United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-2801
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Willie Johnson, *
* [UNPUBLISHED]
Appellant. *
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Submitted: May 5, 2005
Filed: May 10, 2005
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Before BYE, RILEY, and COLLOTON, Circuit Judges.
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PER CURIAM.
Willie Johnson (Johnson) appeals the sentence the district court1 imposed for
a felon-in-possession offense, in violation of 18 U.S.C. § 922(g)(1). After the court
accepted Johnson’s guilty plea, the government gave notice of its intent to enhance
Johnson’s sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e), listing
five prior Missouri state convictions for second-degree burglary, all of which also
were noted in the presentence investigation report (PSR). See 18 U.S.C. § 924(e)
1
The Honorable Nanette K. Laughrey, United States District Judge for the
Western District of Missouri.
(stating any defendant who violates § 922(g) and has 3 prior convictions for violent
felony or serious drug offenses must be imprisoned for not less than 15 years).
At the sentencing hearing, the district court adopted the PSR but expressed
concern that Johnson had entered his guilty plea believing he was subject to a 10-year
maximum rather than a 15-year mandatory minimum prison term; the court offered
that Johnson could either withdraw his guilty plea or plead guilty a second time and
face a 15-year prison term. After Johnson expressed frustration with the situation, the
court postponed the hearing to allow the court and parties to research how sentencing
should proceed. At a subsequent hearing held three weeks later, the district court
again asked Johnson to choose whether he wished to withdraw his guilty plea or to
proceed with sentencing knowing he was subject to a 15-year prison term; Johnson
responded, “Yes. Proceed with it, Judge.” The court then sentenced Johnson to 180
months (15 years) in prison and 3 years supervised release.
Johnson’s counsel has moved to withdraw and filed a brief under Anders v.
California, 386 U.S. 738 (1967), arguing Johnson’s sentence violates his due process
and equal protection rights, because Johnson was not given notice that he was subject
to an enhanced sentence under section 924(e). Johnson has filed a pro se
supplemental brief, arguing the district court plainly erred under Blakely v.
Washington, 124 S. Ct. 2531 (2004), in classifying him as an armed career criminal,
because a jury should have decided whether his prior convictions were violent
felonies.
These arguments fail. Johnson’s sentence does not violate his due process or
equal protection rights, because the PSR referenced the convictions underlying his
classification as an armed career criminal and Johnson did not object to these facts,
and Congress had a rational basis for requiring enhanced sentences for those with
three prior convictions for violent felonies. See United States v. Bates, 77 F.3d 1101,
1105-06 (8th Cir. 1996) (rejecting due process argument), United States v. Woodall,
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120 F.3d 880, 882 (8th Cir. 1997) (rejecting equal protection argument). Also,
Johnson’s sentence does not implicate United States v. Booker, 125 S. Ct. 738 (2005).
See United States v. Painter, 400 F.3d 1111, 1111 (8th Cir. 2005) (holding, because
section 924(e) sentence was mandated by statute, it was free of error under Booker).
Having carefully reviewed the record under Penson v. Ohio, 488 U.S. 75, 80
(1988), we find no nonfrivolous issues. Accordingly, we affirm, and we grant
counsel’s motion to withdraw.
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