FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 AUGUST 30, 2010

JOHN LEY

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-15915

Non-Argument Calendar

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D. C. Docket No. 09-60141-CR-JIC

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

IVORY VINCENT PITTS,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

_________________________

(August 30, 2010)

Before CARNES, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

Ivory Vincent Pitts appeals his 180-month sentence for one count of
possession of a firearm and ammunition by a convicted felon, 18 U.S.C. §

922(g)(1). Pitts argues that the district court erred in enhancing his sentence

pursuant to the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e).

Specifically, Pitts argues that the district court erred in: (1) determining that his

1978 California conviction for robbery with a firearm qualified as a “violent

felony;” and (2) that his 2001 Florida cocaine conviction qualified as a “serious

drug offense” under the ACCA. After reading the briefs and reviewing the record

we find that these two prior convictions qualified as predicate offenses for the

ACCA enhancement and affirm the district court’s sentence.

I. BACKGROUND

Pitts was adjudicated guilty of robbery with a firearm, pursuant to California

Penal Code § 211, on November 28, 1978 for an offense he committed when he

was 18 years old. The transcript of Pitts’s plea colloquy, which the government

entered into evidence at sentencing, shows that Pitts also pled no contest to the

allegation that he personally used a handgun during the commission of the robbery.

Doc. 62-1 at 46.

Pitts was also adjudicated guilty of possession of cocaine with intent to sell

or deliver, under Florida Statute § 893.13(1)(a)1, on July 9, 2001. The government

entered the probable cause affidavit, information, and judgment from this

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conviction into evidence during the sentencing. The probable cause affidavit listed

the offense Pitts was being arrested for as “Delivery Cocaine” and detailed the

police officer’s observations of Pitts conducting the sale of cocaine. Id. at 61–62.

The information charged Pitts with “Poss/Sell/Deliver/Cocaine.” Id. at 59–60.

The judgment listed the degree of the crime as “2F.” Id. at 64.

The district court found by a preponderance of the evidence that the

California robbery was a violent felony and that the Florida drug conviction was a

serious drug offense. Pitts disputes these findings and appeals the district court’s

sentence under the ACCA.

II. STANDARD OF REVIEW

We review de novo whether a particular conviction is a qualifying offense

for the purposes of sentencing as an armed career criminal. United States v. Day,

465 F.3d 1262, 1264 (11th Cir. 2006) (per curiam).

III. DISCUSSION

Under the ACCA an individual convicted under 18 U.S.C. § 922(g) is

subject to a mandatory minimum 15-year sentence if he has three prior 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). In addition, for

guideline calculation purposes, a defendant subject to the ACCA automatically

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receives an offense level of at least 33, and a criminal history category VI.

U.S.S.G. § 4B1.4(b)(3)(B) and (c)(3).

A. Pitts’s California Robbery Conviction is a Violent Felony Under the ACCA

Section 924(e) defines “violent felony,” in part, as “any crime punishable by

imprisonment for a term exceeding one year . . . that– (i) has as an element the

use, attempted use, or threatened use of physical force against the person of

another.” 18 U.S.C. § 924(e)(2)(B). In March 2010, following Pitts’s sentencing,

the Supreme Court clarified that, within the definition of a “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, 559 U.S. __,

130 S. Ct. 1265, 1271 (2010).

When determining whether an offense qualifies as a violent felony, courts

ordinarily employ a “categorical approach,” in that they should “examine it in

terms of how the law defines the offense and not in terms of how an individual

offender might have committed it on a particular occasion.” Begay v. United

States, 553 U.S. 137, 141, 128 S. Ct. 1581, 1584 (2008). However, when the

statute of conviction contains language providing for conviction under

circumstances that involve the use of violent force as well as circumstances that do

not involve the use of such force, courts may use a “modified categorical

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approach.” Johnson, 130 S. Ct. at 1273 (quotation omitted). Under this approach,

courts may determine the precise statutory basis for conviction—and its violent or

non-violent nature—by consulting documents in the trial record, including, but not

limited to, charging documents, transcripts of plea colloquies, and verdict forms.

Id. Under either approach, an “armed robbery conviction is undeniably a

conviction for a violent felony.” United States v. Dowd, 451 F.3d 1244, 1255

(11th Cir. 2006).

“Robbery is the felonious taking of personal property in the possession of

another, from his person or immediate presence, and against his will, accomplished

by means of force or fear.” Cal. Penal Code § 211. Pitts argues that, because a

person convicted under California’s robbery statute could have used either force or

fear, we cannot assume he used force during the robbery. Pitts then concludes that

robbery using the method a fear does not qualify as a violent felony.

A violent felony includes the “threatened use of physical force against the

person of another.” 18 U.S.C. § 924(e)(2)(B)(i). We cannot think of any other

logical way for a defendant to place fear in the victim of a robbery other than by

threatening physical harm. Therefore, the California robbery statute is

categorically within the definition of violent felony for the purposes of the ACCA.

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Pitts’s robbery conviction also qualifies as a violent felony under the

modified categorical approach because he possessed a handgun during the robbery.

Since we have determined that the California robbery statute is categorically a

violent felony, we do not need to discuss the modified categorical approach, but we

do so to be clear that the district court’s use of the California plea colloquy

transcript was proper. See Dowd, 451 F.3d at 1255. Furthermore, a violent felony

also includes any felony that “otherwise involves conduct that presents a serious

potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii).

Robbery, especially one involving a handgun, is a type of crime that ordinarily

poses the potential for serious physical risk to the victim and it is similar to the

enumerated crimes in 18 U.S.C. § 924(e)(2)(B)(ii). See Begay, 553 U.S. at 142,

128 S. Ct. at 1584–85. Therefore, the California robbery statute also falls within

this residual clause of the violent felony definition. See id.

B. Pitts’s Florida Drug Conviction was a Serious Drug Offense

Section 924(e) defines “serious drug offense” as either a federal drug offense

punishable by a maximum term of 10 years’ imprisonment or longer, or “an

offense under State law, involving manufacturing, distributing, or possessing with

intent to manufacture or distribute, a controlled substance,” also punishable by a

maximum term of 10 years’ imprisonment or longer. 18 U.S.C. § 924(e)(2)(A).

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State court convictions for simple possession are not serious drug offenses under

the ACCA. United States v. Hansley, 54 F.3d 709, 718 (11th Cir. 1995).

In United States v. Spell, upon which Pitts relies, the defendant challenged

his career criminal enhancement on the grounds the judgment reflected only that he

was convicted of burglarizing a structure, as opposed to a dwelling. 44 F.3d 936,

937–38 (11th Cir. 1995) (per curiam). We held that district courts may only

inquire into conduct surrounding a prior conviction when it is impossible to make a

qualifying-offense determination from the face of the judgment itself. Id. at 939.

Even then, the inquiry is “limited to examining easily produced and evaluated

court documents, including the judgment of conviction, charging papers,” and

other records. Id. (vacating and remanding the case for the district court to

establish that the defendant had been convicted of the charged offense).

The judgment for Pitts’s Florida cocaine conviction is slightly ambiguous

because it lists the offense as “Poss/Sell/Del Cocaine.” Further, the information

lists the offense statute as “893.032A4" which codifies cocaine as a controlled

substance, not the actual statute under which Pitts was convicted. However, the

information lists the degree of the crime as “2F,” a second degree felony. Under

Florida law, mere possession of cocaine is a third degree felony. Fla. Stat. §

893.13(6)(a). Thus, Pitts must have been convicted of sale or delivery of cocaine,

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both of which qualify as a serious drug offense for the purposes of the ACCA. 18

U.S.C. § 924(e)(2)(A)(ii). Furthermore, the probable cause affidavit and

information specify that Pitts was arrested for and charged with the sale or delivery

of cocaine. These documents are sufficient support for the district court’s finding

that the Florida drug conviction qualified as a serious drug offense.

IV. CONCLUSION

The district court appropriately considered Pitts’s prior convictions and the

supporting documents associated with those convictions in determining whether

the convictions qualified for inclusion in the ACCA. Therefore, we find that the

ACCA enhancement was proper and affirm the district court’s sentence.

AFFIRMED.

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