United States v. Irving Bennerman ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4222
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
IRVING BENNERMAN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Terrence W. Boyle,
District Judge. (7:13-cr-00091-BO-1)
Submitted: October 23, 2014 Decided: October 30, 2014
Before KING, AGEE, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Thomas G. Walker, United States Attorney, Jennifer
P. May-Parker, Yvonne V. Watford-McKinney, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Irving Bennerman pled guilty to possession of a
firearm by a person previously convicted of a felony offense, in
violation of 18 U.S.C. § 922(g)(1) (2012). The district court
determined that Bennerman qualified as an armed career criminal
and sentenced him to 210 months’ imprisonment. Bennerman
appeals his sentence, challenging his classification as an armed
career criminal. Finding no error, we affirm Bennerman’s
sentence.
We review de novo a district court’s determination of
whether prior offenses qualify as violent felonies for purposes
of the Armed Career Criminal Act (“ACCA”). United States v.
Hemingway, 734 F.3d 323, 331 (4th Cir. 2013). A defendant is an
armed career criminal when he violates § 922(g)(1) and has three
prior convictions for violent felonies or serious drug offenses.
18 U.S.C. § 924(e)(1) (2012). Bennerman concedes that he had
two prior convictions that qualify as predicate offenses under
the ACCA. He challenges the determination that his conviction
of first degree robbery in Connecticut qualifies as a violent
felony offense. He asserts that the statute, Conn. Gen. Stat.
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§ 53a-134(a), penalizes more than just the crime of robbery, but
can apply equally to an accessory after the fact. *
A violent felony is a crime that is punishable by more
than one year of imprisonment and “(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.” 18 U.S.C. § 924(e)(2)(B) (2012).
The statute under which Bennerman was convicted
provides:
A person commits robbery when, in the course of
committing a larceny, he uses or threatens the
immediate use of physical force upon another person
for the purpose of: (1) Preventing or overcoming
resistance to the taking of the property or to the
retention thereof immediately after the taking; or (2)
compelling the owner of such property or another
person to deliver up the property or to engage in
other conduct which aids in the commission of the
larceny.
Conn. Gen. Stat. § 53a-133. Further, for first degree robbery,
the statute has the additional requirements that, “in the course
*
During the sentencing hearing, the Government argued that
Bennerman had two prior offenses that would satisfy the ACCA
violent felony requirement: first degree robbery and second
degree assault, both in Connecticut. In designating Bennerman
an armed career criminal, the district court did not explain on
which conviction it was relying. However, because the first
degree robbery conviction is a violent felony, as explained
infra, the district court’s designation was not erroneous.
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of the commission of the crime of robbery . . . or of immediate
flight therefrom, he or another participant in the crime” causes
serious physical injury to a non-participant in the crime, is
armed with a deadly weapon, uses or threatens to use a dangerous
instrument, or displays or threatens the use of what he
represents to be a gun. Conn. Gen. Stat. § 53-134(a).
Bennerman argues that this statute would cover a
person who participates as an accessory after the fact. He
contends, therefore, that the statute covers “far more conduct
than the generic crime” of robbery, and thus, cannot constitute
a “violent felony” for purposes of the armed career criminal
enhancement. See Descamps v. United States, 133 S. Ct. 2276,
2286 (2013).
To the contrary, the Connecticut first degree robbery
statute requires either the defendant or another participant to
display or threaten the use of a firearm. An accessory after
the fact is not a participant in the crime, but only becomes
involved after the commission of a robbery. See Connecticut v.
Montanez, 894 A.2d 928, 939-40 (Conn. 2006) (noting that an
accessory after the fact is a person who “rendered assistance
after the crime was complete.”) (emphasis added). Because the
crime of first degree robbery in Connecticut has, “as an element
the use, attempted use, or threatened use of physical force
against the person of another,” 18 U.S.C. § 924(e)(2)(B)(i), the
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district court properly determined that Bennerman’s conviction
for first degree robbery constitutes a violent felony. See
United States v. Wiggans, 530 F. App’x 51 (2d Cir. 2013)
(upholding use of Connecticut first degree robbery conviction as
predicate for ACCA classification), cert. denied, 134 S. Ct.
1565 (2014).
Accordingly, we affirm Bennerman’s sentence. 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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