United States v. Trevon Sykes , 844 F.3d 712 ( 2016 )

United States Court of Appeals
For the Eighth Circuit
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No. 14-3139
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Trevon Sykes
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: September 25, 2015
Filed: December 21, 2016
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Before LOKEN, BEAM, and SHEPHERD, Circuit Judges.
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SHEPHERD, Circuit Judge.
Trevon Sykes pled guilty to being a felon in possession of numerous firearms
in violation of 18 U.S.C. § 922(g)(1). Finding that Sykes had committed three
predicate offenses qualifying as violent felonies under the Armed Career Criminal
Act (“ACCA”), 18 U.S.C. § 924(e), the district court1 sentenced Sykes to 180 months
in prison and a three-year term of supervised release. Sykes appealed his sentence,
raising issues related to the nature of his predicate offenses coupled with his age at
the time of the commission of these offenses. We affirmed.
The United States Supreme Court granted Sykes’s petition for writ of certiorari,
vacated the judgment, and remanded the case for further consideration in light of its
decision in Mathis v. United States, 136 S. Ct. 2243 (2016). In Mathis, the Court
held “when a statute, instead of merely laying out a crime’s elements, lists alternative
means of fulfilling one (or more)” elements, the sentencing court commits error by
“applying the modified categorical approach to determine the means by which [the
defendant] committed his prior crimes” in order to determine whether the ACCA
enhancement applies. Id. at 2253. After following the Supreme Court’s directive, we
again affirm Sykes’s sentence.
I.
On May 23, 2013, Sykes and Charles Sacus arrived at a tattoo parlor in St.
Louis, Missouri. Unbeknownst to Sykes and Sacus, the proprietors of the tattoo
parlor were undercover agents with the Bureau of Alcohol, Tobacco, Firearms and
Explosives (“ATF”). As a cover, the agents posed as convicted felons who were
buying guns for unlawful use by an outlaw motorcycle gang. While at the tattoo
parlor, Sykes handed a Hi-Point .45 caliber semi-automatic pistol to Sacus, which
Sacus sold to the undercover agents for $500. Sykes admitted to the undercover
agents that he had recently been released from prison, the pistol belonged to him, and
he had more guns for sale.
1
The Honorable Audrey G. Fleissig, United States District Judge for the
Eastern District of Missouri.
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Over the following weeks, Sykes sold five firearms, two of which were stolen,
to the undercover agents. All of the transactions were recorded with audio and video.
ATF experts examined the firearms and determined that they functioned as designed
and were manufactured outside the state of Missouri.
A federal grand jury indicted Sykes for being a felon in possession of numerous
firearms from May 23, 2013 to June 6, 2013, in violation of 18 U.S.C § 922(g)(1).
Sykes entered a plea agreement and pled guilty. The United States Probation Office
issued a presentence investigation report (“PSR”), which stated that Sykes had three
prior convictions that were crimes of violence and violent felonies. Specifically,
certified court records established that Sykes previously was convicted of: (1) two
counts of second-degree burglary by knowingly and unlawfully entering a building
in St. Louis County in 2010; (2) second-degree burglary by knowingly and unlawfully
entering a building and felony stealing in St. Louis County in 2010; (3) three counts
of possession of a controlled substance in St. Louis County in 2010; and (4) first-
degree burglary in St. Louis City in 2010. Each of these prior convictions is a felony
punishable by a term of imprisonment exceeding one year. As a result of Sykes
having three violent felony convictions and one serious drug offense, the PSR
classified him as an Armed Career Criminal subject to a mandatory minimum
sentence of 180 months pursuant to the ACCA.
Sykes objected to his classification as an Armed Career Criminal, asserting that
because the second-degree burglaries were of unoccupied commercial buildings and
were nonviolent, and in view of his youth at the time of the commission of the
burglaries, the offenses should not count as predicate convictions under the ACCA.
The district court rejected these arguments, noting that Sykes was certified as an adult
for each of his prior convictions and the two offenses to which Sykes objected
qualified as violent felonies under Eighth Circuit law.
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II.
On appeal, Sykes first argues that his two prior convictions for second-degree
burglary do not qualify as violent felonies for the purposes of § 924(e) because the
Missouri second-degree burglary statute is overbroad and Sykes burgled unoccupied
commercial buildings. Second, Sykes asserts that he incurred the prior convictions
when he was under the age of 18, and therefore using them to enhance his sentence
to a mandatary minimum of fifteen years constitutes cruel and unusual punishment
under the Eighth Amendment. We address each argument in turn.
A.
First, Sykes contends that the district court erred in finding that his prior
second-degree burglary convictions qualify as violent felonies for purposes of
§ 924(e) because the second-degree burglary statute is overbroad and Sykes burgled
unoccupied commercial buildings. We review de novo whether a prior conviction
constitutes a violent felony for the purposes of § 924(e). United States v. Boaz, 558
F.3d 800, 806 (8th Cir. 2009) (citing United States v. Comstock, 531 F.3d 667, 679
(8th Cir. 2008)).
To determine whether a past conviction qualifies as a violent felony, we apply
the “categorical approach,” under which we “look only to the fact of conviction and
the statutory definition of the prior offense.” Taylor v. United States, 495 U.S. 575,
602 (1990). If the statute of conviction lists elements in the alternative, the
sentencing court may apply the “modified categorical approach,” under which “a
sentencing court looks to a limited class of documents (for example, the indictment,
jury instructions, or plea agreement and colloquy) to determine what crime, with what
elements, a defendant was convicted of.” Mathis, 136 S. Ct. at 2249 (citing Taylor,
495 U.S. at 602).
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Burglary is one of the enumerated offenses under § 924(e)(2)(B)(ii). An
offense constitutes “burglary” under § 924(e) if it contains the elements of “generic
burglary,” which is defined as “unlawful or unprivileged entry into, or remaining in,
a building or other structure, with intent to commit a crime.” Taylor, 495 U.S. at 598.
Any enhanced sentence under § 924(e) for a prior burglary conviction must “rest on
a showing that [the] prior conviction ‘necessarily’ involved . . . facts equating to
generic burglary.” Shepard v. United States, 544 U.S. 13, 24 (2005).
Under Missouri law, a person commits second-degree burglary when “he
knowingly enters unlawfully or knowingly remains unlawfully in a building or
inhabitable structure for the purpose of committing a crime therein.” Mo. Ann. Stat.
§ 569.170. Sykes argues that the statute’s definition of an “inhabitable structure” is
overbroad because it includes a “ship, trailer, sleeping car, airplane, or other vehicle
or structure.” Id. § 569.010(2). However, the statute contains at least two alternative
elements: burglary “of a building” and burglary of “an inhabitable structure,”
separated in the text by the disjunctive “or.” See Mathis, 136 S. Ct. at 2248
(“‘Elements’ are the ‘constituent parts’ of a crime’s legal definition—the things the
prosecution must prove to sustain a conviction.”) (internal quotation marks omitted).
Sykes has three Missouri state court convictions for second-degree burglary of a
“building.” At Sykes’s sentencing, the government introduced state court records of
these convictions which included the indictments. Id. at 2249 (courts employing the
“modified categorical approach” may look to “a limited class of documents (for
example, the indictment, jury instructions, or plea agreement and colloquy) to
determine what crime, with what elements, [Sykes] was convicted of.”). Sykes does
not dispute the fact of these convictions. Second-degree burglary of a building
conforms to the elements of a generic burglary promulgated in Taylor: (i) unlawful
entry or remaining in (ii) a building or structure (iii) with the intent to commit a
crime. See Taylor, 495 U.S. at 598. Further, because burglary of “a building”
describes an element of second-degree burglary rather than a means, our decision
does not run afoul of Mathis. 136 S. Ct. at 2253.
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Sykes also argues that his prior second-degree burglary convictions are not
violent felonies for purposes of the ACCA because they were of unoccupied
commercial buildings and did not pose “a serious potential risk of physical injury to
another.” Sykes draws on the language of the residual clause of § 924(e)(2)(B)(ii).
In the time since Sykes first briefed his arguments, the Supreme Court has held that
imposing an increased sentence under the residual clause of § 924(e) is
unconstitutional. Johnson v. United States, 135 S. Ct. 2551, 2563 (2015).
Nevertheless, the Court noted that its “decision does not call into question application
of the Act to the four enumerated offenses, or the remainder of the Act’s definition
of a violent felony.” Id. Therefore, because burglary is an enumerated offense under
§ 924(e)(2)(B)(ii), the imposition of an increased sentence need not rest on whether
Sykes’s conduct posed “a serious potential risk of physical injury to another.”
Indeed, the Supreme Court has rejected the notion that “Congress meant to include
as predicate offenses only a subclass of burglaries whose elements include ‘conduct
that presents a serious risk of physical injury to another,’ over and above the risk
inherent in ordinary burglaries.” Taylor, 495 U.S. at 597. “[I]f this were Congress’
intent, there would have been no reason to add the word ‘burglary’ to §
924(e)(2)(B)(ii), since that provision already includes any crime that ‘involves
conduct that presents a serious potential risk of physical injury to another.’” Id. The
Court reasoned that Congress most likely thought that certain categories of property
crimes typically present a risk of injury to persons and are “so often committed by
career criminals” that they should be enumerated in the enhancement statute. Id.
Accordingly, we conclude that Sykes’s prior second-degree burglary
convictions fit within the generic definition of “burglary” for purposes of the ACCA,
and each constitutes a violent felony under § 924(e).
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B.
Second, Sykes contends that the sentence enhancement constitutes cruel and
unusual punishment under the Eighth Amendment because he was a juvenile when
he incurred the prior convictions. We review constitutional challenges to a sentence
de novo. United States v. Bowers, 638 F.3d 616, 620 (8th Cir. 2011).
Sykes cites the Supreme Court’s decisions in Roper v. Simmons, 543 U.S. 551(2005), and Graham v. Florida, 560 U.S. 48 (2010), in support of his contention. We
have rejected the argument that in light of Roper, “application of the ACCA
enhancement to [a] sentence violates the Eighth Amendment because it results in a
sentence increase based on crimes committed . . . as a juvenile.” See United States
v. Jones, 574 F.3d 546, 553 (8th Cir. 2009). “Roper does not deal specifically—or
even tangentially—with sentence enhancement. It is one thing to prohibit capital
punishment for those under the age of eighteen, but an entirely different thing to
prohibit consideration of prior youthful offenses when sentencing criminals who
continue their illegal activity into adulthood.” Id. (internal quotation marks omitted).
Likewise, Graham does not remotely concern sentence enhancement under the ACCA
for crimes committed as a juvenile. Graham held that the Eighth Amendment
“prohibits the imposition of a life without parole sentence on a juvenile offender who
did not commit homicide.” 560 U.S. at 82. Sykes is not facing a life sentence, but
a fifteen-year sentence under § 924(e). Neither Roper nor Graham prohibits sentence
enhancement based on convictions incurred as a juvenile.
Furthermore, we have held that “the Eighth Amendment does not prohibit using
an adult conviction based on juvenile conduct to increase a sentence under the
ACCA.” Jones, 574 F.3d at 553. Sykes was certified as an adult for each of his prior
second-degree burglary convictions. Accordingly, Sykes’s sentence enhancement
under § 924(e) for crimes he committed as a juvenile does not violate the Eighth
Amendment, and the district court did not err in enhancing Sykes’s sentence.
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III.
We hold that the district court properly classified each of Sykes’s Missouri
second-degree burglary convictions as a violent felony for the purpose of enhancing
his federal sentence pursuant to the ACCA. Accordingly, we affirm Sykes’s sentence.
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