           Case: 14-13096   Date Filed: 06/08/2016   Page: 1 of 6


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-13096
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 0:14-cr-60014-KAM-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellant

                                 versus

SEAN GHANY,

                                                           Defendant-Appellee

                      ________________________

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

                              (June 8, 2016)

Before WILSON, WILLIAM PRYOR, and JULIE CARNES, Circuit Judges.

PER CURIAM:
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      Defendant Sean Ghany pleaded guilty to bank robbery, in violation of 18

U.S.C. § 2113(a). At sentencing, the district court determined that Defendant’s

prior conviction for burglary of an unoccupied dwelling, in violation of Fla. Stat.

§ 810.02(3)(b), was not a crime of violence under the residual clause of U.S.S.G.

§ 4B1.2(a)(2). The Government appeals that determination and argues that the

district court erred in determining that Defendant’s prior burglary conviction did

not qualify as a crime of violence for career offender purposes. After careful

review, we vacate and remand for resentencing.

I. BACKGROUND

      In November 2013, Defendant entered a BB&T bank in Tamarac, Florida,

and handed the bank teller a note that stated, “This is a robbery! I have a gun! Give

me all your 100’s, 50’s and 20’s or I will shoot!” The bank teller handed

Defendant $2,410 in cash and Defendant fled from the scene. An investigation

later revealed that Defendant rented a vehicle matching the description of the one

implicated in the robbery, and records showed that the rental car was on the Florida

Turnpike near the bank just minutes following the robbery. Witnesses to the

robbery also picked Defendant out of a photographic lineup.

      A federal grand jury subsequently issued an indictment, charging Defendant

with bank robbery, in violation of 18 U.S.C. § 2113(a). Defendant initially pled

not guilty, but later changed his plea to guilty.


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       In anticipation of sentencing, the probation officer prepared a Presentence

Investigation Report (“PSR”). The PSR assigned a base offense level of 20,

pursuant to U.S.S.G. § 2B3.1(a). Pursuant to §§ 2B3.1(b)(1) and (b)(2)(F),

Defendant received two separate, two-level enhancements because property from a

financial institution was taken and a death threat was made. The PSR indicated

that Defendant was a career offender under U.S.S.G. § 4B1.1(a) because he had

two prior felony convictions for crimes of violence. Specifically, Defendant had

prior Florida convictions for burglary of a dwelling, burglary of a structure, and

aggravated battery of a law enforcement officer. Based on a total offense level of

29 and a criminal history category of VI, 1 the PSR calculated a guidelines range of

151 to 188 months’ imprisonment.

       Defendant filed written objections to the PSR. In particular, he objected to

his classification as a career offender. He argued that burglary of an unoccupied

dwelling and burglary of a structure were not enumerated crimes of violence for

career offender purposes. Because the Florida burglary statute was indivisible and

overbroad, as it included the curtilage of a dwelling, a conviction under the statute

could not be deemed a crime of violence pursuant to § 4B1.2.




1
  Defendant received 11 criminal history points, which corresponds to a criminal history
category of V, but the PSR assigned a criminal history category of VI due to his career offender
designation.
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       At the sentencing hearing, Defendant reiterated his objections to the

classification of his prior burglary convictions as crimes of violence. The

Government asserted that Defendant’s burglary convictions were crimes of

violence under the residual clause of § 4B1.2(a)(2), regardless of whether the

building was occupied or unoccupied. The district court sustained Defendant’s

objection to the career offender enhancement, concluding that Defendant’s Florida

burglary convictions did not meet the definition of a crime of violence because the

least culpable act under the statute was burglary of the curtilage, which did not

carry a potential risk of violence.2 Without the application of the career offender

provision, the district court calculated Defendant’s guideline range as 70 to 87

months based on a total offense level of 21 and a criminal history category of V.

The district court then sentenced Defendant to 70 months’ imprisonment.

II. DISCUSSION

       We review de novo whether a defendant’s prior conviction qualifies as a

crime of violence under the Sentencing Guidelines. United States v. Hall, 714 F.3d

1270, 1271 (11th Cir. 2013).

       A defendant qualifies as a career offender if: (1) he was at least 18 years old

when he committed the present offense; (2) the present offense is either a felony

crime of violence or felony controlled substance offense; and (3) he has at least

2
  The Government expressly declines to challenge on appeal the district court’s determination
that Defendant’s prior Florida conviction for burglary of a structure was not a crime of violence.
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two prior felony convictions for a crime of violence or a controlled substance

offense. U.S.S.G. § 4B1.1(a). Under the Sentencing Guidelines, a crime of

violence is a federal or state conviction punishable by one year or more that “has as

an element the use, attempted use, or threatened use of physical force against the

person of another” or “is burglary of a dwelling, arson, or extortion, involves use

of explosives, or otherwise involves conduct that presents a serious potential risk

of physical injury to another.” Id. 4B1.2(a). The portion of this definition relevant

to present appeal is the phrase “or otherwise involves conduct that presents a

serious potential risk of physical injury to another,” which is commonly referred to

as the residual clause. Hall, 714 F.3d at 1271–72.

      In Johnson v. United States, the Supreme Court held that the residual clause

in the Armed Career Criminal Act’s (“ACCA”) definition of violent felony was

unconstitutionally vague. 135 S. Ct. 2551, 2557 (2015). The residual clause

within the definitions of “violent felony” under the ACCA and “crime of violence”

under the Sentencing Guidelines are essentially identical. United States v.

Alexander, 609 F.3d 1250, 1253 (11th Cir. 2010).

      Following the Supreme Court’s decision in Johnson, we considered whether

a conviction for burglary of an unoccupied dwelling under Fla. Stat. § 810.02(3)(b)

qualifies as a crime of violence under the Sentencing Guidelines. United States v.




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Matchett, 802 F.3d 1185, 1196–97 (11th Cir. 2015).3 Although the residual clause

under the career offender provision is nearly identical to the residual clause of the

ACCA, we concluded that the vagueness doctrine does not apply to the Sentencing

Guidelines. Id. at 1193–96. We reasoned that, unlike the ACCA, the Guidelines

are advisory and do not define elements of a crime or fix punishments. Id. at

1194–95. We further held that burglary of an unoccupied dwelling under Fla. Stat.

§ 810.02(3)(b) involved a serious potential risk of physical injury to another, and

thus it was a crime of violence under the residual clause of § 4B1.2(a)(2) Id. at

1196–97.

         In light of our decision in Matchett, the district court erred by concluding

that Defendant’s Florida conviction for burglary of an unoccupied dwelling was

not a crime of violence. See id. Accordingly, Defendant’s sentence is VACATED

and the case is REMANDED to the district court for proceedings consistent with

this opinion.




3
    We stayed this appeal sua sponte pending our decision in Matchett.

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