United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 16, 2006
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No. 05-30088 Charles R. Fulbruge III
Clerk
______________________
UNITED STATES OF AMERICA
Plaintiff-Appellee
versus
STEVE STAPLETON
Defendant-Appellant
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Appeal from the United States District Court for
the Western District of Louisiana
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Before HIGGINBOTHAM, WIENER, and DENNIS, Circuit Judges.
DENNIS, Circuit Judge:
In this appeal from an enhanced sentence, the question is
whether the Louisiana crime of false imprisonment while armed with
a dangerous weapon under LA. REV. STAT. ANN § 14:46.1(A) is a violent
felony under either the Force Clause or the Otherwise Clause of the
Armed Career Criminal Act, 18 U.S.C. § 924(e).1 As interpreted by
1
Mr. Stapleton also argues that the Sixth Amendment analysis
from United States v. Booker applies such that the district court's
sentence of 210 months is unconstitutional, as it is based on
additional facts found by the district court regarding the
qualifying nature of Stapleton's prior convictions, beyond the fact
of their existence (which was found by the jury). The Supreme Court
has held recidivist provisions like those in the Armed Career
Criminal Act are neither substantive offenses nor elements thereof
and thus the fact of a prior conviction need not be alleged in an
indictment nor proven beyond a reasonable doubt. Almendarez-Torrez
v. United States, 523 U.S. 224 (1998). This circuit has held that
1
the Louisiana Supreme Court, “with a dangerous weapon” means either
(1) with a loaded pistol anywhere on the offender’s person, whether
displayed or concealed, or (2) with any other instrumentality,
which, in the manner used is calculated or likely to produce death
or great bodily harm.2 We hold that the crime at issue is not a
violent felony under the Force Clause because it is not a crime
which necessarily has as an essential element the use, attempted
use, or threatened use of physical force against the person of
another. 18 U.S.C. § 924(e)(i). But we hold that it is a violent
felony under the Otherwise Clause, because it necessarily presents
a serious potential risk of physical injury to another. 18 U.S.C. §
924(e)(ii). Accordingly, the defendant’s enhanced sentence under the
Armed Career Criminal Act is affirmed.
The Armed Career Criminal Act, 18 U.S.C. § 924(e)(1), sets a
minimum sentence of 15 years for an offender who “has three previous
convictions by any court referred to in section 922(g)(1) of this
title for a violent felony or a serious drug offense, or both,
committed on occasions different from one another[.]” A violent
felony is defined to include
any crime punishable by imprisonment for a term exceeding
one year...that--
no Sixth Amendment violation arises when a district court considers
the nature of a prior conviction rather than presenting the
question to a jury. United States v. Stone, 306 F.3d 241, 243 (5th
Cir. 2002).
2
State v. Gould, 395 So.2d 647, 655 (La. 1981); see also
State v. Robinson, 404 So.2d 907, 912 (La. 1981).
2
(i[the Force clause]) has as an element the use,
attempted use, or threatened use of physical
force against the person of another; or
(ii[the Otherwise clause]) is burglary, arson,
or extortion, involves use of explosives, or
otherwise involves conduct that presents a
serious potential risk of physical injury to
another. 18 U.S.C. § 924(e)(2)(B).
LA. REV. STAT. ANN § 14:46 provides that: “False imprisonment is
the intentional confinement or detention of another, without his
consent and without proper legal authority.” LA. REV. STAT. ANN
14:46.1(A) provides that “[f]alse imprisonment while armed with a
dangerous weapon is the unlawful intentional confinement or
detention of another while the offender is armed with a dangerous
weapon.” LA. REV. STAT. ANN § 14:2(3) provides that: “‘Dangerous
weapon’ includes any gas, liquid or other substance or
instrumentality, which, in the manner used, is calculated or likely
to produce death or great bodily harm.”
When La.R.S.14:2(3) is read only in light of the Reporter’s
Comments, it would appear that “dangerous weapon” refers only to an
instrumentality used in a crime in a manner calculated or likely to
produce death or great bodily harm.3 However, the Louisiana Supreme
3
See LA. REV. STAT. ANN § 14:2 REPORTER'S COMMENT, 1997 Main
Volume, which states:
‘Dangerous weapon': This term has been broadly defined to
include such things as gases, liquids or other substances
which might be used in a manner which is likely to cause
death or great bodily harm. The test as given in the
article is not whether the weapon is inherently
dangerous, but whether it is dangerous ‘in the manner
used.' This test was distinctly enunciated by the
3
Court, in State v. Gould, presumed that “[a] loaded pistol is
undoubtedly a dangerous weapon irrespective of how used or
exhibited.” 395 So.2d 647, 655 (La. 1981). Construing the statute
together with this premise, the Court decided that “[a] person
robbing with a loaded pistol anywhere on his person, irrespective of
whether used in a manner calculated or likely to produce death or
great bodily harm, would surely qualify as one armed with a
dangerous weapon.” Id. But, the Court continued, “[o]ther
instrumentalities, not inherently dangerous, are dangerous weapons
only, as defined, when in the manner used they are calculated or
likely to produce death or great bodily harm.” Id.4
In the light of Gould and Robinson, we conclude that the
Louisiana crime of false imprisonment with a dangerous weapon is not
a violent felony under the Force Clause. A crime does not meet the
Louisiana Supreme Court in State v. Washington, 104 La.
443, 29 So. 55 (1900), where the court declared, ‘Whether
the weapon used by defendant was dangerous within the
meaning of the statute was a question for the jury to
determine upon considering not only the character of such
weapon, but by whom, upon whom, and in what manner it was
used.' Louisiana has held the following things to be
dangerous weapons when used in a way likely to produce
serious bodily injury, – ‘iron bolt, rod or pin' State v.
Lowry, 33 La.Ann. 1224 (1881); ‘pocket knife' State v.
Scott, 39 La.Ann. 943, 3 So. 83 (1887); ‘ax' State v.
Hertzog, 41 La.Ann. 775, 6 So. 622 (1889); ‘a large piece
of timber' State v. Alfred, 44 La.Ann. 582, 10 So. 887
(1892); ‘razor’ State v. Sinegal, 51 La.Ann. 932, 25 So.
957 (1899).
4
See also, State v. Robinson, 404 So.2d 907, 912 (La. 1981)
(“...it is not necessary that the robber actually display his
weapon to the victim, if the robber is in fact armed with an
inherently dangerous weapon, in order for the defendant to be shown
to be guilty of armed robbery.”)
4
requirements of the Force Clause if it can be committed without the
use, attempted use, or threatened use of physical force. United
States v. Martinez, 954 F.2d 1050, 1052 (5th Cir. 1992); See also,
United States v. Montgomery, 402 F.3d 482, 486 (5th Cir. 2005)
(holding that a Texas retaliation statute did not constitute a
violent felony because the statute defined harm to include a range
of results that covered more offenses than those resulting from the
direction of physical force against another’s person). The basic
offense of false imprisonment in Louisiana does not necessarily
involve the use, attempted use or threatened use of force by the
offender in every case. That crime requires only that the offender
intentionally confine or detain the victim without consent or legal
authority. Thus, the non-consensual confinement of a person through
deception or trickery may constitute false imprisonment even when
the offender does not use, attempt to use or threaten to use force.
Therefore, it follows that, because a loaded pistol is construed in
Louisiana to be a dangerous weapon even when totally concealed on
the culprit’s person during the offense, the crime of false
imprisonment with a dangerous weapon likewise can be committed with
a hidden loaded pistol, without the use, attempted use or threatened
use of physical force.
We conclude, however, that the defendant’s conviction of false
imprisonment with a dangerous weapon under Louisiana law does qualify
as a violent felony under the Otherwise Clause. 18 U.S.C. §
924(e)(2)(B)(ii). The Otherwise Clause is triggered by conduct
5
creating a serious potential risk of physical harm to another, and
we believe that such a risk is inherent in the commission of false
imprisonment with a dangerous weapon under either prong of “dangerous
weapon” recognized by the Louisiana Supreme Court in Gould and
Robinson. When an offender commits the crime with a loaded pistol
concealed on his person, there is a heightened likelihood of his very
effective use of lethal force in response to resistance,
interference, frustration, or fear of apprehension.5 When an
offender commits the offense using another type of instrumentality
in a manner calculated to or likely to produce death or great bodily
harm, there is a heightened likelihood of violence in the interaction
between the offender and the non-consensually confined or detained
victim or others put in fear of fatal or grievous consequences.6 In
5
Cf., United States v. Rodriguez, 925 F.2d 1049, 1052-3 (7th
Cir. 1991) (The “ready availability” of undrawn weapons is likely
to embolden offenders and place lives in jeopardy)(quoting
then-Judge Kennedy, in United States v. Stewart, 779 F.2d 538, 540
(9th Cir.1985), analyzing whether conviction under 18 U.S.C. §
924(c)(1) qualifies as a violent felony, noting that the presence
of a firearm may “embolden[] an actor who had the opportunity or
ability to display or discharge the weapon to protect himself or
intimidate others, whether or not such display or discharge in fact
occurred”) (further citing United States v. Ocampo, 890 F.2d 1363,
1371 (7th Cir.1989) and United States v. Alvarez, 914 F.2d 915, 919
(7th Cir.1990) (“Any victim of armed robbery will attest to the
fact that, fired or not, the attacker's gun presented a substantial
risk of the use of force.”)).
6
See State v. Bonier, 367 So.2d 824, 826 (La. 1979)(“In
making its determination [whether the instrumentality was used in
the required manner], the jury may find that there was an actual
likely danger of serious bodily harm to anyone present in the
highly charged atmosphere of the scene of a robbery, taking into
consideration the great possibility of violence in the interaction
between the offender and the victim thereby put in fear for his
life.”); State v. Leak, 306 So.2d 737, 738-9 (La.1975)(“[W]here an
6
either situation the magnitude of the potential harm and the
heightened likelihood of its occurrence combine to create the type
of danger contemplated by the Otherwise Clause.
Accordingly, we conclude that the offense at issue committed by
the defendant in this case was correctly judged to be a violent
felony and that his sentence was justifiably enhanced under the Armed
Career Criminal Act. For these reasons, the judgment of the district
court is AFFIRMED.
instrument[,an extension to a ratchet coupled with a socket used to
simulate a firearm,] held by the culprit invites the forcible
responses of the victim and/or bystanders and embraces the threat
and capability that it will be used as a bludgeon, possibilities
are presented that are '. . . likely to produce death or great
bodily harm.”); State v. Johnston, 20 So.2d 741, 744
(1945)(“Usually in a situation of that kind the person so assaulted
[with an unloaded revolver] attempts to escape, to wrest the gun
from the assailant, or to deliver him some death dealing blow; and,
in making any of these attempts, serious injury often results.”);
see also Hillie v.Maggio, 712 F.2d 182 (5th Cir. 1983).
7