United States v. Timothy Tyrone Johnson

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________ FILED

U.S. COURT OF APPEALS

No. 08-15214 ELEVENTH CIRCUIT

MAY 21, 2009

Non-Argument Calendar

THOMAS K. KAHN

________________________

CLERK

D. C. Docket No. 07-00279-CR-T-N

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TIMOTHY TYRONE JOHNSON,

a.k.a. Tim Johnson,

a.k.a. Timothy Johnson,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Middle District of Alabama

_________________________

(May 21, 2009)

Before TJOFLAT, DUBINA and WILSON, Circuit Judges.

PER CURIAM:

Timothy Tyrone Johnson appeals his sentence of 180 months imprisonment,

after he pled guilty to one count of possession of a firearm by a convicted felon in

violation of 18 U.S.C. § 922(g)(1). At sentencing, the district court determined

that Johnson was an armed career criminal pursuant to 18 U.S.C. § 924(e)(2)

because he had two convictions for third-degree burglary (committed on different

dates) and one conviction for third degree robbery.

On appeal, Johnson argues that third-degree burglary under Alabama law

does not constitute a violent felony for purposes of the Armed Career Criminal Act

(“ACCA”) because it lacks a statutory element of violence. He acknowledges that

Taylor v. United States, 495 U.S. 575, 598 (1990), held that burglaries are violent

felonies, and that courts must adopt a formal categorical approach when applying

the ACCA provision by looking only to the conviction and statutory definition of

the predicate offense and not to the underlying facts. He argues, however, that

Begay v. United States, 553 U.S. ___, 128 S. Ct. 1581 (2008), called into question

the strict categorical approach that Taylor established, and that the result of Begay

is to require that a property crime must involve a serious potential risk of physical

injury. Johnson also predicts that United v. Chambers, 555 U.S. ___, 129 S. Ct.

687 (2009), will do the same.1

1

At the time he filed his brief, the Supreme Court had not yet decided Chambers.

2

We consider de novo whether a particular conviction is a “violent felony”

for purposes of the ACCA. United States v. Wilkerson, 286 F.3d 1324, 1325 (11th

Cir. 2002) (per curiam). Under the ACCA, a person who violates 18 U.S.C. §

922(g) and who has three previous convictions for a “violent felony,” a serious

drug offense, or both, is an armed career criminal and subject to imprisonment for

a period of not less than 15 years. 18 U.S.C. § 924(e)(1). The ACCA defines a

violent felony as:

[A]ny 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; 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[.]

Id. § 924(e)(2)(B).

To determine whether a crime constitutes a violent felony, a court must

follow a categorical approach in which it “look[s] only to the statutory definitions

of the prior offenses, and not to the particular facts underlying those convictions.”

Taylor, 495 U.S. at 601. In Alabama, “[a] person commits the crime of burglary in

the third degree if he knowingly enters or remains unlawfully in a building with

3

intent to commit a crime therein.” A LA. C ODE § 13A-7-7. Alabama law classifies

third-degree burglary as a Class C felony. Id. Under the ACCA, a “burglary” must

be a generic burglary, that is, it must “hav[e] the basic elements of unlawful or

unprivileged entry into, or remaining in, a building or structure, with intent to

commit a crime.” Taylor, 495 U.S. at 599.

Upon careful review of the record and consideration of the arguments

presented in the parties’ briefs, we discern no reversible error. Because the

Alabama statutory language clearly includes the elements of “generic burglary,” as

outlined in Taylor, and provides for a term of imprisonment greater than one year,

third-degree burglary under Alabama law constitutes a qualifying offense under the

ACCA. Nothing in Begay or Chambers casts doubt on the categorical approach

formulated in Taylor. On the contrary, the Supreme Court applied the categorical

approach in both cases. See Begay, 553 U.S. ___, 128 S. Ct. at 1584 (“In

determining whether this crime is a violent felony, we consider the offense

generically, that is to say, we examine it in terms of how the law defines the

offense and not in terms of how an individual offender might have committed it on

a particular occasion.”); Chambers, 555 U.S. ___, 129 S. Ct. at 690 (providing that

“to determine, for example, whether attempted burglary is a ‘violent felony,’ we

have had to examine, not the unsuccessful burglary the defendant attempted on a

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particular occasion, but the generic crime of attempted burglary”). Moreover,

while Begay and Chambers considered whether unenumerated felonies qualify as

violent felonies under the ACCA,2 Johnson’s prior offense of burglary is explicitly

enumerated as a violent felony in the ACCA.

Accordingly, we affirm.

AFFIRMED.

2

In particular, Begay and Chambers addressed driving under the influence under New

Mexico law and failure to report under Illinois law, respectively.

5