               Case: 12-10553        Date Filed: 10/18/2013      Page: 1 of 12


                                                                                   [PUBLISH]



                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 12-10553
                               ________________________

                      D.C. Docket No. 2:11-cr-00013-LSC-HGD-3



UNITED STATES OF AMERICA,

                                                                           Plaintiff-Appellee,

                                            versus

OMARI ELLIOT,

                                                                       Defendant-Appellant.
                               ________________________

                      Appeal from the United States District Court
                         for the Northern District of Alabama
                             ________________________

                                     (October 18, 2013)

Before PRYOR and BLACK, Circuit Judges, and RESTANI, * Judge.

PER CURIAM:



       *
         Honorable Jane A. Restani, United States Court of International Trade Judge, sitting by
designation.
               Case: 12-10553     Date Filed: 10/18/2013   Page: 2 of 12


       A jury convicted Omari Elliot of two counts of robbery, in violation of 18

U.S.C. § 1951, and one count of brandishing a firearm during and in relation to a

crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). The district court

imposed a total life sentence after determining Elliot had two prior felony

convictions qualifying him for a career offender enhancement under U.S.S.G.

§ 4B1.1. On appeal, Elliot argues the district court violated his right to due process

by admitting into evidence an eyewitness’s out-of-court and subsequent in-court

identification of him. Elliot also maintains the district court erred by considering

his Alabama youthful offender adjudication as a prior felony conviction for

purposes of applying the § 4B1.1 career offender enhancement. We affirm.

                        I. EYEWITNESS IDENTIFICATION

       Elliot contends a photo lineup from which an eyewitness identified him was

unduly suggestive because a substantial likelihood existed that the witness’s

identification was not based on her own independent recollection but, instead, was

tainted by her observation of photos of him on the internet and printed flyers, as

well as a portion of a surveillance videotape of the robbery. Elliot further asserts

there was no independent and reliable basis for the witness’s subsequent in-court

identification of him at trial.

       We review constitutional questions de novo, United States v. Whatley, 719

F.3d 1206, 1213 (11th Cir. 2013), and will set aside a conviction “based on


                                           2
              Case: 12-10553     Date Filed: 10/18/2013    Page: 3 of 12


eyewitness identification at trial following a pretrial identification by

photograph . . . only if the photographic identification procedure was so

impermissibly suggestive as to give rise to a very substantial likelihood of

irreparable misidentification,” Simmons v. United States, 390 U.S. 377, 384, 88 S.

Ct. 967, 971 (1968). “The admission of [an] unreliable identification is subject to

harmless error analysis.” United States v. Diaz, 248 F.3d 1065, 1103 n.48 (11th

Cir. 2001).

      Due process prohibits the admission of eyewitness identifications “when the

police have arranged suggestive circumstances leading the witness to identify a

particular person as the perpetrator of a crime.” Perry v. New Hampshire, 132 S.

Ct. 716, 720 (2012). This prohibition, however, “turn[s] on the presence of state

action and aim[s] to deter police from rigging identification procedures.” Id. at

721. Thus, when no improper law enforcement activity is involved, exclusion of

an eyewitness identification is unnecessary. Id. at 721, 723 (“The Constitution . . .

protects a defendant against a conviction based on evidence of questionable

reliability, not by prohibiting introduction of the evidence, but by affording the

defendant means to persuade the jury that the evidence should be discounted as

unworthy of credit.”).

      The police in this case did not arrange a suggestive photo lineup, and

exclusion of the eyewitness identification and subsequent in-court identification


                                           3
             Case: 12-10553     Date Filed: 10/18/2013   Page: 4 of 12


was unnecessary. See id. The lineup contained photographs of Elliot and five

other men selected by a computer program based on their physical similarities to

Elliot. The officer conducting the lineup did not pressure the witness to pick a

suspect, nor did he suggest which person the eyewitness should pick. In addition,

the witness’s observation of a surveillance videotape of the robbery prior to the

lineup was not the result of police misconduct, and police officers were not

involved in her independent viewing of Elliot’s photos at the store and on the

internet.

      Regardless, even if the district court erred by admitting the witness’s

identification testimony, any such error was harmless in light of the overwhelming

evidence of Elliot’s guilt. See Diaz, 248 F.3d at 1103 n.48. Elliot’s DNA was

found on a smashed jewelry case at the scene of the crime, and Elliot confessed to

the robbery. As such, Elliot’s convictions must stand.

                 II. YOUTHFUL OFFENDER ADJUDICATION

      In 2002, when Elliot was 20 years old, he robbed a man of $150 and a pack

of cigarettes while armed with a pistol. Elliot was charged with first-degree

robbery and received a youthful offender adjudication, which resulted in a sentence

of three years’ probation. Elliot was subsequently convicted of second-degree

robbery and his probation was revoked. Elliot asserts on appeal that his youthful

offender adjudication does not qualify as a conviction for purposes of § 4B1.1


                                          4
                Case: 12-10553       Date Filed: 10/18/2013       Page: 5 of 12


because, under the Alabama youthful offender statute, a defendant is determined to

be a youthful offender before there is an arraignment or conviction. Furthermore,

Alabama law prohibits a youthful offender adjudication from counting as a

conviction.

       We review a district court’s interpretation and application of the Sentencing

Guidelines de novo, and review its factual findings for clear error. United States v.

Bane, 720 F.3d 818, 824 (11th Cir. 2013). Under the Guidelines, a defendant is a

career offender if (1) he was at least 18 years old at the time of the instant offense;

(2) his instant offense was 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 crimes of

violence or controlled substance offenses. U.S.S.G. § 4B1.1(a). 1

       A “prior felony conviction” is defined as:

       [A] prior adult federal or state conviction for an offense punishable by
       death or imprisonment for a term exceeding one year, regardless of
       whether such offense is specifically designated as a felony and
       regardless of the actual sentence imposed. A conviction for an offense
       committed at age eighteen or older is an adult conviction. A
       conviction for an offense committed prior to age eighteen is an adult
       conviction if it is classified as an adult conviction under the laws of
       the jurisdiction in which the defendant was convicted.

U.S.S.G. § 4B1.2, comment. (n.1) (emphasis added). The Guidelines also indicate

that a conviction may arise from a guilty plea, a trial, or a plea of nolo contendere.


       1
          Elliot does not dispute that he was 18 years old when he committed the instant offense
and that the robberies were crimes of violence.
                                                5
               Case: 12-10553      Date Filed: 10/18/2013      Page: 6 of 12


See U.S.S.G. § 4B1.2(c) (“The date that a defendant sustained a conviction shall be

the date that the guilt of the defendant has been established, whether by guilty plea,

trial, or plea of nolo contendere.”).

       Under the pertinent provisions of the Alabama Youthful Offender Act, a

court may direct that a defendant be arraigned as a youthful offender when he is

charged with a crime he committed while he was a minor. Ala. Code

§ 15-19-1(b).2 If the defendant is arraigned as a youthful offender, “no further

action shall be taken on the indictment or information,” id., and the youthful

offender adjudication “shall not be deemed a conviction of crime; provided,

however, that if he is subsequently convicted of crime, the prior adjudication as

youthful offender shall be considered,” id. § 15-19-7(a).

       As an initial matter, Elliot was 20 years old when he committed the Alabama

state offense, and we need not resort to state law to determine whether that

adjudication qualified as an adult conviction. See U.S.S.G. § 4B1.2, comment.

(n.1) (“A conviction for an offense committed at age eighteen or older is an adult

conviction.”); see also United States v. Fernandez, 234 F.3d 1345, 1347 (11th Cir.

2000) (“[T]he definition of ‘conviction’ under U.S.S.G. § 4B1.1 . . . [is] governed

by federal law.”). Consequently, our opinions in cases such as United States v.

       2
         The Alabama Youthful Offender Act applies to anyone who is under 21 years of age.
See Burke v. State, 991 So. 2d 308, 310-11 (Ala. Crim. App. 2007) (“The Youthful Offender Act
is intended to extricate persons below twenty-one years of age from the harshness of criminal
prosecution and conviction.” (quotation marks omitted)).
                                              6
                Case: 12-10553        Date Filed: 10/18/2013        Page: 7 of 12


Pinion, 4 F.3d 941 (11th Cir. 1993), and United States v. Wilks, 464 F.3d 1240

(11th Cir. 2006), provide no guidance on the issue before us, as those cases

articulated considerations for determining whether a conviction was an adult

conviction, but do not speak to the more fundamental question of what constitutes

a conviction in the first place. 3 The question before us is not whether Elliot

sustained an adult conviction, but whether he sustained a conviction at all.

Accordingly, we are guided by our decisions in cases such as United States v.

Jones, 910 F.2d 760 (11th Cir. 1990); United States v. Tamayo, 80 F.3d 1514 (11th

Cir. 1996); and United States v. Acosta, 287 F.3d 1034 (11th Cir. 2002), in which

we assessed whether a plea or adjudication constituted a conviction for federal

sentencing purposes.

       In Jones, we held that a prior state court case in which a defendant entered a

plea of nolo contendere and adjudication was withheld counted as a predicate

conviction for purposes of the § 4B1.1 career offender enhancement. Jones, 910

F.2d at 761. We have subsequently reaffirmed the validity of Jones, stating Jones’


       3
          In Pinion, we held that a defendant’s South Carolina youthful offender conviction he
sustained when he was 17 years old qualified as a predicate offense for a career offender
enhancement under § 4B1.1. Pinion, 4 F.3d at 943-45. In deciding the defendant was convicted
as an adult, we articulated several factors relevant to that inquiry, including (1) the nature of the
proceedings giving rise to the conviction; (2) the sentences the defendant received; and (3) the
actual time he served. Id. at 944 & n.6. Relying on Pinion, we held in Wilks that a defendant’s
Florida youthful offender conviction supported an enhancement under § 4B1.1 and the Armed
Career Criminal Act because the defendant was sentenced by an adult court, was treated as an
adult criminal, and received a term of imprisonment exceeding one year and one month. Wilks,
464 F.3d at 1242-43.
                                                  7
               Case: 12-10553   Date Filed: 10/18/2013   Page: 8 of 12


ultimate determination—that a prior state court nolo plea in which adjudication

was withheld can be used as a conviction for career offender purposes under the

Guidelines—remains good law. Fernandez, 234 F.3d at 1347-48 (holding an

offense resulting in a plea of nolo contendere where adjudication was withheld

counted as a qualifying offense for purposes of an enhancement under § 2K2.1 of

the Guidelines).

      Similarly, in Tamayo, we relied in part on Jones to conclude that a

defendant’s plea of nolo contendere where adjudication was withheld was properly

included in the calculation of the defendant’s criminal history, even when the state

court disposition was unsigned by the sentencing judge. Tamayo, 80 F.3d at

1522-23. In doing so, we observed “our court specifically has held that a Florida

nolo contendere plea, where adjudication was withheld, is a conviction supporting

an enhanced sentence under the federal statutes and the Sentencing Guidelines.”

Id. at 1522.

      Perhaps most persuasively, we held in Acosta that a New York youthful

offender adjudication qualified as a conviction for purposes of a sentencing

enhancement under 21 U.S.C. § 841(b)(1)(A), which provides for a ten-year

sentence enhancement for any person convicted of a drug offense who has a prior

conviction for a felony drug offense. Acosta, 287 F.3d at 1036-37. We explained

that the meaning of the word “conviction” in § 841 is defined by federal rather than


                                         8
              Case: 12-10553     Date Filed: 10/18/2013   Page: 9 of 12


state law, and, consequently, this Court was not bound by the fact New York law

did not consider a youthful offender adjudication to be a conviction. Id. Instead,

our decision in Acosta was “controlled by analogous cases in which this Court has

held that a plea of nolo contendere in Florida state court with adjudication withheld

is a conviction that supports a section 841 sentence enhancement.” Id. at 1037.

We elaborated:

      If a defendant who is not even adjudicated guilty is considered to have
      suffered a conviction within the meaning of section 841, then a
      youthful offender who pleads guilty and is adjudicated must also be
      considered to have suffered a prior conviction, even if the state law
      does not consider him “convicted” and his record is sealed.

Id.

      As in Acosta, the meaning of “conviction” for purposes of the sentencing

enhancement at issue in this case is a matter of federal rather than state law. See

United States v. Madera-Madera, 333 F.3d 1228, 1231 n.2 (11th Cir. 2003)

(“Federal law, not state law, controls the application of the Sentencing

Guidelines.”); Fernandez, 234 F.3d at 1347 (“[T]he definition of ‘conviction’

under U.S.S.G. § 4B1.1 . . . [is] governed by federal law.”); United States v. Willis,

106 F.3d 966, 970 (11th Cir. 1997) (“[S]ection 4B1.1 of the Sentencing

Guidelines[] does not indicate that state law should govern its application.




                                          9
               Case: 12-10553        Date Filed: 10/18/2013       Page: 10 of 12


Therefore, . . . federal law, not state law, [is] controlling.”).4 Thus, we are not

bound by the fact that Alabama law does not consider a youthful offender

adjudication to be a conviction. Instead, our decision is controlled by Acosta and

analogous cases in which this Court has held that a plea of nolo contendere with

adjudication withheld is a conviction for purposes of the § 4B1.1 career offender

enhancement. See Acosta, 287 F.3d at 1037; Jones, 910 F.2d at 761. If a

defendant who is not adjudicated guilty is considered to have suffered a conviction

within the meaning of § 4B1.1, then a youthful offender who pled guilty and was

adjudicated must also be considered to have sustained a conviction for purposes of

the Guidelines career offender enhancement, even if state law does not consider

him “convicted.”5



       4
         To the extent United States v. Bankston, 121 F.3d 1411, 1414 (11th Cir. 1997), suggests
we look to state law when we lack express guidance from the Sentencing Commission, that case
arose in a different context than the one we are addressing, and, regardless, we are bound to
follow our earlier precedent. We therefore adhere to the statement in Willis—which was decided
before Bankston—that, because § 4B1.1 does not indicate state law should govern the instant
determination, federal law is controlling. See Willis, 106 F.3d at 970. Furthermore, in light of
Jones and Acosta, we have circuit authority to guide us in resolving the present issue.
       5
          We note that the United States District Court for the Middle District of Alabama has
come to the opposite conclusion. See United States v. Temmis, 45 F. Supp. 2d 1305 (M.D. Ala.
1999). However, it is elemental that we are not bound by the district court’s decisions, and,
further, the district court did not have the benefit of our opinion in Acosta when it rendered its
decision. In addition, United States v. Robinson, 518 F. Supp. 2d 1341 (M.D. Ala. 2007),
addressed whether an Alabama youthful offender adjudication counted as a predicate offense for
purposes of an enhancement under the Armed Career Criminal Act (ACCA). That statute
specifically provides that what constitutes a conviction is determined in accordance with the law
of the jurisdiction in which the proceedings were held. 18 U.S.C. § 921(a)(20). This case
presents us with no occasion to address the interaction of the ACCA and the Youthful Offender
Act, and we express no opinion on the matter.
                                                10
             Case: 12-10553     Date Filed: 10/18/2013    Page: 11 of 12


      This conclusion does not run afoul of our statements in Gordon v. Nagle, 2

F.3d 385 (11th Cir. 1993). In Gordon, a habeas corpus case predating the

enactment of the Antiterrorism and Effective Death Penalty Act of 1996, we

certified a question to the Alabama Supreme Court so that we could determine

whether a defendant’s challenge to his state habitual offender sentence was

procedurally defaulted. Id. at 386-89. Specifically, we asked the Alabama

Supreme Court whether the failure to advise a defendant of his eligibility for a

youthful offender adjudication deprived the trial court of jurisdiction. Id. at 389.

As part of our explanation for why it would matter that a defendant was not

advised of his eligibility for a youthful offender adjudication, we described the

Youthful Offender Act, and stated “[a]n adjudication made pursuant to the

Youthful Offender Statute is very different from conviction of an adult. It is not

deemed a conviction of crime at all.” See id. at 387. However, we were not

discussing the use of a youthful offender adjudication for federal sentencing

purposes. We were simply describing Alabama law as it exists in Alabama.

Gordon is therefore immaterial to the resolution of the issue we confront in this

appeal.

      For the reasons discussed, the district court did not err by using Elliot’s

Alabama youthful offender adjudication to classify him as a career offender under

§ 4B1.1. We note that this result accords with the policy behind the Guidelines


                                          11
             Case: 12-10553    Date Filed: 10/18/2013   Page: 12 of 12


that “defendants who receive the benefit of a rehabilitative sentence and continue

to commit crimes should not be treated with further leniency.” Tamayo, 80 F.3d at

1522 (quotation marks omitted). As such, Elliot’s sentences are affirmed.

                                III. CONCLUSION

      Elliot’s convictions and sentences are AFFIRMED.




                                         12
