United States v. Nicholas Maida, 11th Cir. (2016)

Case: 14-14125
Date Filed: 05/25/2016
Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________
No. 14-14125
Non-Argument Calendar
________________________
D.C. Docket No. 9:14-cr-80032-WJZ-1
UNITED STATES OF AMERICA,

Plaintiff - Appellee,
versus
NICHOLAS MAIDA,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(May 25, 2016)
Before JULIE CARNES, JILL PRYOR and FAY, Circuit Judges.
PER CURIAM:
Case: 14-14125
Page: 2 of 8
Nicholas Maida appeals his 180-month sentence, which the district court
imposed after he pled guilty to one count of violating 18 U.S.C. 922(g) and
924(e)(1) by possessing a firearm and ammunition as a convicted felon. The
district court applied an enhancement under the Armed Career Criminal Act
(ACCA), 18 U.S.C. 924(e)(1), based on its determination that, in addition to
two prior violent felonies that Maida does not contest, Maida had been convicted
of four offenses under Floridas burglary statute, Fla. Stat. Ann. 810.02, which
the court concluded qualified as violent felonies for ACCA purposes. After careful
review of the record and the parties briefs, we vacate Maidas sentence and
remand with instructions that he be resentenced without the ACCA enhancement.
I.
After Maida pled guilty, the probation office prepared a presentence
investigation report (PSI). According to the PSI, Maida had a base offense level
of 24 under U.S.S.G. 2K2.1(a)(2). The PSI applied a four-level enhancement
under U.S.S.G. 2K2.1(b)(6)(B) for using or possessing a firearm in connection
with another felony offense. It also applied a six-level ACCA enhancement under
U.S.S.G. 4B1.4(b)(3)(A). Under the ACCA, an individual convicted under 18
U.S.C. 922(g) is subject to a mandatory minimum sentence of 15 years if he has
three previous federal or state convictions for a violent felony or a serious drug
Case: 14-14125
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offense, or both, committed on occasions different from one another. 18 U.S.C.

924(e)(1). Section 924(e) defines violent felony 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; 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.
Id. 924(e)(2)(B).
With a three-level reduction for acceptance of responsibility under U.S.S.G.
3E1.1, Maidas total offense level was 31. The PSI also calculated a criminal
history category of VI. In listing Maidas prior convictions, the PSI failed to
identify which convictions qualified as predicate offenses for the ACCA
enhancement. Combining a criminal history category of VI with a total offense
level of 31, the PSI arrived at a guidelines range of 188 to 235 months
imprisonment. It noted that the statutory minimum term of imprisonment under
the ACCA was 15 years.
According to objections to the PSI that Maida filed before sentencing, his
probation officer advised via email that the ACCA enhancement was based on the
following predicate offenses: a 2005 conviction for aggravated battery with a
deadly weapon; two convictions for burglary of a dwelling in 2006 and 2008; a
3
Case: 14-14125
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2006 attempted burglary conviction; a 2006 conviction for burglary of a structure;

and a 2007 robbery conviction. As relevant here, Maida objected to the ACCAs
application on the ground that the four burglary convictions, each charged under
Fla. Stat. 810.02, failed to meet the requirements for burglary as enumerated in
section 924(e)(2)(B)(ii). He also objected to application of the ACCAs residual
clausewhich designates a crime as a violent felony if it is not enumerated but
otherwise involves conduct that presents a serious potential risk of physical injury
to anotherto his prior burglary offenses because, he asserted, the clause was
unconstitutionally vague.
In response to the objections, the government agree[d] that under Taylor [v.
United States, 495 U.S. 575 (1990)], Fla. Stat. 810.02 does not qualify as a
generic burglary as enumerated in 18 U.S.C. 924(e)(2)(B)(ii). Doc. 37 at 3-4.1
It nonetheless defended the enhancement on the alternative ground that Maidas
convictions under Fla. Stat. 810.02 qualified as violent felonies under the
ACCAs residual clause. Id. at 4-9.
At sentencing, Maidas counsel reiterated the objection that a conviction
under Floridas burglary statute did not qualify as the enumerated offense of
burglary. Counsel stated that the Government, in their response, appear to
concede that the prior burglary convictions do not qualify as generic burglaries,
Doc. refers to the docket entry in the district court in this case.
4
Case: 14-14125
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and are not the type [of] burglary enumerated in Section 924(e)(2)(B)(ii). Doc. 62
at 4. Defense counsel argued that, after Descamps, Howard, and Jones, [cases
addressing the proper analysis for whether a conviction qualifies as an enumerated
offense, 2] it is questionable whether a[n ACCA predicate] conviction [under
Floridas] overbroad, non-generic [statute] exists. Id. at 7. And, defense counsel
asserted, the government had failed to meet its burden to demonstrate that Maidas
convictions were for the enumerated offense of burglary. Id. at 7-10. In response,
the government never argued that the convictions under Fla. Stat. 910.02
qualified as enumerated burglary offenses, nor did it mention the ACCAs
enumerated offense of burglary. Instead, it relied exclusively on its contention that
the burglary convictions qualified under the ACCAs residual clause. The district
court continued the sentencing to consider these arguments.
When the district court reconvened, it overruled Maidas objections
regarding whether his Florida burglary convictions qualified as violent felonies
under the ACCA. The court adopted the factual statements and guidelines
calculations in the PSI but ultimately varied downward, sentencing Maida to 180
months imprisonment, the mandatory minimum under the ACCA.
Maida appealed, and briefing concluded in March 2015. While the appeal
was pending, on June 26, 2015, the Supreme Court held that the residual clause of
2
See Descamps v. United States, 133 S. Ct. 2276 (2013); United States v. Jones, 743 F.3d
826 (11th Cir. 2014); United States v. Howard, 742 F.3d 1334 (11th Cir. 2014).
5
Case: 14-14125
Page: 6 of 8
the ACCA was unconstitutionally vague. See Johnson v. United States, 135 S. Ct.
2551 (2015). Upon this Courts order, the parties filed supplemental briefing on
the impact of Johnson, which we now address.
II.
We review de novo a district courts determination that a conviction
qualifies as a violent felony under the ACCA. United States v. Gandy, 710 F.3d
1234, 1236 (11th Cir. 2013). The ACCA divides predicate offenses into three
categories. Under the elements clause, crimes that have as an element the use,
attempted use, or threatened use of physical force against the person of another
subject a defendant to the ACCA enhancement. 18 U.S.C. 924(e)(2)(B)(i).
Under the enumerated crimes clause, ACCA predicate offenses include
burglary, arson, or extortion. Id. 924(e)(2)(B)(ii). And under the so-called
residual clause, a crime that otherwise involves conduct that presents a serious
potential risk of physical injury to another is a violent felony for ACCA purposes.
Id.; see Rozier v. United States, 701 F.3d 681, 682 n.1 (11th Cir. 2012) (describing
three categories of ACCA predicate offenses).3 Johnson invalidated the residual
clause as unconstitutionally vague; thus, as both parties agree, the clause does not
3
Although Rozier concerned a career offender enhancement under the Sentencing

Guidelines rather than an ACCA enhancement, we employ [p]recisely the same analytical
framework . . . in ascertaining the scope of a crime of violence under the career offender
guideline with respect to the question of what kind of conduct comprises a violent felony
under the ACCA. United States v. Oliver, 20 F.3d 415, 418 (11th Cir. 1994).
6
Case: 14-14125
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provide a basis for the enhancement of Maidas sentence. Neither party contends
that a conviction under Floridas burglary statute falls within the elements clause.
Rather, in its supplemental briefing, the government for the first time asserts
that Maidas burglary convictions constitute crimes of violence under the
enumerated crimes clause of the ACCA. During sentencing, Maida vigorously
objected to the district courts classification of his Florida burglary convictions as
enumerated burglary offenses, and in response the government failed to argue that
those convictions qualified under the enumerated crimes clause. Further, the cases
the government now cites in support of its argument all were decided before
Maidas objections were ruled upon and he was sentenced. See Nov. 27, 2015
supplemental letter brief at 3-16. Indeed, throughout the sentencing proceedings,
and in this Court until its supplemental letter brief, the government has relied
solely upon the status of Maidas convictions as crimes of violence under the
ACCAs residual clause. When the district court overruled Maidas objections and
ruled that Maidas burglary convictions were crimes of violence, it did not indicate
whether the convictions qualified under the enumerated crimes clause or the
residual clause, and the government did not request clarification. In fact, the
governments remarks at sentencing suggested that the government conceded the
inapplicability of the enumerated crimes clause.
Case: 14-14125
Page: 8 of 8
In short, the governments statements effectively disclaimed reliance on the

ground that it now seeks to pursue on remand. We conclude that the government
should not now be permitted to do so. See Johnson v. United States, 559 U.S. 133,
145 (2010) (concluding that, where the government disclaimed reliance on the
residual clause at sentencing, it would not be permitted to rely on that ground on
remand).
III.
For the foregoing reasons, we conclude that Maidas sentence may not be
enhanced pursuant to the ACCA. We accordingly vacate his sentence and remand
to the district court for resentencing consistent with this opinion.4
VACATED AND REMANDED.
Because we vacate his sentence and remand on this ground, we need not consider any of
Maidas alternative challenges to his sentence.
8

United States v. Nicholas Maida, 11th Cir. (2016)

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Case: 14-14125

Date Filed: 05/25/2016

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

UNITED STATES OF AMERICA,

Date Filed: 05/25/2016

Date Filed: 05/25/2016

offense, or both, committed on occasions different from one another. 18 U.S.C.

has as an element the use, attempted use, or threatened

is burglary, arson, or extortion, involves use of

Date Filed: 05/25/2016

2006 attempted burglary conviction; a 2006 conviction for burglary of a structure;

Date Filed: 05/25/2016

Date Filed: 05/25/2016

Although Rozier concerned a career offender enhancement under the Sentencing

Date Filed: 05/25/2016

Date Filed: 05/25/2016

In short, the governments statements effectively disclaimed reliance on the

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