United States v. Tramayne Keith

Filing

OPINION FILED - THE COURT: WILLIAM JAY RILEY, DUANE BENTON and BOBBY E. SHEPHERD. Duane Benton, Authoring Judge (PUBLISHED) [3787498] [10-3005]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

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No. 10-3005
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United States of America,
Plaintiff - Appellee,
v.
Tramayne D. Keith,
Defendant - Appellant.

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* Appeal from the United States
* District Court for the
* Western District of Missouri.
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Submitted: April 14, 2011
Filed: May 16, 2011
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Before RILEY, Chief Judge, BENTON, and SHEPHERD, Circuit Judges.
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BENTON, Circuit Judge.
Tramayne D. Keith pleaded guilty to being a felon in possession of a firearm,
in violation of 18 U.S.C. § 922(g)(1) and 18 U.S.C. §924(e). The district court1
sentenced him as an armed career criminal under §924(e), imposing the mandatory
180 months’ imprisonment. Having jurisdiction under 28 U.S.C. § 1291, this court
affirms.

1

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

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In his plea agreement, Keith admitted the following prior felony convictions:
domestic assault in the second degree, the sale of controlled substances on or about
September 16, 1997, and the possession of controlled substances with intent to
distribute on or about September 25, 1997. The district court found that these three
convictions–which were also summarized in the PSR–qualified as predicate offenses
under the armed career criminal statute.
On appeal, Keith argues–as permitted by the plea agreement–that the district
court improperly counted these convictions as predicate offenses within the meaning
of § 924(e), a legal determination this court reviews de novo. See United States v.
Boaz, 558 F.3d 800, 806 (8th Cir. 2009).
The Armed Career Criminal Act (ACCA) mandates a fifteen-year sentence for
a felon in possession who “has three previous convictions . . . for a violent felony or
a serious drug offense, or both, committed on occasions different from one another.”
18 U.S.C. § 924(e)(1). The ACCA defines “violent felony” as “any crime punishable
by imprisonment for a term exceeding one year . . . that- (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). The ACCA defines “serious drug offense” as “an offense under State
law, involving manufacturing, distributing, or possessing with intent to manufacture
or distribute, a controlled substance . . . for which a maximum term of imprisonment
of ten years or more is prescribed by law.” 18 U.S.C. § 924(e)(2)(A)(ii).
Keith’s domestic-assault conviction under Mo. Rev. Stat. § 565.073 qualifies
as a violent felony and is a predicate offense under the ACCA. See United States v.
Jones, 574 F.3d 546, 550-53 (8th Cir. 2009) (holding that domestic-assault
convictions under Mo. Rev. Stat. § 563.073 are violent felonies and predicate
offenses under the ACCA). Keith argues that the domestic assault is not a predicate
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violent felony because he served only probation. To the contrary: “As the word
‘punishable’ makes clear, the focus of [the ACCA] definition is on the prison
sentence that may be imposed under state law, ‘regardless of the actual sentence
imposed.’” United States v. Clinkscale, 559 F.3d 815, 817 (8th Cir. 2009), quoting
U.S.S.G. § 4B1.2 comment. (n.1).
On September 28, 1999, Keith was found guilty and sentenced based on
conduct involving controlled substances that occurred on two dates–on or about
September 16, 1997, and on or about September 25, 1997. Keith contends that these
drug convictions are one predicate offense because they were similar in kind,
occurred less than a week apart, and were charged in the same document.
The similarity of the offenses and their temporal proximity are not legally
relevant in determining whether they are separate convictions under the ACCA. See
United States v. Van, 543 F.3d 963, 966 (8th Cir. 2009) (“[C]onvictions for separate
drug transactions on separate days are multiple ACCA predicate offenses, even if the
transactions were sales to the same victim or informant.”). Keith further
acknowledges that the “status of the law in the 8th circuit is that a single charging
document containing separate underlying counts may serve as the basis for separate
convictions when considering whether the offenses constitute serious drug offenses
for purposes of armed career offender consideration.”
Yet, citing Shepard v. United States, 544 U.S. 13 (2005), Keith asserts that the
district court impermissibly relied upon unverified police reports to conclude that the
separate drug counts in the single charging document concerned activity on separate
days. In Shepard, the Court held that a sentencing court may not look to police
reports to determine the character of a burglary, specifically whether a conviction was
for generic burglary (as required to qualify as an ACCA predicate offense). Id. at 16.
Instead, the district court is limited (generally) to examining the “statutory definition,
charging document, written plea agreement, transcript of plea colloquy, and any
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explicit factual finding by the trial judge to which the defendant assented.” Id.
(emphasis added). To the extent that Keith objected to the precise dates of the drug
offenses, the district court had ample factual basis for overruling the objection.
Keith’s federal plea agreement admitted the exact dates of the offenses. Similarly,
because Keith did not object to the drug offense dates in the PSR, the district court
properly accepted the facts as true. See United States v. Davis, 583 F.3d 1081, 109596 (8th Cir. 2009) (“Unless a defendant objects to a specific allegation contained in
the PSR, the court may accept that fact as true for sentencing purposes.”). Keith’s
drug convictions are two, separate predicate offenses under the ACCA.
The judgment of the district court is affirmed.
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