United States v. Robert J. Lacher

Eighth Circuit

United States v. Robert J. Lacher

131 F. App'x 497

CourtCourt of Appeals for the Eighth Circuit

DecidedApril 13, 2005

Docket04-3570

StatusUnpublished

This text of 131 F. App'x 497 (United States v. Robert J. Lacher) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States v. Robert J. Lacher, 131 F. App'x 497 (8th Cir. 2005).

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Opinion

PER CURIAM.

In this direct criminal appeal, Robert Lacher challenges the sentence the district court 1 imposed after he pleaded guilty to a felon-in-possession charge. He argues that (1) Blakely v. Washington, — U.S. --, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), precluded the district court from finding that his second-degree burglary conviction of a commercial building was a crime of violence; and (2) the conviction is not a crime of violence, and this court should revisit United States v. Hascall, 76 F.3d 902 (8th Cir.) (holding burglary of commercial structure is crime of violence), cert. denied, 519 U.S. 948, 117 S.Ct. 358, 136 L.Ed.2d 250 (1996).

These arguments fail. During the pendency of this appeal, the Supreme Court held in United States v. Booker, — U.S.-, 125 S.Ct. 738, 756, 765-67, 160 L.Ed.2d 621 (2005), that the reasoning in Blakely applies to the federal Sentencing Guidelines, and therefore that “any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty ... must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” Thus, the Court reaffirmed that, consistent with the Sixth Amendment, a court may find the fact of a prior conviction, see id. at 756, and the fact of a prior conviction includes the determination whether the conviction is of a type that enhances the defendant’s sentence, see United States v. Kempis-Bonola, 287 F.3d 699, 703 (8th Cir.2002). We also find that the court properly determined that Lacher’s conviction was a “crime of violence,” see Hascall, 76 F.3d at 904 (second-degree burglary of commercial building “involves conduct that presents a serious potential risk of physical injury to another” and is therefore a crime of violence), and only this court en banc may *499 revisit its holding in Hascall, see United States v. Yell, 18 F.3d 581, 583 (8th Cir. 1994). Lacher raises no argument based on Booker that the sentence imposed was unreasonable.

Accordingly, we affirm.

1

. The Honorable Richard E. Dorr, United States District Judge for the Western District of Missouri.

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PER CURIAM.

In this direct criminal appeal, Robert Lacher challenges the sentence the district court 1 imposed after he pleaded guilty to a felon-in-possession charge. He argues that (1) Blakely v. Washington, — U.S. --, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), precluded the district court from finding that his second-degree burglary conviction of a commercial building was a crime of violence; and (2) the conviction is not a crime of violence, and this court should revisit United States v. Hascall, 76 F.3d 902 (8th Cir.) (holding burglary of commercial structure is crime of violence), cert. denied, 519 U.S. 948, 117 S.Ct. 358, 136 L.Ed.2d 250 (1996).

These arguments fail. During the pendency of this appeal, the Supreme Court held in United States v. Booker, — U.S.-, 125 S.Ct. 738, 756, 765-67, 160 L.Ed.2d 621 (2005), that the reasoning in Blakely applies to the federal Sentencing Guidelines, and therefore that “any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty ... must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” Thus, the Court reaffirmed that, consistent with the Sixth Amendment, a court may find the fact of a prior conviction, see id. at 756, and the fact of a prior conviction includes the determination whether the conviction is of a type that enhances the defendant’s sentence, see United States v. Kempis-Bonola, 287 F.3d 699, 703 (8th Cir.2002). We also find that the court properly determined that Lacher’s conviction was a “crime of violence,” see Hascall, 76 F.3d at 904 (second-degree burglary of commercial building “involves conduct that presents a serious potential risk of physical injury to another” and is therefore a crime of violence), and only this court en banc may *499 revisit its holding in Hascall, see United States v. Yell, 18 F.3d 581, 583 (8th Cir. 1994). Lacher raises no argument based on Booker that the sentence imposed was unreasonable.

Accordingly, we affirm.

1

. The Honorable Richard E. Dorr, United States District Judge for the Western District of Missouri.

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131 F. App'x 497, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-robert-j-lacher-ca8-2005.

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