           Case: 14-13846   Date Filed: 04/06/2015   Page: 1 of 9


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-13846
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 9:12-cr-80022-KAM-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

TYRONIE PATTERSON,

                                                         Defendant-Appellant.

                      ________________________

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

                             (April 6, 2015)

Before MARTIN, JULIE CARNES, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Defendant Tyronie Patterson appeals his 180-month sentence, which the

district court imposed after he pled guilty to possession of a firearm and

ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). On

appeal, Defendant argues that the district court erred by enhancing his sentence

under the Armed Career Criminal Act (“ACCA”) because his two prior convictions

for third-degree burglary, in violation of Fla. Stat. § 810.02(1)(b), did not qualify

as ACCA-predicate violent felonies. We disagree, and affirm Defendant’s

sentence.

                                   I. Background

      After Defendant entered his guilty plea, the probation office prepared

Defendant’s presentence investigation report (“PSI”). The probation officer

calculated an initial base offense level of 24, under U.S.S.G. § 2K2.1(a)(2),

because Defendant had at least two prior felony convictions for a crime of violence

or controlled substance offense. However, the probation officer also determined

that Defendant was an armed career criminal based on his prior violent felony

convictions. As an armed career criminal, Defendant was subject to an offense

level of 34 under § 4B1.4(b)(3)(A), because the probation officer determined that

he possessed the firearm or ammunition in connection with a crime of violence.

The probation officer then applied a three-level acceptance-of-responsibility

reduction, pursuant to § 3E1.1(a) and (b), yielding a total offense level of 31.


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       Defendant qualified for a criminal history category of VI, based on his

armed career criminal status.1 As relevant here, the PSI noted that Defendant had

two convictions for third-degree burglary of a structure, in violation of Fla. Stat.

§ 810.02(1)(b). 2 Based on a total offense level of 31 and a criminal history

category of VI, Defendant’s guideline range was 188 to 235 months’

imprisonment. As an armed career criminal, Defendant was subject to a statutory

minimum 15-year (180-month) term of imprisonment. See 18 U.S.C. § 924(e)(1).

           Prior to his sentencing hearing, Defendant objected to the ACCA sentence

enhancement. Defendant argued that his prior § 810.02(1)(b) convictions did not

qualify as ACCA-predicate offenses because they were not “violent felonies” as

defined by the ACCA. According to Defendant, his convictions failed to meet that

definition because the elements of § 810.02(1)(b) are broader than those of generic

burglary and the violation of § 810.02(1)(b) presents no inherent danger of injury

to innocent persons.

       At his sentencing hearing, Defendant informed the district court that he was

withdrawing his objections to the PSI because he had reached an agreement with

the government. Based on the parties’ agreement, Defendant’s total offense level


       1
        Had Defendant not been an armed career criminal, his criminal history category would
have been V.
       2
          Defendant also had a conviction for fleeing or attempting to elude law enforcement, as
well as a conviction for aggravated assault with a deadly weapon. He does not dispute that these
convictions constitute ACCA-predicate offenses.
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was reduced to 30 3 and his criminal history category was reduced to V, which

resulted in a guideline range of 151 to 188 months’ imprisonment. Defendant

acknowledged that his mandatory minimum sentence remained 180 months’

imprisonment and informed the court that he and the government had agreed to

jointly recommend a 180-month sentence. The district court adopted the parties’

agreement as to the guideline calculations and sentenced Defendant to

imprisonment for 180 months. Neither Defendant nor the government objected to

the sentence imposed.

                                      II. Discussion

       Despite withdrawing his objection before the district court, Defendant

argues on appeal that his two prior § 810.02(1)(b) convictions do not qualify as

ACCA-predicate violent felonies because the state statute is “overbroad and

indivisible.” Defendant contends that, when applying the categorical approach, his

§ 810.02(1)(b) convictions do not fit within the generic definition of burglary

because Florida law allows such convictions to be based on the defendant’s

unauthorized entry into the curtilage of a structure, not just the structure itself. He

also argues that his convictions do not qualify as violent felonies under the



       3
          Defendant’s total offense level was reduced to 30 because the parties agreed that
Defendant had not possessed the firearm or ammunition in connection with a crime of violence,
and thus, his armed career criminal offense level was 33, instead of 34. See U.S.S.G.
§ 4B1.4(b)(3)(A) and (B).
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ACCA’s residual clause because third-degree burglary does not require an assault

or battery or that another person be present.

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

violent felony under the ACCA. United States v. Smith, 742 F.3d 949, 952 (11th

Cir. 2014). However, sentencing issues that were not raised in the district court are

reviewed for plain error. United States v. Jones, 743 F.3d 826, 828 (11th Cir.

2014). Under plain error review, we will reverse where there is “(1) an error (2)

that is plain and (3) that has affected the defendant’s substantial rights; and . . . (4)

the error seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” United States v. Madden, 733 F.3d 1314, 1322 (11th Cir. 2013).

The circumstances here also implicate the invited error doctrine. Under the invited

error doctrine, we will not review an error that a defendant induced or invited the

district court into making. United States v. Silvestri, 409 F.3d 1311, 1327-28 (11th

Cir. 2005). We have often applied the doctrine when a party argues for the

sentence that the district court ultimately imposed. See United States v. Love, 449

F.3d 1154, 1157 (11th Cir. 2006).

      Under the ACCA, a defendant convicted under 18 U.S.C. § 922(g) is subject

to a mandatory minimum, 15-year sentence if he has three prior convictions for a

violent felony or serious drug offense. 18 U.S.C. § 924(e)(1). The ACCA defines

“violent felony” to include any crime that “has as an element the use, attempted


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use, or threatened use of physical force against the person of another,” or is a

“burglary, arson, [] extortion, [or] involves use of explosives.” Id.

§ 924(e)(2)(B)(i), (ii). In addition, the ACCA contains a “residual clause” that

defines “violent felony” to include any felony that “presents a serious potential risk

of physical injury to another.” United States v. Kirk, 767 F.3d 1136, 1139 (11th

Cir. 2014) (quoting 18 U.S.C. § 924(e)(2)(B)(ii)).

       Florida defines burglary as “[e]ntering a dwelling, a structure, or a

conveyance with the intent to commit an offense therein.” Fla. Stat.

§ 810.02(1)(b). A burglary is a third-degree felony if, “in the course of committing

the offense, the offender does not make an assault or battery and is not and does

not become armed with a dangerous weapon or explosive,” and there is not another

person in the structure or conveyance. Id. § 810.02(4). Florida law defines

“structure,” as it is used in the burglary statute, as “a building of any kind, . . .

which has a roof over it, together with the curtilage thereof.” Id. § 810.011(1).

       Under the invited error doctrine, we are precluded from considering

Defendant’s challenge to the ACCA enhancement because he withdrew his

objection to the enhancement and affirmatively requested the 180-month sentence

that he now appeals. See Love, 449 F.3d at 1157; see also United States v.

Masters, 118 F.3d 1524, 1526 (11th Cir. 1997) (holding that when a defendant

raises and then knowingly withdraws an objection to his sentence, we deem the


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objection waived and will not review it on appeal). Prior to sentencing, Defendant

objected to the PSI’s determination that he was an armed career criminal and

argued that his third-degree burglary convictions were not violent felonies as

defined in the ACCA. Then, at his sentencing hearing, Defendant withdrew his

objections to the PSI based on an agreement he reached with the government as to

his guideline calculations. Moreover, Defendant specifically requested that he be

sentenced to the 180-month mandatory minimum.

       Even if we were to consider Defendant’s argument, it would fail under plain

error review. Because the parties agree that Florida’s definition of burglary is

broader than the definition of generic burglary and that the enumerated offenses

clause does not apply to Defendant’s case, we only consider whether Defendant’s

prior convictions fall within the residual clause of the ACCA. 4 See Kirk, 767 F.3d

at 1139 n.1.



       4
          We do this despite Defendant’s argument that the “residual clause is not applicable
once an enumerated felony is found to be overbroad.” Contrary to Defendant’s argument,
neither Descamps v. United States, ___ U.S. ___, 133 S. Ct. 2276 (2013), United States v. Jones,
743 F.3d 826 (11th Cir. 2014), nor United States v. Howard, 742 F.3d 1334 (11th Cir. 2014), sets
forth a general rule limiting the applicability of the residual clause. Instead, Descamps, Howard,
and Jones limit consideration of the residual clause because the government either waived such
argument (Descamps) or did not oppose Defendant’s request to preclude consideration of the
applicability of the residual clause on remand (Howard and Jones). See Descamps, ___ U.S. at
___, 133 S. Ct. at 2293 n.6 (expressing no view on whether the offense qualified under the
ACCA’s residual clause because the government forfeited such alternative argument); Jones, 743
F.3d at 830-31 (limiting the scope of remand to preclude argument on the residual clause because
the government did not oppose such request); Howard, 742 F.3d at 1349 (same). Unlike
Descamps, Jones, and Howard, the government here specifically argues that Florida third-degree
burglary is a violent felony based on the residual clause.
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      To determine whether a state conviction qualifies as a violent felony under

the ACCA’s residual clause, we employ the categorical approach and “consider

whether the elements of the offense are of the type that would justify its inclusion

within the residual provision.” United States v. Petite, 703 F.3d 1290, 1294 (11th

Cir. 2013) (emphasis omitted). Applying this approach, we compare whether the

offense of conviction “‘presents a serious potential risk of physical injury to

another’ comparable to the risk posed by the ACCA’s enumerated offenses.” Id.

      We discern no plain error in the determination that Defendant’s prior Florida

convictions for third-degree burglary qualified as violent felonies under the

ACCA’s residual clause. Defendant does not cite, and we have not found, any

Supreme Court or Eleventh Circuit precedent holding that a prior conviction for

third-degree burglary under § 810.02(1)(b) does not present a serious potential risk

of physical injury. See United States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th

Cir. 2003) (“there can be no plain error where there is no precedent from the

Supreme Court or this Court directly resolving” the disputed issue). Moreover, we

have previously held that third-degree burglary under an earlier version of § 810.02

qualified as a violent felony under the ACCA’s residual clause. See United States

v. Matthews, 466 F.3d 1271, 1275 (11th Cir. 2006) (holding that third-degree

burglary based on the entry into the roofed portion or curtilage of a structure was a

violent felony because the burglar may come into close contact with property


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owners, occupants, or another innocent person investigating why he was there).

Likewise, Supreme Court precedent suggests that it is not erroneous to conclude

that violation of § 810.02(1)(b) involves a substantial risk of physical injury. See

James v. United States, 550 U.S. 192, 203, 209 (2007) (concluding that attempted

burglary under Florida law was a violent felony under the residual clause because

the risk of burglary includes the possibility of confrontation with police or

bystanders who might come to investigate).

      In sum, there is no current law from the Supreme Court or this Court to

support Defendant’s plain error argument. In addition, Defendant withdrew his

objection to the ACCA enhancement and affirmatively requested the 180-month

sentence that he now appeals. Accordingly, we affirm the sentence.

      AFFIRMED.




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