United States v. Neilson ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4671
JEFFREY SCOTT NEILSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of West Virginia, at Martinsburg.
Irene M. Keeley, District Judge.
(CR-96-17)
Submitted: February 10, 1998
Decided: April 20, 1998
Before WILKINS, NIEMEYER, and MICHAEL, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
Lori M. Hood, COOPER & PRESTON, Parsons, West Virginia, for
Appellant. William D. Wilmoth, United States Attorney, Zelda E.
Wesley, Assistant United States Attorney, Clarksburg, West Virginia,
for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Jeffrey Scott Neilson appeals from the fifteen-year sentence
imposed upon his guilty plea to being a felon in possession of a fire-
arm, 18 U.S.C. § 922(g) (1994). Neilson claims, first, that the district
court erred by considering his prior conviction of third degree arson
as a "violent felony" for purposes of sentencing him as an armed
career criminal, 18 U.S.C. § 924(e) (1994). Second, Neilson claims
that the mandatory minimum sentence provided by§ 924(e) violates
the doctrine of separation of powers. For the reasons that follow, we
affirm.
The plea agreement provided that, if Neilson had three previous
convictions for either a violent felony or a serious drug offense, the
enhancement under § 924(e) would apply, giving him a fifteen-year
minimum term of imprisonment. Neilson was convicted in West Vir-
ginia state court in 1987 of third degree arson, defined as the willful,
malicious burning of personal property with a value of at least five
hundred dollars, W. Va. Code § 61-3-3 (1997), and is punishable by
imprisonment of "not less than one nor more than three years." Id.The only issue is whether this conviction constitutes a "violent fel-
ony" within the meaning of § 924(e).
Section 924(e) defines a violent felony to include any crime pun-
ishable by imprisonment for a term exceeding one year that "is bur-
glary, arson, or extortion, . . . or otherwise involves conduct that
presents a serious potential risk of physical injury to another." 18
U.S.C. § 924(e)(2)(B)(ii). In United States v. Taylor, 495 U.S. 575(1990), the Supreme Court adopted a categorical approach to examine
the statutory definition of a crime to determine whether it falls within
the ambit of § 924(e). For the enhancement to apply, the statutory def-
inition must substantially correspond to the "generic" crime at issue.
Id. at 598. Because West Virginia's definition of third degree arson
substantially corresponds with the generic definition of arson, we find
that the district court did not err by including Neilson's conviction for
purposes of applying the enhancement under § 924(e). See United
States v. Hathaway, 949 F.2d 609, 610 (2d Cir. 1991) (holding that
third degree arson conviction in Vermont met definition of arson for
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purposes of § 924(e): "[T]he proper inquiry . . . is solely a comparison
of the elements of arson in Vermont to that crime's generic ele-
ments").
Neilson also maintains that the mandatory sentence provision
found in § 924(e) violates the separation of powers doctrine. This
court, among others, has rejected this claim. See United States v.
Jackson, 863 F.2d 1168, 1171 (4th Cir. 1989); see also United States
v Mendoza, 121 F.3d 441 (8th Cir. 1997); United States v.
Washington, 109 F.3d 335, 338 (7th Cir. 1997), cert. denied, ___ U.S.
___, 66 U.S.L.W. 3257 (U.S. Oct. 6, 1997) (No. 96-9415).
Accordingly, we affirm Neilson's sentence. We dispense with oral
argument because the facts and legal contentions are adequately pres-
ented in the materials before the court and argument would not aid in
the decisional process.
AFFIRMED
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