The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 15, 2007
No. 06-13256 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 05-00196-CR-ORL-22-DAB
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICKY ADAMS GLASCO,
a.k.a. Rickie Adam Glasco,
a.k.a. Ricky Adams Glaso,
a.k.a. Ricky Adams Glascow,
a.k.a. Ricky A. Glasco,
a.k.a. Ricky Glasco,
Defendant-Appellant
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(May 15, 2007)
Before CARNES, WILSON and HILL, Circuit Judges.
PER CURIAM:
Ricky Adams Glasco appeals his 100-month sentence imposed after he pled
guilty to possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§
922(g)(1) and 924(a)(2); possession of a firearm with an obliterated serial number,
in violation of 18 U.S.C. §§ 922(k) and 924(a)(1)(B); and possession with intent to
distribute less than 50 kilograms of marijuana, in violation of 21 U.S.C. §§
841(a)(1) and (b)(1)(D).
On appeal, Glasco raises four issues: (a) that the district court erred by
applying U.S.S.G. § 2K2.1(a)(4) to increase the guidelines range because child
abuse under Fla. Stat. § 827.04 (1994) is not a crime of violence; (b) that the
district court erred when it applied a four-level increase pursuant to U.S.S.G. §
2K2.1(b)(5) (2005) because the government presented no evidence that the firearm
was used in connection with the underlying drug offense; (c) that the district court
should not have used his prior convictions to enhance his sentence and requests us
to reconsider our recent decisions that Apprendi v. New Jersey, 530 U.S. 466, 120
S. Ct. 2348, 147 L. Ed. 2d 435 (2000), does not apply to prior convictions; and (d)
that the 100-month sentence was unreasonable because there was no minimum
mandatory sentence and the sentence imposed was greater than necessary to
achieve the purposes of sentencing.
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After carefully considering the briefs, reviewing the record on appeal, and
having had the benefit of oral argument, we find no error on the part of the district
court. Accordingly, we affirm Glasco’s sentence.
I. BACKGROUND
In July 2005, after a confidential informant made several controlled
purchases of marijuana from Glasco, law enforcement officers executed a search
warrant at Glasco’s residence. Upon forced entry into a locked bedroom, they
observed Glasco lying on a bed and reaching under the mattress. After removing
Glasco, police found a loaded 9mm pistol under the mattress. They also found
several kilograms of marijuana, digital scales, boxes of plastic baggies, marijuana
wrappers, a pipe with marijuana residue, marijuana seeds, 9mm ammunition, and
several thousand dollars in small denominations. Glasco stated that he needed the
firearm for his protection and admitted that he was reaching for the gun when
agents entered his bedroom. He later asserted that he did not know that the
intruders were police officers and he reached for the gun because he thought that
robbers had broken into his house.
After Glasco pled guilty, the probation officer calculated a base offense level
of 20 pursuant to U.S.S.G. § 2K2.1(a)(4)(A) on the ground that Glasco had already
sustained a felony conviction for a crime of violence. In 1995, Glasco had pled
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guilty to felony child abuse under Fla. Stat. § 827.04 (1994). The Pre-Sentence
Report (“PSR”) summarized the offense in paragraph 41:
[T]he defendant did commit physical child abuse on a one year old
female by repeatedly striking her on the legs, buttocks and back. The
defendant inflicted great bodily harm on the victim consisting of
lacerations and abrasions requiring hospitalization of the victim. The
defendant was initially charged with Aggravated Child Abuse By
Willful Torture Or Malicious Punishment, but pled guilty to the lesser
included offense of Child Abuse.
The probation officer applied a four-level increase for a specific offense
characteristic under U.S.S.G. § 2K2.1(b)(5) (2005), concluding that Glasco used or
possessed a firearm in connection with another felony offense (i.e., possession with
intent to distribute marijuana). After applying a three-level reduction for
acceptance of responsibility, Glasco’s total offense level was 23 and his criminal
history category was VI. This translated into a guideline range of 92-115 months’
imprisonment.
Glasco filed written objections, including a challenge to the scoring under
U.S.S.G. § 2K2.1(a)(4)(A). In his sentencing memorandum, Glasco argued that
“Mr. Glasco’s conviction for child abuse involving excessive discipline should not
be classified as a crime of violence.” At least three times, the memorandum
referred to his prior conviction for child abuse as “involving the discipline of his
daughter.” Glasco did not dispute the factual description of his prior felony
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conviction contained in paragraph 41 of the PSR. In fact, Glasco cited paragraph
41 of the PSR in his sentencing memorandum to support his factual statement that
“Mr. Glasco committed child abuse on his daughter, by excessive discipline.”
Glasco’s memorandum went on to argue that
[c]hild abuse is not specifically listed as a crime of violence under
U.S.S.G. § 4B1.2(a)(1) and (2). Furthermore, even though child
abuse may present a serious potential risk of physical injury, [counsel]
has not been able to find any case in the Eleventh Circuit or any other
circuit which holds that child abuse, under the statute involved herein
or involving discipline, is a crime of violence under U.S.S.G. §
2K2.1(a)(4)(A) . . . .
In other words, his lawyer argued that child abuse is not a crime of violence
because it is not an enumerated felony and no prior cases have labeled it a crime of
violence.
At the sentencing hearing, Glasco raised a specific objection to the PSR’s
“paragraph 27 characterizing paragraph 41 as a crime of violence.” Throughout
the sentencing hearing, the parties’ arguments assumed that the child suffered
physical injury because of the child abuse, requiring hospitalization. Glasco never
disputed that the child suffered physical injury. Glasco’s attorney did argue at
different times during sentencing, however, that there was nothing in the plea
colloquy or other state court documents that indicated that Glasco himself inflicted
the injury on the child.
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The district court overruled Glasco’s objection, concluding that “[i]n . . . the
underlying state case, the defendant was convicted of child abuse that involved
severe injury to a child. I think that establishes that the government has met its
burden of establishing that the defendant had sustained a felony conviction for a
crime of violence.” Glasco did not make any further objections.
The court then adopted the factual statements in the PSR. After having
heard all of the parties’ arguments and evidence, the district court found that a
100-month sentence was sufficient but not greater than necessary to punish Glasco
for his crimes. The district court explicitly recognized that the guidelines were
advisory and indicated that it had considered the 18 U.S.C. § 3553 factors and
United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005).
II. STANDARD OF REVIEW
While we accept the district court’s factual findings unless clearly erroneous,
we review the district court’s interpretation of the sentencing guidelines de novo.
United States v. Jordi, 418 F.3d 1212, 1214 (11th Cir. 2005). We review the
defendant’s final sentence for reasonableness in light of the § 3553(a) factors.
United States v. Williams, 456 F.3d 1353, 1363 (11th Cir. 2006).
III. DISCUSSION
A. Glasco’s Prior Child Abuse Conviction Qualifies as a Crime of Violence for
Purposes of U.S.S.G. § 2K2.1(a)(4)(A)
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Section 2K2.1(a)(4)(A) of the Sentencing Guidelines provides for a base
offense level of 20 if the defendant was convicted of one of the various firearm
offenses and has a prior felony conviction for a “crime of violence.” The
Guidelines define 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
(2) is burglary of a dwelling, arson, or extortion, involves the 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).
At the time Glasco pled guilty in state court, the Florida child abuse statute
read:
Whoever, willfully or by culpable negligence, deprives a child of, or
allows a child to be deprived of, necessary food, clothing, shelter, or
medical treatment, or who, knowingly or by culpable negligence,
inflicts or permits the infliction of physical or mental injury to the
child, and in so doing causes great bodily harm, permanent disability,
or permanent disfigurement to such child, shall be guilty of a felony
of the third degree . . . .
Fla. Stat. § 827.04(1) (1994). Glasco pled guilty to this lesser included offense
after the state brought charges against him for aggravated child abuse. During the
state plea colloquy, Glasco did not admit to specific acts on his part constituting
child abuse. He simply agreed that he violated the statute after the prosecutor read
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the elements of the statute aloud.
At his sentencing in this case, Glasco did not object to paragraph 41 of the
PSR which recounted the facts of his prior child abuse conviction.1 As paragraph
41 explains, the child victim was beaten so badly she had to be hospitalized. At no
time did Glasco challenge the fact that the child victim suffered severe physical
injuries requiring hospitalization. Thus, the district court concluded that “[Glasco]
was convicted of child abuse that involved severe injury to a child.” Glasco did
not object to this factual finding.
“It is the law of this circuit that a failure to object to allegations of fact in a
PS[R] admits those facts for sentencing purposes.” United States v. Wade, 458
F.3d 1273, 1277 (11th Cir. 2006). Logically, therefore, a sentencing court may
base its findings of fact on undisputed statements in the PSR. See United States v.
Bennett, 472 F.3d 825, 832 (11th Cir. 2006) (per curiam). Any challenge to the
facts contained in the PSR must be made with specificity and clarity. Id. “It is
also established law that the failure to object to a district court’s factual findings
precludes the argument that there was error in them.” Wade, 458 F.3d at 1277.
Because Glasco did not object with specificity and clarity to the facts
contained in paragraph 41 of the PSR, the district court’s factual finding that
1
While counsel for Glasco objected to paragraph 41 being labeled a “crime of violence,”
she did not make a factual objection to the contents of that paragraph.
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Glasco’s prior conviction involved severe injury to a child is not clearly erroneous.
Furthermore, Glasco is precluded from arguing that this finding of fact is erroneous
because he failed to object to it in the district court. While Florida’s child abuse
statute itself may be ambiguous, the factual description contained in the PSR
makes it clear that the offense “involve[d] conduct that present[ed] a serious
potential risk of physical injury to another.” U.S.S.G. § 4B1.2(a)(2). Thus, the
district court did not err in concluding that Glasco’s prior child abuse conviction
constituted a “crime of violence” for purposes of U.S.S.G. § 2K2.1(a)(4)(A).
B. Glasco Possessed a Firearm in Connection with Another Felony for
Purposes of U.S.S.G. § 2K2.1(b)(5) (2005)
Glasco argues that the district court erroneously applied the four-level
assessment under U.S.S.G. § 2K2.1(b)(5) (2005) because the record did not
establish that he possessed the firearm in connection with another felony offense.
Our case law does not require that the firearm directly facilitate the underlying
offense in order for it to be possessed “in connection with” the offense. See United
States v. Rhind, 289 F.3d 690, 695 (11th Cir. 2002). Glasco does not dispute that
he sold marijuana to a confidential informant inside his residence on several
occasions and that he reached for the pistol when law enforcement officers entered
the residence to execute the search warrant. We have held that circumstances such
as these support a finding that the defendant possessed a firearm in connection with
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another felony for purposes of U.S.S.G. § 2K2.1(b)(5) (2005). See United States v.
Gainey, 111 F.3d 834, 837 (11th Cir. 1997) (search warrant executed after
controlled purchase of drugs from defendant’s residence; drugs found and gun
immediately accessible to defendant). Thus, the district court did not err in finding
that Glasco possessed a firearm in connection with another felony offense.
C. The District Court Properly Considered Glasco’s Prior Convictions in
Calculating the Guidelines Range
Glasco next contends that, in the absence of an admission or a jury finding,
the district court violated his Sixth Amendment rights by considering his prior
convictions in assessing enhancements under U.S.S.G. § 2K.1 and in calculating
his criminal history under U.S.S.G. § 4A1.1. We are bound by the Supreme
Court’s holding in Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct.
1219, 140 L. Ed. 2d 350 (1998). For our purposes, this means that a prior
conviction need not be proven beyond a reasonable doubt even if the fact of
conviction will increase the guidelines range. See United States v. Martinez, 434
F.3d 1318, 1323 (11th Cir. 2006) (per curiam). Furthermore, the district court does
not err by making factual findings beyond the charges in the indictment under a
preponderance of the evidence standard in order to calculate an advisory guidelines
range. See United States v. Chau, 426 F.3d 1318, 1323-24 (11th Cir. 2005) (per
curiam). At Glasco’s sentencing, the judge acknowledged that the guidelines were
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advisory. Consequently, the district court did not err in considering Glasco’s prior
convictions for purposes of calculating the guidelines range.
D. Glasco’s 100-month Sentence is Reasonable in Light of the 18 U.S.C. §
3553(a) Factors
Finally, Glasco argues that his 100-month sentence is unreasonable because
there is no minimum mandatory sentence and his sentence is greater than necessary
to achieve the purposes of sentencing as outlined in 18 U.S.C. § 3553. The §
3553(a) factors guide our reasonableness inquiry. They include:
(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 unwanted sentencing disparities; and (10) the need to provide
restitution to victims.
United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005) (per curiam). A
sentence within a correctly calculated guidelines range is not per se reasonable, but
we ordinarily expect that such a sentence would be reasonable and, therefore, place
the burden of establishing unreasonableness on the party challenging the sentence.
Id. at 787-88. The district court is not obligated to specifically address and analyze
every § 3553(a) factor on the record. United States v. Scott, 426 F.3d 1324, 1329
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(11th Cir. 2005).
In Glasco’s case, the district court correctly calculated the guideline range
and chose to sentence Glasco at the midpoint of that range. The district court
indicated that it considered the § 3553(a) factors and understood that the guidelines
were advisory in nature. Glasco does not present any specific argument, other than
that there was no minimum mandatory sentence, to explain why his sentence is
unreasonable. Because Glasco failed to carry his burden on this issue, we conclude
that Glasco’s 100-month sentence was reasonable in light of the § 3553(a) factors.
IV. CONCLUSION
Because the district court did not err in calculating the guidelines range and
because a 100-month sentence is reasonable in light of the considerations in 18
U.S.C. § 3553, we affirm Glasco’s sentence.
AFFIRMED.
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