USA v. Sterling Johnson
UNPUBLISHED OPINION FILED. [11-30314 Affirmed ] Judge: EHJ , Judge: PRO , Judge: SAH Mandate pull date is 06/04/2012 for Appellant Sterling Leon Johnson [11-30314]
Date Filed: 05/14/2012
IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
May 14, 2012
Lyle W. Cayce
UNITED STATES OF AMERICA,
STERLING LEON JOHNSON,
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 6:07-CR-60024-1
Before JONES, Chief Judge, and OWEN and HIGGINSON, Circuit Judges.
Sterling Leon Johnson pled guilty to possession of a firearm while a
convicted felon in violation of 18 U.S.C. § 922(g)(1).
The district court
determined that Johnson’s criminal history qualified him for an Armed Career
Criminal Act (“ACCA”) enhancement. After the ACCA enhancement and a three
level reduction for acceptance of responsibility, the guidelines range was 151 to
188 months. The court sentenced Johnson to the ACCA statutory minimum of
180 months, though it expressed unease with the length of the sentence.
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
Date Filed: 05/14/2012
Johnson’s three prior felony convictions that required the ACCA
enhancement included selling cocaine, burglary, and robbery. The latter two
offenses were committed in 1992 when Johnson was 15 but was prosecuted as
an adult. Johnson argues that his Mississippi burglary conviction does not
constitute a “violent felony” as defined in the ACCA. The government asserts
that Johnson waived his argument below. After carefully reviewing the record,
we are satisfied that Johnson did not waive. Thus, we review de novo the
district court’s determination that Johnson’s conviction qualified as a violent
felony. United States v. Schmidt, 623 F.3d 257, 260 (5th Cir. 2010).
A defendant convicted of being a felon in possession of a firearm is
normally subject to a statutory maximum sentence of 10 years of imprisonment.
18 U.S.C. § 924(a)(2). Pursuant to the ACCA, a defendant convicted under 18
U.S.C. § 922(g) who has three previous convictions for violent felonies or serious
drug offenses occurring on different occasions must be imprisoned for at least
15 years. § 924(e)(1); U.S.S.G. § 4B1.4(a). Burglary is one of the violent felonies
enumerated in the ACCA. § 924(e)(2)(B)(ii). The Supreme Court has limited the
use of state law burglary convictions for sentence enhancements by holding that
only “generic” burglary can support a § 924(e) enhancement. Taylor v. United
States, 495 U.S. 575, 598-99, 110 S. Ct. 2143, 2158 (1990). Specifically, the
Taylor definition of a generic burglary requires that the state statute contain,
at a minimum, the following elements: “an unlawful or unprivileged entry into,
or remaining in, a building or other structure, with intent to commit a crime.”
Id. at 598, 110 S. Ct. at 2158.
There is no dispute that the Mississippi statute criminalizes conduct not
covered by a generic burglary offense. In addition to buildings and structures,
the Mississippi burglary statute proscribes breaking into a “water vessel,
commercial or pleasure craft, ship, steamboat, flatboat, railroad car, automobile,
truck or trailer” with intent to steal or commit a felony. MISS. CODE § 97-17-33
Date Filed: 05/14/2012
(1992). When state statutes are broader than generic burglary, courts may
employ what the Court has called the “modified categorical approach,” Johnson
v. United States, ___ U.S. ___ , 130 S. Ct. 1265, 1273 (2010), and consider certain
adjudicative records, such as the charging document, a plea agreement, a
transcript of a colloquy in which the defendant confirmed the factual basis, or
other comparable judicial record, to determine whether the conviction
necessarily rested on facts equating to the generic offense, Shepard v. United
States, 544 U.S. 13, 26, 125 S. Ct. 1254, 1263 (2005).
The records introduced by the government were of the type approved by
the Court in Shepard, 544 U.S. at 26, 125 S. Ct. at 1263, and support the district
court’s conclusion that Johnson was convicted for generic burglary.
“Petition to Enter a Guilty Plea” associated with Johnson’s burglary arrest
establishes that his Mississippi conviction was for “burglary of a storehouse.”
A storehouse is a description of the structure Johnson broke into, a description
to which he subscribed in pleading guilty. This description sufficiently narrows
the statute which is entitled, “Burglary; breaking and entering building other
than dwelling; railroad car; vessels; automobiles.”
The government also
introduced a transcript of the plea colloquy in which Johnson admitted to having
burglarized a carwash business and acknowledged that he was charged with
burglarizing a commercial building. He did not break into a ship, truck, trailer,
or anything else not covered by generic burglary.
As such, his burglary
conviction, combined with his other two convictions, justifiably triggered the
ACCA enhancement. We find unpersuasive Johnson’s contention that the
district court gave improper weight to the facts in the presentence report or that
the district court misunderstood its authority to decline to apply the ACCA.
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