U.S. v. Vincent

• Decision Date: 14 August 2009
• Docket Number: No. 07-1397.,07-1397.
• Parties: UNITED STATES of America, Appellee, v. Joe Eugene VINCENT, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

575 F.3d 820

UNITED STATES of America, Appellee, v. Joe Eugene VINCENT, Appellant.

No. 07-1397.

United States Court of Appeals, Eighth Circuit.

Submitted: August 3, 2009.

Filed: August 14, 2009.

Angela L. Pitts, AFPD, Fayetteville, AR, for appellant.

Edward O. Walker, AUSA, Little Rock, AR, for appellee.

Before LOKEN, Chief Judge, GRUENDER and BENTON, Circuit Judges.

BENTON, Circuit Judge.

Joe Eugene Vincent pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). He challenges the use of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), in his sentencing by the district court.¹ Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

I.

Before this case Vincent had three felony convictions. The ACCA imposes a mandatory minimum sentence if the defendant has "three previous convictions by any court ... for a violent felony...." 18 U.S.C. § 924(e)(1). At issue is Vincent's 1994 conviction for possession of a sawed-off shotgun under Ark.Code Ann. § 5-73-104 (1987). The Pre-Sentence Report considered this conviction a "violent felony" under 18 U.S.C. § 924(e)(2)(B).

Vincent objected that the 1994 conviction was not a violent felony. The district court concluded that there was not enough information to show the gun met the federal definition of a sawed-off shotgun. However, the court determined there was sufficient information to show the "conviction involved conduct that by its nature presented a serious risk of physical injury to another." United States v. Vincent, 2007 WL 473691, at *2 (E.D.Ark. Feb.7, 2007). The court overruled Vincent's objection, applied the ACCA, and sentenced him to 188 months.

This court reviews de novo the finding that a defendant's prior conviction constitutes a violent felony. United States v. Sumlin, 147 F.3d 763, 765 (8th Cir. 1998).

The only issue is whether the 1994 conviction is a violent felony under the ACCA. A "violent felony" means a crime punishable by a term of imprisonment exceeding one year 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." 18 U.S.C. § 924(e)(2)(B)(ii). As possession of a saw-off shotgun is not specifically listed, it is a violent felony only if it involves conduct that presents a serious potential risk of physical injury to another.

Both at the district court and on appeal, Vincent contends that the 1994 conviction can be an ACCA violent felony only if the sawed-off shotgun meets the federal definition of a sawed-off shotgun in 26 U.S.C. § 5845. Section 5845(a) defines a sawed-off shotgun by the barrel length or overall length of the gun. See 26 U.S.C. § 5845(a)(2). At the time of the conviction, Arkansas law prohibited any sawed-off gun, regardless of length. See Moore v. State, 304 Ark. 257, 801 S.W.2d 638, 642 (1990) ("[T]he extent to which [the barrel of the shotgun] had been shortened is not relevant to this prosecution"). Vincent concludes that the § 5845(a) standard should be read into the ACCA statute, even though the ACCA statute does not refer to § 5845(a). Cf. United States v. Allegree, 175 F.3d 648, 651 (8th Cir.1999) (ACCA applied to conviction for possession of a sawed-off shotgun whose length met 26 U.S.C. § 5845 — although this section was not cited or discussed in the opinion); United States v. Childs, 403 F.3d 970, 971 (8th Cir.2005) (ACCA applied to juvenile conviction for possession of a sawed-off shotgun; neither the length of the gun nor 26 U.S.C. § 5845 were cited or discussed in the opinion).

True, Sentencing Guideline § 4B1.4(b)(3)(A) — on armed career criminals — refers to a "firearm" as "a type described in 26 U.S.C. § 5845(a)." Section 4B1.4 implements 18 U.S.C. § 924(e) into the Sentencing Guidelines. "If the offense level determined under this section [U.S.S.G. § 4B1.4] is greater than the offense level otherwise applicable, the offense level determined under this section shall be applied." U.S.S.G. § 4B1.4 cmt. background. Section 4B1.4 does not apply in this case.

This court rejected Vincent's challenge in an earlier appeal. United States v. Vincent, 519 F.3d 732 (8th Cir.2008). As the court noted, the issue is not whether the 1994 shotgun meets the § 5845 standard, but whether the prior "conviction is for a crime that `otherwise involves conduct that presents a serious potential risk of physical injury.'" Id. at 733.

The Arkansas statute under which Vincent was convicted prohibited the possession of any "sawed-off shotgun or rifle, ... or other implement for the infliction of serious physical injury or death which serves no common lawful purpose." Ark. Code Ann. § 5-73-104(a) (amended 1993). At first glance, the "serious physical injury" phrase might not appear to modify "shotgun." However, the Arkansas Supreme Court has held that a conviction for use of each prohibited weapon listed in the statute — including a sawed-off shotgun — has the element that the weapon "will inflict serious physical injury or death and serves no lawful purpose." Bridges v. State, 327 Ark. 392, 938 S.W.2d 561, 563 (1997). This court concluded that the sawed-off shotgun conviction was a crime of violence, irrespective of the § 5845 standard. Vincent, 519 F.3d at 734.

II.

The Supreme Court vacated this court's earlier opinion in this case and remanded for further proceedings in light of Begay v. United States, 553 U.S. ___, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), and Chambers v. United States, 555 U.S. ___, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009). Vincent v. United States, ___ U.S. ___, 129 S.Ct. 996, 173 L.Ed.2d 289 (2009). Both cases interpret the "otherwise" clause of § 924(e). Begay held that the clause does not include the state-law offense of driving under the influence. Begay, 128 S.Ct. at 1588. The "otherwise" clause in the ACCA's definition of crime of violence "covers only those crimes `roughly similar, in kind as well as in degree of risk posed, to the examples themselves.'" United States v. Gordon, 557 F.3d 623, 625 (8th Cir.2009), quoting Begay, 128 S.Ct. at 1585. "The Begay Court elucidated the similar-in-kind requirement by noting the examples `all typically involve purposeful, violent, and aggressive conduct.'" Id., quoting Begay, 128 S.Ct. at 1586.

In Chambers, the Supreme Court concluded that the state-law crime of failing to report for confinement is not a violent felony under the ACCA. Chambers, 129 S.Ct. at 693. The Court noted that this "crime amounts to a form of inaction, a far cry from the purposeful, violent, and aggressive conduct potentially at issue when an offender uses explosives against property, commits arson, burgles a dwelling or residence, or engages in certain forms of extortion." Id. at 692 (quotations omitted).

A.

"In determining whether this crime is a violent felony, we consider the offense generically, that is to say, we examine it in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion." United States v. Boaz, 558 F.3d 800, 807 (8th Cir.2009), quoting Begay, 128 S.Ct. at 1584. "When the law defines an offense by proscribing several discrete, alternative sets of elements that might be shown as different manners of committing the offense, we employ the modified categorical approach that permits examination of a limited class of materials to determine which set of elements the defendant was found to have violated." Id. This class of materials includes the "charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented." Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005).

Here, the Arkansas statute bans "Criminal Use of a Prohibited Weapon":

A person commits the offense of criminal use of prohibited weapons if, except as authorized by law, he or she uses, possesses, makes, repairs, sales, or otherwise deals in any:

(1). Bomb;

(2). Machine gun;

(3). Sawed-off shotgun or rifle;

(4). Firearm specially made or specially adapted for silent discharge;

(5). Metal knuckles; or

(6). Other implement for the infliction of serious physical injury or death.

Ark.Code Ann. § 5-73-104 (1987). "If the predicate statute reaches a broad range of conduct, this court may expand the inquiry to review the charging papers and jury instructions, but only to determine which part of the statute the defendant violated." United States v. Howell, 531 F.3d 621, 622-23 (8th Cir.2008).

Vincent pled guilty that he did "use, possess, or otherwise deal in" a sawed-off shotgun. Throughout this litigation, all participants, including Vincent, have characterized the disputed conviction as possession of a sawed-off shotgun. The facts of the PSR, to which Vincent did not object, are that he "was in possession of a stolen vehicle" and "a sawed off shotgun was found sitting on the front passenger seat." Objecting to the PSR, Vincent acknowledged a conviction for possession, but argued the weapon's barrel length was never proved.² Overruling the objection, the district court observed "the Court received into evidence, without objection, the criminal docket of the case that resulted in Vincent's conviction for possessing a sawed-off shotgun." At sentencing, the district court described the prior offense as "possession of a sawed-off shotgun." Vincent's appellate Brief refers to the § 5-73-104 conviction as "possession of a `sawed-off shotgun'...." His supplemental Brief, filed after the Supreme Court's remand, states that "what is truly at issue is whether possession of a sawed-off shotgun qualifies as a violent felony under the ACCA."

Absent any prior objection or argument to the contrary, at this stage of litigation any assertion that Vincent was not convicted for possessing a sawed-off shotgun must receive plain error review. Fed.R.Crim.P. 52(b)....