United States v. Williams ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4111
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TIMOTHY M. WILLIAMS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, District
Judge. (3:05-cr-00173-REP)
Argued: March 14, 2007 Decided: April 10, 2007
Before MOTZ, TRAXLER, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Whitney C. Tymas, HICKSTYMAS, L.L.C., Richmond, Virginia,
for Appellant. Richard Daniel Cooke, OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: David M.
Hicks, Shawri King-Casey, HICKSTYMAS, L.L.C., Richmond, Virginia,
for Appellant. Chuck Rosenberg, United States Attorney,
Alexandria, Virginia; Matthew C. Ackley, Special Assistant United
States Attorney, Tara Michele McManigal, Third-Year Practice Law
Student, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Timothy M. Williams appeals his 210-month sentence following
his guilty plea to possession of a firearm by a convicted felon.
Williams contends that the district court erred in its
determination that he qualifies as an armed career criminal under
the Armed Career Criminal Act. Because the district court properly
found that Williams qualifies as an armed career criminal, we
affirm.
I.
Williams pleaded guilty to possession of a firearm by a
convicted felon, in violation of 18 U.S.C.A. § 922(g)(1) (West
2000). The pre-sentence report (PSR) determined that Williams had
an offense level of 30 and a criminal history category of VI,
yielding a United States Sentencing Guidelines range of 168-210
months. However, the PSR also concluded that Williams qualified as
an armed career criminal under the Armed Career Criminal Act
(ACCA), 18 U.S.C.A. § 924(e) (West 2000 & Supp. 2006), meaning that
he was subject to a mandatory minimum sentence of not less than
fifteen years’ (180 months’) imprisonment.
Williams objected to the PSR calculation, contending, inter
alia, that he did not qualify for an enhancement under the ACCA.
At sentencing the district court found that Williams had five
qualifying prior felony convictions under the ACCA: two burglary
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convictions, one consolidated larceny from the person conviction,
and two robbery convictions. Thus, the court sentenced Williams to
210 months' imprisonment. Williams noted a timely appeal.
II.
The ACCA provides:
In the case of a person who violates section 922(g) of
this title and has three previous convictions . . . for
a violent felony or serious drug offense or both,
committed on occasions different from one another, such
person shall be fined under this title and imprisoned not
less than fifteen years . . . .
18 U.S.C. § 924(e)(1). Williams first argues that the ACCA
violates the Fifth and Sixth Amendments because it permits a judge
to enhance a sentence based on facts not included in the
indictment, or admitted by the defendant or found by a jury beyond
a reasonable doubt.
The district court properly rejected this argument as
foreclosed by precedent. In Almendarez-Torres v. United States,
523 U.S. 224, 243 (1998), the Supreme Court held that when seeking
a sentencing enhancement based on a prior conviction the Government
"need not allege a defendant's prior conviction in the indictment
or information that alleges the elements of an underlying crime.”
In Apprendi v. New Jersey, 530 U.S. 466, 489 (2000), the Court
reaffirmed the holding of Almendarez-Torres, and specifically
exempted from the rule in Apprendi "the fact of a prior
conviction." See Apprendi, 530 U.S. at 489 (noting that "[e]ven
3
though it is arguable that Almendarez-Torres was incorrectly
decided . . . Apprendi does not contest the decision's validity and
we need not revisit it for purposes of our decision today"). Most
recently, in Shepard v. United States, 544 U.S. 13, 20 (2005), the
Court again reaffirmed the prior conviction exception in the
context of the ACCA, but limited the district court’s inquiry in
determining the existence of a prior conviction to “the terms of
the charging document, the terms of a plea agreement or transcript
of colloquy . . ., or to some comparable judicial record of this
information.” 544 U.S. at 26.
Because of this Supreme Court precedent, we recently rejected
the very argument Williams makes today. In United States v.
Thompson, 421 F.3d 278, 281 (4th Cir. 2005), as here, the defendant
argued that "the Supreme Court's recent Sixth Amendment rulings
prohibit[ed] sentencing him under ACCA unless a jury finds (or he
admits) the facts required by the statute."1 In rejecting this
argument we explained that the Supreme Court in Shepard "explicitly
affirmed that the prior conviction exception [of Almendarez-Torres
and Apprendi] remained good law.” Id. Thus, "the 'fact of a
1
Like Williams, the defendant in Thompson also challenged his
sentence under the Fifth Amendment because "the indictment did not
allege facts sufficient to support his enhanced sentence under
ACCA." 421 F.3d at 281, n.2. We rejected that argument on the
same grounds as we rejected his Sixth Amendment argument. Id.That holding requires rejection of the Fifth Amendment argument
here.
4
prior conviction' remains a valid enhancement even when not found
by the jury." Id. at 282.
In sum, the Supreme Court's rulings in Almendarez-Torres and
Shepard and this court's ruling in Thompson foreclose Williams's
argument that the imposition of an ACCA enhancement based on
predicate convictions found by a judge violates the Fifth and Sixth
Amendments.
III.
Williams also contends that the Government failed to prove the
existence of three qualifying predicate felonies under the ACCA
using Shepard-approved sources. For a prior conviction to qualify
as a predicate offense under the ACCA, it must be a "violent
felony" or “serious drug offense” that occurred on an "occasion[]
different from [other offenses]." 18 U.S.C. § 924(e)(1).
Moreover, under Shepard, a court can only determine whether a prior
conviction meets these requirements by reference to “the terms of
the charging document, the terms of a plea agreement or transcript
of colloquy . . ., or to some comparable judicial record of this
information.” 544 U.S. at 26.
The ACCA defines "violent felony" as
any 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
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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 .
. .
18 U.S.C. § 924 (e)(2)(B) (emphasis added).
A court is to employ "a categorical approach" in determining
whether a prior conviction properly serves as a predicate
conviction under the ACCA. Williams, 326 F.3d at 538 (citing
Taylor v. United States, 495 U.S. 575, 600 (1990)). In accord with
this approach, a sentencing court must first look to the statutory
definition of the offense of conviction. Id. If the felony of
which the defendant was convicted has as an element the use,
attempted use, or threatened use of force, then the requirement of
a "violent felony" has been fulfilled. United States v. Presley,
52 F.3d 64, 69 (4th Cir. 1995). However,
"[i]n cases where the state conviction can be violated in
a number of ways, some of which would support enhancement
under § 924(e) and some of which would not, the
categorical approach permits the sentencing court [to] go
beyond the fact of conviction and the statutory
definition of the underlying crime [to] examine the
indictment, other charging papers, or jury instructions
to determine whether the defendant was charged with a
crime that meets the requirements of § 924(e)."
Williams, 326 F.3d at 538 (citations omitted)
(alterations in original).
In determining whether the prior convictions arise from
offenses that occurred on "occasions different from one another" a
court is to consider "only those predicate offense that can be
isolated with a beginning and an end -- ones that constitute an
6
occurrence unto themselves." United States v. Letterlough, 63 F.3d
332, 335 (4th Cir. 1995). The court thus considers such factors as
(I) whether the offenses occurred in different geographic
locations, (ii) whether the nature of the offenses was
substantively different, and (iii) whether the offenses involved
multiple victims or multiple criminal objectives. Letterlough, 63
F.3d at 335-36. Williams contends that the district court looked
beyond Shepard-approved sources in its findings as to his predicate
convictions.
A.
Williams first argues that the Government did not prove that
his burglaries constituted "violent felon[ies]" under the ACCA. In
Taylor, the Supreme Court held that "a person has been convicted of
burglary for purposes of a § 924(e) enhancement if he is convicted
of any crime, regardless of its exact definition or label, having
the basic elements of unlawful or unprivileged entry into, or
remaining in, a building or structure, with intent to commit a
crime." 495 U.S. at 599. When a state statute does not follow
this generic definition, however, the Court explained in Shepard
that a sentencing court can look to an indictment, jury
instructions, a transcript of a plea colloquy, or other comparable
sources "to determine whether a plea of guilty to burglary defined
7
by a nongeneric statute necessarily admitted elements of the
generic offense . . . ." 544 U.S. at 26.
Williams was convicted of statutory burglary under Va. Code
Ann. § 18.2-91, which does not require the elements of generic
burglary identified in Taylor. Thus, the sentencing court had to
look to Shepard-approved sources to determine whether Williams’s
convictions satisfied the elements of generic burglary. At
sentencing the Government offered the indictment that charged
Williams "did break and enter in the nighttime the dwelling house
of Theresa Smith, with intent to commit larceny," and the
corresponding jury verdict form, which found Williams "guilty of
breaking and entering the property of Theresa Smith as charged in
the indictment." The Government also offered the verdict form
finding Williams guilty of "breaking and entering the property of
Sylvia Coleman," and the jury instructions for both burglary
charges, which instructed the jury that it must find that (1) "the
defendant without permission in the nighttime entered or in the
daytime broke and entered a dwelling house" and (2) "[t]hat he did
so with intent to commit larceny." These Shepard-approved sources
clearly show that Williams was convicted of the generic form of
burglary. Thus, these burglaries constitute "violent felon[ies]"
under the ACCA.
Williams also contends that the district court could not have
determined, using only Shepard-approved sources, that the
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burglaries were separate from one another.2 This argument presents
a close question. Although the robberies are alleged to have
occurred on the same day, the jury instructions and verdict forms
refer separately to the "property" or "dwelling" of Sylvia Coleman
and the "property" or “dwelling" of Theresa Smith. We need not
resolve this question, however, for even if we were to consider the
burglaries as one predicate offense, the Government, as explained
within, still has shown three other predicate offenses.
B.
Williams next contends that larceny from the person does not
qualify as a "violent felony" under the ACCA because the crime, as
defined by Virginia law, does not include as an element the use,
attempted use, or threatened use of physical force, as required by
the ACCA. We have previously rejected a very similar argument.
In United States v. Smith, 359 F.3d 662 (2004), we considered
whether the Virginia statute at issue here, Va.Code Ann. § 18.2-95,
qualified as a "crime of violence" for the purposes of applying an
2
Williams also maintains that because he was indicted for both
burglaries and for the robbery of Jonhette Daniels on the same day
-- May 9, 1998 -- it is impossible to tell from Shepard-approved
sources whether the Daniels’s robbery arose from criminal conduct
separate from the burglaries. This argument is meritless.
Unquestionably, Shepard-approved documents demonstrate that the
Daniel’s robbery was separate from the two burglaries. The
indictments indicate that the burglaries took place on March 23,
1988, whereas the Daniels’s robbery took place on March 5, 1988.
Furthermore, the nature of the offenses was substantively
different. Under Letterlough and Hobbs, Daniels’s robbery was
separate from the burglaries.
9
enhancement under the career offender guideline of the U.S.
Sentencing Guidelines. See U.S.S.G. § 4B1.1 (2002). We noted
that, as Williams argues, under Virginia law larceny from the
person does not "contain as an element the use, attempted use, or
threatened use of physical force." Smith, 359 F.3d at 664. Thus,
the offense can qualify as a crime of violence only if it
“'otherwise involves conduct that presents a serious potential risk
of physical injury to another.'" Id. (quoting U.S.S.G. §
4B1.2(a)(2)). In Smith we concluded that larceny from the person
is a crime of violence "in the abstract" because "[t]he offense
recognizes an enhanced societal concern for conduct that implicates
at least a potential for personal assault, conduct that involves
the person of the victim and jeopardizes his personal security."
Id. at 664-66 (citations omitted).
Although Smith involved the Sentencing Guidelines rather than
the ACCA, the definition of a “violent felony” under the ACCA --
"conduct that presents a serious potential risk of physical injury
to another" -- is identical to the definition of a “crime of
violence” under the Sentencing Guidelines. Accordingly, we see no
reason why the logic in Smith should not extend to the ACCA. Thus,
Williams's conviction for larceny from the person qualifies as a
predicate “violent felony” under the ACCA.
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C.
Finally, Williams argues that based on the evidence in the
record, the sentencing court could not conclude that his two
robbery convictions qualify as "violent felon[ies]" under the ACCA.
Robbery in Virginia requires "the taking, with intent to steal, of
the personal property of another, from his person or in his
presence, against his will, by violence or intimidation." Presley,
52 F.3d at 69 (citing Hoke v. Commonwealth, 237 Va. 303, 310, 377
S.E.2d 595, 599, cert. denied, 491 U.S. 910 (1989)). Williams
focuses on the words "or intimidation" to argue that "intimidation"
does not necessarily require the use, attempted use, or threatened
use of physical force. Thus, according to Williams, without more
information from the Government, a sentencing court may not
conclude that a defendant convicted under Virginia's robbery
statute has committed a violent felony.
However, we have previously held, in examining the same
statute under which Williams was convicted -- Va.Code Ann. §
18.2-58 -- that robbery in Virginia is a violent felony:
Violence is the use of force. Intimidation is the threat
of the use of force. Thus, because robbery in Virginia
has as an element the use or threatened use of force,
[the defendant's] robbery convictions were properly used
as predicates under ACCA.
Presley, 52 F.3d at 69.
Williams urges us to disavow Presley in light of the Supreme
Court's recent holding in Shepard. Although Shepard explains the
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procedure to be followed when statutory elements do not satisfy the
definition of a “violent felony” under the ACCA, we held in Presley
that any violation of Virginia's robbery statute necessarily
constitutes a predicate conviction under the ACCA. Nothing in
Shepard requires us to reconsider that holding. Thus, Williams's
two prior robbery convictions qualify as predicate offenses under
the ACCA.3
In sum, the district court properly found the presence of at
least four predicate convictions: one larceny from the person; at
least one burglary; and two robberies.
IV.
For the foregoing reasons, the judgment of the district court
is
AFFIRMED.
3
Williams asks that we remand the case to the district court
to determine whether he qualifies as a career offender under the
Sentencing Guidelines. A remand is unnecessary because the
Government has never argued that Williams qualifies as a career
offender under the Guidelines. Williams also objects to the
calculation of his criminal history in the PSR, although he makes
little in the way of an argument beyond noting his objection. We
conclude that the appellate waiver in his plea agreement extends to
this claim, and thus we do not consider it.
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