United States v. Eugene Davi

Filing

PER CURIAM OPINION FILED - THE COURT: LAVENSKI R. SMITH, STEVEN M. COLLOTON and BOBBY E. SHEPHERD (UNPUBLISHED) [3771595] [10-1980]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

___________
No. 10-1980
___________
United States of America,
Appellee,
v.
Eugene Davis,
Appellant.

*
*
*
* Appeal from the United States
* District Court for the
* Northern District of Iowa.
*
*
[UNPUBLISHED]
*
___________
Submitted: October 18, 2010
Filed: March 30, 2011
___________

Before SMITH, COLLOTON, and SHEPHERD, Circuit Judges.
___________
PER CURIAM.
Eugene Davis pleaded guilty to possession of a sawed-off shotgun by an armed
career criminal, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1), and the district
court1 sentenced him to 210 months' imprisonment. He appeals, arguing that the
district court erred in determining that his prior burglaries of commercial buildings
constitute crimes of violence under the career offender provision of the Guidelines.
We affirm.

1

The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.

Appellate Case: 10-1980

Page: 1

Date Filed: 03/30/2011 Entry ID: 3771595

I. Background
Davis pleaded guilty to possession of a sawed-off shotgun by an armed career
criminal, in violation of §§ 922(g)(1) and 924(e)(1). Davis admitted in his plea
agreement that he had three prior burglary convictions, each of which constituted a
"violent felony" under 18 U.S.C. § 924(e)(2)(B), and that he was an armed career
criminal. His presentence investigation report (PSR) showed that his prior burglary
convictions each involved the burglary of an automobile dealership. Davis did not
object to these paragraphs of the PSR. But Davis did object to the PSR's application
of U.S.S.G. § 4B1.2, maintaining that commercial burglary is not a "crime of
violence" for purposes of the career offender provision. At sentencing, Davis's counsel
acknowledged that "the Eighth Circuit Court of Appeals has defined the 'commercial
burglary' as a crime of violence for that—for the purposes of career offender."
Counsel advised the district court that he was "simply including that argument to
preserve that issue for appeal." The district court overruled Davis's objection.
II. Discussion
Davis's argument that the district court incorrectly determined that burglary of
a commercial building constitutes a crime of violence under the career offender
provisions of the Guidelines has been decided conclusively to the contrary. United
States v. Stymiest, 581 F.3d 759, 768–69 (8th Cir. 2009) (holding that Begay v. United
States, 553 U.S. 137 (2008), does not alter this court's prior decisions that generic
burglary—including burglary of a commercial building—constitutes a crime of
violence). Our circuit authority regarding burglary of commercial buildings remains
unchanged after Begay. United States v. Haas, 623 F.3d 1214, 1220 n.6 (8th Cir.
2010) (citing Stymiest, 581 F.3d at 768–69).
III. Conclusion
Accordingly, we affirm the district court's judgment.
______________________________

-2-

Appellate Case: 10-1980

Page: 2

Date Filed: 03/30/2011 Entry ID: 3771595