1 M r. Stapleton also argues that the Sixth Amendment analy sis

from United States v. Booker applies such that the district court's

sentence of 210 months is unconstitutional, as it is based on

additional fac ts found by the district court regarding the

qualifying nature of Stapleton's prior convictions, beyond the fact

of their existence (which was found by the jury). The Supreme Court

has held recidivist provis ions like those in the Armed Career

Criminal Act are neither substantive offenses nor elements thereof

and thus the fact of a prior conviction need not be alleged in an

indictment nor proven beyond a reasonable doubt. Almendarez-Torrez

v. United States , 523 U.S. 224 (1998). This circuit has held that

1 United States Court of Appeals

Fifth Circuit



## FILED

February 16, 2006

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

______________________

No. 05-30088

______________________

UNITED STATES OF AMERICA

Plaintiff-Appellee

versus

STEVE STAPLETON

Defendant-Appellant

___________________________________________________

Appeal from the United States District Court for

the Western District of Louisiana

__________________________________________________

___________________________________________________

Before HIGGINBOTHAM, WIENER, and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:

In this appeal from an enhanced sentence, the q uestion is

whether the Louisiana crime of false imprisonment while armed with

a dangerous weapon under LA. R EV

. S TAT

. A NN § 14:46.1(A) is a violent

felony under either the Force Clause or the Otherwise Clause of the

Armed Career Criminal Ac t, 18 U.S.C. § 924(e). 1 As interpreted byno Sixth Amendment violation arises when a district court considers

the nature of a prior conviction rather than presenting the

question to a jury. United States v. Stone

, 306 F.3d 241, 243 (5th

Cir. 2002).

2 S tate v. Gould

, 395 So.2d 647, 655 (La. 1981); see also

State v. Robinson , 404 So.2d 907, 912 (La. 1981).

2 the Louisiana Supreme Court, “with a dangerous weapon” means either

(1) with a loaded pistol anywhere on the offender’s person, whether

displayed or concealed, or (2) with any other instrumentality,

which, in the manner used is calculated or likely to produce death

or great bodily harm. 2 We hold that the crime at issue is not a

violent felony under the Force Clause bec ause it is not a crime

wh ich necessarily has as an essential element the use, attempted

use, or threatened use of physical force against the person of

another. 18 U.S.C. § 924(e)(i). But we hold that it is a violent

felony under the Otherwise Clause, because it necessarily presents

a serious potential risk of physical injury to another. 18 U.S.C. §

924(e)(ii). Accordingly, the defendant’s enhanced sentence under the

Armed Career Criminal Act is affirmed.

The Armed Career Criminal Act, 18 U.S.C. § 924(e)(1), sets a

minimum sentence of 15 years for an offender who “has three previous

convictions by any court re ferred to in section 922(g)(1) of this

title for a violent felony or a serious drug o ffense, or both,

committed on occasions different from one another[.]” A violent

felony is defined to include

any crime punishable by imprisonment for a term exceeding

one year...that--3 See L A

. R EV

. S TAT

. A NN § 14:2 REPORTER'S COMMENT, 1997 Main

Volume, which states:

‘Dangerous weapon': This term has been broadly defined to

include such things as gases, liquids or other substances

which might be used in a manner which is likely to cause

death or great bodily harm. The test as given in the

article is not whether the w eapon is inherently

dangerous, but whether it is dangerous ‘in the manner

used.' This test was distinctly enunciated by the

3 (i[the Force clause]) has as an element the use,

attempted u se, or threatened use of physical

force against the person of another; or

(ii[the Othe rwise clause]) is burglary, arson,

or extortion, involves use of explosives, or

otherwise involves condu ct that presents a

serious potential ris k of physical injury to

another. 18 U.S.C. § 924(e)(2)(B).

LA. R EV

. S TAT

. A NN § 14:46 provides that: “False imprisonment is

the intentional confinement or detention of another, wi thout his

consent and without proper legal authority.” LA. R EV

. S TAT

. A NN

14:46.1(A) provides that “[f]alse imprisonment while armed with a

dangerous weapon is the unlawful intentional confinemen t or

deten tion of another while the offender is armed with a dangerous

weapon.” L A

. R EV

. S TAT

. A NN § 14:2(3) provides that: “‘Dangerous

weapon’ includes any gas, liquid or other substance or

instrumentality, which, in the manner used, is calculated or likely

to produce death or great bodily harm.”

When La.R.S.14:2(3) is read only in light of the Reporter’s

Comments, it would appear that “dangerous weapon” refers only to an

instrumentality used in a crime in a manner calculated or likely to

produce death or great bodily harm. 3 However, the Louisiana SupremeLouisiana Supreme Court in State v. Washington , 104 La.

443, 29 So. 55 (1900), where the court declared, ‘Whether

the weapon used by defendant was dangerou s within the

meaning of the statute was a question for the jury to

determine upon considering not only the character of such

weapon, but by whom, upon whom, and in what manner it was

used.' Louisiana has held the followin g things to be

dangerous weapons when used in a way likely t o produce

serious bodily injury,

– ‘iron bolt, rod or pin' State v.

Lowry

, 33 La.Ann. 1224 (1881); ‘pocket knif e' State v.

Scott

, 39 La.Ann. 943, 3 So. 83 (1887); ‘ax' State v.

Hertzog

, 41 La.Ann. 775, 6 So. 622 (1889); ‘a large piece

of timber' State v. Alfred

, 44 La.Ann. 582, 10 So. 887

(1892); ‘razor’ State v. Sinegal

, 51 La.Ann. 932, 25 So.

957 (1899).

4 See also, Sta t e v. Robinson

, 404 So.2d 907, 912 (La. 1981)

(“...it is not nec essary that the robber actually display his

w eapon to the victim, if the robber is in fact armed with an

inherently dangerous weapon, in order for the defendant to be shown

to be guilty of armed robbery.”)

4 Court, in State v. Gould

, presume d that “[a] loaded pistol is

undoubtedly a dangerous weapon irrespective of how used or

exhibited.” 395 So.2d 647, 655 (La. 1981). Construing the statute

together with this premise, the Court decided that “[a] person

robbing with a loaded pistol anywhere on his person, irrespective of

whether used in a manner calculated or likely to produce death or

great bodily harm, would surely qualif y as one armed with a

dangerous wea pon.” I d

. But, the Court continued, “[o]ther

instrumentalities, not inherently dangerous, are dangerous weapons

only, as defined, when in the manner used they are calculated or

likely to produce death or great bodily harm.” Id

. 4

In the light of Gould and Robinson

, we conclude that the

Louisiana crime of false imprisonment with a dangerous weapon is not

a violent felony under the Force Clause. A crime does not meet the5

requirements of the Force Clause if it can be committed without the

use, attempted use, or threatened use of physical force. United

States v. Martinez

, 954 F.2d 1050, 1052 (5th Cir. 1992); See also

,

United States v. Montgomery

, 402 F.3d 482, 486 (5th Cir. 2005)

(holding that a Texas retaliation statute did not constitute a

violent felony because the statute defined harm to include a range

of results that covered more offenses than those resulting from the

direction of physical force against another’ s person). The basic

offense of false impri sonment in Louisiana does not necessarily

involve the use, attempted use or threatened use of force by the

offender in every case. That crime requires only that the offender

intentionally confine or detain the victim without consent or legal

authority. Thus, the non-consensual confinement of a person through

deception or trickery may constitute false imprisonment even when

the offender does not use, attempt to use or threaten to use force.

Therefore, it follows that, because a loaded pistol is construed in

Lou isiana to be a dangerous weapon even when totally concealed on

the culprit’s person dur ing the offense, the crime of false

imprisonment with a dangerous weapon likewise can be committed with

a hidden loaded pistol, without the use, attempted use or threatened

use of physical force.

We conclude, however, that the defendant’s conviction of false

imprisonment with a dangerous weapon under Louisiana law does qualify

as a violen t felony under the Otherwise Clause. 18 U.S.C. §

924(e)(2)(B)(ii). The Othe rwise Clause is triggered by conduct5 Cf.

, United States v. Rodriguez

, 925 F.2d 1049, 1052-3 (7th

Cir. 1991) (The “ready availability” of undrawn weapons is likely

to embolden offenders and place lives in jeopardy)(quoting

then-Judge Kennedy, in United States v. Stewart

, 779 F.2d 538, 540

(9th Cir.1985), analyzing whether conviction under 18 U.S.C. §

924(c)(1) qualifies as a violent felony, noting that the presence

of a firearm m ay “embolden[] an actor who had the opportunity or

ability to display or discharge the weapon to protect himself or

intimidate others, whether or not such display or discharge in fact

occurred”) (further citing United States v. Ocampo

, 890 F.2d 1363,

1371 (7th Cir.1989) and United States v. Alvarez

, 914 F.2d 915, 919

(7th Cir.1990) (“Any victim of armed robbery will attest to the

fact that, fired or not, the attacker's gun presented a substantial

risk of the use of force.”)).

6 See State v. Bonier

, 367 So.2d 824, 826 (La. 1979)(“In

making its determination [whether the instrumentality was used in

the required manne r], the jury may find that there was an actual

likely danger of serious bodily harm to anyone present in the

highly charged atmosphere of the scene of a robbery, taking into

consideration the great possibility of violence in the interaction

between the offender and the victim thereby put in fear for his

life.”); State v. Leak

, 306 So.2d 737, 738-9 (La.1975)(“[W]here an

6 creating a serious potential risk of physical harm to another, and

we believe that such a risk is inherent in the commission of false

imprisonment with a dangerous weapon under either prong of “dangerous

weapon” recognized by the Louisi ana Supreme Court in G ould and

Robinson

. When an offender comm its the crime with a loaded pistol

concealed on his person, there is a heightened likelihood of his very

effective use of lethal force in response to resistance,

interference, frustration, or fear of appre hension. 5 When an

offender commits the offense using another t ype of instrumentality

in a manner calculated to or likely to produce death or great bodily

harm, there is a heightened likelihood of violence in the interaction

between the offender and the non -consensually confined or detained

victim or others put in fear of fatal or grievous consequences. 6 Ininstrument[,an extension to a ratchet coupled with a socket used to

simul ate a firearm,] held by the culprit invites the forcible

responses of the victim and/or bystanders and embraces the threat

and capability that it will be used as a bludgeon, possibilities

are presented that are '. . . likely to produce death or great

bodily harm.”); S tate v. Johnston

, 20 So.2d 741, 7 4 4

(1945)(“Usually in a situation of that kind the person so assaulted

[with an unloaded revolver] attempts to escape, to wrest the gun

from the assailant, or to deliver him some death dealing blow; and,

in making any of these attempts, serious injury often results.”);

see also Hillie v.Maggio , 712 F.2d 182 (5 th Cir. 1983).

7 either situation the magnitude of the pote ntial harm and the

heightened likelihood of its occurrence combine to create the type

of danger contemplated by the Otherwise Clause.

Accordingly, we conclude that the offense at issue committed by

the defendant in this case was correctly judged to be a violent

felony and that his sentence was justifiably enhanced under the Armed

Career Criminal Act. For these reasons, the judgment of the district

court is AFFIRMED.