to take the victim’s purse.”).


      We therefore vacate Mr. Wilson’s 15-year sentence and remand for the

district court to resentence Mr. Wilson without the ACCA enhancement. Under

the circumstances, we exercise our discretion to not allow the government to prove

on remand that the 1997 robbery conviction constituted a violent felony under the

ACCA. “Nothing prevented the government—which was aware of Mr. [Wilson’s]

objection—from putting on evidence concerning [the 1997 robbery conviction],

and a party who bears the burden on a contested sentencing issue will generally not

get to try again on remand if its evidence is found to be insufficient on appeal.”

United States v. Washington, 714 F.3d 1358, 1362 (11th Cir. 2013).

                                           4
    Case: 14-14813   Date Filed: 01/19/2016   Page: 5 of 5


VACATED AND REMANDED FOR RESENTENCING.




                             5
