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United States v. Richard Williams ( 2020 )


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  •      Case: 19-60463   Document: 00515323213    Page: 1   Date Filed: 02/27/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 27, 2020
No. 19-60463                    Lyle W. Cayce
Summary Calendar                       Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
RICHARD BRIAN WILLIAMS,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Mississippi
Before WIENER, HAYNES, and COSTA, Circuit Judges.
PER CURIAM:
Richard Brian Williams, who pleaded guilty to possessing a firearm after
a felony conviction, in violation of
    18 U.S.C. § 922
    (g)(1), appeals the
enhancement of his sentence under the Armed Career Criminal Act (ACCA),
    18 U.S.C. § 924
    (e). He argues that he could not be sentenced under the ACCA
because
    18 U.S.C. § 924
    (a)(2), not § 924(e), was charged in the indictment. He
also argues that his 2008 Mississippi robbery conviction does not constitute a
violent felony conviction under the ACCA. He concedes that his arguments are
contrary to our precedent, but he wishes to preserve the issues for further
review.
Case: 19-60463    Document: 00515323213     Page: 2   Date Filed: 02/27/2020
No. 19-60463
We review a legal challenge to an ACCA-enhanced sentence de novo.
United States v. Fuller,
    453 F.3d 274
    , 278 (5th Cir. 2006). Williams’s argument
that the district court erred in sentencing him under the ACCA because
§ 924(e) was not cited in the indictment is unavailing. The plain language of
§ 924(e) mandates that the ACCA “shall” apply when the noted prerequisites
are met. § 924(e); see Arlington Cent. Sch. Dist. Bd. of Ed. v. Murphy,
    548 U.S. 291
    , 296 (2006). Moreover, Williams was “not entitled to any formal notice of
the possibility of an enhanced sentence under the ACCA other than that
required by due process,” and the presentence report provided adequate notice
to Williams of the Government’s intent to seek an ACCA-enhanced sentence.
United States v. Howard,
    444 F.3d 326
    , 327 (5th Cir. 2006); see also United
States v. Stapleton,
    440 F.3d 700
    , 701 n.1 (5th Cir. 2006) (“The Supreme Court
has held recidivist provisions like those in the Armed Career Criminal Act are
neither substantive offenses nor elements thereof and thus the fact of a prior
conviction need not be alleged in an indictment nor proven beyond a reasonable
doubt.” (citing Almendarez-Torres v. United States,
    523 U.S. 224
    , 118 (1998))).
Williams also argues that Mississippi robbery is not a violent felony
under the ACCA’s elements clause because it can be committed by putting
someone in fear of immediate injury and because it can be committed by
poisoning. See § 924(e); MISS. CODE ANN. § 97-3-73 (2008). We reject these
arguments in light of our prior rulings in this area and Williams’s failure to
cite Mississippi case law that establishes a realistic probability that
Mississippi courts would apply the robbery statute to conduct that does not
involve “the use, attempted use, or threatened use of physical force against the
person of another.” § 924(e)(2)(B)(i); see United States v. Reyes-Contreras,
    910 F.3d 169
    , 173, 181-87 (5th Cir. 2018) (en banc); United States v. Brewer,
    848 F.3d 711
    , 715-16 (5th Cir. 2017).
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Case: 19-60463   Document: 00515323213   Page: 3   Date Filed: 02/27/2020
No. 19-60463
AFFIRMED.
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