United States Court of Appeals

For the Eighth Circuit

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No. 14-3139

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Trevon Sykes

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the Eastern District of Missouri - St. Louis

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 Submitted: September 25, 2015

 Filed: January 4, 2016

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Before LOKEN, BEAM, and SHEPHERD, Circuit Judges.

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SHEPHERD, Circuit Judge.

Trevon Sykes pled guilty to being a felon in possession of numerous firearms

in violation of 18 U.S.C. § 922(g)(1). Finding that Sykes had committed three

predicate offenses qualifying as violent felonies under § 924(e), the district court

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The Honorable Audrey G. Fleissig, United States District Judge for the

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Eastern District of Missouri.
sentenced Sykes to 180 months in prison and a three-year term of supervised release. 

Sykes appeals his sentence, raising issues related to the nature of his predicate

offenses coupled with his age at the time of the commission of these offenses. We

affirm.

I.

On May 23, 2013, Sykes and Charles Sacus arrived at a tattoo parlor in St.

Louis, Missouri. Unbeknownst to Sykes and Sacus, the proprietors of the tattoo

parlor were undercover agents with the Bureau of Alcohol, Tobacco, Firearms and

Explosives (“ATF”). As a cover, the agents posed as convicted felons who were

buying guns for unlawful use by an outlaw motorcycle gang. While at the tattoo

parlor, Sykes handed a Hi-Point .45 caliber semi-automatic pistol to Sacus, which

Sacus sold to the undercover agents for $500. Sykes admitted to the undercover

agentsthat he had recently been released from prison, the pistol belonged to him, and

he had more guns for sale.

Over the following weeks, Sykes sold five firearms, two of which were stolen,

to the undercover agents. All of the transactions were recorded with audio and video. 

ATF experts examined the firearms and determined that they functioned as designed

and were manufactured outside the state of Missouri. 

A federal grand jury indicted Sykes for being a felon in possession of numerous

firearms from May 23, 2013 to June 6, 2013, in violation of 18 U.S.C § 922(g)(1). 

Sykes entered a plea agreement and pled guilty to the charge against him. The United

States Probation Office (“Probation”) issued a presentence investigation report

(“PSR”), which stated that Sykes had three prior convictions that were crimes of

violence and violent felonies. Specifically, certified court records established that

Sykes previously was convicted of: (1) two counts of Burglary Second Degree in St.

Louis County in 2010; (2) Burglary Second Degree and Felony Stealing in St. Louis

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County in 2010; (3) three counts of Possession of a Controlled Substance in St. Louis

County in 2010; and (4) Burglary First Degree in St. Louis City in 2010. Each of

these prior convictions is a felony punishable by a term of imprisonment exceeding

one year. As a result of Sykes having three violent felony convictions and one

serious drug offense, the PSR classified him as an Armed Career Criminal subject to

a mandatory minimum sentence of 180 months pursuant to the Armed Career

Criminal Act (“ACCA”), 18 U.S.C. § 924(e).

Sykes objected to his classification as an ArmedCareer Criminal, asserting that

because the second-degree burglaries were of unoccupied commercial buildings and

were nonviolent, and in view of his age at the time of the commission of the

burglaries, the offenses should not count as predicate convictions under the ACCA. 

The district court rejected these arguments, noting that Sykes was certified as an adult

for each of his prior convictions and the two offenses to which Sykes objected

qualified as violent felonies under Eighth Circuit law.

II.

On appeal, Sykes first argues that his two prior convictions for second-degree

burglary do not qualify as violent felonies for the purposes of § 924(e), because the

Missouri second-degree burglary statute is overbroad and Sykes burgled unoccupied

commercial buildings. Second, Sykes asserts that he incurred the prior convictions

when he was under the age of 18, and therefore using them to enhance his sentence

to a mandatory minimum of fifteen years constitutes cruel and unusual punishment

under the Eighth Amendment. We address each argument in turn.

A.

First, Sykes contends that the district court erred in finding that his prior

second-degree burglary convictions qualify as violent felonies for purposes of

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§ 924(e) because Sykes burgled unoccupied commercial buildings. We review de

novo whether a prior conviction constitutes a violent felony for the purposes of

§ 924(e). United States v. Boaz, 558 F.3d 800, 806 (8th Cir. 2009) (citing United

States v. Comstock, 531 F.3d 667, 679 (8th Cir. 2008), cert. denied, 555 U.S. 1020

(2008)). To determine whether a past conviction qualifies as a violent felony, we

apply the “categorical approach,” under which we “look only to the fact of conviction

and the statutory definition of the prior offense.” Taylor v. United States, 495 U.S.

575, 602 (1990). Burglary is one ofthe enumerated offenses under § 924(e)(2)(B)(ii). 

An offense constitutes “burglary” under § 924(e) if it contains the elements of

“generic burglary,” which is defined as “unlawful or unprivileged entry into, or

remaining in, a building or other structure, with intent to commit a crime.” Taylor,

495 U.S. at 598. Any enhanced sentence under § 924(e) for a prior burglary

conviction must “rest on the showing that the conviction ‘necessarily’

involved . . . facts equating to generic burglary.” Shepard v. United States, 544 U.S.

13, 24 (2005). 

 

Under Missouri law, a person commits second-degree burglarywhen “he or she

knowingly enters unlawfully or knowingly remains unlawfully in a building or

inhabitable structure for the purpose of committing a crime therein.” Mo. Ann. Stat.

§ 569.170. This definition largely conforms to the elements of a generic burglary

promulgated in Taylor: (i) unlawful entry or remaining in (ii) a building or structure

(iii) with the intent to commit a crime. See Taylor, 468 U.S. at 575. Sykes, however,

argues that the Missouri definition of an “inhabitable structure” is overbroad because

it includes a “ship, trailer, sleeping car, airplane, or other vehicle or structure.” 

§ 569.010(2). Nevertheless, Sykes did not object to the PSR’s factual recitations

providing that he burgled commercial buildings, and his general objection to the PSR

classifying him as a career offender is insufficient to trigger the government’s

obligation to introduce evidence confirming that Sykes was convicted for burgling

buildings. See United States v. Stymiest, 581 F.3d 759, 768 (8th Cir. 2009); United

States v. Reliford, 471 F.3d 913, 916 (8th Cir. 2006) (“[I]f the defendant fails to

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object to fact statements in the [PSR] establishing that a prior offense was a violent

felony conviction, the government need not introduce atsentencing the documentary

evidence that Taylor and Shepard otherwise require.”). 

Sykes also argues that his prior second-degree burglary convictions are not

violent felonies for purposes of the ACCA because they were of unoccupied

commercial buildings and did not pose “a serious potential risk of physical injury to

another.” Sykes draws on the language of the residual clause of § 924(e). In the time

since Sykes briefed his argument, the Supreme Court has held that imposing an

increased sentence under the residual clause of § 924(e) is unconstitutional. Johnson

v. United States, 135 S.Ct. 2551, 2563 (2015). Nevertheless, the Court noted that its

“decision does not call into question the application of the Act to the four enumerated

offenses, or the remainder of the Act’s definition of a violent felony.” Id. Therefore,

because burglary is an enumerated offense under § 924(e)(ii), the imposition of an

increased sentence need not rest on whether Sykes’s conduct posed “a serious

potential risk of physical injury to another.” Indeed, the Supreme Court has rejected

the notion that “Congress meant to include as predicate offenses only a subclass of

burglaries whose elements include ‘conduct that presents a serious risk of physical

injury to another’ over and above the risk inherent in ordinary burglaries.” Taylor

495 U.S. at 597. “[I]f this were Congress’ intent, there would have been no reason

to add the word ‘burglary’ to § 924(e)(2)(B)(ii), since that provision already includes

any crime that ‘involves conduct that presents a serious potential risk of physical

injury to another.’” Id. The Court reasoned that Congress most likely thought that

certain categories of property crimes typically present a risk of injury to persons and

are so often committed by career criminals that they should be enumerated in the

enhancement statute. Id.

Accordingly, we conclude that Sykes’s prior second-degree burglary

convictions fit within the generic definition of “burglary” for purposes of the ACCA

and each constitutes a violent felony under § 924(e).

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B.

Second, Sykes contends that the sentence enhancement constitutes cruel and

unusual punishment under the Eighth Amendment because he was a juvenile when

he incurred the prior convictions. We review constitutional challenges to a sentence

de novo. United States v. Bowers, 638 F.3d 616, 620 (8th Cir. 2011).

Sykes cites the Supreme Court’s decisions in Roper v. Simmons, 543 U.S. 551

(2005) and Graham v. Florida, 560 U.S. 48 (2010) in support of his contention. We

have rejected the argument that in light of Roper, application of the ACCA

enhancement to a sentence violates the Eighth Amendment when it results in an

increased sentence based on crimes committed as a juvenile. See United States v.

Jones, 574 F.3d 546, 553 (8th Cir. 2009). “Roper does not deal specifically–or even

tangentially–with sentence enhancement. It is one thing to prohibit capital

punishment for those under the age of eighteen, but an entirely different thing to

prohibit consideration of prior youthful offenses when sentencing criminals who

continue their illegal activity into adulthood.” Id. (quoting United States v. Wilks,

464 F.3d 1240, 1243 (11th Cir. 2006)). Likewise, Grahamdoes not remotely concern

sentence enhancement under the ACCA for crimes committed as a juvenile. Graham

held that the Eighth Amendment prohibits the imposition of a life without parole

sentence on a juvenile offender who did not commit homicide. 560 U.S. at 82. Sykes

is not facing a life sentence, but a fifteen-year sentence under § 924(e). Neither

Roper nor Graham prohibit sentence enhancement based on convictions incurred as

a juvenile.

Furthermore, we have held that “the Eighth Amendment does not prohibit using

an adult conviction based on juvenile conduct to increase a sentence under the

ACCA.” United States v. Jones, 574 F.3d 546, 553 (8th Cir. 2009). Sykes was

certified as an adult for each of his prior second-degree burglary convictions. 

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Accordingly, Sykes’s sentence enhancement under § 924(e) for crimes he committed

as a juvenile does not violate the Eighth Amendment, and the district court did not

err in enhancing Sykes’s sentence. 

III.

We hold that the district court properly classified each of Sykes’s Missouri

second-degree burglary convictions as a violent felony for the purpose of enhancing

his federalsentence pursuant to the ACCA. Accordingly, we affirmSykes’s sentence.

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