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United States v. Brown

United States Court of Appeals, Eighth Circuit

October 30, 2013

UNITED STATES of America, Plaintiff-Appellee
v.
Wendell Terrell BROWN, Defendant-Appellant.

Submitted: Oct. 21, 2013.

Page 825

Katherine M. Menendez, Assistant Federal Public Defender, argued, Minneapolis, MN, for Defendant-Appellant.

Jeffrey S. Paulsen, Assistant United States Attorney, argued, Minneapolis, MN, for Plaintiff-Appellee.

Before BYE, SMITH, and BENTON, Circuit Judges.

BENTON, Circuit Judge.

Wendell Terrell Brown pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). He appeals, attacking the use in his sentencing of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). He also argues that the residual clause of 18 U.S.C. § 924(e)(2)(B)(ii) is unconstitutionally vague. Rejecting Brown's arguments, the district court [1] sentenced him to the ACCA's mandatory minimum 180 months' imprisonment. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

I.

The ACCA imposes a mandatory minimum of 180 months if a felon in possession of a firearm has three prior convictions for violent felonies or serious drug offenses. 18 U.S.C. § 924(e)(1). At sentencing, the district court found that three of Brown's prior convictions— for terroristic threats, possession of a short-barreled shotgun, and sale of a controlled substance— triggered this mandatory minimum. Brown objected, arguing that the shotgun conviction is not a violent felony. This court reviews de novo whether a prior conviction qualifies as a predicate offense under the ACCA. United States v. Lillard, 685 F.3d 773, 774 (8th Cir.2012), citing United States v. Gordon, 557 F.3d 623, 624 (8th Cir.2009).

Page 826

The ACCA defines a " violent felony" as a crime punishable by a term of imprisonment 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).

Brown violated a Minnesota statute providing that " whoever owns, possesses, or operates ... a short-barreled shotgun may be sentenced to imprisonment for not more than five years." Minn.Stat. § 609.67 (1993). This crime does not have an element of force as required in clause (i) and is not listed in clause (ii). The issue is whether possession of a short-barreled shotgun is within the residual " otherwise" clause of § 924(e)(2)(B)(ii).

To fall within the residual clause, the prior offense must " present [ ] a serious potential risk of physical injury to another" and be " roughly similar, in kind as well as degree of risk posed" to the offenses listed in § 924(e)(2)(B)(ii). United ...


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