Case: 13-12210    Date Filed: 02/07/2014   Page: 1 of 9


                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 13-12210
                            Non-Argument Calendar
                          ________________________

                  D.C. Docket No. 2:12-cr-00032-WKW-WC-1



UNITED STATES OF AMERICA,

                                                          Plaintiff-Appellee,

                                        versus

TERRY DON NORTHCUTT,

                                                          Defendant-Appellant.

                          ________________________

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

                                (February 7, 2014)

Before MARCUS, KRAVITCH and ANDERSON, Circuit Judges.

PER CURIAM:

      Terry Don Northcutt appeals his 180-month sentence for possession of a

firearm as a felon and armed career criminal, in violation of 18 U.S.C. § 922(g)(1),
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924(e)(1). On appeal, Northcutt argues that: (1) his plea agreement’s sentence-

appeal waiver is invalid; (2) he did not qualify for a sentence enhancement under

the Armed Career Criminal Act (“ACCA”) because the district court erred by

relying upon inaccurate and unreliable documents to establish the fact of his

predicate convictions; (3) during sentencing, his Fifth, Sixth, and Eighth

Amendment rights were violated; and (4) his sentence is substantively

unreasonable. After careful review, we affirm as to the first two claims, and

dismiss the last two claims.

      We review the validity of a sentence-appeal waiver de novo. United States

v. Johnson, 

, 1066 (11th Cir. 2008). We also review de novo

whether a conviction qualifies for the purpose of applying the ACCA to enhance a

defendant’s sentence. United States v. Day, 

, 1264 (11th Cir. 2006).

We review findings of fact for clear error. United States v. Wilson, 

,

1300 n.16 (citation omitted).

      A sentence-appeal waiver will be enforced if it was made knowingly and

voluntarily. United States v. Bushert, 

, 1350 (11th Cir. 1993). “[I]n

most circumstances, for a sentence appeal waiver to be knowing and voluntary, the

district court must have specifically discussed the sentence appeal waiver with the

defendant during the Rule 11 hearing.” 

We have also specifically

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rejected the view “that an examination of the text of the plea agreement is

sufficient to find the waiver knowing and voluntary.”             

Nevertheless, we have enforced an appeal waiver where “the waiver provision was

referenced during [the defendant’s] Rule 11 plea colloquy and [the defendant]

agreed that she understood the provision and that she entered into it freely and

voluntarily.” United States v. Weaver, 

, 1333 (11th Cir. 2001).

Moreover, Rule 11 of the Federal Rules of Criminal Procedure contains a harmless

error provision, and errors during the plea colloquy may be harmless in

circumstances where “it is manifestly clear from the record that the defendant

otherwise understood the full significance of the waiver.” 

; see also Fed.R.Crim.P. 11(h).

      But even for a sentence-appeal waiver made knowingly and voluntarily,

there may be limits on the type of claims that may be waived. See 

(recognizing that “an effective waiver is not an absolute bar to

appellate review”). In Bushert, we left open the question of whether a sentence-

appeal waiver would be enforced when a defendant wished to appeal a sentence

that exceeded the statutory maximum. 

n.18 (noting that

“[i]t is both axiomatic and jurisdictional that a court of the United States may not

impose a penalty for a crime beyond that which is authorized by statute”).

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

faces a maximum sentence of 10 years’ imprisonment. 18 U.S.C. §§ 922(g),

924(a)(2). The ACCA raises the maximum sentence to one of life imprisonment

and also imposes a 15-year mandatory-minimum sentence for defendants who have

three prior convictions for violent felonies. 18 U.S.C. § 924(e)(1); see United

States v. Brame, 

, 1428 (11th Cir. 1993).

      Here, the appeal waiver provided that the defendant “expressly waives any

and all rights conferred by 18 U.S.C. § 3742 to appeal the sentence. Defendant

further expressly waives the right to appeal the conviction and sentence on any

other ground, and waives the right to attack the conviction and sentence in any

post-conviction proceeding . . . . This waiver does not include the right to appeal

or seek collateral review on the ground of ineffective assistance of counsel or

prosecutorial misconduct.” The plea agreement further provided that if Northcutt

was “determined to be an Armed Career Criminal, pursuant to Title 18 U.S.C. §

924(e), a sentence of [15] years . . . is an appropriate sentence in this case. Should

the defendant be determined not to be an Armed Career Criminal, . . . the

government agrees that a sentence at the bottom of the applicable guideline range,

as determined by the Court at sentencing, is appropriate.”




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      Because the record makes clear that Northcutt understood the full

significance of this language in the plea agreement, Northcutt knowingly and

voluntarily agreed to his sentence-appeal waiver. First, the record shows that

Northcutt understood the specific terms in the waiver provision itself -- among

other things, the magistrate at the plea colloquy accurately explained how, as part

of his plea agreement, Northcutt had agreed to waive his right to appeal his

sentence except on the grounds of ineffective assistance of counsel or prosecutorial

misconduct. Northcutt then told the magistrate that he understood those terms.

The magistrate later confirmed with Northcutt that he was entering the plea

agreement of his own free will.

      Although the court failed to tell Northcutt that he potentially faced a 15-year

minimum sentence under the agreement, this error was harmless because the

record shows that Northcutt had read and understood his plea agreement’s terms.

; see also Fed.R.Crim.P. 11(h). Further, during the

sentencing hearing, Northcutt’s counsel agreed with the government that the plea

agreement called for a 15-year sentence should Northcutt be found an armed career

criminal. After the objections to the ACCA enhancement had been overruled,

Northcutt’s counsel then asked the court to “follow the provisions as outlined in

the plea agreement” by issuing a sentence no greater than 15 years.

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      Because Northcutt’s sentence-appeal waiver is valid, we affirm as to this

issue and dismiss the majority of his claims on appeal. We need only address one

remaining argument -- whether the district court erred in enhancing Northcutt’s

sentence under the ACCA, which raised the minimum sentence he faced above the

otherwise applicable statutory maximum. 

n.18; see also

Brame, 997 F.2d at1428. However, we can discern no error in the district court’s

ACCA determination. As we’ve mentioned above, the ACCA provides that an

individual convicted under § 922(g) is subject to a mandatory minimum 15-year

sentence if he has three previous federal or state convictions “for a violent felony

or a serious drug offense, or both, committed on occasions different from one

another.” 18 U.S.C. § 924(e)(1). Section 924(e) defines a “violent felony” as

follows:

      any crime punishable by imprisonment for a term exceeding one year, or any
      act of juvenile delinquency involving the use or carrying of a firearm, knife,
      or destructive device that would be punishable by imprisonment for such
      term if committed by an adult, that—

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

            (ii)   is burglary, arson, or extortion, involves use of explosives, or
                   otherwise involves conduct that presents a serious potential risk
                   of physical injury to another.




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18 U.S.C. § 924(e)(2)(B). Within the definition of “violent felony,” the term

“‘physical force’ means violent force -- that is, force capable of causing physical

pain or injury to another person.” Johnson v. United States, 

, 140

(2010) (emphasis omitted).       Crimes covered by the “residual clause,” §

924(e)(2)(B)(ii), include any offense that presents a serious potential risk of

physical injury to another. Sykes v. United States, 564 U.S. ___, 

,

2273 (2011).

      In assessing whether a prior conviction qualifies as a violent felony, a

district court generally applies a categorical approach, looking no further than the

statutory definition of the offense and the judgment of conviction. United States v.

Palomino Garcia, 

, 1336 (11th Cir. 2010). The Supreme Court

recently held in Descamps v. United States, 

(2013), that courts may

use a modified categorical approach, which allows the sentencing court to look to a

limited range of the facts underlying the conviction, only when necessary to

“effectuate the categorical analysis when a divisible statute, listing potential

offense elements in the alternative, renders opaque which element played a part in

the defendant’s conviction.” 

When applying the modified categorical

approach, the sentencing court may only consult a “narrow universe” of

documents, as listed in Shepard v. United States, 

(2005).           See

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Palomino 

. These documents include “the statutory

definition, charging document, written plea agreement, transcript of plea colloquy,

and any explicit factual finding by the trial judge to which the defendant assented.”

.

      Although we’ve never addressed whether Shepard-approved documents

must be submitted to prove the existence of a predicate conviction under the

ACCA’s categorical approach, we have found docket sheets from a court clerk to

be sufficiently reliable evidence for proving the existence of predicate offenses for

a sentence enhancement. See United States v. Brown, 

, 710-13 (11th

Cir. 2008), vacated on other grounds, 

(2009) (concluding that

uncertified docket sheets downloaded from a court’s website were sufficient to

prove that the defendant had a prior aggravated-assault conviction that would serve

as a predicate for a career-offender sentence enhancement). Moreover, we have

rejected the need for any Shepard documents to prove the existence of a conviction

serving as a predicate conviction for a sentence enhancement. 

(referring

to the career-offender sentencing enhancement under the Sentencing Guidelines).

Instead, the court may consider “any information, including reliable hearsay,

regardless of the information’s admissibility at trial, provided that there are

sufficient indicia of reliability to support its probable accuracy.” 

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omitted). Finally, although we have noted that “the best approach would always be

to produce a certified copy of the conviction,” certification is not necessarily

required when the evidence, “taken together,” is “sufficiently reliable to support

the court’s finding” of a conviction. 

.

      Here, the district court did not err in relying upon the government’s

submitted documents to prove the fact of Northcutt’s three predicate convictions

for the ACCA enhancement. First, certified docket sheets from a state court were

sufficiently reliable to prove that Northcutt had been previously convicted of

second-degree burglary and assault with intent to murder. See 

. As for proving the third predicate conviction -- for first-degree assault -- the

copy of the judgment signed by the judge was sufficiently reliable, even in light of

the proceedings’ transcripts bearing inconsistent dates. Also, because the court

used the modified categorical approach to determine whether the first-degree

assault was a violent felony, it properly relied upon the indictment as a Shepard

document.    Thus, Northcutt’s argument that he was ineligible for the ACCA

sentence enhancement fails on the merits, and we affirm this claim.

      AFFIRMED in part, DISMISSED in part.




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