United States v. Williams, No. 19-60463 (5th Cir. 2020)

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The Fifth Circuit affirmed defendant's sentence under the Armed Career Criminal Act (ACCA) imposed after he pleaded guilty to possessing a firearm after a felony conviction. Defendant argued that he could not be sentenced under the ACCA because 18 U.S.C. 924(a)(2), not 924(e), was charged in the indictment, and that his 2008 Mississippi robbery conviction does not constitute a violent felony conviction under the ACCA. Defendant conceded that his arguments are contrary to precedent but, nonetheless, wished to preserve the issues for further review.

The court held that defendant's argument that the district court erred in sentencing him under the ACCA because section 924(e) was not cited in the indictment was unavailing. Furthermore, the court rejected defendant's challenges to his conviction for Mississippi robbery in light of its prior rulings and defendant's failure to cite Mississippi case law that establishes a realistic probability that Mississippi courts would apply the robbery statute to conduct that does not involve "the use, attempted use, or threatened use of physical force against the person of another."

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Case: 19-60463 Document: 00515323213 Page: 1 Date Filed: 02/27/2020 IN THE UNITED STATES COURT OF APPEALS Court of Appeals FOR THE FIFTH CIRCUIT United States Fifth Circuit FILED February 27, 2020 No. 19-60463 Summary Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. RICHARD BRIAN WILLIAMS, Defendant-Appellant Appeal from the United States District Court for the Southern District of Mississippi Before WIENER, HAYNES, and COSTA, Circuit Judges. PER CURIAM: Richard Brian Williams, who pleaded guilty to possessing a firearm after a felony conviction, in violation of 18 U.S.C. § 922(g)(1), appeals the enhancement of his sentence under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). He argues that he could not be sentenced under the ACCA because 18 U.S.C. § 924(a)(2), not § 924(e), was charged in the indictment. He also argues that his 2008 Mississippi robbery conviction does not constitute a violent felony conviction under the ACCA. He concedes that his arguments are contrary to our precedent, but he wishes to preserve the issues for further review. Case: 19-60463 Document: 00515323213 Page: 2 Date Filed: 02/27/2020 No. 19-60463 We review a legal challenge to an ACCA-enhanced sentence de novo. United States v. Fuller, 453 F.3d 274, 278 (5th Cir. 2006). Williams’s argument that the district court erred in sentencing him under the ACCA because § 924(e) was not cited in the indictment is unavailing. The plain language of § 924(e) mandates that the ACCA “shall” apply when the noted prerequisites are met. § 924(e); see Arlington Cent. Sch. Dist. Bd. of Ed. v. Murphy, 548 U.S. 291, 296 (2006). Moreover, Williams was “not entitled to any formal notice of the possibility of an enhanced sentence under the ACCA other than that required by due process,” and the presentence report provided adequate notice to Williams of the Government’s intent to seek an ACCA-enhanced sentence. United States v. Howard, 444 F.3d 326, 327 (5th Cir. 2006); see also United States v. Stapleton, 440 F.3d 700, 701 n.1 (5th Cir. 2006) (“The Supreme Court has held recidivist provisions like those in the Armed Career Criminal Act are neither substantive offenses nor elements thereof and thus the fact of a prior conviction need not be alleged in an indictment nor proven beyond a reasonable doubt.” (citing Almendarez-Torres v. United States, 523 U.S. 224, 118 (1998))). Williams also argues that Mississippi robbery is not a violent felony under the ACCA’s elements clause because it can be committed by putting someone in fear of immediate injury and because it can be committed by poisoning. See § 924(e); MISS. CODE ANN. § 97-3-73 (2008). We reject these arguments in light of our prior rulings in this area and Williams’s failure to cite Mississippi case law that establishes a realistic probability that Mississippi courts would apply the robbery statute to conduct that does not involve “the use, attempted use, or threatened use of physical force against the person of another.” § 924(e)(2)(B)(i); see United States v. Reyes-Contreras, 910 F.3d 169, 173, 181-87 (5th Cir. 2018) (en banc); United States v. Brewer, 848 F.3d 711, 715-16 (5th Cir. 2017). 2 Case: 19-60463 Document: 00515323213 No. 19-60463 AFFIRMED. 3 Page: 3 Date Filed: 02/27/2020

Primary Holding

The Fifth Circuit affirmed defendant's sentence under the Armed Career Criminal Act imposed after he pleaded guilty to possessing a firearm after a felony conviction.

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