Case: 14-10569   Date Filed: 03/18/2015   Page: 1 of 10


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-10569
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 8:13-cr-00038-JSM-TBM-2



UNITED STATES OF AMERICA,

                                                            Plaintiff - Appellee,

                                  versus


ALONIZA J. WILLIAMS,
a.k.a. Cat,
                                                        Defendant - Appellant.

                       ________________________

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

                             (March 18, 2015)

Before MARCUS, JULIE CARNES, and JILL PRYOR, Circuit Judges.

PER CURIAM:
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      In this appeal, Mr. Aloniza Williams challenges an enhancement to his

sentencing guidelines range under the Armed Career Criminal Act (“ACCA”). Mr.

Williams argues that his prior burglary convictions in Florida do not qualify as

violent felonies under either the enumerated clause or the residual clause of the

ACCA. After careful review, we affirm.

                                          I.

      On November 6, 2013, Mr. Williams and his co-defendant met with an

undercover law enforcement officer. Mr. Williams sold the officer a shotgun and a

rifle, while his co-defendant sold a bag of crack cocaine. On January 15, 2013,

they both were indicted on several charges related to the sale. Mr. Williams pled

guilty on June 10, 2013, by a written plea agreement to Count IV of the

indictment—being a felon in possession of a firearm—and the government agreed

not to pursue the remaining charges against him.

      The presentence investigation report (“PSR”) calculated that Mr. Williams’s

base offense level was 20, which was then increased six levels because he had

three firearms at the time of the offense and because he possessed a firearm in

connection with another felony offense. The PSR also determined that Mr.

Williams qualified for an enhancement under the ACCA, 18 U.S.C. § 924(e),

based on four prior burglary convictions in Florida. After the enhancements, Mr.

Williams’s offense level was 31. He had a criminal history category of IV, which

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meant his sentencing guidelines range was 188 to 235 months. His offense carried

a 15-year minimum sentence. Mr. Williams filed a sentencing memorandum,

arguing that the mandatory minimum of 15 years was a sufficient sentence. The

government filed a motion requesting a two-level reduction in Mr. Williams’s

offense level based on his substantial assistance.

      At the sentencing hearing, Mr. Williams made two objections to the PSR.

First, he objected to the factual statement that he had been previously convicted for

burglary “of a dwelling.” The government agreed that the offense of conviction

was simply burglary, and the district court struck the relevant language from the

report. Second, Mr. Williams objected to the PSR’s Chapter 4 enhancement under

the ACCA. The district court overruled the objection because the enhancement

was “appropriate.” Adopting the facts in the PSR, the district court then granted

the government’s motion for a two-level reduction, resulting in a guidelines range

of 151 to 188 months, and sentenced Williams to 151 months’ imprisonment.

                                         II.

      Normally, we review de novo the question of whether a defendant’s prior

convictions qualify as violent felonies under the ACCA. United States v. Petite,

, 1292 (11th Cir. 2013). Where a party has failed to state the

grounds for an objection to a sentence, however, that objection is waived for

purposes of appeal, and we review for plain error. United States v. Jones, 

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1097, 1103 (11th Cir. 1990), overruled in part on other grounds by United States

v. Morrill, 

, 1137 (11th Cir. 1993) (en banc); see also United States

v. Frazier, 

, 1282 (11th Cir. 2010).

      Mr. Williams objected to the ACCA enhancement at the sentencing hearing.

Although he did not state the legal grounds for his objection, the grounds are

arguably clear from the context of an immediately preceding discussion regarding

the elements of Mr. Williams’s prior burglary convictions. Assuming arguendo

that Mr. Williams sufficiently objected in the district court, his argument regarding

the ACCA enhancement fails even on de novo review.

                                               III.

      Under the ACCA, a defendant’s sentence may be enhanced if he previously

has been convicted of three violent felonies. A violent felony is a crime punishable

by more than one year in prison that, in relevant part, “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)(ii). A state burglary conviction qualifies under the ACCA’s

enumerated clause if the definition of the crime substantially corresponds to the

elements of generic burglary: “unlawful or unprivileged entry into, or remaining

in, a building or structure, with intent to commit a crime.” Taylor v. United States,

, 599, 602 (1990).

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       Even if it does not correspond to generic burglary, a conviction may still

qualify under the ACCA’s residual clause. In evaluating a crime under the residual

clause, we employ a categorical approach and look only to the elements of

conviction, not to the particular facts of the defendant’s crime. James v. United

States, 

, 202 (2007) (“[W]e consider whether the elements of the

offense are of the type that would justify its inclusion within the residual provision,

without inquiring into the specific conduct of this particular offender.”); see also

Sykes v. United States, 564 U.S. ___, 

, 2272-73 (2011). We also

employ a comparative approach to determine whether the risk posed by the crime

of conviction “is comparable to that posed by its closest analog among the

enumerated offenses. . . .” 

; see also 

(“Using the categorical approach, the central inquiry is whether the offense

‘presents a serious potential risk of physical injury to another’ comparable to the

risk posed by the ACCA’s enumerated crimes.”) (quoting 

).

       The parties here agree that burglary in Florida is broader than generic

burglary, so we must consider whether Mr. Williams’s convictions qualify under

the residual clause.1 According to the PSR, Mr. Williams’s ACCA enhancement


1
  Mr. Williams argues that his convictions cannot qualify as violent felonies under the residual
clause because the record does not show whether he encountered anyone else during the crimes.
Thus, he argues, we cannot assess whether his crimes presented a danger of confrontation
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was based on four burglary convictions—one in 1994, two in 1996, and one in

2008. We consider each conviction in turn.

                                                A.

       The indictment specified that Mr. Williams’s 1994 conviction was under

Fla. Stat. § 810.02(3), which read at the time:

       “If the offender does not make an assault or battery or is not armed, or does
       not arm himself, with a dangerous weapon or explosive as aforesaid during
       the course of committing the offense and the structure or conveyance entered
       is a dwelling or there is a human being in the structure or conveyance at the
       time the offender entered or remained in the structure or conveyance, the
       burglary is a felony of the second degree. . . . Otherwise, burglary is a felony
       of the third degree. . . .”

The statute also broadly defined burglary as “entering or remaining in a structure

or conveyance with the intent to commit an offense therein, unless the premises are

at the time open to the public or the defendant is licensed or invited to enter or

remain.” Fla. Stat. § 810.02(1). We cannot determine from the record on appeal

whether Mr. Williams was convicted of second-degree or third-degree burglary.

       We previously have analyzed this statute and determined that third-degree

burglary qualifies as a violent felony under the ACCA’s residual clause. United

States v. Matthews, 

, 1275 (11th Cir. 2006). In Matthews, the

defendant was convicted of being a felon in possession of a firearm. He had been

convicted previously of third-degree burglary in Florida in 1985 and 1989. 

him and a third party. But the residual clause is focused on potential risk, not on the
dangers that actually came to fruition.
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1272. The defendant in Matthews argued that because third-degree burglary

concerned entry into the curtilage of a structure, rather than the structure itself, it

did not present the same risk of violence as generic burglary.

       We held that third-degree burglary presented a potential risk of violence

because unlicensed entry, even into curtilage, “may bring [a burglar] into close

physical proximity with the same persons he might encounter were he to enter the

structure,” and his presence “could lead an innocent person to investigate why he is

there.” 

Such encounters with third parties could easily lead to

violence. See also 

(“The main risk of burglary arises not

from the simple physical act of wrongfully entering onto another’s property, but

rather from the possibility of a face-to-face confrontation between the burglar and

a third party—whether an occupant, a police officer, or a bystander—who comes

to investigate.”).

       Matthews controls this case because it concerned the same statute under

which Mr. Williams was convicted in 1994. Although it is unclear from the record

whether Mr. Williams was charged with second-degree or third-degree burglary in

1994, both crimes consisted of “entering or remaining in a structure or conveyance

with the intent to commit an offense therein.” Fla. Stat. § 810.02(1).2



2
 The major distinction is that second-degree burglary involved entry into a dwelling or an
occupied structure, while third-degree burglary involved entry into an unoccupied structure. Fla.
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Accordingly, under Matthews, we hold that Mr. Williams’s 1994 conviction was a

dangerous felony for purposes of the ACCA, regardless of whether he was

convicted of second-degree or third-degree burglary.

                                               B.

       The PSR next relied on two burglary convictions from 1996, by which time

Florida’s burglary statute had undergone minor revisions. According to the

indictment, both of Mr. Williams’s convictions from 1996 were under the revised

Fla. Stat. § 810.02(4), which read:

       (4) Burglary is a felony of the third degree . . . 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 the offender enters or remains in a:

               (a) Structure, and there is not another person in the structure at the
               time the offender enters or remains; or
               (b) Conveyance, and there is not another person in the conveyance at
               the time the offender enters or remains.
The statute broadly defined burglary as “entering or remaining in a dwelling, a

structure, or a conveyance with the intent to commit an offense therein, unless the

premises are at the time open to the public or the defendant is licensed or invited to

enter or remain.” Fla. Stat. § 810.02(1) (emphasis added). This broad definition

was the same as in the 1994 statute, save the addition of the word dwelling.



Stat. § 810.02(3). Second-degree burglary necessarily poses a greater risk of confrontation than
third-degree burglary, given that it involves occupied structures.
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      Matthews also directs our analysis of this statute. The elements of third-

degree burglary in 1996 remained the same as they were in 1994: entry into an

unoccupied structure or conveyance with intent to commit an offense by an

unarmed burglar who does not commit assault or battery. While the 1996 statute

made these elements more explicit, we do not think the restructuring changes the

analysis of third-degree burglary under the ACCA. As in Matthews, there is a

significant potential risk of physical harm arising from unlawful entry into a

structure or conveyance because the burglar may encounter a third-party, such as

an innocent bystander or a police officer. This risk is sufficient to render the crime

violent for purposes of the ACCA.

                                          C.

      Mr. Williams also argues that his fourth burglary conviction in 2008 does

not qualify as a violent felony. We need not address this argument because the

ACCA only requires three prior convictions, which requirement is satisfied by his

convictions in 1994 and 1996. Even so, we previously have held that burglary as

defined by the Florida statute in effect in 2008 is a violent felony for purposes of

the ACCA. United States v. Kirk, 

, 1141 (11th Cir. 2014). Mr.

Williams argues that Kirk was wrongly decided, but we are bound by its precedent.

                                         IV.




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      Under the prior opinions of this Court, Mr. Williams’s prior burglary

convictions qualify as violent felonies. Accordingly, we affirm the district court’s

imposition of a sentencing enhancement under the ACCA.

      AFFIRMED.




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