United States v. Brown

United States Court of Appeals

Fifth Circuit

F I L E D

IN THE UNITED STATES COURT OF APPEALS

January 19, 2006

FOR THE FIFTH CIRCUIT

Charles R. Fulbruge III

__________________________ Clerk

No. 04-31237

__________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROMAN A. BROWN,

Defendant-Appellant.

___________________________________________________

Appeal from the United States District Court

for the Middle District of Louisiana

___________________________________________________

Before GARWOOD, CLEMENT, and PRADO, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

Roman A. Brown pleaded guilty and was sentenced under the Armed Career Criminal Act

(“ACCA”). On appeal, he claims that the Louisiana crime of simple robbery does not qualify as a

“violent felony” for purposes of the ACCA. For the reasons that follow, we affirm the sentence of

the district court.

I. FACTS AND PROCEEDINGS

Brown pleaded guilty to possession of a firearm as a convicted felon, in violation of 18 U.S.C.

§ 922(g)(1). As part of the plea agreement, Brown stipulated that he had been previously convicted

of two counts of simple robbery and one count of possession of cocaine. The probation office issued

a presentence report (“PSR”), which stated Brown had also been convicted of second degree battery

and distribution of cocaine. Due to these additional convictions, the probation officer observed that

Brown was eligible to be sentenced under the ACCA, pursuant to 18 U.S.C. § 924(e) and U.S.S.G.

§ 4B1.4. The officer determined Brown’s base offense level under the ACCA to be thirty-four and,

after reducing three levels for acceptance of responsibility, recalculated the level to thirty-one. The

officer set Brown’s criminal history category at VI, and, as a result, the guideline range was between

188 and 235 months. The district court followed the reco mmendations in the PSR and sentenced

Brown to 210 months imprisonment.

Brown appeals his sentence, claiming that his conviction for simple robbery does not qualify

as a “violent felony” under the ACCA.1

II. DISCUSSION

Brown did not object to his sentence at the district court. Therefore, we review for plain

error. United States v. Villegas, 404 F.3d 355, 358 (5th Cir. 2005). This Court finds plain error

when: (1) there was an error; (2) t he error was clear and obvious; and (3) the error affected the

defendant’s substantial rights. United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005), cert.

denied, 125 S. Ct. 43 ( 2005). Provided all three conditions are met, an appellate court may, in its

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Brown also claims that Apprendi v. New Jersey, 530 U.S. 466 (2000), Booker v. United States, 543

U.S. 220 (2005), and Shepard v. United States, —U.S.—, 125 S. Ct. 1254 (2005), require the

additional facts and nature of his prior convictions either be admitted by him or found by a jury. His

argument is without merit. In United States v. Stone, this circuit held that the Fifth and Sixth

Amendments do not require that convictions used as the bases for sentence enhancements under the

ACCA be based on a jury finding. 306 F.3d 241, 243 (5th Cir. 2002). See also Almendarez-Torres

v. United States, 523 U.S. 224, 228 (1998) (treating the fact of a prior conviction as a permissible

sentencing factor that need not be admitted by the defendant or found by the jury beyond a reasonable

doubt). This court in Stone also held that there is no Sixth Amendment violation under Apprendi

where a district court considers the nature of a prior conviction rather than submitting it to the jury.

Stone, 306 F.3d at 243.

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discretion, review the error if it seriously affects the fairness, integrity, or public reputation of judicial

proceedings. Id.

Sentencing under the ACCA requires a defendant to have three prior felony convictions,

which qualify as either a “violent felony” or a “serious drug offense.” 18 U.S.C. § 924(e)(1). Section

924(e)(2)(B) defines violent felony:

[T]he term “violent felony” means any crime punishable by imprisonment for a

term exceeding one year, or any act of juvenile delinquency involving the use or

carrying of a firearm, knife, or destructive device that would be punishable by

imprisonment for such term if committed by an adult, that (i) has as an element the

use, attempted use, or threatened use of physical force against the person of

another. . . .

18 U.S.C. § 924(e)(2)(B) (emphasis added). Generally, the sentencing court will look to the

statutory definition of the crime to determine if it qualifies as a violent felony under the ACCA.

Taylor v. United States, 495 U.S. 575, 602 (1990). See also United States v. Montgomery, 402 F.3d.

482, 486 (5th Cir. 2005).

In 1996, Brown pled guilty to two counts of simple robbery under Louisiana state law. At

that time, the Louisiana statute provided: “Simple robbery is the taking of anything of value

belonging to another from the person of another or that is in the immediate control of another, by use

of force or intimidation, but not armed with a dangerous weapon.” LA. REV. STAT. § 14:65 (1996).

Brown argues that the Louisiana statute defines robbery in the disjunctive with the result that the

statute can be violated simply with intimidation and, therefore, without the use or threatened use of

force. He further argues that, because the record has no competent documentation to support the

fact that his robbery convictions were committed with force or threat of force, these convictions do

not qualify as violent felonies under the ACCA.

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Brown’s arguments are without merit. Louisiana law defines “crime of violence” as the “use,

or threatened use of physical force” and specifically includes the crime of simple robbery as a crime

of violence. The Louisiana statute provides:

Crime of violence means an offense that has, as an element, the use, attempted use,

or threatened use of physical force against the person or property of another, and

that, by its very nature, involves a substantial risk that physical force against the

person or property of another may be used in the course of committing the offense

or an offense that involves the possession or use of a dangerous weapon.

LA. REV. STAT. § 14:2(13) (emphasis added). The statute enumerates qualifying offenses, and it

includes simply robbery among them. LA. REV. STAT. § 14:2(13)(y). Under Louisiana law, simple

robbery is a crime of violence, and a crime of violence necessarily entails the use or threatened use

of force. Therefore, simple robbery entails the use or threatened use of force.2

No case in this circuit has directly addressed whether a conviction for simple robbery under

Louisiana law is a predicate felony under the ACCA, but the Fourth and the Ninth Circuits have

found that a robbery, where the definition includes the words “by violence or intimidation,” does

qualify as a violent felony under the ACCA. United States v. Presley, 52 F.3d 64, 69 (4th Cir. 1995);

United States v. Melton, 344 F.3d 1021, 1025–26 (9th Cir. 2003) (citing to and agreeing with

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Moreover, while “intimidation” within the statutory definition of simple robbery is not further defined

by Louisiana statute, there is case law that explores the import of the term. In 1981 the Louisiana

Supreme Court addressed the interpretation of the “by use of force or intimidation” element by way

of comparing simple robbery to theft. The court stated: “By providing a more severe grade of theft

for those instances in which a thief uses force or intimidation to accomplish his goals, the legislature

apparently sought to emphasize the increased risk of danger to human life posed when a theft is

carried out in the face of the victim’s opposition.” State v. Mason, 403 So. 2d 701, 703 (La. 1981).

Louisiana courts often cite to Mason when construing the term intimidation. See, e.g., State v. Jones,

00-190, (La. App. 5 Cir. 7/25/00); 767 So. 2d 808, 810; State v. Florant, 602 So. 2d 338, 341–42

(La. App. 4 Cir. 1992); State v. Jackson, 454 So. 2d 1220, 1222 (La. App. 2 Cir. 1984). The

treatment by Louisiana courts of the “force or intimidation” element of simple robbery, by referencing

an “increased risk of danger to human life,” shows that intimidation entails the threat of force.

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Presley). In Presley, the Fourth Circuit reasoned: “Violence is the use of force. Intimidation is the

threat of the use of force. Thus, because robbery . . . has as an element the use or threatened use of

force, [defendant’s] robbery convictions were properly used as predicates under the ACCA.” 52 F.3d

at 69. C.f. United States v. Tirrell, 120 F.3d 670, 680 (7th Cir. 1997) (finding that the Michigan

crime of unarmed robbery, the definition of which included the disjunctive phrase “putting in fear,”

qualified as a violent felony under the ACCA because “putting in fear constitutes threatening the use

of physical force.”)

IV. CONCLUSION

We hold that the Louisiana crime of simple robbery qualifies as a violent felony under the

ACCA as a matter of law. The district court made no error, plain or otherwise, and the district

court’s sentence is AFFIRMED.

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