United States v. Rasheen Weston , 681 F. App'x 235 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4744
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RASHEEN WESTON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Cameron McGowan Currie, Senior
District Judge. (3:15-cr-00087-CMC-1)
Submitted: February 27, 2017 Decided: March 9, 2017
Before MOTZ, DIAZ, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Kimberly H. Albro, Assistant Federal Public Defender, Columbia,
South Carolina, for Appellant. William N. Nettles, United
States Attorney, Jane B. Taylor, Assistant United States
Attorney, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rasheen J. Weston pled guilty, pursuant to a written
agreement, to being a felon in possession of a firearm, in
violation of 18 U.S.C. §§ 922(g)(1) (2012), 924(a)(2) (2012).
Based on his prior South Carolina convictions for strong arm
robbery, armed robbery, and pointing and presenting a firearm,
the district court sentenced Weston as an armed career criminal
to 180 months’ imprisonment. On appeal, Weston challenges his
armed career criminal status, asserting that none of his prior
convictions serve as predicates under the Armed Career Criminal
Act (“ACCA”), 18 U.S.C. § 924(e) (2012). For the reasons that
follow, we affirm.
In challenging his armed career criminal designation,
Weston claims that his strong arm robbery and two armed robbery
convictions are not proper ACCA predicates because they do not
qualify under the ACCA’s enumerated clause or force clause and
that, after Johnson v. United States, 135 S. Ct. 2551 (2015),
they no longer qualify under the ACCA’s residual clause. Weston
argues that the offense of robbery does not contain an element
requiring the type of violent physical force needed to satisfy
the force clause. Additionally, Weston seeks to reassert his
claim that pointing and presenting a firearm is not a violent
felony. Although he acknowledges that his argument is
foreclosed by Fourth Circuit precedent, United States v. King,
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673 F.3d 274, 279-80 (4th Cir. 2012), Weston asserts that the
court may wish to revisit the issue in light of Johnson.
Last, Weston maintains that his prior pointing and presenting a
firearm and strong arm robbery convictions were not proper ACCA
predicates because the record does not show that he was
represented by counsel or that he waived representation for
these two convictions.
The ACCA mandates a minimum of fifteen years’ imprisonment
for a defendant who violates § 922(g) and “has three previous
convictions” for a “violent felony or a serious drug offense, or
both.” 18 U.S.C. § 924(e)(1). “We review de novo whether a
prior conviction qualifies as an ACCA violent felony.” United
States v. Doctor, 842 F.3d 306, 308 (4th Cir. 2016). A violent
felony includes “any crime punishable by imprisonment for a term
exceeding one year that has as an element the use, attempted
use, or threatened use of physical force against the person of
another.” Id. (internal quotation marks omitted).
In Doctor, we held that a prior South Carolina conviction
for strong arm robbery properly qualifies as a predicate violent
felony under the force clause of the ACCA. We concluded that
“South Carolina has defined its common law robbery offense,
whether committed by means of violence or intimidation, to
necessarily include as an element the use, attempted use, or
threatened use of physical force against the person of another.”
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Id. at 312-13 (internal quotation marks omitted). Therefore,
Doctor forecloses Weston’s argument that his prior strong arm
robbery and armed robbery convictions are not violent felonies
under the ACCA’s force clause. 1 In light of this determination,
we need not address Weston’s argument that pointing and
presenting a firearm does not constitute a violent felony under
the ACCA.
Weston also argues that two of his prior state convictions-
the conviction for pointing and presenting a firearm and the
strong arm robbery conviction-cannot serve as ACCA predicates
because the record does not show that, at the time of these
convictions, he was afforded his Sixth Amendment right to
counsel. Because the conviction for pointing and presenting a
firearm was not a necessary ACCA predicate, we consider this
argument only as it relates to his strong arm robbery
conviction. The presentence report indicated with respect to
this conviction that information regarding attorney
representation was unavailable.
While a defendant may challenge the validity of a prior
conviction on the ground that he was denied counsel, see Custis
v. United States, 511 U.S. 485, 495-96 (1994), Weston bears the
1
The parties do not dispute that if the lesser offense of
strong arm robbery is a proper ACCA predicate, then armed
robbery likewise qualifies.
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heavy burden of showing that the prior conviction is invalid.
United States v. Jones, 977 F.2d 105, 110-11 (4th Cir. 1992);
see United States v. Hondo, 366 F.3d 363, 365 (4th Cir. 2004)
(“[T]he defendant bears an especially difficult burden of
proving that the conviction was invalid.”). The determination
of whether counsel is waived is reviewed de novo. Hondo, 366
F.3d at 365.
Weston had to overcome the presumption that the state court
informed him of his right to counsel as it was required by
statute to do and that, if he was not represented, it was
because he had waived his right to counsel. 2 See Parke v. Raley,
506 U.S. 20, 28-34 (1992) (holding presumption of regularity
that attaches to final judgments makes it appropriate for
defendant to have burden of showing irregularity of prior plea).
Weston did not meet his burden because he submitted neither
documentary evidence nor testimony at the sentencing hearing to
establish that he pled guilty in the absence of counsel. See
Jones, 977 F.2d at 110-11 (holding that uncorroborated,
inconclusive, self-serving testimony about distant events was
2
See S.C. Code § 17-3-10 (“[A]ny person entitled to counsel
under the Constitution of the United States shall be so advised,
and if it is determined that the person is financially unable to
retain counsel, then counsel shall be provided upon order of the
appropriate judge unless such person voluntarily and
intelligently waives his right thereto.”).
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insufficient to carry burden of showing invalid prior
conviction). We conclude that the district court properly
overruled the objection based on the presumption that the state
statute was followed absent contrary evidence.
Because Weston has three qualifying prior convictions to
warrant his armed career criminal designation, we affirm the
district court’s judgment. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before this court and argument would not aid
the decisional process.
AFFIRMED
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