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United States v. Thrower

October 14, 2009

UNITED STATES OF AMERICA, APPELLEE,
v.
WILLIAM THROWER, DEFENDANT - APPELLANT.



SYLLABUS BY THE COURT

Appeal from an April 23, 2008 order of the United States District Court for the Eastern District of New York (Ross, J.), entering judgment on a jury verdict convicting the defendant for being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1) and imposing the statutory minimum sentence of fifteen years imprisonment under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1).

AFFIRMED.

Per curiam.

Argued: September 11, 2009

Before: PARKER and WESLEY, Circuit Judges, RESTANI, Judge.*fn1

Defendant-Appellant William Thrower ("Thrower") appeals from a judgment entered on April 23, 2008, in the United States District Court for the Eastern District of New York (Ross, J.), after a jury verdict convicting Thrower of being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1), and appeals his statutory minimum sentence of fifteen years imposed under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(1). For the reasons stated below, the district court's order entering final judgment and sentencing determination are AFFIRMED.

Background

Thrower was indicted and charged with one count of violating 18 U.S.C. § 922(g)(1), which criminalizes the knowing possession of a firearm in and affecting commerce by an individual who has previously been convicted in any court of a crime punishable by a term of imprisonment exceeding one year. A jury convicted him of the charge.

At sentencing, the Probation Department provided a Presentence Investigation Report ("PSR") that listed Thrower's five previous felony convictions in New York state courts. Because of this criminal history, Probation recommended that Thrower's sentence be enhanced pursuant to the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(1). The PSR did not designate which of Thrower's five previous felony convictions counted as predicate offenses for the purposes of the ACCA. The PSR also noted that Thrower's criminal history report indicated that he was granted a Certificate of Relief from Disabilities from the New York State Division of Parole, but the Probation Department failed to provide a copy of the document.

The court found that the ACCA enhancement applied to Thrower and sentenced him to 15 years imprisonment, the statutory minimum. Thrower contests the enhancement, inter alia, arguing that he does not have the requisite number of offenses necessary to qualify for the ACCA. He claims that two of his offenses do not count because he received a Certificate of Relief from Disabilities that restored his civil rights, and that a third conviction - larceny in the fourth degree - does not qualify as a violent felony.*fn2

Because we find that New York's larceny in the fourth degree, specifically larceny from the person, N.Y. Penal Law §155.30(5), does qualify as a violent felony under the residual clause for purposes of the ACCA, Thrower has three eligible convictions that support the district court's ACCA enhancement. As a result, we need not reach the Certificate of Relief from Disabilities issue.

Discussion

The ACCA dictates a 15-year mandatory minimum sentence for a felon convicted of possessing a firearm when that felon has three previous convictions for violent felonies.

18 U.S.C. § 924(e)(1). A "violent felony" is defined as "any crime punishable by imprisonment for a term exceeding one year . . . that (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) 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). A crime may qualify as a violent felony even if it does not have an element of physical force against another person as described in clause (i), or is not one of the enumerated offenses detailed in clause (ii). To qualify, the ...


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