U.S. v. Vincent, 07-1397.
Decision Date | 05 March 2008 |
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 |
Omar Greene, AFPD, argued, Little Rock, AR, for appellant.
Edward O. Walker, AUSA, argued, Little Rock, AR, for appellee.
Before LOKEN, Chief Judge, GRUENDER and BENTON, Circuit Judges.
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 The ACCA establishes a minimum sentence of 180 months where the defendant has three prior violent felonies. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.
Vincent and his son were asked to leave, or were escorted out of, a night club in Little Rock. They left but returned with handguns in their waistbands, threatening to kill several employees. Police were called. Vincent again left the club. Police stopped his vehicle. During a search of the vehicle, police recovered a .45 caliber handgun.
Vincent had three previous felony convictions. At issue is his prior conviction for criminal use of a prohibited weapon on November 21, 1994, under Ark.Code Ann. § 5-73-104 (1987). This conviction involved his use of a sawed-off shotgun. The presentence investigation report considered this 1994 conviction a violent felony under 18 U.S.C. § 924(e)(2)(B).
Vincent objected only that the 1994 conviction was not a violent felony. The district court decided 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 18 U.S.C. § 924(e)(2)(B)(ii). This section defines a violent felony as a crime that is punishable for a period of more than a year that "involves conduct that presents a serious potential risk of physical injury to another."
United States Sentencing Guidelines § 4B1.4(b)(3)(A) addresses armed career criminals and refers to a "firearm" as "a type described in 26 U.S.C. § 5845(a)." Therefore, Vincent contends that the ACCA is triggered only if a prior conviction involving a sawed-off shotgun meets the federal definition of a sawed-off shotgun in 26 U.S.C. § 5845. Cf. United States v. Allegree, 175 F.3d 648, 651 (8th Cir.1999) ( ); United States v. Childs, 403 F.3d 970, 971 (8th Cir.2005) ( ). This federal statute 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, 266, 801 S.W.2d 638, 642 (1990) ().
Vincent's argument is off point. As relevant here, the ACCA applies when a prior conviction is for a crime that "otherwise involves conduct that presents a serious potential risk of physical injury." In United States v. McCall, 439 F.3d 967 (8th Cir.2006) (en banc), this court construed the "otherwise involves" language by analyzing a crime to determine if its elements involved or described conduct that entail a "serious potential risk of physical injury." McCall at 970, quoting United States v. Montgomery, 402 F.3d 482, 488 (5th Cir. 2005).
This court must determine if one element of Vincent's 1994 conviction is a serious risk of physical injury....
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