                              RECOMMENDED FOR FULL-TEXT PUBLICATION
                                  Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                           File Name: 14a0110p.06

                      UNITED STATES COURT OF APPEALS
                                       FOR THE SIXTH CIRCUIT
                                         _________________


 UNITED STATES OF AMERICA,                                     ┐
                                        Plaintiff-Appellee,    │
                                                               │
                                                               │         No. 13-5427
            v.                                                 │
                                                                >
                                                               │
 LERONDRICK ELLIOTT,                                           │
                                    Defendant-Appellant.       │
                                                               ┘
                           Appeal from the United States District Court
                        for the Western District of Kentucky at Louisville.
                   No. 3:11-cr-00017-1—Charles R. Simpson III, District Judge.
                                   Decided and Filed: May 23, 2014*

                     Before: MOORE, WHITE, and DONALD, Circuit Judges.

                                           _________________

                                                COUNSEL

ON BRIEF: Andrew P. Avellano, Columbus, Ohio, for Appellant. Terry M. Cushing, UNITED
STATES ATTORNEY’S OFFICE, Louisville, Kentucky, for Appellee.

                                           _________________

                                                OPINION
                                           _________________

        HELENE N. WHITE, Circuit Judge. Lerondrick Elliott appeals his 180-month sentence
for felon in possession of a firearm, arguing that the district court erred in treating his Kentucky
conviction of facilitation to robbery, first degree, as a “violent felony” under the Armed Career
Criminal Act (“ACCA”). We AFFIRM.
        *
         This decision was originally issued as an “unpublished decision” filed on May 23, 2014. The court has
now designated the opinion as one recommended for full-text publication.




                                                      1
No. 13-5427            United States v. Elliott                                  Page 2

                                                  I.

       On December 8, 2010, Louisville Police stopped a vehicle in which Elliott was a
passenger for a traffic violation. Elliott fled on foot and discarded a semi-automatic pistol and
$4,000 in counterfeit currency. He pleaded guilty of being a felon in possession of a firearm,
18 U.S.C. § 922(a), and counterfeiting, 18 U.S.C. § 472, pursuant to a plea agreement that
reserved his right to challenge his status as an armed career criminal under 18 U.S.C. § 924(e).

       The ACCA increases the sentences of certain federal defendants who have three prior
convictions for a “serious drug offense” or a “violent felony.”          Elliott had several prior
convictions. In August 1998, he pleaded guilty of first-degree cocaine trafficking; and in March
1999, he pleaded guilty of facilitation to robbery, first degree, Ky. Rev. Stat. Ann. § 506.080 and
Ky. Rev. Stat. Ann. § 515.020, and first-degree trafficking in cocaine. Elliott’s Presentence
Report concluded that he had the requisite three prior felony convictions. Elliott objected to the
Presentence Report’s recommendation that he be sentenced as an armed career criminal, arguing
that facilitating a robbery is not a violent felony under the ACCA. The district court disagreed
and sentenced Elliott to the minimum sentence permitted by the ACCA, 180 months in prison.

                                                  II.

       Section 924(e) provides in pertinent part:

       In the case of a person who violates section 922(g) of this title and has three
       previous convictions by any court referred to in section 922(g)(1) of this title for a
       violent felony or a serious drug offense, or both, committed on occasions different
       from one another, such person shall be fined under this title and imprisoned not
       less than fifteen years, and, notwithstanding any other provision of law, the court
       shall not suspend the sentence of, or grant a probationary sentence to, such person
       with respect to the conviction under section 922(g).

18 U.S.C. § 924(e)(2)(A). The term “violent felony” is defined as:

       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 (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).
No. 13-5427            United States v. Elliott                                 Page 3

       Courts generally refer to § 924(e)(2)(B)(i) as the “force” prong, to the portion of
§ 924(e)(2)(B)(ii) listing specific offenses as the “enumerated felonies” prong, and to the portion
of § 924(e)(2)(B)(ii) covering conduct involving a serious potential risk of physical injury as the
“residual clause.” United States v. Johnson, 707 F.3d 655 (2013).

       Whether a prior offense is a violent felony is determined by considering the offense
generically, that is, “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.” Begay v. United States,
553 U.S. 137, 141–42 (2008) (citing Taylor v. United States, 495 U.S. 575, 602 (1990)); see also
United States v. Mosley, 575 F.3d 603, 606–07 (6th Cir. 2009). This “categorical approach”
requires that we examine the elements of the crime of which the defendant was previously
convicted. In the context of the enumerated felonies prong of the ACCA, we compare those
elements to the elements of the enumerated ‘generic’ crime—i.e., the offense as commonly
understood. Descamps v. United States 133 S. Ct. 2276, 2281 (2013). The prior conviction
qualifies as an enumerated felony only if the crime’s statutory elements are the same as, or
narrower than, those of the generic offense. Id.

       Descamps clarifies prior case law and explains that a court may employ the modified
categorical approach, which involves looking to additional documents beyond the elements of a
crime, only when a criminal statute is “divisible,” i.e., if it provides for alternative elements,
some of which satisfy the elements of the generic offense and some of which do not. A burglary
statute that specifically criminalizes both breaking and entering a car and breaking and entering a
residence would be such a statute. A sentencing court is permitted to look to the indictment,
judgment of conviction or verdict to determine whether the defendant was convicted of the crime
of breaking and entering a house or the crime of breaking and entering a car. However, where a
criminal statute is simply broader than the generic crime, criminalizing a broader range of
conduct than the relevant generic offense, a sentencing court may not look to the facts of the
offense to determine whether the actual crime committed fits within the ACCA. Descamps,
133 S. Ct. at 2281. In other words, for the purpose of the federal sentence enhancement, it does
not matter what the defendant did; all that matters is the crime of which he was convicted.
No. 13-5427              United States v. Elliott                               Page 4

                                                    III.

       This court “review[s] de novo a district court's determination that a defendant should be
sentenced as an armed career criminal.” United States v. Vanhook, 640 F.3d 706, 709 (6th Cir.
2011). Findings of fact underlying a district court’s sentencing calculations are reviewed for
clear error and the district court’s conclusions of law are reviewed de novo. United States v.
Galloway, 439 F.3d 320, 322 (6th Cir. 2006).

                                                    A.

       Kentucky’s facilitation statute provides:

       A person is guilty of criminal facilitation when, acting with knowledge that
       another person is committing or intends to commit a crime, he engages in conduct
       which knowingly provides such person with means or opportunity for the
       commission of the crime and which in fact aids such person to commit the crime.

Ky. Rev. Stat. Ann. § 506.080. Here, the crime Elliot was convicted of facilitating was robbery,
first degree, which is defined as:

       A person is guilty of robbery in the first degree when, in the course of committing
       theft, he uses or threatens the immediate use of physical force upon another
       person with intent to accomplish the theft and when he: (a) Causes physical injury
       to any person who is not a participant in the crime; or (b) Is armed with a deadly
       weapon; or (c) Uses or threatens the immediate use of a dangerous instrument
       upon any person who is not a participant in the crime.

Ky. Rev. Stat. Ann. § 515.020.

       Elliott acknowledges that robbery, first degree, is a violent felony under the ACCA. He
argues, however, that by reaching down into the armed robbery charge to attach the “force”
necessary for a violent offense, the sentencing court violated Descamps. More specifically, he
contends 1) that the Kentucky offense of facilitation to commit a crime does not have as one if its
elements the requisite “use, attempted use, or threatened use of physical force against another,”
which would render it a crime of violence under U.S.S.G § 4B1.2(a), and 2) Descamps prohibits
looking at the actual facts of the offense to find the use of force.

       Elliott is correct that independent of the underlying crime that is being facilitated,
Kentucky’s statute is broad in how it defines facilitation and does not meet the force prong’s
No. 13-5427                 United States v. Elliott                                            Page 5

narrow definition of “use, attempted use or threatened use of physical force against another.” He
is also correct that to the extent the district court examined the facts underlying the facilitation to
commit robbery conviction and focused on Elliott’s providing a handgun to the robber, it ran
afoul of Descamps. However, Elliott was not convicted of facilitation in the abstract; he was
convicted of facilitation to commit robbery, first degree. We turn then to the elements of that
offense.1

        In Kentucky, the elements of facilitation to commit robbery, first degree, are 1) the
defendant knew that another person was committing or intended to commit robbery, first degree,
2) the defendant engaged in conduct that he knew would provide the person with means or
opportunity to commit the crime, and 3) the defendant’s conduct in fact aided the person to
commit the offense.2

                                                         B.

        Focusing on the elements of facilitation to commit robbery, first degree, our analysis is
guided by United States v. Gloss, 661 F.3d 317 (6th Cir. 2011), in which this court determined
that a prior conviction of facilitation to commit robbery under Tennessee law qualified as a crime
of violence under the force prong of the ACCA, § 924(e)(2)(B)(i). The court confined its
analysis to the question whether the offense has as an element the use, attempted use, or
threatened use of physical force against the person of another and distinguished cases discussing
the ACCA’s residual clause. Because conviction of facilitation in Tennessee requires proof that

        1
          In United States v. Chandler, 419 F3d 484, 487 (6th Cir. 2005), this court considered a Tennessee
conviction of facilitation of aggravated assault and determined that:
        a defendant is never convicted of a generic “facilitation of a felony” charge. Rather, a defendant
        convicted for facilitation is always found to have facilitated a specific felony. See State v. Parker,
        932 S.W.2d 945, 950–51 (Tenn. Crim. App. 1996) (noting that before an accused can be convicted
        of facilitation of a felony, “the state must prove the commission of a specified felony and the
        assistance the accused gave to the person committing the specified felony.”); see also United
        States v. Sawyers, 409 F.3d 732, 738 (6th Cir. 2005) (“noting that, in determining whether
        facilitation of a felony under Tennessee law constitutes a crime of violence, a court must look to
        the crime actually facilitated.”).
Chandler at 487 (emphasis in original).
        2
          In Kentucky, criminal facilitation can be a lesser-included offense of criminal complicity. To be guilty of
criminal complicity, and therefore guilty of the substantive offense by complicity, the defendant must not only act
with knowledge that the person aided intends to commit the offense, but also must intend to aid the commission of
the crime and in fact aid such person to commit the crime. Roberts v. Ky., 410 S.W. 2d 606, 609 (Ky. 2013).
No. 13-5427             United States v. Elliott                                 Page 6

the underlying crime was actually committed, and the underlying crime of robbery includes the
element of the use or threatened use of force, the court concluded that facilitation to commit
robbery in Tennessee has as an element the use or threatened use of force. The same is true of
the Kentucky statute.

       Elliott argues that Descamps was decided after Chandler and Gloss, and prohibits our
looking beyond the elements of the facilitation statute to the facts of the facilitated offense. But
looking at the elements of the underlying offense is different from looking at the facts of the
underlying offense. Descamps mandates the former inquiry and prohibits the latter. Focusing on
the elements rather than the facts reveals 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, involves a theft committed through the use or
threatened immediate use of physical force upon another person with intent to accomplish the
theft, where the defendant also (a) causes physical injury to any person who is not a participant
in the crime; or (b) is armed with a deadly weapon; or (c) uses or threatens the immediate use of
a dangerous instrument upon any person who is not a participant in the crime. Thus, whether by
verdict or plea, conviction of the Kentucky offense of facilitation of robbery, first degree,
establishes the element of force or the threatened use of force.

       Elliott’s argument based on the distinction between facilitation—which involves mere
knowledge of the perpetrator’s intent and a lack of intent that the perpetrator commit the
underlying offense—and criminal complicity—which requires the same intent necessary to
commit the underlying offense—also misses the mark.           The distinction in mental states is
relevant to the ACCA analysis under the residual clause, where the inquiry is whether the prior
offense involves conduct that “presents a serious potential risk of physical injury to another,” and
is “purposeful, violent, and aggressive.” Begay, 553 U. S. at 144–45. However, the force clause
of the ACCA requires only that force or the threatened use of force be an element of the offense.
Here, force or the threatened use of force is an element of facilitation to commit robbery, first
degree, and thus, as in Gloss, we need not reach the question whether the offense would be a
No. 13-5427               United States v. Elliott                                  Page 7

violent felony under the residual clause. See United States v. Nance, 481 F.3d 882, 888 (6th Cir.
2007).

                                                     IV.

         Elliott also argues, for the first time, that it was unconstitutional for the district court to
find that his prior crimes meet the requirements of the ACCA. He asserts that because additional
facts beyond the conviction are necessary for the finding, and the finding raises the penalty for
the felon in possession of a firearm offense, the Sixth Amendment requires that the facts be
found by a jury beyond a reasonable doubt.

         Elliott waived this argument by failing to raise it below. Further, we held in United
States v. Barnett, 398 F.3d 516, 524–25 (6th Cir. 2005), that Apprendi v. New Jersey, 530 U.S.
466 (2000), “does not require the nature or character of prior convictions to be determined by a
jury.” In addition, Alleyne v. United States, 133 S. Ct. 2151 (2013), provides no help to Elliott
because Alleyne did not revisit the prior conviction exception. Id. at 2160 n.1.

                                                     V.

         For the foregoing reasons, we AFFIRM.
