United States v. Timothy Tyrone Johnson , 329 F. App'x 890 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-15214 ELEVENTH CIRCUIT
MAY 21, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 07-00279-CR-T-N
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TIMOTHY TYRONE JOHNSON,
a.k.a. Tim Johnson,
a.k.a. Timothy Johnson,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(May 21, 2009)
Before TJOFLAT, DUBINA and WILSON, Circuit Judges.
PER CURIAM:
Timothy Tyrone Johnson appeals his sentence of 180 months imprisonment,
after he pled guilty to one count of possession of a firearm by a convicted felon in
violation of 18 U.S.C. § 922(g)(1). At sentencing, the district court determined
that Johnson was an armed career criminal pursuant to 18 U.S.C. § 924(e)(2)
because he had two convictions for third-degree burglary (committed on different
dates) and one conviction for third degree robbery.
On appeal, Johnson argues that third-degree burglary under Alabama law
does not constitute a violent felony for purposes of the Armed Career Criminal Act
(“ACCA”) because it lacks a statutory element of violence. He acknowledges that
Taylor v. United States, 495 U.S. 575, 598 (1990), held that burglaries are violent
felonies, and that courts must adopt a formal categorical approach when applying
the ACCA provision by looking only to the conviction and statutory definition of
the predicate offense and not to the underlying facts. He argues, however, that
Begay v. United States, 553 U.S. ___, 128 S. Ct. 1581 (2008), called into question
the strict categorical approach that Taylor established, and that the result of Begay
is to require that a property crime must involve a serious potential risk of physical
injury. Johnson also predicts that United v. Chambers, 555 U.S. ___, 129 S. Ct.
687 (2009), will do the same.1
1
At the time he filed his brief, the Supreme Court had not yet decided Chambers.
2
We consider de novo whether a particular conviction is a “violent felony”
for purposes of the ACCA. United States v. Wilkerson, 286 F.3d 1324, 1325 (11th
Cir. 2002) (per curiam). Under the ACCA, a person who violates 18 U.S.C. §
922(g) and who has three previous convictions for a “violent felony,” a serious
drug offense, or both, is an armed career criminal and subject to imprisonment for
a period of not less than 15 years. 18 U.S.C. § 924(e)(1). The ACCA defines a
violent felony as:
[A]ny 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[.]
Id. § 924(e)(2)(B).
To determine whether a crime constitutes a violent felony, a court must
follow a categorical approach in which it “look[s] only to the statutory definitions
of the prior offenses, and not to the particular facts underlying those convictions.”
Taylor, 495 U.S. at 601. In Alabama, “[a] person commits the crime of burglary in
the third degree if he knowingly enters or remains unlawfully in a building with
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intent to commit a crime therein.” A LA. C ODE § 13A-7-7. Alabama law classifies
third-degree burglary as a Class C felony. Id. Under the ACCA, a “burglary” must
be a generic burglary, that is, it must “hav[e] the basic elements of unlawful or
unprivileged entry into, or remaining in, a building or structure, with intent to
commit a crime.” Taylor, 495 U.S. at 599.
Upon careful review of the record and consideration of the arguments
presented in the parties’ briefs, we discern no reversible error. Because the
Alabama statutory language clearly includes the elements of “generic burglary,” as
outlined in Taylor, and provides for a term of imprisonment greater than one year,
third-degree burglary under Alabama law constitutes a qualifying offense under the
ACCA. Nothing in Begay or Chambers casts doubt on the categorical approach
formulated in Taylor. On the contrary, the Supreme Court applied the categorical
approach in both cases. See Begay, 553 U.S. ___, 128 S. Ct. at 1584 (“In
determining whether this crime is a violent felony, we consider the offense
generically, that is to say, we 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.”); Chambers, 555 U.S. ___, 129 S. Ct. at 690 (providing that
“to determine, for example, whether attempted burglary is a ‘violent felony,’ we
have had to examine, not the unsuccessful burglary the defendant attempted on a
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particular occasion, but the generic crime of attempted burglary”). Moreover,
while Begay and Chambers considered whether unenumerated felonies qualify as
violent felonies under the ACCA,2 Johnson’s prior offense of burglary is explicitly
enumerated as a violent felony in the ACCA.
Accordingly, we affirm.
AFFIRMED.
2
In particular, Begay and Chambers addressed driving under the influence under New
Mexico law and failure to report under Illinois law, respectively.
5