United States v. Roberts

250 F. App'x 843
CourtCourt of Appeals for the Tenth Circuit
DecidedOctober 10, 2007
Docket06-8148
StatusUnpublished
Cited by1 cases

This text of 250 F. App'x 843 (United States v. Roberts) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth 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. Roberts, 250 F. App'x 843 (10th Cir. 2007).

Opinion

ORDER AND JUDGMENT *

CARLOS F. LUCERO, Circuit Judge.

Jeffrey Kim Roberts appeals his sentence of 180 months’ imprisonment imposed following his guilty plea on charges that he was a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). In a brief filed pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Roberts’ counsel moves for leave to withdraw and raises the sole of issue of whether Roberts’ four prior burglary convictions were properly classified as “violent felonies]” under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). Because we conclude that the district court properly applied ACCA, we AFFIRM Roberts’ sentence, DISMISS the appeal, and GRANT counsel’s motion to withdraw.

I

Acting on a tip from a confidential informant that Roberts was involved in a methamphetamine distribution ring and that Roberts illegally possessed firearms, state law enforcement officers executed a search warrant at Roberts’ trailer home near Rock Springs, Wyoming, on September 15, 2005. When the officers arrived with the warrant, they found a resistant Roberts wielding what appeared to be a three-foot stick with knife blades protruding from it. Roberts initially refused to drop the homemade weapon, and the officers were forced to set off a flash-bang device so'that they could distract and detain him. Once inside the home, the officers discovered that the confidential informant was at least partially accurate in his allegations — Roberts was armed with more than a stick. He also had a .22 caliber Ruger revolver stashed near the front entryway of the home, less than an arm’s length away from where he stood when the officers first approached him. In addition to the gun, the officers’ search revealed ammunition, a loaded crossbow, multiple knives, body armor, a gun-cleaning rod, a used gun-cleaning kit, a small amount of marijuana, and drug paraphernalia. What the officers failed to locate, however, was any meaningful quantity of methamphetamine.

On November 16, 2005, a federal grand jury issued a two-count indictment against Roberts, alleging that he unlawfully possessed a firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Roberts initially pleaded not guilty to both counts, but later entered into a written plea agreement with the government in which he agreed to plead guilty to the firearms charge. In exchange for that plea, the government agreed to drop the ammunition charge.

*845 Roberts’ Presentence Report (“PSR”) calculated an initial 32-point base offense level because he was alleged to have possessed the firearm in connection with another felony offense — the distribution of 453.6 grams of methamphetamine. See U.S.S.G. §§ 2D1.1(c)(5), (b)(1), and 2K2.1(c)(1)(A). After adding two points for Roberts’ four prior burglary convictions and subtracting three points for his acceptance of responsibility, the PSR calculated a final adjusted offense level of 31. It also indicated a criminal history category of VI. Taken together, the offense level and criminal history category provided a sentencing range of 188 to 235 months’ imprisonment. Because he had previously been convicted of four burglaries in Wyoming, however, the PSR also classified Roberts as an “armed career criminal” subject to a statutory minimum sentence of 180 months under ACCA. See 18 U.S.C. § 924(e)(1).

Responding to the PSR, Roberts advanced two substantive arguments: (1) there was no evidence in the record to support a nexus between his possession of the firearm and his alleged involvement in the distribution of methamphetamine; and (2) he should not have been classified as an “armed career criminal” under ACCA because the government had failed to provide any evidence that his prior burglary convictions constituted violent crimes in accordance with Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), and Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990).

Finding that ACCA applied to Roberts, the district court sentenced Roberts to the mandatory minimum of 180 months’ imprisonment. This timely appeal followed.

II

If an attorney conscientiously examines a case and determines that any appeal would be wholly frivolous, counsel may “so advise the court and request permission to withdraw.” Anders, 386 U.S. at 744, 87 S.Ct. 1396. Counsel must submit a brief to both the appellate court and the client, pointing to anything in the record that would potentially present an appealable issue. Id. The client may then choose to “raise any points that he chooses” in response to counsel’s brief. Id. If, upon complete examination of the record, the court determines that the appeal is in fact frivolous, it may grant the request to withdraw and dismiss the appeal. Id.

Acting pursuant to Anders in the present case, counsel provided Roberts with a copy of the appellate brief, and Roberts has declined the opportunity to file a pro se brief in response. Counsel’s brief raises only one arguably appealable issue: Do Roberts’ four prior burglary convictions qualify as “violent felonfies]” for purposes of ACCA, such that Roberts is subject to a mandatory minimum sentence of 180 months? This issue presents a purely legal question that we review de novo. United States v. Nevels, 490 F.3d 800, 806 (10th Cir.2007).

ACCA defines a “violent felony” as “any crime punishable by imprisonment for a term exceeding one year, ... [including] burglary....” 18 U.S.C. § 924(e)(2)(B). To determine whether a particular defendant’s state burglary conviction meets this definition, we apply the categorical approach set forth by the Supreme Court in Taylor. Under this approach, we must ascertain whether the elements of the statute under which the defendant was convicted are consistent with the basic elements of “generic burglary,” id. at 599, 110 S.Ct. 2143, which is defined as a burglary committed in either a building or an enclosed space, but not a burglary committed in a boat or motor vehicle. Shepard, 544 *846 U.S. at 15-16, 125 S.Ct. 1254.

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250 F. App'x 843, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-roberts-ca10-2007.