United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-3464
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United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Alvin Eason, *
*
Defendant - Appellant. *
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Submitted: February 14, 2011
Filed: July 7, 2011
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Before LOKEN, MELLOY, and SHEPHERD, Circuit Judges.
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LOKEN, Circuit Judge.
Alvin Eason pleaded guilty to four counts of bank robbery in violation of 18
U.S.C. § 2113(a). The Plea Agreement included a limited appeal waiver. Based on
two prior burglary convictions, the district court1 found that Eason is a career offender
and sentenced him to 151 months in prison, the bottom of the resulting guidelines
range. Eason appeals, arguing he was improperly sentenced as a career offender and
the career-offender-enhanced sentence is substantively unreasonable because it is
greater than necessary to achieve the sentencing goals of 18 U.S.C. § 3553(a). We
1
The Honorable Henry E. Autrey, United States District Judge for the Eastern
District of Missouri.
reject the government’s contention that the second issue falls within the appeal waiver,
reject Eason’s arguments on the merits, and affirm.
I.
The now-advisory Guidelines increase a defendant’s offense level and criminal
history category if he is a “career offender.” U.S.S.G. § 4B1.1(b). An adult convicted
of a felony crime of violence such as bank robbery is a “career offender” if he “has
at least two prior felony convictions of either a crime of violence or a controlled
substance offense.” § 4B1.1(a). On appeal, Eason argues, as he did in the district
court, that he does not have two prior qualifying convictions because his 1997
Tennessee burglary conviction was not for a “crime of violence.” We review
application of the career offender enhancement de novo. United States v. Stymiest,
581 F.3d 759, 767 (8th Cir. 2009), cert. denied, 130 S. Ct. 2364 (2010).
A “crime of violence” is defined as including “any offense under federal or
state law, punishable by imprisonment for a term exceeding one year, that . . . (2) is
burglary of a dwelling . . . or otherwise involves conduct that presents a serious
potential risk of physical injury to another.” § 4B1.2(a). An offense that includes the
elements of “generic burglary” -- “unlawful or unprivileged entry into, or remaining
in, a building or structure, with intent to commit a crime” -- is “burglary” for
purposes of the nearly identical definition of “violent felony” in the Armed Career
Criminal Act, 18 U.S.C. § 924(e)(2)(B). Taylor v. United States, 495 U.S. 575, 598-
99 (1990). Thus, we have repeatedly held that “any generic burglary is a crime of
violence” for purposes of U.S.S.G. § 4B1.2(a)(2). Stymiest, 581 F.3d at 767-69; see
United States v. Bell, 445 F.3d 1086, 1090 (8th Cir. 2006).2
2
We have often noted that “violent felony” and “crime of violence” are virtually
interchangeable in definition and interpretation. See United States v. Williams, 537
F.3d 969, 971 (8th Cir. 2008).
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In the 1997 offense at issue, Eason was convicted of committing “Burglary” in
violation of Tenn. Code Ann. § 39-14-402. The statute at that time provided:
(a) A person commits burglary who, without the effective consent of the
property owner: (1) Enters a building other than a habitation (or any
portion thereof) not open to the public, with intent to commit a felony,
theft or assault; (2) Remains concealed, with the intent to commit a
felony, theft or assault, in a building; (3) Enters a building and commits
or attempts to commit a felony, theft or assault; or (4) Enters any freight
or passenger car, automobile, truck, trailer, boat, airplane or other motor
vehicle with intent to commit a felony, theft or assault or commits or
attempts to commit a felony, theft or assault.
Subparts (1)-(3) of this statute plainly set forth the elements of generic burglary as
defined by the Supreme Court in Taylor.3 Moreover, the Supreme Court of Tennessee
has consistently defined the elements of burglary offenses as including unlawful entry
into a building. See State v. James, 315 S.W.3d 440, 456 (Tenn. 2010); State v.
Langford, 994 S.W.2d 126, 127 (Tenn. 1999). Consistent with these decisions, the
Sixth Circuit, whose jurisdiction includes Tennessee, has repeatedly held that
Tennessee burglary convictions are violent felonies under the Armed Career Criminal
Act. See United States v. Nance, 481 F.3d 882, 888 (6th Cir.), cert. denied, 552 U.S.
1052 (2007); United States v. Anderson, 923 F.2d 450, 454 (6th Cir.), cert. denied,
500 U.S. 936 (1991).
3
This Tennessee statute “is potentially over-inclusive” because subpart (4)
includes burglaries of automobiles, trucks, trailers, boats, and airplanes, which are not
“buildings.” Stymiest, 581 F.3d at 768, citing Taylor, 495 U.S. at 591, 599, 602.
However, as in Stymiest, Eason’s PSR included a paragraph, to which he did not
object, stating: “[c]ourt records indicate that on September 17, 1997 . . . [Eason]
knowingly and unlawfully entered a building not open to the public, without consent
and with the intent to commit theft.” “When a defendant fails to object to fact
recitations in the PSR establishing that a prior offense was generic burglary, the
government need not introduce at sentencing the documentary evidence” that might
otherwise be required. Stymiest, 581 F.3d at 768 (quotation and citations omitted).
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Eason argues, however, that the decision of the Tennessee Court of Criminal
Appeals in Tennessee v. Fluellen, 2006 WL 288105 (Tenn. Crim. App. Feb. 7, 2006),
established that a defendant may be convicted of burglary under Tenn. Code Ann.
§ 39-14-402 “simply by admitting that he obtained or exercise[d] control over
property of another,” which is the definition of theft found in Tenn. Code Ann. § 39-
14-103. We disagree. The issue in Fluellen was whether the evidence was sufficient
to convict defendant of violating § 39-14-402(a)(1). The Court first stated, in the
passage upon which Eason relies, the State’s burden of proof:
To convict the Defendant of burglary, the State was required to
prove that the Defendant “without the effective consent of the property
owner: enter[ed] a building other than a habitation (or any portion
thereof) not open to the public, with the intent to commit a felony, theft,
or assault . . . . According to Tennessee Code Annotated section 39-14-
103 (2003), “A person commits theft of property if, with the intent to
deprive the owner of property, the person knowingly obtains or exercises
control over the property without the owner’s effective consent.”
Fluellen, 2006 WL 288105, at *4. The Court carefully reviewed the trial evidence and
concluded that “the trier of fact could reasonably infer that the Defendant had been
inside the restaurant” and that “the Defendant entered the restaurant with the intent to
commit theft.” Id. at *5. Thus, properly read, Fluellen is entirely consistent with
Supreme Court of Tennessee decisions stating that entry is an essential element of this
burglary offense. We think it apparent that the language on which Eason relies merely
recited one way to prove an additional element of generic burglary -- entry for an
unlawful purpose, in that case, intent to commit theft. Thus, Fluellen supports the
Sixth Circuit decisions placing a violation of Tenn. Code Ann. § 39-14-402(a)(1)-(3)
squarely within the U.S. Supreme Court’s definition of generic burglary.
For these reasons, the district court did not err in concluding that Eason’s 1997
burglary conviction for violating Tenn. Code Ann. § 39-14-402 was a crime of
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violence under U.S.S.G. § 4B1.2(a)(2) and in determining that Eason’s advisory
guidelines sentencing range should therefore include a career offender enhancement.
II.
Eason further argues that his 151-month sentence is greater than necessary to
achieve the goals advanced in § 3553(a)(2) and therefore substantively unreasonable.
See Gall v. United States, 128 S. Ct. 586, 596-97 & n.6 (2007).
The government first responds that Eason waived the right to raise this issue on
appeal. We disagree. The plea agreement included a limited appeal waiver:
In the event the Court accepts the plea and, in sentencing the defendant,
1) applies the recommendations agreed to by the parties herein, and 2)
after determining a Sentencing Guideline range, sentences the defendant
within that range, then, as part of this agreement, both the defendant and
the government hereby waive all rights to appeal all sentencing issues,
including any issues relating to the determination of the Total Offense
Level, except for the Criminal History Category, Career Offender Status
and Armed Career Criminal Status.
The Agreement also contained detailed “Guidelines Recommendations (Not Binding
on the Court)” that included recommendations concerning the base offense level for
each Count, Chapter 2 offense characteristics, Chapter 3 and other adjustments, and
acceptance of responsibility. “Based on these recommendations,” this section of the
Agreement concluded, “the parties estimate that the Total Offense Level for Counts
I, III and IV is 19. The Total Offense Level for Count II is 20.” The district court at
sentencing instead applied the career offender enhancement and determined a total
offense level of 29. Thus, unlike United States v. Miller, 606 F.3d 969, 972 (8th Cir.
2010), the court did not apply all of the recommendations agreed to by the parties.
Eason may therefore appeal, not only his career offender status, as the Plea Agreement
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expressly allowed, but also the reasonableness of the court’s refusal to vary downward
from the career-offender-enhanced advisory guidelines range.
Alternatively, the government argues that the district court did not abuse its
discretion when it imposed a sentence within the properly determined guidelines
range. We agree. We may consider a within-range sentence presumptively reasonable
on appeal, including a range enhanced by the career offender provisions. Rita v.
United States, 127 S. Ct. 2456, 2462 (2007). Moreover, “it will be the unusual case
when we reverse a district court sentence -- whether within, above, or below the
applicable Guidelines range -- as substantively unreasonable.” United States v.
Feemster, 572 F.3d 455, 464 (8th Cir. 2009) (en banc). Here, after weighing the
mitigating circumstances argued in Eason’s Sentencing Memorandum and at the
sentencing hearing against the serious offense of conviction -- four bank robberies in
a one-year time span -- and Eason’s long history of crimes and substance abuse, the
district court concluded that a sentence at the bottom of the advisory range was
consistent with the sentencing factors set forth in 18 U.S.C. § 3553(a). That sentence
was not substantively unreasonable.
The judgment of the district court is affirmed.
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