United States v. Shelton ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4922
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RANDY WAYNE SHELTON,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Glen E. Conrad, District Judge.
(CR-04-110)
Submitted: August 21, 2006 Decided: August 30, 2006
Before WIDENER, WILLIAMS and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Paul G. Beers, GLENN, FELDMANN, DARBY & GOODLATTE, Roanoke,
Virginia, for Appellant. John L. Brownlee, United States Attorney,
R. Andrew Bassford, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
In this appeal, Randy Wayne Shelton challenges his drug and
firearm convictions as well as his sentence. For the following
reasons, we affirm.
On February 10, 2004, Officer F. Monroe Blevins applied to a
county magistrate for a search warrant of Shelton’s apartment. JA
16. The affidavit accompanying the warrant stated that a
“confidential, reliable informant” had recently observed cocaine
transactions in the apartment. JA 18A. The affidavit further
stated that an unspecified controlled purchase at some point in the
past established the informant’s reliability. JA 18A. The
magistrate found probable cause and issued the warrant. Police
promptly executed a search of the apartment and discovered cocaine,
firearms, and cash. JA 52.
Before trial, Shelton filed a motion to suppress the evidence
uncovered in the search; he also requested a hearing under Franks
v. Delaware, 438 U.S. 154 (1978). JA 12. The district court
denied the motion and the request. JA 55. Shelton then pleaded
guilty to one count of possessing a firearm as a felon, in
violation of 18 U.S.C. § 922(g)(1) (2000), and one count of
possessing cocaine with intent to distribute, in violation of 21
U.S.C. § 841(a)(1) (2000). JA 61.
At sentencing, the district court determined that Shelton was
subject to the 15-year mandatory minimum imposed by the Armed
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Career Criminal Act (ACCA) for felons-in-possession with “three
previous convictions . . . for a violent felony.” 18 U.S.C. §
924(e)(1) (2000). Accordingly, the court sentenced Shelton to 15
years imprisonment. JA 102. Shelton noted a timely appeal.
Shelton argues first that the district court improperly denied
his request for a Franks hearing and his motion to suppress. We do
not believe that Shelton has at any point made the “‘substantial
preliminary showing’” necessary to justify a Franks hearing. See
United States v. Shorter, 328 F.3d 167, 170 (4th Cir. 2003)
(quoting Franks, 438 U.S. at 155). Nor do we believe that the
affidavit accompanying the warrant failed to establish probable
cause. The affidavit relied upon a tip from a confidential
informant who had reliably cooperated with police in the past.
Such a tip is sufficient to meet the Fourth Amendment’s
requirements. See United States v. Bynum, 293 F.3d 192, 197 (4th
Cir. 2002) (“[T]he officer relied not on an unknown informant but
one whom he knew and who had provided reliable information in the
past that the law enforcement officers had ‘verified.’”); United
States v. Wright, 145 F.3d 972, 975 (8th Cir. 1998) (finding
affidavit sufficient when it stated that “the [confidential
informant] has proven his/her reliability in the past by making
controlled purchase[s] of crack cocaine under the direct
supervision of affiant officers”).
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Shelton next challenges his 15-year sentence. Constrained as
we are by Supreme Court and circuit precedent, we reject his
constitutional challenge to the ACCA. See Almendarez-Torres v.
United States, 523 U.S. 224 (1998); United States v. Thompson, 421
F.3d 278, 286 (4th Cir. 2005). We also do not find persuasive his
argument that the district court improperly applied the ACCA.
Shelton argues that one of his previous convictions should not have
been classified as a “generic burglary,” as required to invoke the
statute. See Taylor v. United States, 495 U.S. 575, 599 (1990).
The Supreme Court requires us to adopt a “categorical approach” to
determine whether a prior conviction is a generic burglary. Id. at
602. Instead of “delving into particular facts disclosed by the
record of conviction,” our inquiry is generally “limited to
examining the statutory definition, charging document, written plea
agreement, transcript of plea colloquy, and any explicit factual
finding by the trial judge to which the defendant assented.”
Shepard v. United States, 544 U.S. 13, 16, 17 (2005). In this
case, we must determine whether these sources show that Shelton’s
“earlier guilty plea [in state court] necessarily admitted, and
supported a conviction for, generic burglary.” Id. at 16.
Shelton argues that a 1991 prior state conviction for burglary
should not have been construed as a predicate offense for purposes
of the ACCA because the statute under which Shelton was convicted,
Va. Code Ann. § 18.2-91, encompasses unlawful entry into areas that
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are not “building[s] or structure[s].” Taylor, 495 U.S. at 599.
However, the relevant indictment charged Shelton with breaking and
entering “the business of All American Car Wash.” JA 154. We
believe the reference to “the business” necessarily ensures that
Shelton sought to enter “a building or structure.” Thus, we
believe that the indictment establishes that Shelton’s prior
conviction was for a generic burglary.
For the foregoing reasons, the judgment of the district court
is
AFFIRMED.
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