US v. Rasheen Weston
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:15-cr-00087-CMC-1 Copies to all parties and the district court/agency. [1000038955].. [15-4744]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4744
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RASHEEN WESTON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia.
Cameron McGowan Currie, Senior
District Judge. (3:15-cr-00087-CMC-1)
Submitted:
February 27, 2017
Decided:
March 9, 2017
Before MOTZ, DIAZ, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Kimberly H. Albro, Assistant Federal Public Defender, Columbia,
South Carolina, for Appellant.
William N. Nettles, United
States Attorney, Jane B. Taylor, Assistant United States
Attorney, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Rasheen
agreement,
to
J.
Weston
being
a
pled
felon
guilty,
in
pursuant
possession
of
to
a
a
written
firearm,
in
violation of 18 U.S.C. §§ 922(g)(1) (2012), 924(a)(2) (2012).
Based on his prior South Carolina convictions for strong arm
robbery, armed robbery, and pointing and presenting a firearm,
the district court sentenced Weston as an armed career criminal
to 180 months’ imprisonment.
On appeal, Weston challenges his
armed career criminal status, asserting that none of his prior
convictions serve as predicates under the Armed Career Criminal
Act (“ACCA”), 18 U.S.C. § 924(e) (2012).
For the reasons that
follow, we affirm.
In
challenging
his
armed
career
criminal
designation,
Weston claims that his strong arm robbery and two armed robbery
convictions are not proper ACCA predicates because they do not
qualify under the ACCA’s enumerated clause or force clause and
that, after Johnson v. United States, 135 S. Ct. 2551 (2015),
they no longer qualify under the ACCA’s residual clause.
Weston
argues that the offense of robbery does not contain an element
requiring the type of violent physical force needed to satisfy
the force clause.
Additionally, Weston seeks to reassert his
claim that pointing and presenting a firearm is not a violent
felony.
Although
he
acknowledges
that
his
argument
is
foreclosed by Fourth Circuit precedent, United States v. King,
2
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673 F.3d 274, 279-80 (4th Cir. 2012), Weston asserts that the
court
may
wish
to
revisit
the
issue
in
light
of
Johnson.
Last, Weston maintains that his prior pointing and presenting a
firearm and strong arm robbery convictions were not proper ACCA
predicates
represented
because
by
the
counsel
record
or
that
does
he
not
show
waived
that
he
was
representation
for
these two convictions.
The ACCA mandates a minimum of fifteen years’ imprisonment
for a defendant who violates § 922(g) and “has three previous
convictions” for a “violent felony or a serious drug offense, or
both.” 18 U.S.C. § 924(e)(1).
“We review de novo whether a
prior conviction qualifies as an ACCA violent felony.”
States v. Doctor, 842 F.3d 306, 308 (4th Cir. 2016).
United
A violent
felony includes “any crime punishable by imprisonment for a term
exceeding one year that has as an element the use, attempted
use, or threatened use of physical force against the person of
another.”
Id. (internal quotation marks omitted).
In Doctor, we held that a prior South Carolina conviction
for strong arm robbery properly qualifies as a predicate violent
felony under the force clause of the ACCA.
“South
whether
Carolina
has
committed
by
defined
means
its
of
common
law
violence
or
We concluded that
robbery
offense,
intimidation,
to
necessarily include as an element the use, attempted use, or
threatened use of physical force against the person of another.”
3
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Id. at 312-13 (internal quotation marks omitted).
Therefore,
Doctor forecloses Weston’s argument that his prior strong arm
robbery and armed robbery convictions are not violent felonies
under the ACCA’s force clause. 1
we
need
not
address
In light of this determination,
Weston’s
argument
that
pointing
and
presenting a firearm does not constitute a violent felony under
the ACCA.
Weston also argues that two of his prior state convictionsthe conviction for pointing and presenting a firearm and the
strong arm robbery conviction-cannot serve as ACCA predicates
because the record does not show that, at the time of these
convictions,
counsel.
he
was
afforded
his
Sixth
Amendment
right
to
Because the conviction for pointing and presenting a
firearm was not a necessary ACCA predicate, we consider this
argument
only
conviction.
this
as
it
relates
to
his
strong
arm
robbery
The presentence report indicated with respect to
conviction
that
information
regarding
attorney
representation was unavailable.
While a defendant may challenge the validity of a prior
conviction on the ground that he was denied counsel, see Custis
v. United States, 511 U.S. 485, 495-96 (1994), Weston bears the
1
The parties do not dispute that if the lesser offense of
strong arm robbery is a proper ACCA predicate, then armed
robbery likewise qualifies.
4
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heavy burden of showing that the prior conviction is invalid.
United States v. Jones, 977 F.2d 105, 110-11 (4th Cir. 1992);
see United States v. Hondo, 366 F.3d 363, 365 (4th Cir. 2004)
(“[T]he
defendant
bears
an
especially
difficult
proving that the conviction was invalid.”).
burden
of
The determination
of whether counsel is waived is reviewed de novo.
Hondo, 366
F.3d at 365.
Weston had to overcome the presumption that the state court
informed him of his right to counsel as it was required by
statute
to
do
and
that,
if
he
was
not
represented,
because he had waived his right to counsel. 2
it
was
See Parke v. Raley,
506 U.S. 20, 28-34 (1992) (holding presumption of regularity
that
attaches
to
final
judgments
makes
it
appropriate
for
defendant to have burden of showing irregularity of prior plea).
Weston
did
not
meet
his
burden
because
he
submitted
neither
documentary evidence nor testimony at the sentencing hearing to
establish that he pled guilty in the absence of counsel.
Jones,
977
inconclusive,
F.2d
at
110-11
self-serving
(holding
testimony
2
that
about
See
uncorroborated,
distant
events
was
See S.C. Code § 17-3-10 (“[A]ny person entitled to counsel
under the Constitution of the United States shall be so advised,
and if it is determined that the person is financially unable to
retain counsel, then counsel shall be provided upon order of the
appropriate
judge
unless
such
person
voluntarily
and
intelligently waives his right thereto.”).
5
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insufficient
conviction).
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to
We
carry
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burden
conclude
that
of
showing
invalid
the
district
court
prior
properly
overruled the objection based on the presumption that the state
statute was followed absent contrary evidence.
Because Weston has three qualifying prior convictions to
warrant his armed career criminal designation, we affirm the
district
court’s
judgment.
We
dispense
with
oral
argument
because the facts and legal contentions are adequately presented
in the materials before this court and argument would not aid
the decisional process.
AFFIRMED
6
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