Jack Gross v. FBL Financial Services

1The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.
2Thibeaux received relief from the mandatory minimum sentence by providing
substantial assistance pursuant to 18 U.S.C. § 3553(e).
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-3890
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Western
* District of Missouri.
David M. Thibeaux, *
* [UNPUBLISHED]
Appellant. *
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Submitted: November 16, 2009
Filed: November 23, 2009
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Before MELLOY, BEAM, and GRUENDER, Circuit Judges.
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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's 1 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-year 2 sentence upon felons who unlawfully possess a firearm and

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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.
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