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                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-17680
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 7:16-cr-00130-MHH-JHE-1



UNITED STATES OF AMERICA,

                                                            Plaintiff-Appellant,

                                  versus

DARYL TERRELL GILBERT,

                                                          Defendant-Appellee.

                       ________________________

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

                            (December 29, 2017)

Before MARTIN, JULIE CARNES, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Defendant Daryl Terrell Gilbert was convicted of being a felon in possession

of a firearm, in violation of 18 U.S.C. § 922(g)(1). The district court initially

sentenced Defendant to 57 months pursuant to U.S.S.G. § 2K2.1(a)(2), which

applies when a defendant has two prior felony convictions for “crimes of

violence.” The court applied U.S.S.G. § 2K2.1(a)(2) after concluding that

Defendant’s 2014 conviction for first-degree robbery in violation of Alabama Code

§ 13A-8-41 and his 2013 conviction for second-degree robbery in violation of

Alabama Code § 13A-8-42 constituted crimes of violence. The court subsequently

determined that it had used the wrong rationale to find that Defendant’s robbery

convictions triggered § 2K2.1(a)(2), granted Defendant’s motion to correct his

sentence under Federal Rule of Criminal Procedure 35(a), and resentenced

Defendant to 36 months. The Government appeals, arguing that the district court

erred by granting Defendant’s Rule 35(a) motion. We agree with the Government,

and thus VACATE Defendant’s 36-month sentence and REMAND the case for

imposition of the 57-month sentence Defendant initially received.

I.    BACKGROUND

      Defendant was indicted in April, 2016 on one count of being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). As grounds for the

felon-in-possession charge, the indictment listed Defendant’s prior felony

convictions for (1) first-degree robbery in violation of Alabama Code § 13A-8-41

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and (2) second-degree robbery in violation of Alabama Code § 13A-8-42.

Defendant pled guilty to the charge.

      The Presentence Report (“PSR”) determined that Defendant should be

sentenced under U.S.S.G. § 2K2.1(a)(2), which applies when a defendant violates

18 U.S.C. § 922(g)(1) after being convicted of two felony “crime[s] of violence.”

U.S.S.G. § 2K2.1(a)(2). Section 2K2.1(a)(2) incorporates the definition of “crime

of violence” set forth in U.S.S.G. § 4B1.2(a). See U.S.S.G. § 2K2.1 app. n.1. As

relevant here, the definition in § 4B1.2(a) contains an elements clause that

encompasses any offense that “has as an element the use, attempted use, or

threatened use of physical force against the person of another” and also an

enumerated offenses clause that encompasses any of a list of qualifying offenses,

including “robbery.” See U.S.S.G. § 4B1.2(a) (Aug. 1, 2016).

      The PSR determined that Defendant’s prior Alabama robberies qualified as

crimes of violence for purposes of § 2K2.1(a)(2). Applying § 2K2.1(a)(2), the

PSR assigned Defendant a base offense level of 24. After subtracting three levels

for acceptance of responsibility, the PSR calculated Defendant’s total offense level

as 21. Based on Defendant’s long history of juvenile adjudications and his robbery

convictions as an adult, the PSR assigned Defendant a criminal history category of

IV, resulting in a recommended guidelines range of 57 to 71 months.




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       Defendant objected to the PSR’s calculation of his offense level and

guidelines range, arguing that his Alabama robbery convictions did not

categorically qualify as crimes of violence for purposes of U.S.S.G. § 2K2.1(a)(2).

Specifically, Defendant argued that Alabama robbery does not necessarily involve

“violent, physical force” as required to satisfy the elements clause under Curtis

Johnson v. United States, 559 U.S. 133 (2010) (“Curtis Johnson”) and, further, that

Alabama robbery does not constitute generic robbery as required to satisfy the

enumerated offenses clause.1 Thus, Defendant continued, his offense level should

have been 12 rather than 21, placing him in a guidelines range of 21 to 27 months.

The Government disagreed, arguing that Alabama robbery categorically qualifies

as a crime of violence under both the elements clause and the enumerated offenses

clause.

       At the sentencing hearing, the district court focused on the arguments made

by the parties under the elements clause. The court observed that Alabama robbery

appears on its face to satisfy the elements clause because it requires the use or

threatened use of force against a person in the course of committing a theft.

Based on its interpretation of state case law, however, the court determined that

Alabama robbery does not categorically satisfy the elements clause because it does
1
  Defendant also argued that (1) his Alabama robbery convictions did not qualify under the
enumerated offenses clause because, at the time of Defendant’s offense, robbery was only listed
as a crime of violence in the commentary to U.S.S.G. § 4B1.2 rather than in the text of the
guideline and (2) the robbery convictions did not qualify as a crime of violence under the
residual clause of § 4B1.2. The parties do not address those arguments in this appeal.
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not necessarily involve “violent, physical force” as required by the Supreme Court

in Curtis Johnson. Nevertheless, the court concluded that Defendant’s Alabama

robberies were crimes of violence under the elements clause because, as described

in the PSR, Defendant had in fact used such force in committing the offenses.2

Thus, the court overruled Defendant’s objection, applied § 2K2.1(a)(2), and

sentenced Defendant to 57 months. The court did not make a ruling as to whether

Alabama robbery satisfies the enumerated offenses clause.

       Defendant filed a timely motion to reduce his sentence pursuant to Rule

35(a) of the Federal Rules of Criminal Procedure. Defendant argued that the

district court’s reliance on the specific facts surrounding his robberies to classify

them as crimes of violence constituted clear error, warranting a reduction of his

sentence under Rule 35(a). The Government opposed the motion, noting that Rule

35(a) extends only to those cases in which a clear sentencing error would “almost

certainly result in a remand.” Citing this Court’s decision in United States v.

Lockley, 632 F.3d 1238 (11th Cir. 2011), the Government argued that Alabama

robbery arguably qualifies as a crime of violence under both the elements clause

and the enumerated offenses clause and, thus, that any error in Defendant’s

sentence would not “almost certainly” require a remand. The court rejected the

Government’s argument, and concluded that it had committed a clear sentencing

2
  As the district court noted, in one robbery a gun was pressed to the victim’s face, and in the
other, Defendant and his associates repeatedly struck the victim in the head.
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error by relying on the specific facts underlying Defendant’s robberies to classify

them as crimes of violence. The court refused to consider Lockley because that

case had not been cited during the original sentencing hearing.

      Based on the above findings, the district court concluded that Defendant’s

guidelines range should have been 21 to 27 months. The court determined that an

upward variance was appropriate, given (1) Defendant’s long criminal history

beginning at a young age, (2) the seriousness of Defendant’s robbery convictions,

and (3) the fact that Defendant’s second robbery was committed while he was on

probation from the first. The court ultimately imposed a 36-month sentence.

      The Government objected to the district court’s revised guidelines

calculation, and now appeals. The Government argues that (1) the district court

lacked the authority to vacate Defendant’s sentence under Rule 35 because this

Court’s case law supported the application of § 2K2.1(a)(2) and (2) Alabama

robbery is categorically a crime of violence under § 2K2.1(a)(2) because it

necessarily requires the use of “violent, physical force.”

II.   DISCUSSION

      A.     Standard of Review

      We review the district court’s ruling on Defendant’s Rule 35 motion de

novo. See United States v. Phillips, 597 F.3d 1190, 1194 n.9 (11th Cir. 2010).




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Likewise, we review de novo the district court’s interpretation of the Sentencing

Guidelines and its revised calculation of Defendant’s guidelines range. See id.

      B.     Rule 35(a) of the Federal Rules of Criminal Procedure

      A district court is not permitted to modify a sentence it has imposed except

as expressly authorized by statute or by Rule 35 of the Federal Rules of Criminal

Procedure. See 18 U.S.C. § 3582(c). As relevant here, Rule 35(a) permits a

district court to “correct a sentence that resulted from arithmetical, technical, or

other clear error” if the error is raised within 14 days after sentencing. Fed. R.

Crim. P. 35(a). The court’s authority to modify a sentence under Rule 35(a) is:

             intended to be very narrow and to extend only to those cases in which
             an obvious error or mistake has occurred in the sentence, that is, errors
             which almost certainly would result in a remand of the case to the trial
             court for further action . . . [It] is not intended to afford the court the
             opportunity to reconsider the application or interpretation of the
             sentencing guidelines or for the court simply to change its mind about
             the appropriateness of the sentence.

Fed. R. Crim. P. 35 advisory committee’s notes (1991). See also Phillips, 597 F.3d

at 1196 (“The writers of Rule 35(a) limited both its scope and its deadline to

promote the finality of sentences and enable the parties to appeal a sentence

promptly.”). An error must be “acknowledged and obvious” rather than “arguable”

in order to constitute clear error for purposes of Rule 35(a). United States v. Lett,

483 F.3d 782, 789 (11th Cir. 2007). Thus, clear error does not exist where there is

no binding precedent that resolves a sentencing issue and reasonable people could

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disagree as to its resolution. See id. at 789 (reversing the district court’s grant of

relief under Rule 35(a) where “[r]easonable arguments [could] be made on both

sides” of the determinative sentencing issue).

      In addition, a sentencing error only warrants relief under Rule 35(a) if the

error would “almost certainly result in a remand of the case.” Id. at 787 (quoting

Fed. R. Crim. P. 35 advisory committee’s notes (1991)). Consequently, Rule 35(a)

does not apply if there is a reasonable argument that the sentence would be

affirmed in spite of the error. That is apparent from the history of Rule 35, which

formerly gave district courts broad discretion to correct an “illegal sentence at any

time” and a “sentence imposed in an illegal manner” within a specified time. See

Fed. R. Crim. P. 35(a) (1986). The former version of Rule 35 was repealed in

order to ensure more finality in sentencing. See Fed. R. Crim. P. 35 advisory

committee’s notes (1991) (noting that the earlier version of Rule 35 was repealed

to ensure the “finality of determinate sentencing”). The current version of Rule 35

still provides “an efficient and prompt method for correcting obvious technical

errors” that are promptly called to the district court’s attention, but it does not

permit the court to reexamine its reasoning or to simply “change its mind about the

appropriateness of the sentence.” Lett, 483 F.3d at 787 (quoting Fed. R. Crim. P.

35 advisory committee’s notes (1991)).




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      C.    Analysis

            1.     The district court’s rationale during Defendant’s initial
                   sentencing was flawed.

      At the initial sentencing hearing, the court rejected the Government’s

argument that Alabama robbery categorically qualifies as a crime of violence under

the elements clause and failed to address the Government’s argument that the

offense categorically satisfies the enumerated offenses clause. Nevertheless, the

court concluded that Defendant’s robberies constituted crimes of violence because,

as described in the PSR, Defendant had in fact used or threatened the use of violent

force during their commission. The court thus overruled Defendant’s objection to

the PSR, applied § 2K2.1(a)(2), and sentenced Defendant to 57 months.

      Contrary to the analysis described above, courts are required to apply a

categorical approach to determine whether a prior conviction constitutes a crime of

violence and thus supports a sentence enhancement under § 2K2.1(a)(2). See

United States v. Garcia-Martinez, 845 F.3d 1126, 1129–30 (11th Cir. 2017)

(applying the categorical approach to determine whether the defendant’s prior

conviction qualified as a crime of violence for purposes of a sentencing

enhancement applicable under U.S.S.G. § 2L1.2). Under the categorical approach,

the particular facts surrounding a defendant’s conviction do not determine whether

the conviction qualifies as a crime of violence. See id. at 1130. What matters

instead is how the law defines the offense that the defendant was convicted of
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committing. See id. Thus, regardless of Defendant’s actual conduct during the

robberies at issue here, the enhancement provided for in § 2K2.1(a)(2) only applies

if the robberies, as defined by Alabama law, categorically satisfy either the

elements clause or the enumerated offenses clause. See Welch v. United States,

136 S. Ct. 1257, 1262 (2016) (“Under the categorical approach, a court assesses

whether a crime qualifies as a [crime of violence] in terms of how the law defines

the offense and not in terms of how an individual offender might have committed it

on a particular occasion.” (internal quotation marks omitted)).

      In certain cases, courts may use a modified categorical approach to

determine whether a conviction qualifies as a crime of violence. See Mathis v.

United States, 136 S. Ct. 2243, 2249 (2016) (describing the modified categorical

approach and clarifying when it is applicable). The modified categorical approach

applies when a criminal statute is divisible, meaning that it “list[s] elements in the

alternative, and thereby define[s] multiple crimes.” Id. When that is the case, the

modified approach allows the sentencing court to examine a “limited class of

documents”—known as Shepard documents and including such items as the

indictment, jury instructions, and plea agreement—“to determine what crime, with

what elements, a defendant was convicted of” so that the court can then assess

whether the conviction categorically satisfies the definition of a crime of violence.

Id. The district court purported to apply the modified categorical approach during

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Defendant’s initial sentencing hearing, but it did not conduct any divisibility

analysis or otherwise explain why the modified categorical approach was

applicable.

       Moreover, it is evident that the district court misconstrued the function and

the proper focus of the modified categorical approach. The Supreme Court has

repeatedly explained that the modified categorical approach does not permit a court

to consider the manner in which a defendant committed an offense to determine

whether his conviction of the offense qualifies as a crime of violence. See Mathis,

136 S. Ct. at 2257 (“For more than 25 years, we have repeatedly made clear that

application of ACCA [the “Armed Career Criminal Act”] involves, and involves

only, comparing elements.”).3 Rather, “the modified approach serves a limited

function: It helps effectuate the categorical analysis when a divisible statute,

listing potential offense elements in the alternative, renders opaque which element

played a part in the defendant’s conviction.” Descamps v. United States, 133 S. Ct.

2276, 2283 (2013).

              2.      The court’s analytical error did not warrant relief under Rule
                      35(a) because the error does not necessarily require a remand.


3
  Mathis arose in the context of a sentencing enhancement that is applicable under the Armed
Career Criminal Act (“ACCA”) when a defendant has three prior “violent felony” convictions,
but its analytical framework applies to the enhancement required under § § 2K2.1(a)(2) when a
defendant has been convicted of a firearm offense following two prior convictions for “crimes of
violence.” See Garcia-Martinez, 845 F.3d at 1129–30 (applying the approach used in ACCA
cases to a crime of violence enhancement applicable under U.S.S.G. § 2L1.2).

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      Nevertheless, we agree with the Government that the district court erred by

granting relief under Rule 35(a). As indicated above, a district court’s authority to

vacate a sentence under Rule 35(a) is limited. See Lett, 483 F.3d at 788

(describing Rule 35(a) as setting forth “a narrow corrective power limited in scope

to those obvious errors that result in an illegal sentence”). Rule 35(a) does not

provide a mechanism for the court to reexamine its reasoning or simply “change its

mind” about a sentence it has imposed. See id. at 787. Rather, the court must

identify an error that is both clear—i.e., acknowledged and obvious—and that

would “almost certainly result in a remand of the case” in order to vacate a

sentence under Rule 35(a). Id. at 787 (quoting Fed. R. Crim. P. 35(a) advisory

committee’s notes (1991)).

      If the district court arrived at the correct guidelines range in spite of its

analytical error, Defendant’s sentence likely would be affirmed on appeal rather

than remanded for correction. See United States v. Chitwood, 676 F.3d 971, 976–

81 (11th Cir. 2012) (affirming the defendant’s sentence, despite the district court’s

misapplication of the modified categorical approach, because the predicate offense

remained a crime of violence under the categorical approach); United States v.

Campa, 529 F.3d 980, 1013 (11th Cir. 2008) (“A sentencing error, under the

Guidelines, is harmless if a court considers the proceedings in their entirety and

determines that the error did not affect the sentence or had but very slight effect.”

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(internal quotation marks omitted)). As discussed below, there is no binding

precedent that specifically addresses whether Alabama robbery categorically

qualifies as a crime of violence for purposes of § 2K2.1(a)(2), and this Court has

held that the substantially similar crime of Florida robbery does so qualify.

Accordingly, there is no basis for finding that the analytical error committed during

Defendant’s initial sentencing would “almost certainly result in a remand” as

required to grant relief under Rule 35(a). See Lett, 483 F.3d at 790 (reversing the

district court’s Rule 35(a) modification where there was “no decision on point

from any court, and reasonable people could differ about the matter”).

      The convictions at issue are for first-degree robbery in violation of Alabama

Code § 13A-8-41 and second-degree robbery in violation of Alabama Code § 13A-

8-42. Both offenses are enhanced versions of Alabama third-degree robbery,

which occurs when “in the course of committing a theft,” a person:

      (1)    Uses force against the person of the owner or any person present with
             intent to overcome his physical resistance or physical power of
             resistance; or

      (2)    Threatens the imminent use of force against the person of the owner
             or any person present with intent to compel acquiescence to the taking
             of or escaping with the property.

Ala. Code § 13A-8-43(a). Second-degree robbery occurs when a person commits

third-degree robbery and “is aided by another person actually present.” Id. § 13A-

8-42(a). First-degree robbery occurs when a person commits third-degree robbery

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and either “[i]s armed with a deadly weapon or dangerous instrument” or “[c]auses

serious physical injury to another.” Id. § 13A-8-41(a).

      As mentioned, there is no binding authority resolving the issue whether a

conviction under the Alabama robbery statute categorically qualifies as a crime of

violence for purposes of the Guidelines. And it is evident from the discussion that

occurred during Defendant’s initial sentencing hearing that the issue is far from

settled. After considering the opposing arguments made by the parties, the district

court ultimately agreed with Defendant that Alabama robbery does not

categorically satisfy the elements clause, but only after noting that “on its face, the

use of the term ‘force’ within [Alabama Code §] 13A-8-43 would seem to align

well with the language that is used in” the Guidelines.

      Moreover, this Court held in United States v. Lockley, 632 F.3d 1238 (11th

Cir. 2011) that a conviction under a similar Florida robbery statute categorically

qualified as a crime of violence under both the elements and the enumerated

offenses clause. Similar to Alabama Code § 13A-8-43, the Florida robbery statute

at issue in Lockley defined robbery as:

             the taking of money or other property which may be the subject of
             larceny from the person or custody of another, with intent to either
             permanently or temporarily deprive the person or the owner of the
             money or other property, when in the course of the taking there is the
             use of force, violence, assault, or putting in fear.




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Fla. Stat. § 812.13(1). The Court noted that the “taking” referred to in the Florida

robbery statute, like the theft underlying Alabama robbery, “must be by the use of

force . . . so as to overcome the resistance of the victim, or by putting the victim in

fear so that the victim does not resist.” Lockley, 632 F.3d at 1242. The Court thus

identified the essential elements of Florida robbery as (1) a taking of money or

property from another person, (2) with the intent to permanently or temporarily

deprive the person of the money or property, while (3) using force or violence, or

threatening force or violence with an apparent ability to follow through on the

threat. Id. at 1242–43. These are essentially the same elements necessary to

sustain a conviction for Alabama robbery pursuant to Alabama Code § 13A-8-

43(a), and the degree of force required—force sufficient to overcome the victim’s

resistance—is defined in a similar way.

      Having identified the essential elements of Florida robbery, the Court in

Lockley determined that those elements “hew almost exactly to the generic

definition of robbery” and that Florida robbery thus qualified as a crime of

violence under the enumerated offenses clause of the Guidelines. Id. at 1243. The

Court held further that Florida robbery satisfied the elements clause, as interpreted

by Curtis Johnson, because it required “either the use of force, violence, a threat of

imminent force or violence coupled with apparent ability, or some act that puts the

victim in fear of death or great bodily harm.” Id. at 1245. See also United States

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v. Fritts, 841 F.3d 937, 940–42 (11th Cir. 2016) (reaffirming that, under Lockley,

Florida robbery categorically qualifies as a violent felony under the ACCA). At

the least, it is arguable that the same reasoning applies here, supporting the

argument that Alabama robbery qualifies as a crime of violence under either (or

both) the elements clause and the enumerated offenses clause. See also United

States v. Wood, 209 F.3d 847, 851 (6th Cir. 2000) (“There is simply no ambiguity

in the language of the Alabama statute: to be guilty of robbery in the third degree a

defendant must either use force or threaten the imminent use of force against a

person sometime during the commission of a theft.”). And all we are determining

here is whether the district court’s original ruling was arguably correct. We make

no ruling on its ultimate merit.

      The district court believed it could not consider Lockley when ruling on

Defendant’s Rule 35 motion because the case was not cited during Defendant’s

initial sentencing. But consideration of Lockley was essential to deciding whether

the court’s error in the initial sentencing proceeding would “almost certainly”

result in a remand, a requirement for granting Rule 35 relief. If Defendant’s initial

sentence arguably was valid in spite of the flawed rationale underlying the

sentence, then modification of the sentence under Rule 35(a) was not permitted.

Given Lockley, the district court did not clearly err in determining , at the initial

sentencing, that Defendant’s Alabama robbery convictions qualified as crimes of

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violence for purposes of the enhancement set forth in § 2K2.1(a)(2), or in applying

the enhancement in calculating Defendant’s guidelines range. Thus, the court was

not authorized to vacate Defendant’s sentence under Rule 35(a).

III.   CONCLUSION

       For the above reasons, we conclude that the district court erred by granting

Defendant’s Rule 35 motion and modifying the 57-month sentence it initially

imposed on Defendant. Accordingly, we VACATE Defendant’s 36-month

sentence and REMAND the case for imposition of the 57-month sentence

Defendant originally received.




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