United States v. Mustafa Mohamed, No. 15-1621 (8th Cir. 2015)
Annotate this CaseCourt Description: Per Curiam - Before Loken, Bowman and Gruender, Circuit Judges] Criminal case - Sentencing. The district court did not commit procedural error by applying a sentencing enhancement under the Sec. 4B1.2(a) of the Guidelines based on defendant's prior burglary convictions as his first degree burglary of a dwelling is a defined crime of violence and this court has held, without relying on the residual clause, that burglary of a commercial building is a crime of violence; within-Guidelines sentence was not substantively unreasonable.
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United States Court of Appeals For the Eighth Circuit ___________________________ No. 15-1621 ___________________________ United States of America lllllllllllllllllllll Plaintiff - Appellee v. Mustafa Ahmed Mohamed lllllllllllllllllllll Defendant - Appellant ____________ Appeal from United States District Court for the District of Minnesota - St. Paul ____________ Submitted: November 16, 2015 Filed: December 14, 2015 [Unpublished] ____________ Before LOKEN, BOWMAN, and GRUENDER, Circuit Judges. ____________ PER CURIAM. Mustafa Mohamed appeals from the sentence imposed by the District Court1 after he pleaded guilty to being a felon in possession of ammunition and a firearm. 1 The Honorable Donovan W. Frank, United States District Judge for the District of Minnesota. His counsel moved to withdraw and filed a brief under Anders v. California, 386 U.S. 738 (1967), arguing that the sentence was unreasonable. We denied counsel’s withdrawal motion and ordered supplemental briefing addressing whether, in light of Johnson v. United States, 135 S. Ct. 2551, 2557 (2015) (holding that the residual clause of the Armed Career Criminal Act (ACCA) is unconstitutionally vague), the District Court committed error by applying a sentencing enhancement under the United States Sentencing Guidelines based on Mohamed’s prior burglary convictions. Upon reviewing the supplemental briefs, we conclude that the District Court did not commit procedural error. See United States v. Stymiest, 581 F.3d 759, 767 (8th Cir. 2009) (de novo review), cert. denied, 559 U.S. 1055 (2010). Specifically, the court properly enhanced Mohamed’s sentence based on prior convictions for first degree burglary of a residence, Minn. Stat. § 609.582, subd. 1(c), and third degree burglary of a commercial building, Minn. Stat. § 609.582, subd. 3. See U.S.S.G. § 2K2.1(a)(2) & comment. (n.1) (stating that the Guidelines base offense level is 24 if the defendant committed the instant offense after sustaining two or more felony convictions of, inter alia, a crime of violence and cross-referencing U.S.S.G. § 4B1.2 (career-offender provision)). As to the first degree burglary conviction, burglary of a dwelling is specifically included in the language of the career-offender provision as a “crime of violence.” See U.S.S.G. § 4B1.2(a)(2) (defining “crime of violence” as “any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that . . . is burglary of a dwelling”). Further, this Court has held that burglary of a commercial building qualifies as a crime of violence under the same provision, without relying on the residual clause. See Stymiest, 581 F.3d at 767, 769 (setting out alternative holdings that defendant’s sentence was properly enhanced under § 4B1.2(a) because third-degree burglary of an unoccupied structure met the generic definition of burglary and “because the ‘of a dwelling’ limitation in § 4B1.2(a)(2) was invalidated by the Supreme Court’s decision in Taylor [v. United States, 495 U.S. 575, 597 (1990)]”); United States v. Bell, 445 F.3d 1086, 1090 (8th Cir. 2006). -2- As to the contentions in counsel’s Anders brief, we conclude that the withinGuidelines sentence was not substantively unreasonable. See United States v. SalazarAleman, 741 F.3d 878, 881 (8th Cir. 2013) (noting that a district court abuses its discretion and imposes a substantively unreasonable sentence if the court fails to consider a relevant factor, gives significant weight to an improper or irrelevant factor, or commits a clear error of judgment in weighing the relevant factors); United States v. Cook, 698 F.3d 667, 670 (8th Cir. 2012) (treating a within-Guidelines sentence as presumptively reasonable). Accordingly, the judgment is affirmed. We deny as moot Mohamed’s motion for new counsel. ______________________________ -3-
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