United States v. Jerry Brown

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-1027
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Jerry N. Brown, *
* [UNPUBLISHED]
Appellant. *
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Submitted: April 23, 2009
Filed: April 24, 2009
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Before BYE, COLLOTON, and GRUENDER, Circuit Judges.
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PER CURIAM.
Jerry Brown appeals the 180-month prison term the district court1 imposed after
he pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2), (e)(1), and (e)(2)(B). The district court sentenced Brown
as an armed career criminal under 18 U.S.C. § 924(e) and U.S.S.G. § 4B1.4 based on
his Missouri convictions for burglary, first degree sexual abuse, and manufacturing
marijuana. Brown’s counsel has moved to withdraw and has filed a brief under
1
The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.
Anders v. California, 386 U.S. 738 (1967), in which he presents Brown’s argument
that the court erred in sentencing him as an armed career criminal.
We review de novo whether a prior conviction qualifies as a violent felony or
serious drug offense under § 924(e). See United States v. Armstrong, 554 F.3d 1159,
1163 (8th Cir. 2009) (violent felony); United States v. Mason, 440 F.3d 1056, 1057
(8th Cir. 2006) (serious drug offense). After careful review, we conclude that the
district court correctly determined that Brown had three qualifying felonies under §
924(e).
First, Brown’s Missouri conviction for burglary qualified as a violent felony
under § 924(e). See 18 U.S.C. § 924(e)(2)(B) (“violent felony” means any crime
punishable by imprisonment for term exceeding one year that “has as an element the
use, attempted use, or threatened use of physical force against the person of another,”
or that “is burglary, arson, or extortion, involves use of explosives, or otherwise
involves conduct that presents a serious potential risk of physical injury to another”);
Mo. Rev. Stat. §§ 569.170(1) (1978) (person commits crime of burglary in second
degree when he knowingly and unlawfully enters building for purpose of committing
crime therein), 558.011 (authorized term of imprisonment for class C felony is term
of years not to exceed 7 years); Taylor v. United States, 495 U.S. 575, 599 (1990)
(person has been convicted of burglary for purposes of § 924(e) enhancement if he is
convicted of any crime, regardless of its exact definition or label, having basic
elements of unlawful or unprivileged entry into, or remaining in, building or structure,
with intent to commit crime); United States v. Bell, 445 F.3d 1086, 1090-01 (8th Cir.
2006) (district court correctly concluded that appellant’s prior commercial burglary
conviction was for entering building, which is “generic burglary” under Taylor, and
therefore crime of violence under Guidelines); see also 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”).
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Second, Brown’s Missouri conviction for first degree sexual abuse also
qualified as a violent felony under § 924(e), because the statute of conviction had as
an element the use of physical force against another person. See Mo. Rev. Stat.
§§ 566.100 (1986) (person commits crime of sexual abuse in first degree if he subjects
another person to sexual contact without that person’s consent by use of forcible
compulsion; sexual abuse in first degree is class D felony), 558.011 (authorized term
of imprisonment for class D felony is term of years not to exceed 5 years).
Finally, Brown’s Missouri conviction for manufacturing marijuana qualified as
a serious drug offense under § 924(e). See 18 U.S.C. § 924(e)(2)(A)(ii) (“serious drug
offense” means offense under state law involving manufacturing, distributing, or
possessing with intent to manufacture or distribute controlled substance, for which law
provides maximum term of imprisonment of 10 years or more); Mo. Rev. Stat.
§§ 195.020 (1986) (it is unlawful for any person to manufacture . . . any controlled or
counterfeit substance”), 195.200 (maximum term of imprisonment for violating “any
provision of this chapter” is 20 years).
After reviewing the record independently under Penson v. Ohio, 488 U.S. 75,
80 (1988), we find no nonfrivolous issues. Accordingly, we grant counsel leave to
withdraw, and we affirm.
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