USA v. Chad Petrucelli

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-13469
Non-Argument Calendar
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D.C. Docket No. 8:14-cr-00083-SDM-TGW-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHAD PETRUCELLI,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(January 6, 2016)
Before WILLIAM PRYOR, MARTIN and FAY, Circuit Judges.
PER CURIAM:
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Chad Petrucelli appeals his sentence of 180-months imprisonment, imposed
after he pleaded guilty to one count of being a felon in possession of firearms and
ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Petrucelli’s
sentence was enhanced under the Armed Career Criminal Act (ACCA), 18 U.S.C.
§ 924(e), based on prior Florida convictions for burglary of a dwelling, aggravated
assault, and aggravated fleeing and eluding. See id. § 924(e)(2)(B).
Petrucelli argues for the first time in his appellate brief—filed prior to the
Supreme Court’s recent decision in Johnson v. United States, 576 U.S. __, 135 S.
Ct. 2551 (2015)—that the residual clause of the ACCA is unconstitutionally vague,
and he incorporates by reference the argument presented to the Supreme Court by
the petitioner in Johnson. He also argues that he does not qualify for an ACCA
enhancement because his burglary-of-a-dwelling and aggravated-assault
convictions were not separate predicate violent felonies because they were charged
as part of the same continuous criminal episode. Finally, he argues that his 180-
month sentence is substantively unreasonable in light of mitigating evidence
presented at sentencing. The government filed its response after the Supreme
Court decided Johnson and concedes that the district court plainly erred in
enhancing Petrucelli’s sentence under the ACCA because his aggravated-fleeing-
and-eluding conviction qualified as a predicate violent felony only under the
invalidated residual clause in 18 U.S.C. § 924(e)(2)(B)(ii).
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We review de novo whether a statute is unconstitutionally vague. United
States v. Duran, 596 F.3d 1283, 1290 (11th Cir. 2010). We also review de novo
whether a particular offense is a violent felony under the ACCA. United States v.
Wilkerson, 286 F.3d 1324, 1325 (11th Cir. 2002) (per curiam).
We review sentencing errors that were not raised in the district court for
plain error. United States v. Jones, 743 F.3d 826, 828 (11th Cir. 2014). To satisfy
this standard, a defendant must show there is (1) error; (2) that is plain; (3) that
affects substantial rights; and (4) that seriously affects the fairness, integrity, or
public reputation of judicial proceedings. Id. at 829.
An intervening decision of this Court or the Supreme Court that is “squarely
on point” can make an error plain. United States v. Pielago, 135 F.3d 703, 711
(11th Cir. 1998). Errors may also be plain if they are “particularly egregious, and
strike at a core principle which the violated rule or law embodies.” Id. To show
that an error affected his substantial rights, a defendant must show a “‘reasonable
probability’ that he would have received a lighter sentence but for the error.”
Jones, 743 F.3d at 830. To make this showing, the defendant “must point to
something in the record showing that the most likely result on remand is for the
sentencing judge to give him a shorter sentence than he originally received.” Id.
Under the ACCA, a person convicted of being a felon in possession of
firearms and ammunition under 18 U.S.C. § 922(g) who has three prior convictions
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for a “violent felony” or a “serious drug offense” is subject to a 15-year mandatory
minimum sentence. 18 U.S.C. § 924(e)(1). The ACCA defines a “violent felony”
as any crime punishable by imprisonment of more than one year that:
(i) has as an element the use, attempted use, or threatened use of
physical force against the person of another [the “elements
clause”]; or
(ii) is burglary, arson, or extortion, involves use of explosives [the
“enumerated crimes clause”], or otherwise involves conduct that
presents a serious potential risk of physical injury to another [the
“residual clause”]
Id. § 924(e)(2)(B). A person who does not qualify for an enhanced sentence under
the ACCA faces a 10-year maximum sentence for a § 922(g) conviction. Id.
§ 924(a)(2).
In Johnson, the Supreme Court held that the ACCA’s residual clause is
unconstitutionally vague. Johnson, 576 U.S. at __, 135 S. Ct. at 2557–58. The
Supreme Court did not call into question the remainder of the ACCA’s definition
of a violent felony. Id. at __, 135 S. Ct. at 2563.
Upon review of the entire record, and after consideration of the parties’
briefs, we vacate and remand for resentencing. Petrucelli has shown that the
district court plainly erred in enhancing his sentence under the ACCA. Petrucelli’s
sentence would not have been enhanced but for his prior Florida aggravated-
fleeing-and-eluding conviction, which was considered a “violent felony” under the
ACCA’s residual clause. The Supreme Court held in Johnson that the ACCA’s
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residual clause is unconstitutionally vague, so this prior conviction cannot be
considered a violent felony under the ACCA.
Because he no longer qualifies for an enhanced sentence under the ACCA,
Petrucelli has shown that this error affected his substantial rights. We therefore
vacate Petrucelli’s sentence and remand for resentencing without the ACCA
enhancement.1
VACATED AND REMANDED.
1 Because Petrucelli does not qualify for a sentencing enhancement under the ACCA, we
do not reach his two remaining arguments.
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