                                                         [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                        Nos. 08-15427, 08-15428,         ELEVENTH CIRCUIT
                                                             Dec. 22, 2009
                           08-15429, 08-15430,
                                                          THOMAS K. KAHN
                           08-15431, 08-15432
                                                               CLERK
                                08-15433
                       ________________________

                  D.C. Docket Nos. 95-00284-CR-ODE-1-1
               95-00439-CR-ODE-1-1, 95-00440-CR-ODE-1-1,
               95-00441-CR-ODE-1-1, 95-00442-CR-ODE-1-1
              95-00443-CR-ODE-1-1, 08-00072-CR-01-WBH-1

UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

                                   versus

WAYNE ALLEN DANIEL,

                                                      Defendant-Appellant.

                       ________________________

                Appeals from the United States District Court
                    for the Northern District of Georgia
                       ________________________

                            (December 22, 2009)

Before BLACK, WILSON and COX, Circuit Judges.

PER CURIAM:
       Wayne Allen Daniel appeals the sentence imposed following his guilty plea to

bank robbery. He also appeals his consecutive sentences imposed in other cases

following the revocation of his supervised release. We have consolidated the appeals.

We affirm the sentences imposed following revocation of his supervised release. We

vacate the sentence for the bank robbery and remand for re-sentencing.

                          I. Background and Procedural History

       In 1995, Daniel pleaded guilty to several counts of bank robbery. He was

sentenced to concurrent terms of 170 months imprisonment and three years

supervised release for each of the convictions.1 Daniel was released from prison in

December 2007 and began the term of supervised release. A few weeks later, he was

arrested for Driving Under the Influence (“DUI”) in Catoosa County, Georgia.

Daniel posted bond, and an arraignment in the DUI case was scheduled for February

7, 2008, in the Probate Court of Catoosa County. On January 31, 2008, he robbed a

bank, was arrested in the bank parking lot, and was taken into federal custody. He




       1
         Daniel was charged with eight counts of bank robbery in the Northern District of Georgia
(No. 08-15427); two counts of bank robbery in the Northern District of Illinois (No. 08-15428); one
count of bank robbery in the District of Delaware (No. 08-15429); one count of bank robbery in the
District of Maryland (No. 08-15430); one count of bank robbery in the Southern District of Georgia
(No. 08-15431); and one count of bank robbery in the Eastern District of Louisiana (No. 08-15432).
Daniel pleaded guilty to two counts of bank robbery in the Northern District of Georgia and all
counts from other jurisdictions. These convictions were consolidated for sentencing. Case numbers
herein refer to case numbers on appeal.

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was in federal custody on February 7, 2008 and did not attend his scheduled

arraignment in the DUI case. So, his bond was forfeited.

      Daniel was charged by indictment for the 2008 bank robbery and pleaded

guilty. (No. 08-15433.) Judge Hunt of the Northern District of Georgia accepted the

plea and sentenced Daniel. For sentencing purposes, the court considered the bond

forfeiture in the DUI case a conviction. It concluded Daniel’s criminal history

category was V, yielding a guidelines range of seventy to eighty-seven months

imprisonment. If the bond forfeiture had not been considered a conviction, Daniel’s

criminal history category would have been IV, yielding a guidelines range of fifty-

seven to seventy-one months—sixteen fewer months at the top of the guideline range.

After considering the advisory sentencing guidelines, the court sentenced Daniel to

eighty-seven months imprisonment.

      Following sentencing in the bank robbery case, Judge Evans of the Northern

District of Georgia revoked Daniel’s supervised release in six prior cases and

imposed sentences requiring that he serve, in the aggregate, forty-eight months

imprisonment. These sentences were to be served consecutively to the bank robbery

sentence imposed by Judge Hunt.

      At sentencing for the 2008 bank robbery offense, Daniel objected to the bond

forfeiture’s inclusion in the criminal history calculation. He also objected to the

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substantive reasonableness of both the bank robbery sentence and the sentences

imposed following revocation of his supervised release.

                 II. Issues on Appeal and Contentions of the Parties

      First, we consider whether the bond forfeiture in the DUI case should be

considered a conviction for purposes of calculating Daniel’s criminal history in the

2008 bank robbery case. The Government contends that under Georgia law, a bond

forfeiture is considered a conviction, and therefore it should be factored into the

criminal history calculation. Daniel counters that the bond forfeiture in this case was

involuntary. He was in federal custody on the date his arraignment in the DUI case

was scheduled, and he contends that his federal custodians did not permit him to

attend. Daniel argues that involuntary bond forfeitures are not convictions under

Georgia law, so the forfeiture in this case should not factor into his criminal history.

      Second, we consider whether the sentence imposed for the 2008 bank robbery

conviction and the sentences imposed following the revocation of supervised release

were substantively reasonable. Daniel argues that his sentence for this bank robbery

conviction was unreasonable because the court did not take into account mitigating

factors. He contends that the sentences in the revocation cases were unreasonable

because they exceeded the advisory guideline range. The Government counters that

all sentences were within the guidelines and were reasonable given Daniel’s criminal

                                           4
history and the fact that the 2008 bank robbery was committed less than two months

after Daniel was released from custody.

                               III. Standard of Review

      We review the application of the sentencing guidelines to a given set of facts

de novo. United States v. Garey, 546 F.3d 1359, 1361 (11th Cir. 2008). We review

the substantive reasonableness of a sentence for abuse of discretion. United States

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

                                    IV. Discussion

      We first address whether the bond forfeiture in the DUI case should count as

a conviction for calculating Daniel’s criminal history. In United States v. Strevel, we

held that because Georgia law considers a bond forfeiture a conviction, it should be

considered a conviction for purposes of calculating criminal history under the

sentencing guidelines. 85 F.3d 501, 501 (11th Cir. 1996) (citing Cofer v. Crowell,

247 S.E.2d 152, 154 (Ga. Ct. App. 1978)). See also O.C.G.A. § 40-5-1(6) (including

a forfeiture of bail in the definition of “conviction”). But, Strevel did not consider an

involuntary bond forfeiture. Georgia law provides that “[n]o judgment shall be

rendered on a forfeiture of any appearance bond if it is shown to the satisfaction of

the court that the principal on the bond was prevented from attending because he or




                                           5
she was detained by reason of arrest, sentence, or confinement . . . .” O.C.G.A. § 17-

6-72(b).

      Georgia bond forfeitures are generally considered convictions under the

sentencing guidelines because they are admissions of guilt. See O.C.G.A. § 40-13-58

(providing that a bond forfeiture shall be construed as an admission of guilt); U.S.

Sentencing Guidelines Manual § 4A1.2(a) (2008) (defining prior sentence as a

sentence imposed upon guilty plea, trial, or plea of nolo contendere). Georgia courts,

however, conclude that involuntary bond forfeitures are not admissions of guilt. In

Howard v. Lay, for example, the Georgia Court of Appeals found that a bond

forfeiture was not admissible in a civil case as an admission where the defendant was

not aware of the court date or issuance of a citation. 577 S.E.2d 75, 77 (Ga. Ct. App.

2003). Also, in Beneke v. Parker, the Georgia Court of Appeals stated in dicta that

“a knowing bond forfeiture . . . is an admission of guilt.” 667 S.E.2d 97, 99 n.3 (Ga.

Ct. App. 2008) (citing O.C.G.A. § 40-13-58) (emphasis added). This statement

implies that an unknowing or involuntary bond forfeiture is not an admission of guilt.

      While Georgia treats a willful bond forfeiture as an admission of guilt and

considers it a conviction, Georgia law provides a forfeiture exception where a failure

to appear in court is the result of detention in a penal institution. And, an involuntary

bond forfeiture is not an admission of guilt, even if it is not challenged directly in the

                                            6
case for which bond was posted. See Howard, 577 S.E.2d at 77 (concluding bond

forfeiture was not an admission of guilt where issue was first raised in a civil

negligence case). Because an involuntary bond forfeiture resulting from detention

in a penal institution is not an admission of guilt under Georgia law, we conclude it

is not a conviction as defined by § 4A1.2(a) of the sentencing guidelines.

      This case does not involve, as the Government argues, a collateral attack on the

validity of a prior conviction. See Custis v. United States, 511 U.S. 485, 487, 114 S.

Ct. 1732, 1734 (1994) (holding that a defendant may not collaterally attack prior

convictions other than those obtained in violation of the right to counsel). Rather, we

consider whether Georgia law treats a bond forfeiture as a conviction where the

forfeiture is the result of an involuntary failure to attend a court hearing due to

confinement in federal custody. We conclude that it does not.

      The bond forfeiture in this case should not factor into the calculation of

Daniel’s criminal history if his failure to attend the February 2008 arraignment was

involuntary. It was involuntary if he was not afforded a meaningful opportunity to

attend the arraignment. The district court, assuming that all Georgia bond forfeitures

should be considered convictions for purposes of calculating criminal history under

the sentencing guidelines, did not determine whether Daniel’s failure to attend the

arraignment was willful or involuntary. It did not afford Daniel the opportunity to

                                          7
present evidence to support his contention that his federal custodians did not permit

him to attend the scheduled arraignment. Therefore, we vacate Daniel’s sentence for

the bank robbery conviction and remand for re-sentencing, at which the district court

should determine whether Daniel’s failure to attend the scheduled arraignment was

willful or involuntary.

      Daniel also challenges the substantive reasonableness of the sentence imposed

for the 2008 bank robbery and the sentences imposed following revocation of his

supervised release. Because we vacate his sentence in the 2008 bank robbery case

for the reasons discussed above, we do not consider whether this sentence was

reasonable. As to the sentences imposed following revocation of supervised release,

we conclude, upon review of the record, that the sentences were reasonable.

                                   V. Conclusion

      For the reasons stated herein, we vacate the sentence imposed for the 2008

bank robbery and remand for re-sentencing. (Dist. Ct. No. 1:08-CR-072(01)-WBH;

Appeal No. 08-15433.) We affirm the sentences imposed following revocation of

supervised release in the other consolidated cases.

      IN CASE NUMBER 08-15433, THE JUDGMENT OF CONVICTION IS

AFFIRMED, BUT THE SENTENCE IS VACATED AND THE CASE IS

REMANDED FOR RE-SENTENCING. THE JUDGMENT AND SENTENCES IN

ALL OTHER CONSOLIDATED CASES ARE AFFIRMED.

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