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Unpublished
Unpublished
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
Robert E. Payne, District
Judge. (3:05-cr-00173-REP)
Argued:
Decided:
PER CURIAM:
Timothy M. Williams appeals his 210-month sentence following
his guilty plea to possession of a firearm by a convicted felon.
Williams
contends
that
the
district
court
erred
in
its
I.
Williams pleaded guilty to possession of a firearm by a
convicted felon, in violation of 18 U.S.C.A. 922(g)(1) (West
2000).
II.
The ACCA provides:
In the case of a person who violates section 922(g) of
this title and has three previous convictions . . . for
a violent felony or serious drug offense or both,
committed on occasions different from one another, such
person shall be fined under this title and imprisoned not
less than fifteen years . . . .
18 U.S.C. 924(e)(1).
enhance
sentence
based
on
facts
not
included
in
the
district
court
properly
foreclosed by precedent.
rejected
this
argument
as
523 U.S. 224, 243 (1998), the Supreme Court held that when seeking
a sentencing enhancement based on a prior conviction the Government
"need not allege a defendant's prior conviction in the indictment
or information that alleges the elements of an underlying crime.
In Apprendi v. New Jersey, 530 U.S. 466, 489 (2000), the Court
reaffirmed
exempted
the
from
conviction."
holding
the
of
rule
Almendarez-Torres,
in
Apprendi
"the
and
fact
specifically
of
prior
though
it
is
arguable
that
Almendarez-Torres
was
incorrectly
Most
In United States v.
Thompson, 421 F.3d 278, 281 (4th Cir. 2005), as here, the defendant
argued that "the Supreme Court's recent Sixth Amendment rulings
prohibit[ed] sentencing him under ACCA unless a jury finds (or he
admits) the facts required by the statute."1
In rejecting this
Id.
Id. at 282.
III.
Williams also contends that the Government failed to prove the
existence of three qualifying predicate felonies under the ACCA
using Shepard-approved sources.
from
[other
offenses]."
18
U.S.C.
924(e)(1).
prior
conviction
properly
serves
as
predicate
In accord with
Id.
If the felony of
However,
determining
whether
the
prior
convictions
arise
from
whether
locations,
the
(ii)
offenses
whether
occurred
the
in
nature
different
of
the
geographic
offenses
was
Letterlough, 63
A.
Williams first argues that the Government did not prove that
his burglaries constituted "violent felon[ies]" under the ACCA. In
Taylor, the Supreme Court held that "a person has been convicted of
burglary for purposes of a 924(e) enhancement if he is convicted
of any crime, regardless of its exact definition or label, having
the basic elements of unlawful or unprivileged entry into, or
remaining in, a building or structure, with intent to commit a
crime."
sentencing
court
can
look
to
an
indictment,
jury
satisfied
the
elements
of
generic
burglary.
At
Theresa
Smith,
with
intent
to
commit
larceny,"
and
the
using
only
Shepard-approved
sources,
that
the
occurred on the same day, the jury instructions and verdict forms
refer separately to the "property" or "dwelling" of Sylvia Coleman
and the "property" or dwelling" of Theresa Smith.
We need not
B.
Williams next contends that larceny from the person does not
qualify as a "violent felony" under the ACCA because the crime, as
defined by Virginia law, does not include as an element the use,
attempted use, or threatened use of physical force, as required by
the ACCA.
enhancement
under
the
Sentencing Guidelines.
career
offender
guideline
of
the
U.S.
We noted
offense
can
qualify
as
crime
of
violence
only
Thus,
if
it
physical
4B1.2(a)(2)).
injury
to
another.'"
Id.
(quoting
U.S.S.G.
Accordingly, we see no
reason why the logic in Smith should not extend to the ACCA.
Thus,
10
C.
Finally, Williams argues that based on the evidence in the
record, the sentencing court could not conclude that his two
robbery convictions qualify as "violent felon[ies]" under the ACCA.
Robbery in Virginia requires "the taking, with intent to steal, of
the personal property of another, from his person or in his
presence, against his will, by violence or intimidation." Presley,
52 F.3d at 69 (citing Hoke v. Commonwealth, 237 Va. 303, 310, 377
S.E.2d 595, 599, cert. denied, 491 U.S. 910 (1989)).
Williams
from
that
the
defendant
sentencing
convicted
under
court
Virginia's
may
not
robbery
11
any
violation
of
Virginia's
robbery
statute
necessarily
Nothing in
Thus, Williams's
IV.
For the foregoing reasons, the judgment of the district court
is
AFFIRMED.