                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________                  FILED
                                                        U.S. COURT OF APPEALS
                              No. 09-10874                ELEVENTH CIRCUIT
                                                           DECEMBER 10, 2009
                          Non-Argument Calendar
                                                           THOMAS K. KAHN
                        ________________________
                                                                CLERK

                D. C. Docket No. 07-00148-CR-FTM-29DNF

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

JEROME LAYTON,

                                                          Defendant-Appellant.


                        ________________________

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

                            (December 10, 2009)

Before HULL, PRYOR and FAY, Circuit Judges.

PER CURIAM:
      Jerome Layton appeals his 120-month sentence for possessing with intent to

distribute crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C).

Layton argues that his prior conviction for fleeing and attempting to elude a law

enforcement officer, in violation of Fla. Stat. § 316.1935(3), is not a “crime of

violence” for purposes of the career offender enhancement set forth in U.S.S.G.

§ 4B1.2(a)(2). He also argues that his 120-month sentence is substantively

unreasonable.

                                          I.

      In July 2007, a confidential source informed the Naples, Florida Police

Department that Layton sold crack cocaine. In August 2007, Layton twice met

with an undercover detective (“UC”) and provided the UC with crack cocaine in

exchange for money. Layton was eventually arrested.

      The presentence investigation report (“PSI”) classified Layton as a career

offender under U.S.S.G. § 4B1.1, because he had two prior felony convictions for

crimes of violence. These prior felonies were listed as “Flee/Attempted Elude

High Speed and Reckless (Fla. Stat. § 316.1935(3)),” and “Burglary of an

Occupied Dwelling.” With regard to the Fla. Stat. § 316.1935(3) violation, the PSI

explained that deputies attempted to arrest Zachary Williams, who was trespassing

at an apartment complex, but before deputies could arrest Williams, he fled the



                                           2
scene in a vehicle driven by Layton. Deputies followed Layton’s vehicle in a

marked police car with overhead lights activated. Layton “failed to stop at stop

signs, spe[]d, cross[ed] over lanes, hit a parked vehicle, and continue[d] traveling

recklessly.” Layton eventually stopped the vehicle after almost hitting a deputy’s

vehicle. Layton then exited the vehicle and fled on foot, but was soon

apprehended.

      Pursuant to U.S.S.G. § 4B1.1(b)(C), Layton’s total offense level as a career

offender was enhanced to 32, although he received a three-level reduction for

acceptance of responsibility, resulting in an enhanced offense level of 29. Because

Layton was a career offender, his criminal history category was enhanced to

category VI, which combined with his offense level to yield a guideline

imprisonment range of 151 to 188 months.

      Layton filed objections to the PSI, two of which are relevant to the instant

appeal. First, Layton objected that he should not be considered a career offender

under U.S.S.G. § 4B1.2, because his conviction for fleeing/attempting to elude

under Fla. Stat. § 316.1935(3) did not qualify as a crime of violence. Layton also

argued that he should receive a downward departure, because the career offender

enhancement overrepresented his criminal history. Layton did not object to the

description of the conduct underlying the fleeing and eluding offense listed in the



                                           3
PSI.

       At the sentencing hearing, Layton renewed his two previous objections and

also argued for a below-guideline sentence, pursuant to United States v. Booker,

543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621, noting that his mother had died

when he was 11 years old, at which time he was sent to live with his father, who he

did not really know and with whom he did not get along. He noted that he had a

learning disability and had dropped out of school and experimented with marijuana

and cocaine, which he began smoking at age 15.

       The district court overruled Layton’s objection to the application of the

career offender enhancement, finding that binding precedent held that Fla. Stat.

§ 316.1935(3) constituted a crime of violence. The court granted a departure,

pursuant to U.S.S.G. § 4A1.3, finding that criminal history category VI

significantly overrepresented Layton’s criminal history. Thus, Layton’s criminal

history category was reduced to V, and his guideline sentencing range was reduced

to 140 to 175 months. The court stated that it had considered the 18 U.S.C.

§ 3553(a) sentencing factors, granted Layton’s request for a variance, and

sentenced Layton to 120 months’ imprisonment, followed by 3 years’ supervised

release. Layton objected to the court’s application of the career offender

enhancement and the reasonableness of the sentence.



                                           4
                                         II.

      Career Offender Enhancement

      We review a district court’s application and interpretation of the sentencing

guidelines de novo. United States v. Wilks, 464 F.3d 1240, 1242 (11th Cir. 2006).

      Fla. Stat. § 316.1935(3) provides that:

             Any person who willfully flees or attempts to elude a law
             enforcement officer in an authorized law enforcement
             patrol vehicle, with agency insignia and other
             jurisdictional markings prominently displayed on the
             vehicle, with siren and lights activated, and during the
             course of the fleeing or attempted eluding:

             (a) Drives at high speed, or in any manner which
             demonstrates a wanton disregard for the safety of persons
             or property, commits a felony of the second degree. . . .

             (B) Drives at high speed, or in any manner which
             demonstrates a wanton disregard for the safety of persons
             or property, and causes serious bodily injury or death to
             another person . . . commits a felony of the first
             degree. . . .

Fla. Stat. § 316.1935(3).

      The career offender guideline defines a “crime of violence” as:

             any offense under federal or state law, punishable by
             imprisonment for a term exceeding one year, that –

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



                                          5
             (2) 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.

U.S.S.G. § 4B1.2(a) (emphasis added).

      The analysis we use to determine whether an offense is a “crime of

violence” under the career offender guideline is the same analysis we use to

determine whether an offense is a “violent felony” under the “residual clause” of

the Armed Career Criminal Act (“ACCA”). See United States v. Archer, 531 F.3d

1347, 1352 (11th Cir. 2008) (noting that “[t]his [C]ourt has repeatedly read the

definition of a ‘violent felony’ under § 924(e) of the Armed Career Criminal Act as

‘virtually identical’ to the definition of a ‘crime of violence’ under U.S.S.G.

§ 4B1.2" and applying ACCA analysis to examine whether an offense is a “crime

of violence” under the career offender guideline); United States v. Harrison, 558

F.3d 1280, 1291 (11th Cir. 2009) (“The language of U.S.S.G. § 4B1.2(a)(2) is

identical to the ACCA’s residual clause in all material respects.”).

      We have previously determined that the specific offense at issue in this case

– willful fleeing and eluding under Fla. Stat. § 316.1935(3) – constitutes a crime of

violence under U.S.S.G. § 4B1.2. United States v. Orisnord, 483 F.3d 1169, 1183

(11th Cir.), cert. denied, Polynice v. United States, 128 S.Ct. 673 (2007). In

Orisnord, we determined that “the ‘potential risk’ of injury, rather than actual

                                           6
violence or actual injury, is the touchstone of a ‘crime of violence,’” and that “[t]he

dangerous circumstances surrounding a person’s attempt to flee from law

enforcement coupled with the person’s operation of a motor vehicle most assuredly

presents a ‘potential risk of physical injury’ to others.” Id. at 1182.

      Orisnord, however, was decided before the Supreme Court’s decision in

Begay v. United States, 553 U.S. __, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008),

which established a three-step inquiry for determining whether an offense qualifies

as a violent felony under the residual clause of the ACCA and, therefore, as a crime

of violence under U.S.S.G. § 4B1.2. See id. at __, 128 S.Ct. at 1585-88. We have

summarized Begay’s three-step approach as follows:

             First, what is the relevant category of crime, determined
             by looking to how the crime is ordinarily committed?
             Second, does that crime pose a “serious potential risk of
             physical injury” that is similar in degree to the risks
             posed by the enumerated crimes? Third, is that crime
             similar in kind to the enumerated crimes?

Harrison, 558 F.3d at 1287. With regard to the first step, courts should “consider

the offense as defined by the law, rather than considering the facts of the specific

violation.” Archer, 531 F.3d at 1350. With respect to the third step, the Supreme

Court noted that the enumerated crimes – burglary, arson, extortion, and the use of

explosives – “all typically involve purposeful, ‘violent,’ and ‘aggressive’ conduct,”

as opposed to “crimes that impose strict liability, criminalizing conduct in respect

                                            7
to which the offender need not have had any criminal intent at all.”1 Begay, 553

U.S. at __, 128 S.Ct. at 1586-87.

       After Begay was decided, we were confronted with the issue of whether a

defendant’s conviction under Fla. Stat. § 316.1935(2) constituted a violent felony

under the ACCA. Harrison, 558 F.3d at 1284. In contrast to § 316.1935(3), Fla.

Stat. § 316.1935(2) does not require, as an element of the offense, that the offender

travel at a high rate of speed or exhibit a wanton disregard for persons or property.

See id. at 1293; compare Fla. Stat. § 316.1935(2) with Fla. Stat. § 316.1935(3).

We specifically noted that “[t]he dangerous conduct ordinarily underlying a

violation of § 316.1935(3) . . . presents a serious potential risk of injury.”

Harrison, 558 F.3d at 1284. In holding that § 316.1935(2) is not a violent felony,

we determined that “the willful decision not to follow a police officer’s signal is

‘purposeful;’” however, “without high speed or reckless conduct, [disobeying an

officer’s signal] is not sufficiently aggressive and violent enough to be like the

enumerated ACCA crimes.” Id. at 1295.

       Our court recently reviewed Fla. Stat. § 316.1935(3) in the context of

deciding whether or not a conviction under that section of the statute would qualify



       1
        The offenses enumerated in the ACCA are identical to the offenses listed in U.S.S.G.
§ 4B1.2 with one exception. While the ACCA lists “burglary” as a violent felony, see 18 U.S.C.
§ 924(e), § 4B1.2 lists “burglary of a dwelling” as a crime of violence, see U.S.S.G. § 4B1.2.

                                              8
as a crime of violence for Sentencing Guideline purposes and under U.S.S.G. §§

4B1.2 and 2K2.1(a)(4)(A). We analyzed such a conviction by following the steps

set forth in Begay and concluded that: “Fleeing at high speed or with wanton

disregard for safety amounts to holding a finger on the trigger of a deadly weapon,

without care for whom the bullet may strike.” United States v. Harris, __ F.3d __,

2009 WL 3595130 at 7 (C.A. 11 (Fla.)). Thus, we have resolved any doubt and

answered in the affirmative. The ruling of the district court in applying the career

offender enhancement was proper and correct.

      Reasonableness of Sentence

      We may review a sentence for procedural or substantive reasonableness.

Gall v. United States, 552 U.S. __, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). In

considering the substantive reasonableness of a sentence, we consider the totality

of the circumstances, and apply an abuse of discretion standard, under which we

reverse only if we find “that the district court has made a clear error of judgment.”

United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008). The party

challenging the sentence “bears the burden of establishing that the sentence is

unreasonable in light of both th[e] record and the factors in section 3553(a).”

United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).

      “[T]he district judge should then consider all of the § 3553(a) factors to



                                           9
determine whether they support the sentence requested by a party.” Gall, 552 U.S.

at __, 128 S.Ct. at 596. The factors in § 3553(a) that the court must consider are:

             (1) the nature and circumstances of the offense and the
             history and characteristics of the defendant; (2) the need
             to reflect the seriousness of the offense, to promote
             respect for the law, and to provide just punishment for
             the offense; (3) the need for deterrence; (4) the need to
             protect the public; (5) the need to provide the defendant
             with needed educational or vocational training or medical
             care; (6) the kinds of sentences available; (7) the
             Sentencing Guidelines range; (8) pertinent policy
             statements of the Sentencing Commission; (9) the need to
             avoid unwarranted sentencing disparities; and (10) the
             need to provide restitution to victims.

Talley, 431 F.3d at 786 (citing 18 U.S.C. § 3553(a)).

      “We may find that a district court has abused its considerable discretion if it

has weighed the factors in a manner that demonstrably yields an unreasonable

sentence.” Pugh, 515 F.3d at 1191. Normally, however, the decision of how much

weight to accord particular factors in devising a sentence is within the discretion of

the district court. United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007).

      The record in this case shows neither procedural nor substantive error. The

correct guideline range was 151-188 months. The sentencing judge departed

downward to 120 months. In light of the § 3553(a) factors, Layton’s 120-month

sentence is substantively reasonable. In sentencing Layton, the court stated that it

had considered the § 3553(a) factors and found that a 120-month sentence was


                                          10
reasonable. Layton benefitted from a § 4A1.3 departure as well as a variance,

which the court granted after hearing about Layton’s problems as a child. In light

of Layton’s prior criminal history, the court did not err in refusing to grant a

greater departure. Layton’s criminal history began at age seven and the crimes he

committed increased in severity over time. Although Layton expressed remorse

for his actions, his failure to cease criminal activity in the past indicated that a

significant sentence was necessary to deter him from committing future crimes.

Furthermore, the fact that Layton may have received lenient sentences in the past

does not entitle him to a further reduction in the present case. Layton’s sentence

was well below the low end of his applicable guideline range and, in light of his

criminal history of drug abuse, was not substantively unreasonable.

       AFFIRMED.




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