           Case: 15-13617   Date Filed: 12/09/2016   Page: 1 of 10


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-13617
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 6:11-cr-00083-ACC-KRS-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

CHARLIE WARREN PENDLETON,

                                                         Defendant-Appellant.

                       ________________________

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

                            (December 9, 2016)

Before TJOFLAT, MARTIN and ANDERSON , Circuit Judges.

PER CURIAM:
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       A jury found Charlie Warren Pendleton guilty of possessing a firearm and

ammunition as a felon, in violation of 18 U.S.C. § 922(g)(1), and the District Court

sentenced him to prison for 180 months under the Armed Career Criminal Act

(“ACCA”),18 U.S.C. § 924(e). 1 Pendleton appeals his conviction on the ground

that the District Court misapplied the Speedy Trial Act 2 in calculating the

excludable time. He appeals his sentence on two grounds: (1) the Court erred in

using his prior conviction for threatening to discharge a destructive device as an

ACCA predicate offense because the offense did not qualify under the ACCA’s

enumerated offenses clause and the Shepard 3 documents did not show that the

elements of the statute he was convicted of established a violent felony, and (2) his

prior conviction for resisting a law enforcement officer with violence was

presumptively void because he was not represented by counsel during the



       1
          Pendleton was indicted on March 16, 2011. He was tried and convicted under a
superseding indictment returned on December 21, 2011. He was sentenced on November 1,
2012, to a prison term of 180 months. He appealed his sentence, but we dismissed the appeal
because it was untimely filed. United States v. Pendleton, No. 12-16565 (11th Cir. 2013.
Pendleton then moved the District Court pursuant to 28 U.S.C. § 2255 alleging that his attorney
rendered ineffective assistance of counsel under the Sixth Amendment in failing to file a timely
notice of appeal following his November 1, 2012 sentence. Doc. 172-1. The Court agreed,
granted his motion, Doc. 173, and entered an amended judgment incorporating the November 1,
2012 sentence. Doc. 176. Pendleton now appeals that judgment.
        2
          18 U.S.C. §§ 3161 et seq.
        3
          Shepard v. United States, 544 U.S. 13, 26, 125 S. Ct. 1254, 1263, 161 L. Ed. 2d 205
(2005) (holding that a court is limited to “the terms of the charging document, the terms of a plea
agreement or transcript of colloquy between judge and defendant in which the factual basis for
the plea was confirmed by the defendant, or to some comparable judicial record of this
information” when determining whether a non-generic criminal statute necessarily admits the
elements of the generic offense).
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sentencing for that offense. After considering the parties’ briefs and the record, we

affirm Pendleton’s conviction and sentence.


                                             I.

        We review de novo the District Court’s denial of Pendleton’s motion to

dismiss his indictment pursuant to the Speedy Trial Act. United States v. Harris,

376 F.3d 1282, 1286 (11th Cir. 2004). We review the Court’s findings of fact

regarding what qualifies as excludable time under the Act for clear error. Id. at

1286.

        Early during the prosecution of this case, it became apparent to Pendleton’s

lawyer that he may not be competent to stand trial. The Speedy Trial Act error the

District Court allegedly committed was in excluding the delay (in excess of 10

days) incurred in having Pendleton taken to the Medical Center for Federal

Prisoners at Springfield, Missouri, for a mental competency determination.

        The Speedy Trial Act provides that a defendant’s trial must commence

within 70 days of either the filing date of the indictment or the date of the

defendant’s initial court appearance related to the charge, whichever occurs later.

18 U.S.C. § 3161(c)(1). The speedy trial clock is tolled during certain periods of

delay. 18 U.S.C. § 3161(h). Section 3161(h) of the Act, which addresses the delay

at issue here, provides, in relevant part:

        (h) The following periods of delay shall be excluded in computing the

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      time within which an information or indictment must be filed, or in
      computing the time within which the trial of any such offense must
      commence:

             (1) Any period of delay resulting from other proceedings
                 concerning the defendant, including but not limited to—

                    (A) delay resulting from any proceeding, including any
                       examinations, to determine the mental competency or
                       physical capacity of the defendant;

                    ...

                    (D) delay resulting from any pretrial motion, from the
                    filing of the motion through the conclusion of the hearing
                    on, or other prompt disposition of, such motion;

                    . . . [and]

                    (F) delay resulting from transportation of any defendant
                    from another district, or to and from places of
                    examination or hospitalization, except that any time
                    consumed in excess of ten days from the date an order of
                    removal or an order directing such transportation, and the
                    defendant’s arrival at the destination shall be presumed to
                    be unreasonable

                    ....

             (4) Any period of delay resulting from the fact that the
             defendant is mentally incompetent or physically unable to stand
             trial.

Id. Additionally, any specific day that triggers the running of the speedy trial clock

is excluded from the 70-day period. United States v. Elkins, 795 F.2d 919, 922

(11th Cir. 1986).



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      We find no error in the District Court’s denial of Pendleton’s motion to

dismiss his indictment under the Speedy Trial Act because fewer than 70 non-

excludable days had passed. Pendleton’s argument---that the days beyond 10 that

it took to transport him to the Medical Center at Springfield should not have been

excluded---fails because he was incompetent during that entire time. Hence, such

time was properly excluded under § 3161(h)(4). Pendleton’s argument that

incompetent defendants should still receive the benefit of § 3161(h)(1)(F)’s 10-day

limit on reasonable transportation reads into the statute a conflict between

§ 3161(h)(1)(F) and (h)(4) that does not exist. Though we have no precedent

directly on point, a plain reading of the statute does not necessitate the conclusion

that only one of the exclusions under § 3161(h) can apply at a time. According to

the statute’s plain language, any qualifying delay is excludable, regardless of

whether it would or would not qualify under a different subsection of the statute.

Thus, if a defendant is mentally incompetent under § 3161(h)(4), that time is

excludable even if there is also a transportation delay that is unreasonably long and

thus not excludable under § 3161(h)(1)(F). In this case, for example, 53 days

passed between June 23, 2011, when the District Court found Pendleton

incompetent, and August 16, 2011, when he arrived at the Springfield Medical

Center. Pendleton is correct that under § 3161(h)(1)(F) only 10 of the 53 days of

transportation were excludable from the calculation. 18 U.S.C. § 3161(h)(1)(F).


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However, because he had been declared incompetent, the entire 53 days was

excludable under § 3161(h)(4). 18 U.S.C. § 3161(h)(4). There being no Speedy

Trial Act violation, Pendleton’s conviction is affirmed.

                                               II.

       Pendleton argues that his conviction for threat to discharge a destructive

device, in violation of Fla. Stat. § 790.162, does not qualify as a violent felony

under the ACCA. 4 He did not present his objection to the District Court at

sentencing. We therefore review it for plain error. To satisfy that standard of

review, Pendleton must establish the occurrence of “(1) an error, (2) that is plain,

(3) that affects substantial rights (which usually means that the error was

prejudicial), and (4) that seriously affects the fairness, integrity, or public

reputation of judicial proceedings.” United States v. Mangaroo, 504 F.3d 1350,

1353 (11th Cir. 2007). “A plain error is an error that is ‘obvious’ and is ‘clear

under current law.’” United States v. Humphrey, 164 F.3d 585, 588 (11th Cir.

1999).

       Under the ACCA, a violent felony is “any crime punishable by

imprisonment for a term exceeding one year” that:

       (i) has as an element the use, attempted use, or threatened use of
       physical force against the person of another; or


       4
        Pendleton concedes that § 790.162 is divisible and that some violations of the statute
would qualify as violent felonies.
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      (ii) is burglary, arson, or extortion, involves use of explosives, or
      otherwise involves conduct that presents a serious potential risk of
      physical injury to another.

18 U.S.C. § 924(e)(2)(B). Subpart (i) is sometimes referred to as the “elements

clause,” while subpart (ii) contains the “enumerated crimes.” United States v.

Owens, 672 F.3d 966, 968 (11th Cir. 2012). The Supreme Court, in Johnson v.

United States, held that the second clause of § 924(e)(2)(B)(ii), the residual clause,

is unconstitutionally vague, and therefore, imposing an enhanced sentence based

upon that provision denies due process. 135 S. Ct. 2551, 2563, 192 L. Ed. 2d 569

(2015).

      To determine whether a crime falls under the ACCA definition of a violent

felony, we typically “compare the elements of the statute forming the basis of the

defendant's conviction with the elements of the ‘generic’ crime—i.e., the offense

as commonly understood.” Descamps v. United States, 570 U.S. ___, 133 S. Ct.

2276, 2281, 186 L. Ed. 2d 438 (2013). If these elements are “the same as, or

narrower than, those of the generic offense,” then any conviction under the statute

qualifies as a violent felony. Id. This is the “categorical approach.” Id.

      But, the Supreme Court has also outlined an alternative approach that

applies to a narrow subset of cases, the modified categorical approach. See United

States v. Lockett, 810 F.3d 1262, 1266 (11th Cir. 2016). As the Supreme Court

explained in 2013, this approach only applies to “divisible statute[s].” Descamps,


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133 S. Ct. at 2281. A statute is divisible if it “sets out one or more elements of the

offense in the alternative—for example, stating that burglary involves entry into a

building or an automobile.” Id. (emphasis in original); see also Mathis v. United

States, 579 U.S. ___, ___, 136 S. Ct. 2243, 2251-54, 195 L. Ed. 2d 604 (2016)

(holding that courts may use the modified categorical approach only if the

non-generic terms in a state statute constitute elements of the offense, not simply

alternative means of committing the crime).

       As previously noted, Pendleton expressly concedes that Fla. Stat. § 790.162

is divisible and has consequently waived any argument to the contrary. [Appellant

Br. at 42]; In re Egidi, 571 F.3d 1156, 1163 (11th Cir. 2009) (explaining that

“[a]rguments not properly presented in a party’s initial brief or raised for the first

time in the reply brief are deemed waived”). So, we assume that the modified

categorical approach applies here. Under this approach, we consult any Shepard

documents the Government submitted to determine which version of the crime the

defendant was convicted of. United States v. Braun, 801 F.3d 1301, 1305 (11th

Cir. 2015).5 If the crime that the defendant was convicted of “has as an element

the use, attempted use, or threatened use of physical force against the person of

another,” then the conviction qualifies as a violent felony for purposes of the
       5
         Shepard, 544 U.S. at 26, 125 S. Ct. at 1263 (2005) (holding that a court is limited to
“the terms of the charging document, the terms of a plea agreement or transcript of colloquy
between judge and defendant in which the factual basis for the plea was confirmed by the
defendant, or to some comparable judicial record of this information” when determining whether
a non-generic criminal statute necessarily admits the elements of the generic offense)
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ACCA under the elements clause. Id. at 1307; 18 U.S.C. § 914(e)(2)(B)(i).

Similarly, if the elements of the crime that the defendant was convicted of match

the generic elements of an enumerated offense, then the conviction qualifies as a

violent felony for purposes of the ACCA under the enumerated crimes clause.

United States v. Ramirez-Flores, 743 F.3d 816, 820 (11th Cir. 2014).

      We find no plain error in the Court’s finding that Pendleton’s prior

conviction for threatening to discharge a destructive device qualified as a violent

felony for purposes of the ACCA enhancement. Whether a conviction under

§ 790.162 qualifies as a violent felony through the enumerated clause of the

offense that “involves use of explosives” is a matter of first impression. 18 U.S.C.

§ 924(3)(2)(B)(ii). Consequently, there can be no error that is plain or obvious, the

second factor of the plain error standard. Humphrey, 164 F.3d at 588. But

assuming that it is, we do not invoke the standard because the error does not

“seriously affect[ ] the fairness, integrity, or public reputation of judicial

proceedings.” Mangaroo, 504 F.3d 1353.

                                           III.

      Pendleton argues that his prior conviction for resisting a law enforcement

officer with violence was presumptively void because he was not represented by

counsel in the sentencing in that case. United States v. Barrington, 648 F.3d 1178,

1195 (11th Cir. 2011). According to him, the Florida court’s omission of the name


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of his court-appointed attorney from the judgment established that he was not

represented by counsel and that his conviction is invalid under Gideon v.

Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963) (holding that the

Sixth Amendment, which grants defendants a right to counsel in all criminal

prosecutions, applies to the states through the Fourteenth Amendment), and cannot

be used as the basis for a sentence enhancement in a later case, such as the one

here. Burgett v. Texas, 389 U.S. 109, 115, 88 S. Ct. 258, 262, 19 L. Ed. 2d 319

(1967). Contrary to Pendleton’s argument, overwhelming evidence supports the

District Court’s factual finding that he received the assistance of appointed counsel

in the state proceedings underlying his conviction for resisting an officer with

violence. The evidence included a court order appointing the Public Defender at

Pendleton’s initial appearance on the charge; court minutes showing that was being

represented by counsel; a plea agreement signed by him and counsel; and counsel’s

motion for attorney’s fees made on the date of his sentencing. In sum, we find no

clear error in the Court’s finding that Pendleton received the representation of

counsel throughout the case and, in particular, at sentencing, where the court

imposed the sentence reflected in Pendleton’s plea agreement.

      For the foregoing reasons, Pendleton’s conviction and sentence are

      AFFIRMED.




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