US v. Rasheen Weston
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:15-cr-00087-CMC-1 Copies to all parties and the district court/agency. .. [15-4744]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
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)
February 27, 2017
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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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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.
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.
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
foreclosed by Fourth Circuit precedent, United States v. King,
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673 F.3d 274, 279-80 (4th Cir. 2012), Weston asserts that the
Last, Weston maintains that his prior pointing and presenting a
firearm and strong arm robbery convictions were not proper ACCA
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).
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
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.
We concluded that
necessarily include as an element the use, attempted use, or
threatened use of physical force against the person of another.”
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Id. at 312-13 (internal quotation marks omitted).
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
In light of this determination,
presenting a firearm does not constitute a violent felony under
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
Because the conviction for pointing and presenting a
firearm was not a necessary ACCA predicate, we consider this
The presentence report indicated with respect to
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
The parties do not dispute that if the lesser offense of
strong arm robbery is a proper ACCA predicate, then armed
robbery likewise qualifies.
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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)
proving that the conviction was invalid.”).
of whether counsel is waived is reviewed de novo.
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
because he had waived his right to counsel. 2
See Parke v. Raley,
506 U.S. 20, 28-34 (1992) (holding presumption of regularity
defendant to have burden of showing irregularity of prior plea).
documentary evidence nor testimony at the sentencing hearing to
establish that he pled guilty in the absence of counsel.
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
intelligently waives his right thereto.”).
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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
because the facts and legal contentions are adequately presented
in the materials before this court and argument would not aid
the decisional process.
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