                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 04-2701
                                    ___________

United States of America,                  *
                                           *
             Appellee,                     *
                                           *      Appeal from the United States
      v.                                   *      District Court for the
                                           *      Northern District of Iowa.
Moses Childs, Jr.,                         *
                                           *
             Appellant.                    *

                                    ___________

                                 Submitted: December 15, 2004
                                     Filed: April 11, 2005
                                   ___________

Before BYE, HANSEN, and GRUENDER, Circuit Judges.
                           ___________

GRUENDER, Circuit Judge.

      Moses Childs, Jr. (“Childs”), appeals the sentence the district court1 imposed
upon him based on its findings that he had three prior convictions for violent felonies
under 18 U.S.C. § 924(e). We affirm.




      1
       The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
      Childs pled guilty to one count of being a felon in possession of a firearm and
ammunition in violation of 18 U.S.C. § 922(g). The Armed Career Criminal Act of
1984, as amended in 1986, imposes a fifteen-year mandatory minimum sentence on
any person who violates § 922(g) and “has three previous convictions . . . for a
violent felony or a serious drug offense, or both, committed on occasions different
from one another.” 18 U.S.C. § 924(e). Pursuant to his plea agreement, Childs
admitted four prior state-court convictions but reserved the right to argue that those
convictions were not violent felonies under § 924(e).

       To invoke the mandatory minimum sentence of § 924(e), the Government
alleged in Childs’ indictment that the following four Wisconsin state court
convictions were violent felonies: possession of a short-barreled shotgun, battery
while armed with a dangerous weapon, second degree recklessly endangering safety,
and escape. The district court found that all four prior offenses listed in Childs’
indictment were violent felonies under § 924(e) and imposed the mandatory minimum
fifteen-year sentence.

       Childs appeals the district court’s findings that his convictions for possession
of a short-barreled (or “sawed-off”) shotgun and a “walk-away” escape are violent
felonies under § 924(e). Because the indictment alleges four prior violent felonies,
and § 924(e) only requires three for the “armed career criminal” enhancement, Childs
is entitled to relief only if this Court holds that neither possession of a sawed-off
shotgun nor escape constitute violent felonies under § 924(e).

      This Court reviews whether a prior offense constitutes a violent felony under
§ 924(e) de novo. United States v. Sumlin, 147 F.3d 763, 765 (8th Cir. 1998).

       First, we reject Childs’ claim that possession of a short-barreled shotgun is not
a violent felony as defined in § 924(e). Section 924(e)(2) provides that “the term
‘violent felony’ means . . . any act of juvenile delinquency involving the use or

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carrying of a firearm . . . that . . . involves conduct that presents a serious potential
risk of physical injury to another.” 18 U.S.C. § 924(e). Childs’ conviction of
possession of a short-barreled shotgun occurred when he was fifteen years old, and
this Court has noted previously that sawed-off shotguns “are inherently dangerous
and lack usefulness except for violent and criminal purposes.” United States v.
Allegree, 175 F.3d 648, 651 (8th Cir. 1999) (holding that possession of a sawed-off
shotgun is a “crime of violence” under U.S.S.G. § 4B1.2); see also United States v.
Nolan, 397 F.3d 665, 666 (8th Cir. 2005) (“We construe ‘violent felony’ under 18
U.S.C. § 924(e)(2)(B)(ii) to have the same meaning as ‘crime of violence’ under
U.S.S.G. § 4B1.2.”). Thus, under the plain language of § 924(e) and our prior
precedent, possession of a short-barreled shotgun is a violent felony under § 924(e).

       Second, even if possession of a short-barreled shotgun were not a violent
felony, this Court has held that escape, including “walkaway escape,” is a violent
felony under § 924(e). United States v. Abernathy, 277 F.3d 1048, 1051 (8th Cir.
2002) (following United States v. Nation, 243 F.3d 467, 472 (8th Cir. 2001) (holding
that a “walkaway escape” was a crime of violence under U.S.S.G. § 4B1.2)). Thus,
both of Childs’ arguments fail, and the district court properly imposed the “armed
career criminal” enhancement.

      In addition, Childs argues that § 924(e) is unconstitutionally vague. We agree
with every other circuit that has considered this argument and hold that it has no
merit. See United States v. Presley, 52 F.3d 64, 68 (4th Cir. 1995); United States v.
Sorenson, 914 F.2d 173, 175 (9th Cir. 1990).

      Finally, Childs filed two motions for leave to file supplemental briefs, both of
which we denied. Childs filed his first motion after the Supreme Court decided
United States v. Booker, 125 S. Ct. 738 (2005). We denied that motion because
Booker, which held unconstitutional the mandatory application of the United States
Sentencing Guidelines, is wholly inapposite to our review of Childs’ sentence. Not

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only was Childs’ sentence based upon the mandatory minimum sentence provided in
§ 924(e) rather than an application of the sentencing guidelines, but also Booker re-
affirmed established Supreme Court precedent that a court, not a jury, determines the
fact of a prior conviction. Booker, 125 S. Ct. at 756; Nolan, 397 F.3d at 667 n.2.
Thus, we denied Childs’ motion to file a supplemental brief pursuant to Booker
because the Booker decision provides Childs no relief. See United States v. Painter,
400 F.3d 1111, 1111 (8th Cir. 2005) (noting that a sentence “mandated by” § 924(e)
is “free of error” under Booker).

       Childs filed a second motion for supplemental briefing after the Supreme Court
decided Shepard v. United States, 125 S. Ct. 1254 (2005). In Shepard, the Supreme
Court held that a court may not look beyond “the terms of the charging document, the
terms of a plea agreement or transcript of colloquy between judge and defendant in
which the factual basis for the plea was confirmed by the defendant, or to some
comparable judicial record of this information” to determine whether a conviction is
a violent felony under § 924(e). Id. at 1263; see also Taylor v. United States, 495
U.S. 575, 602 (1990). The Shepard Court, however, did not overrule Almendarez-
Torres v. United States, 523 U.S. 224, 247 (1998), which held that the fact of a prior
conviction is not an element of an offense that must to proven to a jury beyond a
reasonable doubt. See Shepard, 125 S. Ct. at 1264 (Thomas, J., concurring) (noting
that “this Court has not yet reconsidered Almendarez-Torres v. United States”);
Apprendi v. New Jersey, 530 U.S. 466, 488-90 (2000). In this case, the district court
considered only the charging documents and Childs’ admissions to convictions to
find that Childs’ four prior convictions were violent felonies. For that reason
Shepard also affords Childs no relief. See Painter, 400 F.3d at 1114.

      For the reasons stated above, we affirm.
                      ______________________________




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