United States v. Robert Tharp ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-3374
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Robert Tharp, *
* [UNPUBLISHED]
Appellant. *
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Submitted: April 7, 2009
Filed: April 21, 2009
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Before WOLLMAN, MURPHY, and MELLOY, Circuit Judges.
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PER CURIAM.
In this direct criminal appeal, Robert Tharp challenges the 180-month prison
sentence the district court1 imposed after he pleaded guilty to being a felon in
possession of firearms in violation of 18 U.S.C. §§ 922(g)(1), 924(e)(1), and
924(e)(2)(B). For reversal, he argues that (1) the court erred in sentencing him as an
armed career criminal (ACC) under section 924(e), because his previous convictions
for escape and statutory rape do not qualify as violent felonies; and (2) his Sixth
Amendment rights were violated, because he did not admit, and a jury did not find,
1
The Honorable Fernando J. Gaitan, Jr., Chief Judge, United States District
Court for the Western District of Missouri.
that the convictions were violent felonies. For the reasons discussed below, we
affirm.
Under 18 U.S.C. § 924(e)(1), a section 922(g) violator who has three previous
convictions for a “violent felony” or a “serious drug offense” committed on occasions
different from one another is subject to a mandatory minimum prison sentence of 15
years. Following de novo review, see United States v. Livingston, 442 F.3d 1082,
1083 n.1 (8th Cir. 2006), we conclude that the district court properly classified Tharp
as an ACC. He had one controlled-substance conviction that qualified as a serious
drug offense, see 18 U.S.C. § 924(e)(2)(A)(ii); his statutory-rape conviction involving
a minor under the age of fourteen qualified as a violent felony, see United States v.
Mincks, 409 F.3d 898, 900 (8th Cir. 2005); United States v. Williams, 537 F.3d 969,
971 (8th Cir. 2008) (this court has never recognized difference between “crime of
violence” and “violent felony”); and a prior Missouri conviction for second-degree
burglary also qualified as a violent felony, see Mo. Rev. Stat. § 569.170; Taylor v.
United States, 495 U.S. 575, 598 (1990).2 We also conclude that the district court did
not violate the Sixth Amendment. See United States v. Patterson, 412 F.3d 1011,
1015-16 (8th Cir. 2005) (district court did not violate Sixth Amendment by sentencing
appellant as ACC based on prior convictions for violent felonies); United States v.
Hudson, 414 F.3d 931, 936 (8th Cir. 2005) (courts interpret and apply language of
§ 924(e) in determining whether crime constitutes violent felony).
Accordingly, we affirm.
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2
Because these three convictions alone triggered ACC status, we need not
determine whether the escape conviction also qualified as a violent felony.
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