United States v. David Thibeaux, No. 08-3890 (8th Cir. 2009)
Annotate this CaseCourt Description: Criminal case - Sentencing. Defendant's Missouri conviction for second degree burglary qualifies as a violent felony for purposes of sentencing under the Armed Career Criminal Act.
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United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 08-3890 ___________ United States of America, Appellee, v. David M. Thibeaux, Appellant. * * * * Appeal from the United States * District Court for the Western * District of Missouri. * * [UNPUBLISHED] * ___________ Submitted: November 16, 2009 Filed: November 23, 2009 ___________ Before MELLOY, BEAM, and GRUENDER, Circuit Judges. ___________ PER CURIAM. David Thibeaux appeals his 152-month sentence for being a felon in possession of a firearm. Thibeaux specifically objects to the district court's1 determination that his prior offense for second-degree burglary in Missouri was a violent felony pursuant to the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e) (imposing a mandatory fifteen-year2 sentence upon felons who unlawfully possess a firearm and 1 The Honorable Gary A. Fenner, United States District Judge for the Western District of Missouri. 2 Thibeaux received relief from the mandatory minimum sentence by providing substantial assistance pursuant to 18 U.S.C. § 3553(e). who also have three or more previous "violent felony" convictions). Section 924(e) defines violent felony to include "burglary, arson, or extortion" or any other crime that has as an element the use of physical force or "otherwise involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B). Thibeaux argues that the district court did not correctly analyze the violent felony issue under the Supreme Court's decision in Begay v. United States, 128 S. Ct. 1581, 1586-88 (2008) (holding that New Mexico conviction for driving under the influence was not a violent felony within the "otherwise involves" clause of the ACCA). We disagree. Begay analyzed whether a non-enumerated offense qualified as a violent felony; however, "burglary" is an enumerated offense in 18 U.S.C. § 924(e). Cf. United States v. Stymiest, 581 F.3d 759, 768 (8th Cir. 2009) ("Begay . . . does not undermine our burglary precedents."). Thibeaux's conviction for second-degree burglary in Missouri qualifies as a violent felony. Accord Taylor v. United States, 495 U.S. 575, 599 (1990); Mo. Rev. Stat. § 569.170. We affirm. ______________________________ -2-
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