              Case: 18-12431   Date Filed: 10/15/2019   Page: 1 of 8


                                                           [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 18-12431
                            Non-Argument Calendar
                          ________________________

                   D.C. Docket No. 8:17-cr-00252-SDM-JSS-1



UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                     versus

DEVIN FABIAN COLLINS,

                                                            Defendant-Appellant.

                          ________________________

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

                               (October 15, 2019)

Before JILL PRYOR, NEWSOM, and ANDERSON, Circuit Judges.

PER CURIAM:

      Devin Fabian Collins challenges the procedural and substantive

reasonableness of his 210-month sentence for possession of a firearm by a
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convicted felon, arguing that the district court erred in sentencing him under the

Armed Career Criminal Act because his three Florida youthful-offender

convictions, for which he served less than 13 months in prison, did not qualify as

ACCA predicate offenses.

                                          I

      We review the sentencing court’s factual findings for clear error and its

application of the law to the facts de novo. United States v. Clay, 483 F.3d 739,

743 (11th Cir. 2007). We review the reasonableness of a sentence under a

deferential abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51

(2007). Even if a district court misapplies the Guidelines, remand is unnecessary if

the sentencing error was harmless. See United States v. Dulcio, 441 F.3d 1269,

1274 (11th Cir. 2006). However, when a defendant is erroneously sentenced under

the ACCA—thereby serving a sentence greater than the statutory maximum

sentence that would be applicable without the ACCA enhancement—his sentence

is illegal, and harmless error does not apply. See Mays v. United States, 817 F.3d

728, 737 n.12 (11th Cir. 2016).

                                          II

      In reviewing the reasonableness of a sentence, we first consider whether the

district court committed a procedural error, such as failing to calculate or

improperly calculating the guideline range. Gall, 552 U.S. at 51. Collins contends


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that his sentence was procedurally unreasonable because he received an ACCA

enhancement based on his Florida youthful-offender convictions. Specifically,

Collins argues that his youthful-offender convictions are not ACCA predicate

offenses because he was sentenced to less than 13 months’ imprisonment.

      This is not the first time we have seen a claim like the one Collins now

presents. In United States v. Wilks, 464 F.3d 1240 (11th Cir. 2006), a defendant

challenged the failure of the ACCA and the career-offender guideline provision,

U.S.S.G. § 4B1.1, to distinguish between youthful-offender and adult convictions,

which he argued was improper in light of the Supreme Court’s holding in Roper v.

Simmons, 543 U.S. 551 (2005), “that the Eighth Amendment prohibits execution of

individuals under the age of eighteen at the time the capital offense is committed.”

Wilks, 464 F.3d at 1242. Based on this, he also argued that the district court erred

in counting his youthful-offender convictions as predicate offenses for the ACCA

and career-offender enhancements. Id.

      We concluded in Wilks that Roper did not overrule our prior decisions

holding that youthful offender convictions can qualify as predicate offenses for

sentence-enhancement purposes; rather, we held, whether the enhancements were

proper continued to be controlled by United States v. Pinion, 4 F.3d 941 (11th Cir.

1993), and United States v. Spears, 443 F.3d 1358 (11th Cir. 2006). See Wilks,

464 F.3d at 1243. The Wilks court observed that Pinion had held “that prior


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youthful offender convictions under state law may be used as predicate offenses to

classify an adult defendant as a career offender under § 4B1.1 if the defendant’s

youthful offense resulted in an adult conviction and a sentence of more than one

year and one month.” Id. at 1242 (citing Pinion, 4 F.3d at 944–45). Wilks also

cited Pinion for how to determine whether a youthful offender was convicted as an

adult. Id. Separately, the Wilks court stated that Spears “held that a defendant’s

robbery conviction, for a crime committed when he was seventeen years old,

counted towards ACCA enhancement because he was prosecuted as an adult and

the offense was punishable by a term of imprisonment exceeding one year.” Id. at

1242–43 (citing Spears, 443 F.3d at 1360–61).

      Although the defendant in Wilks was convicted as a youthful offender, we

highlighted that he “was otherwise treated as an adult criminal, and he was

sentenced to [a] term of imprisonment exceeding one year and one month.” Wilks,

464 F.3d at 1243. We concluded that “[t]he § 4B1.1 and ACCA enhancements

[were] proper and the outcome of this case [was] controlled by Pinion and Spears,”

as those cases had not been overruled by Roper. See id.

      Turning from Wilks to the underlying decisions, the defendant in Spears

argued that his robbery conviction could not count as an ACCA predicate offense

because he was 17 years old when he committed the robbery. Spears, 443 F.3d at

1360–61. We rejected the argument because the defendant was convicted and


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sentenced as an adult for an offense punishable by imprisonment for a term

exceeding one year, as required under the ACCA’s definition of a violent felony.

See id. at 1361 (citing 18 U.S.C. § 924(e)(2)(B)).

      In Pinion, the defendant challenged the use of his South Carolina youthful-

offender convictions in assessing his criminal-history points and in classifying him

as a career offender because he was 17 years old at the time of his convictions.

Pinion, 4 F.3d at 943. To decide whether the district court properly considered the

youthful-offender convictions, we first examined U.S.S.G. § 4A1.2(d), “which

deals with the treatment of offenses committed prior to the age of eighteen for

purposes of determining a defendant’s criminal history” and states that three

criminal-history points should be assessed for each sentence where the minor

defendant (1) was convicted as an adult and (2) received a sentence of

imprisonment exceeding 13 months. Id. at 943–44. We also examined the

application notes to § 4A1.2(d), which states that “for offenses committed prior to

the age of eighteen, only those that result in adult sentences of imprisonment

exceeding one year and one month are counted.” Id. at 944 (quoting U.S.S.G.

§ 4A1.2(d), cmt. (n.7)) (emphasis and ellipsis omitted). Because it was undisputed

that the defendant was sentenced to and served a sentence greater than 13 months’

imprisonment, our analysis focused on whether his youthful offense was an adult

conviction based on the nature of the proceedings, the sentences received, and the


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actual time served. See Pinion, 4 F.3d at 944–45. We concluded that they were, so

the district court properly used the youthful offender convictions to assess criminal

history points and apply the career-offender enhancement. Id. at 945.

      Contrary to Collins’s arguments, Wilks did not limit the use of youthful-

offender convictions as ACCA predicate offenses to those in which the defendant

was sentenced to at least 13 months’ imprisonment, and the ACCA itself does not

apply any such requirement. Wilks, rather, reiterated the proposition in Pinion that

youthful offender convictions can serve as predicate offenses for the Guidelines

career-offender enhancement in § 4B1.1. Wilks, 464 F.3d at 1242–43. Collins’s

sentence, however, was not enhanced under § 4B1.1. Instead, Collins’s youthful-

offender convictions were used as ACCA predicate offenses—and the ACCA

requires only that the conviction be “punishable by … one year.” Id. at 1243

(emphasis added). Thus, the district court did not procedurally err in sentencing

Collins as an armed career criminal based on his Florida youthful-offender

convictions because he does not dispute that he was tried as an adult, convicted of

serious drug offenses within the meaning of the ACCA, and sentenced to 365 days’

imprisonment.

                                         III

      After considering procedural reasonableness, we consider the substantive

reasonableness of a sentence in light of the totality of the circumstances and the


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§ 3553(a) factors. Gall, 552 U.S. at 51. A district court abuses its discretion by:

(1) failing to consider relevant factors that were due significant weight; (2) giving

an improper or irrelevant factor substantial weight; or (3) committing a clear error

of judgment by balancing proper factors unreasonably. United States v. Irey, 612

F.3d 1160, 1189 (11th Cir. 2010) (en banc). We may vacate the sentence only if

we are left with the definite and firm conviction that the district court committed a

clear error of judgment in weighing the § 3553(a) factors to arrive at an

unreasonable sentence based on the facts of the case. Id. at 1190. The district

court must issue a sentence “sufficient, but not greater than necessary” to comply

with the purposes of § 3553(a)(2). 18 U.S.C. § 3553(a).

      The weight given to any specific § 3553(a) factor is left to the district court’s

sound discretion. Clay, 483 F.3d at 743. We ordinarily expect a guideline-range

sentence to be reasonable, and the defendant bears the burden of showing

otherwise. United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008).

Further, a sentence well below the statutory maximum penalty is another indicator

of reasonableness. See id.

      Collins contends that—assuming the district court erred in sentencing him

pursuant to the ACCA—his 210-month sentence was a substantively unreasonable

upward variance. We have already concluded, however, that the district court

correctly determined that Collins was an armed career criminal under 18 U.S.C. §


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924(e). The court did not impose a substantively unreasonable sentence because it

sentenced him to a term of imprisonment that was well below the statutory

maximum of life in prison.

      AFFIRMED.




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