                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 98-1147
                                    ___________

United States of America,               *
                                        *
             Plaintiff - Appellee,      *
                                        * Appeal from the United States District
      v.                                * Court for the Southern District of
                                        * Iowa.
Obie Terrell Sumlin,                    *
                                        *
             Defendant - Appellant.     *
                                        *
                                   ___________

                              Submitted: June 9, 1998
                                  Filed: June 26, 1998
                                   ___________

Before WOLLMAN and MURPHY, Circuit Judges, and KYLE,1 District Judge.
                         ___________

MURPHY, Circuit Judge.

      Obie Sumlin pled guilty to being a felon in possession of a firearm, see 18 U.S.C.
§ 922(g)(1), and was sentenced to 183 months as an armed career criminal. See 18
U.S.C. § 924(e)(1). On appeal Sumlin challenges the application of the § 924(e)(1)
enhancement. We affirm.


      1
      The Honorable Richard H. Kyle, United States District Judge for the District of
Minnesota, sitting by designation.
        The armed career criminal statute provides that anyone “who violates section
922(g) of [title 18] and has three previous convictions . . . for a violent felony . . . shall
be . . . imprisoned not less than fifteen years.” 18 U.S.C. § 924(e)(1). The statutory
enhancement in § 924 is thus triggered by convictions for violent felonies, including
burglary, that are “punishable by imprisonment for a term exceeding one year.” 18
U.S.C. § 924(e)(2)(B). Another section of the statute adds to the definition of the
triggering conviction: “[a]s used in this chapter . . . the term ‘crime punishable by
imprisonment for a term exceeding one year’ does not include . . . [a]ny State offense
classified by the laws of the state as a misdemeanor and punishable by a term of
imprisonment of two years or less.” 18 U.S.C. § 921(a)(20)(B); see United States v.
Hassan El, 5 F.3d 726, 732 (4th Cir. 1993).

       At the time of his guilty plea Sumlin had been convicted of three prior second
degree burglaries in California. The presentence report concluded that these convictions
made Sumlin an armed career criminal within the meaning of § 924(e)(1). Burglary
generally qualifies as a violent felony for the purposes of the statute. United States v.
Demint, 74 F.3d 876, 877 (8th Cir.), cert. denied, 117 S.Ct. 364 (1996). Sumlin
contended, however, that his first two convictions were not violent felonies as defined
in §§ 924(e)(2)(B) and 921(a)(20)(B). He argued that because he initially had not been
sentenced to state prison for either offense, the convictions were classified as
misdemeanors under California law. The district court2 overruled Sumlin’s objection to
armed career criminal status, concluding that the convictions met the statutory definition
and enhanced his sentence under § 924(e)(1).

      Sumlin now renews his contention that two of his California burglary convictions
do not meet the statutory definition for violent felonies. He argues the statutory
enhancement was erroneous because his crimes were classified as misdemeanors under


       2
        The Honorable Robert W. Pratt, United States District Judge for the Southern
District of Iowa.
                                            -2-
California law since he was not sent to state prison, see Cal. Penal Code §§ 17 and 461,
and the initial sentences for the two burglaries were for less than two years
imprisonment. The government responds that the sentence actually imposed is irrelevant
for the purposes of § 924 because the crimes could have been punished by incarceration
for two years.

      On both contested convictions, Sumlin was initially sentenced to probation which
was subsequently revoked. For the first burglary conviction he received three years
probation with 270 days in custody, but two years in state prison upon probation
revocation. On the second he received three years probation with one year in jail, later
increased to two years in state prison after revocation.

      We review the question of whether a prior offense constitutes a violent felony de
novo. See United States v. Moore, 108 F.3d 878, 880 (8th Cir. 1997); United States v.
Demint, 74 F.3d 876, 877 (8th Cir. 1990). The provision in § 921 which excludes
certain state convictions from the definition of violent felony applies only if the
conviction was a misdemeanor under state law “and was punishable by a term of
imprisonment of two years or less.” See 18 U.S.C. § 921(a)(20)(B) (emphasis added).
Since Sumlin’s first two burglary convictions otherwise fall within the statutory
definition of violent felonies, both still qualify if they were punishable by more than two
years imprisonment regardless of the punishment actually imposed by the state court.
Hassan El, 5 F.3d at 733. This requires us to look to state law to determine the possible
sentence. Id.

        Second degree burglary in California is punishable by “imprisonment in the county
jail not exceeding one year or in the state prison.” Cal. Penal Code § 461(2). California
law provides that if a crime is “punishable by imprisonment in a state prison” and no
prison term is specified, the crime is punishable by up to three years imprisonment. Cal.
Penal Code § 18. Second degree burglary therefore carries the possibility of a term of
imprisonment of more than two years. See Cal. Penal Code

                                           -3-
§ 18; see also People v. Soto, 212 Cal. Rptr. 696, 699-700 (Cal. Ct. App. 1985); People
v. Takencareof, 174 Cal. Rptr. 112, 119 (Cal. Ct. App. 1981). For this reason the two
burglaries do not fit the § 921 exclusion and both meet the definition of a violent felony.



       Since Sumlin had three prior violent felony convictions, he qualified as an armed
career criminal and the district court did not err in enhancing the sentence under § 924.
We therefore affirm the judgment.

       A true copy.

             Attest:

                    CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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