United States v. Jerome Wilkerson

                                                                                 [PUBLISH]


                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT                          FILED
                            ________________________                U.S. COURT OF APPEALS
                                                                      ELEVENTH CIRCUIT
                                                                         MARCH 29, 2002
                                    No. 01-10918
                                                                       THOMAS K. KAHN
                              ________________________                      CLERK

                          D. C. Docket No. 97-00021 CR-ORL

UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                           versus

JEROME WILKERSON,

                                                                 Defendant-Appellant.

                              ________________________

                      Appeal from the United States District Court
                          for the Middle District of Florida
                           _________________________
                                  (March 29, 2002)


Before TJOFLAT and COX, Circuit Judges, and HANCOCK*, District Judge.

PER CURIAM:




       *
         Honorable James H. Hancock, U.S. District Judge for the Northern District of Alabama,
sitting by designation.
       Jerome Wilkerson was convicted of possession of a firearm by a convicted

felon, in violation of 18 U.S.C. § 922(g). Wilkerson received an enhanced sentence

of 235 months’ imprisonment pursuant to 18 U.S.C. § 924(e), which provides for a

mandatory sentence of not less than fifteen years if the defendant has three prior

convictions for violent felonies. On appeal, Wilkerson contends that the district court

erred by finding that his prior Florida conviction for conspiracy to commit robbery

qualified as a “violent felony” under § 924(e).1 Reviewing de novo the court’s

conclusion that a particular offense constitutes a “violent felony” under § 924(e), see

United States v. Cobia, 41 F.3d 1473, 1475 (1995), we affirm.

       Section 924(e)(2)(B) defines the term “violent felony” to mean any felony that:

“(i) has as an element the use, attempted use, or threatened use of physical force

against the person of another; or (ii) . . . otherwise involves conduct that presents a

serious potential risk of physical injury to another . . . .” In determining whether a

particular offense falls within this definition, the Supreme Court has directed trial

courts to pursue a categorical approach, “looking only to the statutory definitions of

the prior offenses, and not to the particular facts underlying those convictions.”


       1
                Wilkerson raises three additional arguments on appeal: (1) that the evidence was
not sufficient to support his conviction because the Government failed to prove that he possessed
a firearm; (2) that Congress exceeded its power under the Commerce Clause by enacting 18
U.S.C. § 922(g); and (3) that the court erred by instructing the jury as it did. We find no merit in
these arguments, and they do not warrant further discussion. See 11th Cir. R. 36-1.

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Taylor v. United States, 495 U.S. 575, 600, 110 S. Ct. 2143, 2159 (1990). Our task,

then, is to determine whether a Florida conviction for conspiracy to commit robbery,

which requires proof of an agreement and an intent to commit robbery, can be

classified categorically as a “violent felony” within the meaning of § 924(e)(2)(B).

      Florida law defines the offense of robbery as the taking of another’s property

by “the use of force, violence, assault, or putting in fear.” Fla. Stat. § 812.13(1). Thus

defined, robbery clearly constitutes a “violent felony” within the meaning of §

924(e)(2)(B). See, e.g., United States v. Jackson, 57 F.3d 1012, 1017-18 (11th Cir.

1995) (recognizing that defendant’s prior convictions for robbery are violent felonies

under § 924(e)(2)(B)). And because robbery as defined by Florida law involves

conduct that “presents a serious potential risk of physical injury to another,” we

conclude that a conspiracy that has as its object the offense of robbery likewise

presents such a risk. Cf. United States v. Cruz, 805 F.2d 1464, 1474 n. 11 (11th Cir.

1986 (recognizing in different context that any conspiracy to commit crime of

violence necessarily creates substantial risk of violence); compare United States v.

Preston, 910 F.2d 81, 86-87 (3rd Cir. 1990) (holding that Pennsylvania conviction for

conspiracy to commit robbery is “violent felony” under subsection (i) of §

924(e)(2)(B)). But see United States v. King, 979 F.2d 801, 802-04 (10th Cir. 1992)

(holding that New Mexico conviction for conspiracy to commit robbery is not “violent


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felony” under either subsection of § 924(e)(2)(B)).

      Wilkerson contends, however, that because Florida does not require an overt

act in furtherance of the conspiracy, his prior conviction for conspiracy to commit

robbery is not a “violent felony.” We find no merit in this argument. When one

reaches an agreement with a co-conspirator to commit a robbery, and formulates the

intent to commit the robbery, his conduct presents at least a potential risk of physical

injury within the meaning of § 924(e)(2)(B)(ii). As explained by the Second Circuit

in a slightly different context, “[t]he existence of a criminal grouping increases the

chances that the planned crime will be committed beyond that of a mere possibility.

Because the conspiracy itself provides a focal point for collective criminal action,

attainment of the conspirators’ objectives becomes instead a significant probability.”

United States v. Chimurenga, 760 F.2d 400, 404 (2nd Cir. 1985) (emphasis in

original); accord Cruz, 805 F.2d at 1474 n. 11; United States v. Mitchell, 23 F.3d 1,

3 (1st Cir. 1994). Accordingly, because the elements of conspiracy under Florida law

necessarily “present[] a serious potential risk of physical injury to another,” we

conclude that a Florida conviction for conspiracy to commit robbery is a “violent

felony” within the meaning of § 924(e)(2)(B)(ii).

      AFFIRMED.




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