United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-2249
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United States of America, *
*
Plaintiff-Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Robert E. Lillard, *
* [UNPUBLISHED]
Defendant-Appellant. *
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Submitted: November 18, 2004
Filed: November 24, 2004
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Before MURPHY, LAY, and MELLOY, Circuit Judges.
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PER CURIAM.
Robert Lillard was found guilty of being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g). During sentencing, the Government alleged that
Lillard was eligible for a sentencing enhancement pursuant to the Armed Career
Criminal Act (ACCA), 18 U.S.C. § 924(e). The Government alleged that Lillard
would be required to serve at least fifteen years in prison because he had previously
been convicted of three “violent felonies” -- attempted robbery, robbery, and
possession of a short shotgun.
The district court1 found that each of Lillard’s three prior convictions
constituted a “violent felony” under § 924(e) and sentenced him to 188 months
imprisonment. On appeal, Lillard argues that possession of a short shotgun is not a
“violent felony” under § 924(e). He also argues that the district court erred when it
found that his prior robbery convictions were separate and distinct criminal episodes
for the purposes of § 924(e). Because his prior robbery convictions were
consolidated for trial and sentencing in state court, Lillard argues that his two
convictions for robbery should be considered a single criminal episode.
This court has found that possession of a short shotgun constitutes a “crime of
violence” under § 4.B.1.2(a) of the United States Sentencing Guidelines. United
States v. Allegree, 175 F.3d 648, 651 (8th Cir. 1999). Although § 924(e) uses the
term “violent felony” rather than “crime of violence,” the definitions of these terms
are identical: an offense “punishable by imprisonment for a term exceeding one year”
that “involves conduct that presents a serious potential risk of physical injury to
another.” See 18 U.S.C. § 924(e)(2)(B)(ii); U.S.S.G. § 4.B.1.2(a)(2). In Allegree, we
found that “[p]ossession of a sawed-off shotgun qualifies under this definition
because such weapons are inherently dangerous and lack usefulness except for violent
and criminal purposes.” Allegree, 175 F.3d at 651. We find that the reasoning of
Allegree applies equally to this case, and hold that possession of a short shotgun is
a “violent felony” under § 924(e).
Lillard also argues that his two prior robbery convictions constituted a single
criminal episode. Although Lillard was sentenced on the same day for two robbery
convictions, the two robberies were committed more than one month apart and
involved different victims. We have held that Ҥ 924(e) specifically notes that it is
the occurrence of the criminal activity, not the conviction, that dictates the
1
The Honorable Joseph F. Bataillon, United States District Judge for the
District of Nebraska, presiding.
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enhancement decision.” United States v. Speakman, 330 F.3d 1080, 1083 (8th Cir.
2003). Lillard’s robbery convictions are not part of a single criminal episode and
were properly considered separate criminal convictions under § 924(e). See United
States v. Gray, 152 F.3d 816, 821 (8th Cir. 1998) (“The two transactions were distinct
in time, occurring on separate days, and required separate planning and execution by
[the defendants].”).
We affirm the judgment of the district court.
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