In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2629
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
B RANDEN L. K ING,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of Illinois.
No. 09 CR 20040—Michael P. McCuskey, Chief Judge.
A RGUED A PRIL 1, 2011—D ECIDED JULY 7, 2011
Before E ASTERBROOK, Chief Judge, and B AUER and
E VANS, Circuit Judges.
B AUER, Circuit Judge. A jury convicted defendant-appel-
lant Branden L. King of being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g), and he was
sentenced to 210 months’ imprisonment. King challenges
the sentencing court’s application of the Armed Career
Criminal Act (“ACCA”) as well as the sufficiency of
the evidence used to prove possession. For the following
reasons, we affirm King’s conviction and sentence.
2 No. 10-2629
I. BACKGROUND
On May 10, 2009, King was pulled over after officers
observed him not wearing his seatbelt and failing to use
a turn signal. During the stop, the officers discovered
that King was driving on a suspended license and
arrested him. The officers performed a routine inventory
search of King’s car, which was registered under King’s
name, and discovered a shotgun in the back seat of the
car under a coat. King had previously been convicted of
a felony, so he was charged with being a felon in posses-
sion of a firearm. The case was tried by a jury.
A forensic examination of the shotgun did not produce
a complete set of fingerprints and was inconclusive. But,
at trial the government introduced a witness, Shamion
McWilliams, a friend of King, who identified the shot-
gun as the gun that she had seen King take to a gun
shop for repairs, and she said that she had seen it in
King’s possession on multiple occasions. The government
also introduced testimony from Richard Vaughn, the
owner of the gun shop, who stated that he remembered
King bringing his shotgun in for repair; Vaughn iden-
tified the shotgun as being the same gun King brought
into his shop.
At the close of the government’s case, King moved for
a judgment of acquittal under Federal Rule of Criminal
Procedure 29, which the district court denied. He
renewed the motion after announcing that he would not
testify or present witnesses, and the district court denied
the motion a second time. The jury found King guilty.
No. 10-2629 3
A presentence report (“PSR”) calculated King’s base
offense level at 24. The PSR also noted King’s three
prior convictions for violent felonies—burglary, armed
robbery, and conspiracy to commit armed robbery—and
concluded that King qualified as an Armed Career Crimi-
nal, increasing King’s offense level to 33. This designa-
tion, along with King’s criminal history, resulted in
an advisory Guidelines range of 210 to 262 months. The
district court sentenced King to 210 months in prison.
II. ANALYSIS
A. Armed Career Criminal Status
King appeals his sentence, arguing that the trial court
erred by refusing to consider the charging instrument
when analyzing whether any of King’s prior convictions
constituted a violent felony for purposes of the ACCA
designation.
Whether a prior conviction qualifies as a “violent
felony” for purposes of the ACCA is a question of law
that we review de novo. United States v. Wallace, 326
F.3d 881, 886 (7th Cir. 2003).
Under the ACCA, 18 U.S.C. § 924(e), an offender who
is convicted under 18 U.S.C. § 922(g) as a felon in posses-
sion of a firearm and who has three previous convic-
tions for a violent felony or serious drug offense receives
a mandatory minimum 15-year prison sentence. The
statute defines a violent felony as “any crime punishable
by imprisonment for a term exceeding one year . . . that
(i) has as an element the use, attempted use, or threatened
4 No. 10-2629
use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explo-
sives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another.” 18
U.S.C. § 924(e)(2)(B). Specifically, the Supreme Court has
interpreted burglary under the ACCA to be considered
a violent felony only if it is “generic burglary,” that is,
burglary committed in a building or enclosed space.
Shepard v. United States, 544 U.S. 13, 16-17 (2005) (citing
Taylor v. United States, 495 U.S. 575, 599 (1990)). In op-
position to “generic burglary” is “non-generic burglary,”
which can exist when a statute defines burglary more
broadly, such as by extending the act to entries into
boats and cars. Id. at 17.
Generally, when making a career offender determina-
tion, a sentencing court is prohibited from looking
into particular facts of the case and is required to take
a categorical approach, which limits the court to con-
sidering only the fact of conviction and the statutory
elements of the offense. Id. (citing Taylor, 495 U.S at 602).
However, when a statute is divisible and pertains to an
offense, such as burglary, where some offense conduct
could constitute a violent felony (such as generic bur-
glary) while some would not (such as non-generic bur-
glary), the court may expand its inquiry to a limited set
of additional materials in order to determine whether
the defendant violated the portion of the statute that
constitutes a violent felony. United States v. Woods, 576
F.3d 400, 404 (7th Cir. 2009).
King argues that the sentencing court did not look
beyond the fact of conviction when making the deter-
No. 10-2629 5
mination that King was a career offender and argues
that, at a minimum, the sentencing court should have
conducted a further analysis to determine whether
the statute under which King was convicted was a
divisible burglary statute.
We need not spend a lot of time on this argument.
An assessment of the divisibility of the Illinois burglary
statute has no effect on King’s career offender status
because the record makes clear that King’s particular
conviction at issue—burglary by entering a Cub Foods
building—was a generic burglary offense that on its
face fell within the ACCA’s definition of a violent felony.
King pleaded guilty to burglary; thus, he admitted the
intent to commit a crime within a building or enclosed
space. Because burglary is a violent felony for purposes
of the ACCA if committed in a building or enclosed
space, the district court did not err in using King’s prior
burglary conviction as a qualifying conviction under
the ACCA.
B. Sufficiency of the Evidence
We give a jury verdict great deference and will uphold
it if, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime
beyond a reasonable doubt. United States v. Hicks, 368
F.3d 801, 804-05 (7th Cir. 2004). We will not reweigh
evidence or second-guess the jury’s credibility deter-
minations. United States v. Stevens, 453 F.3d 963, 965 (7th
Cir. 2006) (quoting United States v. Gardner, 238 F.3d
878, 879 (7th Cir. 2001)).
6 No. 10-2629
King argues that witnesses called by the government
did not provide sufficient evidence to convince the
jury that the essential elements of the crime were
proven beyond a reasonable doubt. Specifically, King
argues that the testimony of multiple witnesses was
inconsistent and incomplete and that the government
did not prove the possession element of the crime. We
disagree.
The government presented the testimony of Sharon
“Kay” Harvey, who sold the car to King less than a
month prior to his arrest. She testified that she had re-
moved all items from the car when she sold it to King,
and that she did not own a shotgun and had not left
a shotgun in the car. The government also introduced
testimony from one of King’s friends, Shamion Mc-
Williams. She testified that approximately eighteen days
before King’s arrest, she had driven King to a gun
repair shop to get his shotgun repaired. Though she
could not describe the gun with great accuracy, when
shown the shotgun that was found in King’s car,
McWilliams stated that she was “100 percent sure” that
the shotgun was the same gun she had seen previously
in King’s possession. The government then introduced
Richard Vaughn, the owner of the gun shop, who remem-
bered King and testified that he was “99.9 percent
sure” that the shotgun found in King’s car was the
same gun he had repaired.
At oral argument, King attempted to analogize his
case to United States v. Chairez, 33 F.3d 823 (7th Cir. 1994).
In Chairez, we found that the defendant’s conviction
No. 10-2629 7
for carrying a firearm during or in relation to a drug
trafficking crime was not supported by sufficient
evidence when a handgun was found in the car in which
the defendant was riding. King ignores the many dif-
ferences between his own case and the defendant in
Chairez. In Chairez, the car in which police found the
handgun was registered to an unidentified woman and
not registered to or owned by the defendant. There was
more than one occupant in the car at the time the gun
was found, and the defendant was merely a passenger
in the front seat. The government in that case presented
no evidence that the defendant had ever owned or
carried a firearm, and the gun was not traced to him in
any way. Here, the car in which police found the
shotgun was owned by and registered solely in King’s
name. King was the sole occupant of the vehicle. The
government presented testimony from multiple indi-
viduals that linked King to the shotgun. Viewing this
evidence in the light most favorable to the government,
sufficient evidence supports King’s conviction for being
a felon in possession of a firearm.
III. CONCLUSION
For the reasons set forth above, we A FFIRM King’s
conviction and sentence.
7-7-11