U.S. v. Painter, No. 03-3484.

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: Loken
• Citation: 400 F.3d 1111
• Parties: UNITED STATES of America, Plaintiff — Appellee, v. Larry B. PAINTER, Defendant — Appellant.
• Docket Number: No. 03-3484.
• Decision Date: 24 March 2005

Page 1111

400 F.3d 1111 UNITED STATES of America, Plaintiff — Appellee,
v.
Larry B. PAINTER, Defendant — Appellant. No. 03-3484. United States Court of Appeals, Eighth Circuit. Submitted: September 16, 2004. Filed: March 24, 2005.

Jason Coatney, Springfield, MO, for appellant.

Philip M. Koppe, Asst. U.S. Atty., Kansas City, MO, (Todd P. Graves, U.S. Atty., on the brief), for appellee.

Before LOKEN, Chief Judge, BEAM and SMITH, Circuit Judges.

LOKEN, Chief Judge.

Larry Painter is a previously convicted felon who pleaded guilty to firearm possession offenses in violation of 18 U.S.C. §§ 922(g)(1) and (3). The district court¹ found that Painter had three prior violent felony convictions and imposed the minimum fifteen-year prison sentence mandated by 18 U.S.C. § 924(e)(1). Painter appeals, arguing that the court erred in ruling that a prior California burglary conviction was a violent felony as defined in 18 U.S.C. § 924(e)(2)(B). We conclude that the district court properly imposed the mandatory minimum fifteen-year sentence. This conclusion means that we need not address the additional Guidelines sentencing issues Painter raises on appeal. In addition, because the sentence is mandated by statute, it is free of error under the Supreme Court's recent decision in Booker v. United States, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Accordingly, we affirm.

The Governing Legal Rule. The Armed Career Criminal Act of 1984, as amended in 1986, imposes a mandatory minimum fifteen-year prison sentence if a federal

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firearm offender has three prior "violent felony" convictions. The Act defines violent felony as an offense punishable by imprisonment for more than one year if it:

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

18 U.S.C. § 924(e)(2)(B) (emphasis added). Burglary is not now defined in the statute. The 1986 amendments repealed a provision in the 1984 Act that defined burglary. See 18 U.S.C. app. § 1202(c)(9) (1985).

The Supreme Court took up this definitional void in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Noting that repeal of the 1984 definition "may have been an inadvertent casualty of a complex drafting process," 495 U.S. at 589-90, 110 S.Ct. 2143, the Court declined to look to the various state law definitions of burglary because that would result in a lack of uniformity in federal sentencing. Under this approach, the Court explained, "a person imprudent enough to shoplift or steal from an automobile in California would be found ... to have committed a burglary constituting a `violent felony' for enhancement purposes — yet a person who did so in Michigan might not." 495 U.S. at 591, 110 S.Ct. 2143. The Court also rejected the traditional common law definition of burglary, which includes the elements of breaking and entering at night, because it is narrower than the array of property offenses that Congress intended to include. Instead, concluding that Congress intended to include burglary in "the generic sense in which the term is now used in the criminal codes of most States," 495 U.S. at 598, 110 S.Ct. 2143, the Court held that burglary within the meaning of § 924(e)(2)(B)(ii) is "any crime ... having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime." 495 U.S. at 599, 110 S.Ct. 2143.

The Court then took up the question whether a prior burglary conviction may ever be counted as a "violent felony" if the state statute defined the offense to include conduct that falls outside the Court's definition of generic burglary, such as entering and stealing from a parked automobile. The Court held "that an offense constitutes `burglary' for purposes of a § 924(e) sentence enhancement if either its statutory definition substantially corresponds to `generic' burglary, or the charging paper and jury instructions actually required the jury to find all the elements of generic burglary in order to convict." 495 U.S. at 602, 110 S.Ct. 2143. However, the Court emphasized that this "categorical approach" precludes the federal sentencing court from undertaking a broad inquiry into the facts underlying the prior burglary conviction. Like other circuits, we have extended this principle to convictions based on guilty pleas where the statute included non-generic forms of burglary but the charging paper and the defendant's guilty plea confirm that the offense fell within Taylor's definition of generic burglary. See United States v. Demint, 74 F.3d 876, 877 (8th Cir.1996). The Supreme Court recently agreed "that Taylor's reasoning controls the identification of generic convictions following [guilty] pleas, as well as convictions on verdicts, in States with nongeneric offenses." Shepard v. United States, ___ U.S. ___, 125 S.Ct. 1254, ___, ___ L.Ed2d ___ (2005).

The Issue in This Case. The prior conviction at...