United States v. Richard E. Thomas ( 1997 )

UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
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No. 96-3714
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri
Richard Eugene Thomas, *
* {UNPUBLISHED}
Appellant. *
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Submitted: May 20, 1997
Filed: September 2, 1997
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Before McMILLIAN, BOWMAN and MAGILL, Circuit Judges.
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PER CURIAM.
Richard Eugene Thomas pleaded guilty to possessing a firearm after having
previously been convicted three times of burglary in Arkansas, in violation of 18 U.S.C.
§§ 922(g) and 924(e)(1). The United States District Court1 for the Western District of
Missouri imposed a sentence of 188 months imprisonment, four years of supervised
release, and a $50 special assessment. Thomas appeals. His counsel filed a brief
1
The Honorable Fernando J. Gaitan, Jr., United States District Judge for the
Western District of Missouri.
pursuant to Anders v. California, 386 U.S. 738 (1967), and was granted leave to
withdraw. Thomas filed a pro se supplemental brief. For the reasons discussed below,
we affirm.
Under section 924(e), a defendant convicted of being a felon in possession of a
firearm faces a minimum term of fifteen years imprisonment if he has three prior
convictions for violent felonies. “Burglary” is included in the definition of “violent
felony.” See 18 U.S.C. § 924(e)(2)(B)(ii). The Arkansas burglary statute in effect at
the time of Thomas&s convictions provided “[a] person commits burglary if he enters
or remains unlawfully in an occupiable structure of another person with the purpose of
committing therein any offense punishable by imprisonment.” Ark. Stat. Ann.
§ 41-2002 (repl. 1977), recodified at Ark. Code Ann. § 5-39-201 (Michie 1993).
“Occupiable structure” was defined as a vehicle, building, or other structure where any
person lives or carries on a business. Ark. Stat. Ann. § 41-2001(1) (repl. 1977),
recodified at Ark. Code Ann. § 5-39-101 (1), (2) (1993).
Even though the Arkansas statute&s definition of occupiable structure--with its
inclusion of vehicles--is broader than the “generic” definition provided in Taylor v.
United States, 495 U.S. 575, 599 (1990), Thomas&s Arkansas convictions meet the
Taylor definition because the underlying criminal informations identify the structures
burglarized as an insurance company office and two residences. See United States v.
Cornelius, 931 F.2d 490, 494 (8th Cir. 1991) (finding conviction constituted generic
burglary on basis of charging document). The informations also indicate that the
burglaries occurred on different days. See United States v. McDile, 914 F.2d 1059,
1061 (8th Cir. 1990) (per curiam) (for § 924(e) purposes, prior offenses must have
occurred at different times), cert. denied, 498 U.S. 1100 (1991).
There is no merit to Thomas&s argument that, to commit a violent felony, he had
to use or carry a firearm, knife, or destructive device. Section 924(e)(2)(B) defines
violent felony in part as either a certain type of “crime punishable by imprisonment for
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a term exceeding one year, or any act of juvenile delinquency involving the use or
carrying of a firearm, knife, or destructive device.” (Emphasis added.) The plain
language of the phrase “involving the use or carrying of a firearm” modifies only “any
act of juvenile delinquency.”
Thomas&s contention that the burglary of a commercial building may not be a
predicate offense is also without merit. Neither the generic burglary definition nor the
Arkansas burglary statute distinguishes between a residence and a commercial building;
the relevant element is the unlawful entry of a structure or building. See Ark. Stat.
Ann. §§ 41-2001, -2002; Taylor, 495 U.S. at 599.
Thomas&s argument that the court was without jurisdiction over him because the
original arrest warrant was intended for another Richard Thomas is likewise without
merit. Thomas waived any challenge to personal jurisdiction when he pleaded guilty.
See United States v. Juvenile Male, 939 F.2d 321, 324 (6th Cir. 1991). Finally,
Thomas&s claims of ineffective assistance of counsel are more appropriately resolved
in 28 U.S.C. § 2255 proceedings. See United States v. Logan, 49 F.3d 352, 361 (8th
Cir. 1995).
Having carefully reviewed the record, we find no other nonfrivolous issue for
appeal. See Penson v. Ohio, 488 U.S. 75, 80 (1988).
Accordingly, we affirm.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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