United States v. Mustafa Mohamed , 623 F. App'x 839 ( 2015 )

United States Court of Appeals
For the Eighth Circuit
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No. 15-1621
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Mustafa Ahmed Mohamed
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of Minnesota - St. Paul
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Submitted: November 16, 2015
Filed: December 14, 2015
[Unpublished]
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Before LOKEN, BOWMAN, and GRUENDER, Circuit Judges.
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PER CURIAM.
Mustafa Mohamed appeals from the sentence imposed by the District Court1
after he pleaded guilty to being a felon in possession of ammunition and a firearm.
1
The Honorable Donovan W. Frank, United States District Judge for the District
of Minnesota.
His counsel moved to withdraw and filed a brief under Anders v. California, 386 U.S.
738 (1967), arguing that the sentence was unreasonable. We denied counsel’s
withdrawal motion and ordered supplemental briefing addressing whether, in light of
Johnson v. United States, 135 S. Ct. 2551, 2557 (2015) (holding that the residual
clause of the Armed Career Criminal Act (ACCA) is unconstitutionally vague), the
District Court committed error by applying a sentencing enhancement under the
United States Sentencing Guidelines based on Mohamed’s prior burglary convictions.
Upon reviewing the supplemental briefs, we conclude that the District Court did
not commit procedural error. See United States v. Stymiest, 581 F.3d 759, 767 (8th
Cir. 2009) (de novo review), cert. denied, 559 U.S. 1055 (2010). Specifically, the
court properly enhanced Mohamed’s sentence based on prior convictions for first
degree burglary of a residence, Minn. Stat. § 609.582, subd. 1(c), and third degree
burglary of a commercial building, Minn. Stat. § 609.582, subd. 3. See U.S.S.G.
§ 2K2.1(a)(2) & comment. (n.1) (stating that the Guidelines base offense level is 24
if the defendant committed the instant offense after sustaining two or more felony
convictions of, inter alia, a crime of violence and cross-referencing U.S.S.G. § 4B1.2
(career-offender provision)). As to the first degree burglary conviction, burglary of
a dwelling is specifically included in the language of the career-offender provision as
a “crime of violence.” See U.S.S.G. § 4B1.2(a)(2) (defining “crime of violence” as
“any offense under federal or state law, punishable by imprisonment for a term
exceeding one year, that . . . is burglary of a dwelling”). Further, this Court has held
that burglary of a commercial building qualifies as a crime of violence under the same
provision, without relying on the residual clause. See Stymiest, 581 F.3d at 767, 769(setting out alternative holdings that defendant’s sentence was properly enhanced
under § 4B1.2(a) because third-degree burglary of an unoccupied structure met the
generic definition of burglary and “because the ‘of a dwelling’ limitation in
§ 4B1.2(a)(2) was invalidated by the Supreme Court’s decision in Taylor [v. United
States, 495 U.S. 575, 597 (1990)]”); United States v. Bell, 445 F.3d 1086, 1090 (8th
Cir. 2006).
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As to the contentions in counsel’s Anders brief, we conclude that the within-
Guidelines sentence was not substantively unreasonable. See United States v. Salazar-
Aleman, 741 F.3d 878, 881 (8th Cir. 2013) (noting that a district court abuses its
discretion and imposes a substantively unreasonable sentence if the court fails to
consider a relevant factor, gives significant weight to an improper or irrelevant factor,
or commits a clear error of judgment in weighing the relevant factors); United States
v. Cook, 698 F.3d 667, 670 (8th Cir. 2012) (treating a within-Guidelines sentence as
presumptively reasonable).
Accordingly, the judgment is affirmed. We deny as moot Mohamed’s motion
for new counsel.
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