United States v. Alfred Walker

497 F. App'x 676

Opinion

PER CURIAM.

Alfred Walker appeals from the sentence of 180 months’ imprisonment that the district court 1 imposed on him after he pleaded guilty to being a felon in possession of a firearm. See 18 U.S.C. § 922(g)(1). Mr. Walker maintains that the district court erred when it enhanced his sentence for being an armed career criminal under 18 U.S.C. § 924(e), which in relevant part provides for a sentence enhancement in his case if he had already been convicted of two offenses that are “burglary ... or [a crime that] otherwise involves conduct that presents a serious potential risk of physical injury to another.” Id. at § 924(e)(2)(B)(ii).

Mr. Walker argues that the so-called “otherwise” or residual clause of § 924(e)(2)(B)(ii) is unconstitutionally vague, but the Supreme Court has already rejected this argument. See James v. United States, 550 U.S. 192, 210 n. 6, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007); see also United States v. Childs, 403 F.3d 970, 972 (8th Cir.2005), cert. denied, 546 U.S. 954, 126 S.Ct. 466, 163 L.Ed.2d 354 (2005). The residual clause is irrelevant to this case anyway, since Mr. Walker’s enhancement was based on convictions for second-degree burglary under Mo.Rev.Stat. § 569.170, and we have held that the offense described in this statute is “burglary” within the meaning of 18 U.S.C. § 924(e)(2)(B)(ii), so long as the burglary is of a “ ‘building or structure.’ ” See United States v. Bell, 445 F.3d 1086, 1090-91 (8th Cir.2006) (quoting Taylor v. United States, 495 U.S. 575, 599, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) (emphasis added in Bell)). Mr. Walker has admitted that the burglaries for which he was convicted were of buildings, and the residual clause is therefore out of the case.

Affirmed.

1 . The Honorable Howard F. Sachs, United States District Judge for the Western District of Missouri.