Jack Gross v. FBL Financial Services

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. 09-1080
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
William M. Davis, *
* [UNPUBLISHED]
Appellant. *
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Submitted: November 12, 2009
Filed: November 17, 2009
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Before BYE, BOWMAN, and BENTON, Circuit Judges.
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PER CURIAM.
In this direct criminal appeal, William Davis challenges the sentence imposed
by the district court 1 after he pled guilty to being a felon in possession of a firearm,
in violation of 18 U.S.C. §§ 922(g)(1), 924(e). On appeal, counsel has filed a brief
under Anders v. California, 386 U.S. 738 (1967), in which he requests leave to
withdraw.

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2United States v. Booker, 543 U.S. 220 (2005).
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Counsel first questions whether Davis’s 1989 Florida conviction for burglary
is a “violent felony” for purposes of his armed career criminal status. See 18 U.S.C.
§ 924(e)(1) (§ 922(g)(1) offender shall be sentenced to minimum sentence of 15 years
in prison if he has 3 prior convictions for violent felony or serious drug offense). We
hold that it does. See United States v. Vincent, 575 F.3d 820, 822 (8th Cir. 2009) (de
novo review); 18 U.S.C. § 924(e)(2)(B)(ii) (defining “violent felony” as “burglary,
arson, or extortion, involves use of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to another”); Taylor v. United
States, 495 U.S. 575, 599 (1990) (person has been convicted of burglary for purposes
of § 924(e) if he is convicted of any crime having basic elements of unlawful or
unprivileged entry into, or remaining in, building or structure with intent to commit
crime; court must look only to statutory definition and not underlying facts); United
States v. Matthews, 466 F.3d 1271, 1274 (11th Cir. 2006) (even if defendant’s Florida
burglary convictions were not generic burglaries, they were violent felonies under the
alternative “otherwise” definition).
Counsel’s challenge to the length of Davis’s sentence also fails. See United
States v. Gregg, 451 F.3d 930, 937 (8th Cir. 2006) (“Booker2 does not relate to
statutorily-imposed sentences”); United States v. Chacon, 330 F.3d 1065, 1066 (8th
Cir. 2003) (only authority for district court to depart from statutory minimum sentence
is found in 18 U.S.C. § 3553(e) and (f)).
After reviewing the record independently under Penson v. Ohio, 488 U.S. 75
(1988), we find no nonfrivolous issues for appeal. Accordingly, we affirm the
judgment of the district court, and grant counsel leave to withdraw.
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