United States v. Keldron Carlton ( 2010 )


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  •                       United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 09-3866
    ___________
    United States of America,                *
    *
    Appellee,                   *
    * Appeal from the United States
    v.                                 * District Court for the
    * Eastern District of Arkansas.
    Keldron L. Carlton,                      *
    * [UNPUBLISHED]
    Appellant.                  *
    ___________
    Submitted: June 18, 2010
    Filed: July 20, 2010
    ___________
    Before MELLOY, BOWMAN, and SMITH, Circuit Judges.
    ___________
    PER CURIAM.
    After Keldron L. Carlton pleaded guilty to being a felon in possession of a
    firearm, in violation of 
    18 U.S.C. § 922
    (g)(1), the district court1 found that he had
    three violent felonies within the meaning of the Armed Career Criminal Act (ACCA),
    and sentenced him to the ACCA’s mandatory minimum of 180 months in prison. In
    this appeal, Carlton argues that (1) his Arkansas felony conviction for fleeing was not
    a violent felony as defined under the ACCA; (2) his two burglary convictions should
    not have been counted as separate offenses for purposes of the ACCA, because they
    1
    The Honorable J. Leon Holmes, Chief Judge, United States District Court for
    the Eastern District of Arkansas.
    occurred during one episode and were not interrupted by an intervening arrest; and (3)
    his counsel was ineffective. For the following reasons, we affirm.
    First, Carlton’s fleeing conviction is a “violent felony” under the ACCA. He
    was convicted under an Arkansas statute that makes it a felony to flee from a law
    enforcement officer by means of any vehicle or conveyance directly resulting in
    serious physical injury to any person. This conduct presents a serious potential risk
    of physical injury, is purposeful, and is necessarily and typically aggressive and
    violent. See United States v. Richardson, 
    581 F.3d 824
    , 824-25 (8th Cir. 2009) (per
    curiam) (Kansas statute making it felony to be involved in motor vehicle accident
    when fleeing or attempting to elude police is “crime of violence” pursuant to U.S.S.G.
    § 4B1.2(a); statute categorically involves substantial risk of physical injury in ordinary
    case and is purposeful conduct that falls within “otherwise” clause of § 4B1.2(a)),
    cert. denied, 
    130 S. Ct. 1538
     (2010); United States v. Hudson, 
    577 F.3d 883
    , 884-87
    (8th Cir. 2009) (Missouri statute making it felony to resist arrest by fleeing in such
    manner as to create substantial risk of serious physical injury or death to any person
    is “crime of violence” under § 4B1.2(a); conduct involves serious potential risk of
    injury to another, is purposeful, and involves violent and aggressive conduct), cert.
    denied, 
    130 S. Ct. 1310
     (2010); see also United States v. Williams, 
    537 F.3d 969
    , 971
    (8th Cir. 2008) (Eighth Circuit has never recognized distinction between “crime of
    violence” and “violent felony”).
    Second, the two burglary convictions were properly counted separately under
    the ACCA, because they were committed months apart. See United States v. Mason,
    
    440 F.3d 1056
    , 1057-58 (8th Cir. 2006) (criminal episodes underlying convictions
    trigger ACCA). Finally, the ineffective-assistance claim should be raised in 
    28 U.S.C. § 2255
     proceedings, not in this direct criminal appeal. See United States v. Ramirez-
    Hernandez, 
    449 F.3d 824
    , 826-27 (8th Cir. 2006). Accordingly, we affirm.
    ______________________________
    -2-
    

Document Info

Docket Number: 09-3866

Judges: Melloy, Bowman, Smith

Filed Date: 7/20/2010

Precedential Status: Non-Precedential

Modified Date: 11/5/2024