                                                                   [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS
                                                                             FILED
                                   FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
                                                            U.S.
                                    ________________________ ELEVENTH CIRCUIT
                                                                      AUG 10, 2011
                                            No. 10-15378               JOHN LEY
                                        Non-Argument Calendar            CLERK
                                      ________________________

                          D.C. Docket No. 5:10-cr-00017-CAR-CHW-1

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                  Plaintiff-Appellee,

                                                 versus

MANDRIEZ RAMON SPIVEY,

llllllllllllllllllllllllllllllllllllllll                           Defendant-Appellant.

                                     ________________________

                           Appeal from the United States District Court
                               for the Middle District of Georgia
                                 ________________________

                                           (August 10, 2011)

Before WILSON, PRYOR and BLACK, Circuit Judges.

PER CURIAM:

         Mandriez Ramon Spivey appeals his sentence of 85 months of

imprisonment for possessing a firearm as a convicted felon. 18 U.S.C.
§§ 922(g)(1), 924(a)(2). Spivey argues that the district court erroneously assigned

him a base offense level of 24 based on the determination that his prior conviction

for aggravated stalking qualified as a “crime of violence.” See United States

Sentencing Guidelines Manual §§ 2K2.1(a)(2), 4B1.2(a)(2) (2010). We affirm.

      We review de novo whether a prior conviction is a crime of violence.

United States v. Lockley, 632 F.3d 1238, 1240 (11th Cir. 2011). To qualify as a

crime of violence, the offense must “involve[] conduct that presents a serious

potential risk of physical injury to another.” U.S.S.G. § 4B1.2(a)(2). In Georgia, a

defendant commits aggravated stalking when, in violation of a court order, he

“follows, places under surveillance, or contacts [his victim] at or about a place or

places without [her] consent . . . for the purpose of harassing and intimidating”

her. Ga. Code Ann. § 16-5-91(a). The defendant “harasses and intimidates” by

engaging in a “knowing and willful course of conduct” that causes the victim

“emotional distress by placing [her] in reasonable fear for [her] safety.” Ga. Code

Ann. § 16-5-90(a)(1); see State v. Burke, 287 Ga. 377, 378, 695 S.E.2d 649, 650

(2010) (applying definition of harassing and intimidating from stalking statute to

conviction for aggravated stalking). Because “‘ambiguities in the [statute] make

the crime of violence determination impossible from the face of the judgment

itself,’” Lockley, 632 F.3d at 1240 (quoting United States v. Harris, 586 F.3d

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1283, 1286 n.1 (11th Cir. 2009)), Spivey acknowledges that we may examine the

facts of his conviction, see United States v. Beckles, 565 F.3d 832, 842–43 (11th

Cir. 2009), which establish that he violated a protective order by traveling to his

victim’s house and threatening to kill her.

      Spivey’s prior conviction for aggravated stalking is a crime of violence.

Spivey argues that aggravated stalking “does not necessarily create any sort of

actual risk of physical injury,” but section 4B1.2 requires only that the offense

“present[] a serious potential risk of physical injury,” U.S.S.G. § 4B1.2(a)(2)

(emphasis added). The likelihood that Spivey’s victim would suffer a physical

injury is comparable in degree and kind to the risk created during a burglary. See

James v. United States, 550 U.S. 192, 203, 127 S. Ct. 1586, 1594 (2007)

(examining whether “the risk posed by [the crime in question] is comparable to

that posed by its closest analog among the enumerated offenses”). A person bent

on harassing and intimidating his victim notwithstanding a court order prohibiting

contact with the victim creates “a heightened danger of violent confrontation.”

Lockley, 632 F.3d at 1245. Spivey acknowledges that the victim of a death threat

may have a “very strong and reasonable fear of an impending use of force against

[her],” but Spivey ignores that the circumstances of his offense escalated the risk

of a melee. When approached at her home, a beleaguered victim of harassment

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and intimidation might feel compelled to repel the harasser, which in turn could

provoke the harasser to respond with force to any defiance or resistance. See

James, 550 U.S. at 203, 127 S. Ct. at 1594 (“The main risk of burglary arises not

from the simple physical act of wrongfully entering onto another's property, but

rather from the possibility of a face-to-face confrontation between the burglar and

a third party” such as “an occupant.”). The district court did not err when it ruled

that Spivey’s prior conviction of aggravated stalking is a crime of violence under

the residual clause of section 4B1.2(a)(2).

      We AFFIRM Spivey’s sentence.




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