General Electric v. Union Planters Bank

1The Honorable Rodney W. Sippel, United States District Judge for the Eastern
District of Missouri.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-3535
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the Eastern
v. * District of Missouri.
*
* [UNPUBLISHED]
Christopher A. Welker, *
*
Appellant. *
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Submitted: April 11, 2005
Filed: May 16, 2005
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Before COLLOTON, McMILLIAN, BENTON, Circuit Judges.
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PER CURIAM.
After admitting to stealing seven firearms, Christopher Andrew Welker pleaded
guilty to being a felon in possession of a firearm, a violation of 18 U.S.C. § 922(g)(1).
The district court 1 enhanced Welker's sentence based on the Armed Career Criminal
Act of 1984 (ACCA) of 18 U.S.C. § 924(e)(1). He appeals the enhancement, arguing
that the district court violated Blakely v. Washington, 542 U.S. ---, 124 S.Ct. 2531

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(2004) by "finding" that his three prior burglary convictions were violent felonies.
This court reviews de novo whether a prior offense is a violent felony under section
924(e). United States v. Abernathy, 277 F.3d 1048, 1051 (8th Cir.), cert. denied, 535
U.S. 1089 (2002). Having jurisdiction under 28 U.S.C. § 1291, this court affirms.
The ACCA mandates a minimum15-year sentence for a violation of section
922(g)(1) when the person has three or more convictions for a "violent felony." 18
U.S.C. § 924(e)(1). A prior conviction is a sentencing factor for the court.
Almendarez-Torres v. United States, 523 U.S. 224, 243-44 (1998). Whether a prior
conviction is a violent felony is a question of law for the court, not an issue submitted
to a jury. United States v. Sanders, 377 F.3d 845, 847 n.3 (8th Cir. 2004). Therefore,
a court does not engage in prohibited fact-finding when enhancing sentences under
the ACCA for prior convictions. See United States v. Painter, 400 F.3d 1111, 1111
(8th Cir. 2005).
This court has held repeatedly that a burglary conviction is a violent felony.
United States v. Nolan, 397 F.3d 665, 666 (8th Cir. 2005); United States v.
Blahowski, 324 F.3d 592, 594-95 (8th Cir.), cert. denied, 540 U.S. 934 (2003); United
States v. Hascall, 76 F.3d 902, 904 (8th Cir. 1996). Moreover, section 924(e)
includes burglary in the definition of violent felony. 18 U.S.C. § 924(e)(2)(B)(ii).
Because Welker had three burglary convictions, the district court did not err in
enhancing his sentence under the ACCA.
The judgment of the district court is affirmed.
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