United States v. Walter R. Barbour

395 F.3d 826, 2005 WL 221452

Opinions

BENTON, Circuit Judge.

Walter R. Barbour appeals his sentence, imposed after a guilty plea to being a felon in possession of ammunition, in violation of 18 U.S.C. § 922(g)(1). The district court¹ concluded that motor-vehicle theft is a “violent felony” under the Armed Career Criminal Act, 18 U.S.C. § 924(e). Having jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, this court affirms.

A person who violates section 922(g) shall be imprisoned not less than 15 years if he or she has three prior convictions for a violent felony. 18 U.S.C. § 924(e)(1). A violent felony “(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B).

According to Barbour’s presentence report, he had three convictions for violent felonies: robbery, forcible sodomy, and vehicle theft. The district court specifically decided that vehicle theft is a violent felony, over Barbour’s objection.

This court reviews de novo the district court’s determination that a prior offense constitutes a violent felony under section 924(e). United States v. Abernathy, 277 F.3d 1048, 1051 (8th Cir.), cert. denied, 535 U.S. 1089, 122 S.Ct. 1986, 152 L.Ed.2d 1042 (2002). “In determining whether a prior conviction is a violent felony for purposes of sentence enhancement under § 924(e), a sentencing court may look beyond the fact of conviction and the statutory definition of the offense to other sources such as the charging documents.” United States v. Griffith, 301 F.3d 880, 884-85 (8th Cir.2002), cert. denied, 537 U.S. 1225, 123 S.Ct. 1339, 154 L.Ed.2d 1087 (2003). See Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). The vehicle-theft complaint and accompanying affidavit are set out in the appendix to this opinion.

This case is controlled by two decisions of this court. See United States v. Sun Bear, 307 F.3d 747 (8th Cir.2002), cert. denied, 539 U.S. 916, 123 S.Ct. 2275, 156 L.Ed.2d 133 (2003); United States v. Sprouse, 394 F.3d 578 (8th Cir.2005). In Sun Bear, this court held that “the theft or attempted theft of an operable vehicle is a crime of violence under section 4B 1.2 of the guidelines,” due to the “serious potential risks” involved. Sun Bear, 307 F.3d at 753. The Sprouse court extended this rationale to section 924(e). Sprouse, 394 F.3d 578, 579. See United States v. Blahowski, 324 F.3d 592, 594-95 (8th Cir.), cert. denied, 540 U.S. 934, 124 S.Ct. 356, 157 L.Ed.2d 243 (2003).

Barbour emphasizes that the Supreme Court recently held that “crime of violence” under 18 U.S.C. § 16 does not include driving-under-the-influence-of-alco- hoi offenses. See Leocal v. Ashcroft, — U.S. —, —, 125 S.Ct. 377, 383, 160 L.Ed.2d 271 (2004). Because Sun Bear and Sprouse addressed the precise issue here, this panel is bound by precedent. See United States v. Wright, 22 F.3d 787, 788 (8th Cir.1994).

Barbour’s sentence is affirmed.

Footnotes

1

. The Honorable Scott O. Wright, United States District Judge for the Western District of Missouri.