                Case: 11-11273       Date Filed: 02/25/2014       Page: 1 of 9


                                                                                  [PUBLISH]



                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 11-11273
                               ________________________

                        D.C. Docket No. 1:10-cr-00174-WS-M-1



UNITED STATES OF AMERICA,

                                                                           Plaintiff-Appellee,

                                            versus

LARRY LEVERN JONES,

                                                                       Defendant-Appellant.

                               ________________________

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

                                    (February 25, 2014)

Before CARNES, Chief Judge, DUBINA, Circuit Judge, and ROSENTHAL, *
District Judge.

CARNES, Chief Judge:


       *
         Honorable Lee H. Rosenthal, United States District Judge for the Southern District of
Texas, sitting by designation.
              Case: 11-11273     Date Filed: 02/25/2014    Page: 2 of 9




      Larry Jones appeals his 180-month sentence for being a felon in possession

of a firearm and ammunition. See 18 U.S.C. § 922(g)(1). His sentence exceeded

the normal 10-year maximum sentence under the statute, see id. § 924(a)(2),

because the district court imposed an enhancement under the Armed Career

Criminal Act (ACCA), id. § 924(e)(1). Jones’ sole challenge to his sentence

contests the application of the ACCA enhancement, specifically, the decision to

count his prior convictions for third-degree burglary in Alabama as “violent

felonies” for ACCA purposes.

      At the time Jones was sentenced in March 2011, the law in this circuit was

that convictions under Alabama’s third-degree burglary statute, Ala. Code § 13A-

7-7, could qualify as violent felonies for purposes of the ACCA. See United States

v. Rainer, 616 F.3d 1212, 1215–16 (11th Cir. 2010). The district court faithfully

followed that precedent and concluded that Jones was eligible for an ACCA

enhancement based on his prior Alabama third-degree burglary convictions.

      In between Jones’ sentence and our decision here, however, the Supreme

Court decided Descamps v. United States, — U.S. —, 133 S.Ct. 2276 (2013). It

held that a prior conviction cannot serve as an ACCA predicate if the statute that

earlier conviction is based on “contain[s] a single, ‘indivisible’ set of elements

sweeping more broadly than the corresponding generic offense.” Id. at 2283. We



                                           2
                Case: 11-11273        Date Filed: 02/25/2014       Page: 3 of 9


recently determined, in light of Descamps, that our decision in Rainer was no

longer good law because Alabama’s third-degree burglary statute is a non-generic,

indivisible statute. See United States v. Howard, — F.3d —, No. 12-15756, 2014

WL 630657, at *6 (11th Cir. Feb. 19, 2014). As a matter of law, we held, “a

conviction under Alabama Code § 13A-7-7 cannot qualify as generic burglary

under the ACCA.” Id. at *9 (citing Descamps, 133 S.Ct. at 2292).

       We could resolve Jones’ challenge to the use of his Alabama third-degree

burglary convictions in a couple of sentences with a cite to Howard but for one

thing. Unlike Howard, Jones did not preserve the issue by objecting to the ACCA

enhancement on this ground in the district court. That failure shifts this appeal into

the plain error review column. The question is whether treating the use of

Alabama convictions for third degree burglary as violent felonies for ACCA

purposes is plain error either generally or particularly in this case. The answer is

“yes,” and “yes.” 1

                                                I.




       1
         The government argues that the doctrine of invited error precludes us from reviewing
Jones’ challenge at all. See United States v. Ross, 131 F.3d 970, 988 (11th Cir. 1997) (“It is a
cardinal rule of appellate review that a party may not challenge as error a ruling or other trial
proceeding invited by that party.”) (quotation marks omitted). That doctrine does not apply,
because the error here was not “attributable to the action of the defense.” United States v. Doran,
564 F.2d 1176, 1177 (5th Cir. 1977); see also United States v. Stone, 139 F.3d 822, 838 (11th
Cir. 1998) (holding that the doctrine applies only “when a party induces or invites the district
court into making an error”). Jones failed to object to the error, but he did not ask for it.


                                                3
                 Case: 11-11273        Date Filed: 02/25/2014         Page: 4 of 9


       In March 2010 Mobile police officers responded to a call that someone had

started a fire near the corner of St. Madar Street and Davidson Street. When they

arrived at the scene, officers found Jones next to a small fire. They patted him

down and found a loaded .380 caliber pistol tucked in his waistband. Jones

admitted that he was a convicted felon and had no permit for the pistol. The

officers arrested Jones for carrying a pistol without a license.

       A federal grand jury indicted Jones in July 2010, charging him with one

count of being a felon in possession of a firearm and ammunition. See 18 U.S.C.

§ 922(g)(1). In late October 2010 Jones pleaded guilty under a written plea

agreement.2

       Jones’ presentence investigation report (PSR) concluded that his three prior

Alabama convictions for third-degree burglary qualified him for an armed career

criminal enhancement under the ACCA. See Ala. Code § 13A-7-7. 3 The ACCA

enhancement carries a 15-year mandatory minimum sentence and an automatic


       2
           The agreement included a general appeal waiver but reserved Jones’ right to appeal
“any sentence in excess of the statutory maximum.” This Court has already denied the
government’s motion to dismiss this appeal based on that appeal waiver. We did so because
without the ACCA enhancement, the maximum sentence Jones could have received under the
statute is ten years. See 18 U.S.C. § 924(a)(2). The enhancement gave Jones a sentence of 15
years, which is “in excess of the statutory maximum.” As a result, the reserve clause in the
appeal waiver applies and the waiver does not.
         3
           In addition to his three convictions for third-degree burglary, the PSR also listed as an
ACCA predicate offense Jones’ prior conviction for second-degree receipt of stolen property.
See Ala. Code § 13A-8-18. The classification of that prior conviction does not matter here, so
we need not decide whether a conviction under Alabama Code § 13A-8-18 can qualify as an
ACCA predicate.


                                                  4
                 Case: 11-11273    Date Filed: 02/25/2014      Page: 5 of 9


offense level of 33. See 18 U.S.C. § 924(e)(1); U.S.S.G. § 4B1.4(b)(3)(B). After

the PSR applied a 3-level reduction under United States Sentencing Guidelines

§ 3E1.1 for acceptance of responsibility, Jones’ total offense level was 30. That

offense level, combined with his criminal history category of VI, gave Jones a

guidelines range of 168 to 210 months in prison. 4 Because of the ACCA

enhancement, Jones’ ultimate guidelines range was 180 to 210 months in prison,

see U.S.S.G. § 5G1.1(b), with a mandatory minimum of 180 months.

       Jones’ attorney never objected to the PSR’s conclusion that Jones qualified

for the ACCA enhancement. While she did file a general objection claiming that

the PSR “improperly categorizes the criminal history of the Defendant,” she filed it

months before the PSR was drafted. She did not object to the PSR’s actual

conclusion that Jones’ prior convictions qualified as ACCA predicates.

       The district court adopted the PSR’s findings and its conclusion that Jones’

four prior convictions triggered the ACCA enhancement. The court sentenced

Jones to 180 months in prison, which was the lowest sentence possible given the

mandatory minimum. The court expressed regret that its hands were statutorily

tied, telling Jones, “I’m sorry. . . . It does not seem to me that that’s a range or a

punishment that should be imposed in your case, but I have no other alternative but

to impose it.”

       4
         Had the PSR not applied the ACCA enhancement, Jones’ total offense level would have
been 15, which would have resulted in a guidelines range of 41 to 51 months imprisonment.


                                             5
               Case: 11-11273      Date Filed: 02/25/2014    Page: 6 of 9




                                           II.

      Our review under the plain error rule is “limited and circumscribed.” United

States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005) (quotation marks

omitted). We impose four criteria that are “difficult to meet.” Id. (quotation marks

omitted). Before we even have discretion to correct the error, the defendant must

show that there is: “(1) error, (2) that is plain, and (3) that affects substantial

rights.” Id. (quotation marks omitted). Only then may we exercise our “discretion

to notice a forfeited error,” but we may do so “only if (4) the error seriously affects

the fairness, integrity, or public reputation of judicial proceedings.” Id. (quotation

marks omitted). Jones has met all four requirements.

      Jones has shown that there was error and it was plain. To receive an ACCA

enhancement, a defendant must have three prior convictions that qualify as violent

felonies under the ACCA. See 18 U.S.C. § 924(e)(1). And as explained above, we

recently held that, based on the Supreme Court’s Descamps decision, “a conviction

under Alabama Code § 13A-7-7 cannot qualify as generic burglary under the

ACCA.” Howard, 2014 WL 630657 at *9 (citing Descamps, 133 S.Ct. at 2292).

That means Jones did not have the three qualifying convictions necessary for the

ACCA enhancement. As for the plainness of that error, an intervening decision by



                                            6
               Case: 11-11273     Date Filed: 02/25/2014    Page: 7 of 9


“this Court or the Supreme Court squarely on point may make an error plain.”

United States v. Pielago, 135 F.3d 703, 711 (11th Cir. 1998) (collecting cases).

Howard is an intervening decision and about as “squarely on point” as an

intervening decision can be. So the error was plain.

      Jones has also shown that the error affected his substantial rights. Under the

third prong of the plain error rule, Jones has the difficult burden of showing there

is a “reasonable probability” that he would have received a lighter sentence but for

the error. See Rodriguez, 398 F.3d at 1299 (explaining that establishing such a

probability “is anything but easy”). That burden requires him “to show that the

error actually did make a difference: if it is equally plausible that the error worked

in favor of the defense, the defendant loses; if the effect of the error is uncertain so

that we do not know which, if either, side it helped the defendant loses.” See id.

1300. Mere speculation about the effect of the ACCA enhancement is not enough.

See id. at 1299–1300. Jones must point to something in the record showing that

the most likely result on remand is for the sentencing judge to give him a shorter

sentence than he originally received. See id. at 1301.

      Jones has carried that burden. It is enough that the district court will be

statutorily compelled to give Jones a shorter sentence on remand. Without the

ACCA enhancement, the maximum sentence the court can impose on remand is

ten years in prison, which is shorter than the fifteen years he originally received.



                                           7
               Case: 11-11273     Date Filed: 02/25/2014   Page: 8 of 9


See 18 U.S.C. § 924(a)(2). A shorter sentence will generally result from correction

of an ACCA application error, but even without the maximum/minimum dynamic

that generally comes into play, the difference in result would be true in this

particular case. At the sentence hearing, the district court expressed its desire to

give Jones a shorter sentence than the ACCA’s mandatory minimum allowed,

apologizing to him about the ACCA enhancement and the mandatory sentence:

“I’m sorry. . . . It does not seem to me that [180 to 210 months in prison is] a

range or a punishment that should be imposed in your case, but I have no other

alternative but to impose it.” See United States v. Bennett, 472 F.3d 825, 834

(11th Cir. 2006) (holding that the prejudice requirement of the plain error test was

met where the defendant had been sentenced under an erroneously high guidelines

range, and the “the district judge expressly indicated a desire to impose a sentence

near the low end of the sentencing Guidelines range”). The error did affect Jones’

substantial rights.

      Finally, we conclude that this error “seriously affected the fairness, integrity,

or public reputation of the judicial proceedings in this case.” Id. Jones was given

a mandatory minimum sentence that exceeds the statutory maximum that should

have been applied. We will exercise our discretion and correct the error.

                                          III.




                                           8
              Case: 11-11273     Date Filed: 02/25/2014    Page: 9 of 9


      For those reasons, we vacate Jones’ sentence and remand for resentencing

without the ACCA enhancement. Jones has requested that we limit the scope of

resentencing on remand so that the government cannot seek an enhancement under

the ACCA’s residual clause. See 18 U.S.C. § 924(e)(2)(B)(ii) (providing that the

ACCA enhancement applies to crimes punishable by more than a year that

“involve[] conduct that presents a serious potential risk of physical injury to

another”). The government has not opposed Jones’ proposal. We therefore

exercise our discretion to grant Jones’ request. See Howard, 2014 WL 630657 at

*9–10. The district court should resentence Jones on remand without the ACCA

enhancement, and the government may not argue that any of Jones’ prior

convictions qualify as violent felonies under 18 U.S.C. § 924(e)(2)(B)(ii).

However, that limitation does not prevent the district court from considering the

information and evidence about Jones’ criminal history and prior convictions when

it determines an appropriate punishment under the 18 U.S.C. § 3553(a) sentencing

factors at the resentencing on remand. See id. at *10.

      VACATED and REMANDED.




                                          9
