                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 16a0548n.06

                                           No. 15-6451                                 FILED
                                                                                 Sep 26, 2016
                                                                             DEBORAH S. HUNT, Clerk
                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                                )
                                                         )
       Plaintiff-Appellee,                               )
                                                                 ON APPEAL FROM THE
                                                         )
                                                                 UNITED STATES DISTRICT
v.                                                       )
                                                                 COURT FOR THE WESTERN
                                                         )
                                                                 DISTRICT OF KENTUCKY
RICKY PAGE,                                              )
                                                         )
                                                                             OPINION
       Defendant-Appellant.                              )


       BEFORE:         GILMAN, GIBBONS, and STRANCH, Circuit Judges.

       JANE B. STRANCH, Circuit Judge. Defendant Ricky Page pleaded guilty to charges

of distributing a controlled substance and being a felon in possession of a firearm. Page had

multiple prior convictions for felonies that involved either controlled substances or violence.

The government and Page agreed that Page would face a statutory minimum of fifteen years of

imprisonment. In the plea agreement, Page waived his right to appeal most aspects of his

conviction and sentence. The district court accepted the plea with its sentence of 180 months,

the statutory minimum under the Armed Career Criminal Act (ACCA). On appeal, Page argues

for the first time that the ACCA should not apply, and that his trial counsel was ineffective for

failing to challenge its applicability at the earlier stages of his case. For the following reasons,

we AFFIRM the judgment of the district court.
No. 15-6451, United States v. Page


                                   I.     BACKGROUND

       On April 19, 2012, Page sold three grams of heroin to a confidential informant. The next

month, a search warrant was executed at Page’s residence and two firearms were located. The

superseding indictment filed against Page listed three previous felony convictions—for

facilitation to first-degree robbery, trafficking in a controlled substance, and first-degree

robbery—in support of charges for being a felon in possession of a firearm. In a written

agreement, Page pleaded guilty of distributing a controlled substance in violation of 21 U.S.C.

§ 841(a)(1) and § 841(b)(1)(C) and of being a felon in possession of a firearm in violation of

18 U.S.C. § 922(g) and § 924(e).

       In the plea agreement under Rules 11(c)(1)(A) and (C) of the Federal Rules of Criminal

Procedure, Page waived his right to appeal his sentence unless based on claims of ineffective

assistance of counsel or prosecutorial misconduct. The government agreed to move to dismiss

several other charges.    Both parties agreed that a custodial sentence of 180 months of

imprisonment was an appropriate disposition of the case. The district court explored the factual

basis of the plea, to which Page’s counsel did not object, before accepting the plea agreement.

The probation office calculated an offense level of 31 and criminal history category of VI under

the U.S. Sentencing Guidelines, leading to an advisory guideline range of 188 to 235 months in

custody. The probation office designated Page as an armed career criminal based on at least

three prior convictions for a violent felony or serious drug offense. Page had additional prior

convictions, including for second-degree burglary. Neither party objected to the offense and

criminal history findings and armed career criminal designation, which were adopted by the

district court. The district court sentenced Page to 180 months of imprisonment, the custodial

sentence agreed on by the parties and the statutory minimum under the ACCA.


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No. 15-6451, United States v. Page


       Page timely appealed his conviction and sentence.

                                      II.       ANALYSIS

       A.      Waiver Of Right To Appeal

       Page argues that there were defects in the factual basis of his guilty plea and that prior

convictions must be charged as predicate crimes and found as such by the jury to qualify him as

an armed career criminal. Neither argument was raised in the district court. The government

argues that the terms of the plea agreement prevent appeal of these issues.

       The waiver clause in Page’s plea agreement reads:

       Defendant is aware of his right to appeal his conviction and that 18 U.S.C. § 3742
       affords a defendant the right to appeal the sentence imposed. Unless based on
       claims of ineffective assistance of counsel or prosecutorial misconduct, the
       Defendant knowingly and voluntarily waives the right (a) to directly appeal his
       conviction and the resulting sentence pursuant to Fed. R. App. P. 4(b) and 18
       U.S.C. § 3742, and (b) to contest or collaterally attack his conviction and the
       resulting sentence under 28 U.S.C. § 2255 or otherwise.

(R. 44, ¶ 11 PageID 110) The district judge described the waiver clause and its effect to Page,

who affirmed that he understood the matter. Page also confirmed that he had adequate time to

talk with his trial counsel about the guilty plea, and was satisfied with the attorney’s advice.

       The government urges us to forego review of substantive matters in this case based on the

waiver clause. Page does not directly address his waiver of the right to appeal his conviction and

sentence, other than to conclude that “the record makes clear that Mr. Page’s acquiescence to the

plea agreement was premised on his counsel’s deficient performance.” Presumably, Page asks

us to disregard the waiver clause because it is found in a plea agreement that was “itself . . .

infected by the ineffective assistance of trial counsel.”

       We generally review the district court’s rulings for plain error regarding arguments that

were not brought at the trial court level. United States v. Caruthers, 458 F.3d 459, 473 (6th Cir.


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No. 15-6451, United States v. Page


2006). Page has fashioned part of his appeal around his trial counsel’s alleged ineffectiveness at

the plea and sentencing phases. We do not normally review ineffective assistance of counsel

claims on direct appeal because the record is usually insufficient for appellate review at this

stage. United States v. Ferguson, 669 F.3d 756, 762 (6th Cir. 2012). When the record is

sufficient for review of ineffective assistance of counsel claims, we review it de novo as a mixed

question of fact and law. Id. at 761. A plaintiff asserting ineffective assistance on a guilty plea

must show that “counsel’s performance was deficient and that the deficient performance

prejudiced his defense such that there is a ‘reasonable probability that, but for counsel’s errors,

he would not have pleaded guilty and would have insisted on going to trial.’” Id. at 762 (citing

Hill v. Lockhart, 474 U.S. 52 (1985) and Strickland v. Washington, 466 U.S. 668 (1984)).

       A waiver of the right to appeal does not leave a defendant “entirely at the whim of the

district court.” Caruthers, 458 F.3d at 471 (quoting United States v. Martin, 961 F.2d 493, 496

(4th Cir. 1992)). And such a waiver does not preclude a defendant from challenging a sentence

as exceeding the statutory maximum. Id. at 472. In Caruthers, an appellant challenged his status

as an armed career criminal. The crime of being a felon in possession of a firearm is normally

punishable by a maximum of ten years, but is punishable by a minimum of fifteen years if the

ACCA applies.     Id. (quoting 18 U.S.C. § 924(a)(2) and § 924(e)).         Because the statutory

minimum for the ACCA is above the statutory maximum for a standard felon-in-possession

conviction, the Caruthers court determined that the sentence potentially exceeded the statutory

maximum and proceeded to evaluate the merits despite the appellate waiver. Id. We follow suit,

in part because judicial resources are put to more efficient use here by addressing the question of

whether Page is properly classified as an armed career criminal. To the extent that ineffective




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No. 15-6451, United States v. Page


assistance of counsel claims are based on Page’s designation as an armed career criminal, the

record is sufficient to resolve the claims at this time.


        B.      Armed Career Criminal Designation

        Most of Page’s arguments, whether termed merits attacks or claims of ineffective

assistance of counsel, derive from his designation as an armed career criminal. To avoid his

enhanced sentence under the ACCA, Page urges us to overrule a published decision of this court

and abrogate a decision of the Supreme Court. Those cases remain good law and we affirm

Page’s designation as an armed career criminal.


                1.      Facilitation to Commit First-Degree Robbery as a Predicate

        The ACCA establishes a statutory minimum of fifteen years of imprisonment for

defendants convicted of felon-in-possession laws while having three or more prior convictions

for serious drug offenses or violent felonies, both of which have multi-pronged definitions. See

18 U.S.C. § 924(e). Page concedes that his two prior convictions for drug trafficking and first-

degree robbery qualify as predicates under the ACCA. He argues that his trial counsel and the

district court erred in counting facilitation to commit robbery, first degree, under Kentucky law

as a violent-felony predicate under the ACCA. Prior convictions qualify as violent-felony

predicates under the ACCA if the crime has the same or narrower elements than the generic

definition of crimes listed in the enumerated felonies prong. See § 924(e)(2)(B)(ii). Prior

convictions qualify under the use of force prong if the crime “has as an element the use,

attempted use, or threatened use of physical force against the person of another.”

§ 924(e)(2)(B)(i). To determine whether a crime qualifies as a violent felony, courts use the

categorical approach by looking at the elements of the crime, not at the underlying facts of how

the defendant committed the crime. Taylor v. United States, 495 U.S. 575, 600 (1990). Courts

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No. 15-6451, United States v. Page


look at a limited set of documents from the underlying case if the statute is divisible, which

means the statute contains alternative elements, some of which would satisfy an ACCA prong

and others which would not. Shepard v. United States, 544 U.S. 13, 25–26 (2005). Courts do

not look at the underlying facts when the statute is indivisible. Descamps v. United States,

133 S. Ct. 2276, 2285 (2013).

       This court previously decided in United States v. Elliott that facilitation to commit

robbery, first degree, in Kentucky qualifies as an ACCA predicate under the use of force prong.

757 F.3d 492, 496 (6th Cir. 2014). The court concluded that “no matter the facts, a defendant

cannot be convicted of facilitation of robbery, first degree, in Kentucky unless his conduct

actually aided the commission of the robbery, which means that the completed offense must be

proved. The completed offense of robbery, first degree, involved a theft committed through the

use or threatened immediate use of physical force upon another person . . .” Id.

       Page argues that Elliott was wrongly decided in light of Descamps. He claims that

criminal facilitation in Kentucky can be committed without the use of force, making the statute

too broad to qualify under the use of force prong. But in Elliott, this court addressed a similar

argument and found that the elements at issue are those for facilitation to commit robbery, first

degree, not “facilitation in the abstract.” Id. at 495. The Elliott court, with Descamps in mind,

found that facilitation to commit robbery, first degree, in Kentucky was an indivisible statute that

satisfied the use of force prong. Id. at 496. Elliott was a published panel decision that controls

the outcome in this case “unless an inconsistent decision of the United States Supreme Court

requires modification or this Court sitting en banc overrules the prior decision.” Rutherford v.

Columbia Gas, 575 F.3d 616, 619 (6th Cir. 2009) (quoting Salmi v. Sec’y of Health & Human

Servs., 774 F.2d 685, 689 (6th Cir. 1985)). As discussed above, Descamps is not inconsistent.



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No. 15-6451, United States v. Page


Nor is Johnson v. United States, which struck the residual clause of the ACCA definition of

violent felony, but left the use of force prong intact. 135 S. Ct. 2551, 2563 (2015). Facilitation

to commit robbery, first degree, under Kentucky law therefore remains a violent felony for

ACCA purposes, and the district court and Page’s trial counsel committed no error, plain or

otherwise, in determining that was the case.

       We also note that Page’s prior conviction for second-degree burglary would likely

provide the third predicate to qualify him as an armed career criminal. See United States v.

Jenkins, 528 F. App’x. 483, 485 (6th Cir. 2013) (holding second-degree burglary under

Kentucky law qualified as a violent felony under the enumerated crimes prong of the ACCA).

               2.      Predicate Crimes

       Page also argues that his sentencing under the ACCA was improper because the predicate

crimes should have been presented to a grand jury and been part of the factual basis of the plea.

In Almendarez-Torres v. United States, 523 U.S. 224, 246 (1998), the Supreme Court held that

Congress can authorize a judge to find the fact of a prior conviction for sentencing matters. Page

argues that we should read a subsequent Supreme Court case, Alleyne v. United States, 133 S. Ct.

2151 (2013), as abrogating Almendarez-Torres. However, the Alleyne decision acknowledges

Almendarez-Torres and explicitly sets that case outside its holding.        Id. at 2160 n.1 (“In

Almendarez-Torres . . . we recognized a narrow exception to this general rule for the fact of a

prior conviction. Because the parties do not contest that decision’s vitality, we do not revisit it

for purposes of our decision today.”) Indeed, this court has already rejected the argument that

Alleyne requires the nature or character of prior convictions to be found by a jury. Elliott,

757 F.3d at 496–97. The district court again committed no error when it found, based on the

factual basis established in the plea agreement and proceedings, that Page had at least three

predicate violent felonies or serious drug offenses.
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No. 15-6451, United States v. Page


                                 III.       CONCLUSION

       Page appeals his conviction and sentence, although he waived his right to appeal most

aspects of his conviction and sentence. The appeal is without merit because Page was properly

classified as an armed career criminal based on his prior convictions for violent felonies and

serious drug offenses. As we have previously held, facilitation to commit robbery, first degree, in

Kentucky is a violent felony under the use of force prong of the Armed Career Criminal Act.

The district court properly determined that Page had at least three prior convictions that qualify

as ACCA predicates. To the extent Page claims ineffective assistance of counsel based on his

status as an armed career criminal, those claims are without merit. The district court did not err,

and the judgment is therefore AFFIRMED.




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