UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 06-4111



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

     versus


TIMOTHY M. WILLIAMS,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.  Robert E. Payne, District
Judge. (3:05-cr-00173-REP)


Argued:   March 14, 2007                  Decided:   April 10, 2007


Before MOTZ, TRAXLER, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Whitney C. Tymas, HICKSTYMAS, L.L.C., Richmond, Virginia,
for Appellant. Richard Daniel Cooke, OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: David M.
Hicks, Shawri King-Casey, HICKSTYMAS, L.L.C., Richmond, Virginia,
for Appellant.      Chuck Rosenberg, United States Attorney,
Alexandria, Virginia; Matthew C. Ackley, Special Assistant United
States Attorney, Tara Michele McManigal, Third-Year Practice Law
Student, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia
for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     Timothy M. Williams appeals his 210-month sentence following

his guilty plea to possession of a firearm by a convicted felon.

Williams    contends   that   the   district   court   erred   in   its

determination that he qualifies as an armed career criminal under

the Armed Career Criminal Act. Because the district court properly

found that Williams qualifies as an armed career criminal, we

affirm.



                                    I.

     Williams pleaded guilty to possession of a firearm by a

convicted felon, in violation of 18 U.S.C.A. § 922(g)(1) (West

2000).    The pre-sentence report (PSR) determined that Williams had

an offense level of 30 and a criminal history category of VI,

yielding a United States Sentencing Guidelines range of 168-210

months. However, the PSR also concluded that Williams qualified as

an armed career criminal under the Armed Career Criminal Act

(ACCA), 18 U.S.C.A. § 924(e) (West 2000 & Supp. 2006), meaning that

he was subject to a mandatory minimum sentence of not less than

fifteen years’ (180 months’) imprisonment.

     Williams objected to the PSR calculation, contending, inter

alia, that he did not qualify for an enhancement under the ACCA.

At sentencing the district court found that Williams had five

qualifying prior felony convictions under the ACCA: two burglary

                                    2
convictions, one consolidated larceny from the person conviction,

and two robbery convictions. Thus, the court sentenced Williams to

210 months' imprisonment.           Williams noted a timely appeal.



                                             II.

      The ACCA provides:

      In the case of a person who violates section 922(g) of
      this title and has three previous convictions . . . for
      a violent felony or serious drug offense or both,
      committed on occasions different from one another, such
      person shall be fined under this title and imprisoned not
      less than fifteen years . . . .

18 U.S.C. § 924(e)(1).               Williams first argues that the ACCA

violates the Fifth and Sixth Amendments because it permits a judge

to   enhance    a    sentence      based      on   facts   not    included       in   the

indictment, or admitted by the defendant or found by a jury beyond

a reasonable doubt.

      The   district       court    properly       rejected      this   argument      as

foreclosed by precedent.            In Almendarez-Torres v. United States,

, 243 (1998), the Supreme Court held that when seeking

a sentencing enhancement based on a prior conviction the Government

"need not allege a defendant's prior conviction in the indictment

or information that alleges the elements of an underlying crime.”

In Apprendi v. New Jersey, 

, 489 (2000), the Court

reaffirmed     the    holding      of    Almendarez-Torres,       and   specifically

exempted     from    the    rule        in   Apprendi   "the     fact   of   a    prior

conviction."        See 

(noting that "[e]ven

                                              3
though   it   is   arguable   that   Almendarez-Torres   was   incorrectly

decided . . . Apprendi does not contest the decision's validity and

we need not revisit it for purposes of our decision today").         Most

recently, in Shepard v. United States, 

, 20 (2005), the

Court again reaffirmed the prior conviction exception in the

context of the ACCA, but limited the district court’s inquiry in

determining the existence of a prior conviction to “the terms of

the charging document, the terms of a plea agreement or transcript

of colloquy . . ., or to some comparable judicial record of this

.

     Because of this Supreme Court precedent, we recently rejected

the very argument Williams makes today.           In United States v.

Thompson, 

, 281 (4th Cir. 2005), as here, the defendant

argued that "the Supreme Court's recent Sixth Amendment rulings

prohibit[ed] sentencing him under ACCA unless a jury finds (or he

admits) the facts required by the statute."1         In rejecting this

argument we explained that the Supreme Court in Shepard "explicitly

affirmed that the prior conviction exception [of Almendarez-Torres

and Apprendi] remained good law.”         

of a




     1
      Like Williams, the defendant in Thompson also challenged his
sentence under the Fifth Amendment because "the indictment did not
allege facts sufficient to support his enhanced sentence under

, n.2. We rejected that argument on the
same grounds as we rejected his Sixth Amendment argument.      

rejection of the Fifth Amendment argument
here.

                                      4
prior conviction' remains a valid enhancement even when not found

by the jury."   

sum, the Supreme Court's rulings in Almendarez-Torres and

Shepard and this court's ruling in Thompson foreclose Williams's

argument that the imposition of an ACCA enhancement based on

predicate convictions found by a judge violates the Fifth and Sixth

Amendments.



                                  III.

     Williams also contends that the Government failed to prove the

existence of three qualifying predicate felonies under the ACCA

using Shepard-approved sources.     For a prior conviction to qualify

as a predicate offense under the ACCA, it must be a "violent

felony" or “serious drug offense” that occurred on an "occasion[]

different   from   [other   offenses]."    18   U.S.C.   §   924(e)(1).

Moreover, under Shepard, a court can only determine whether a prior

conviction meets these requirements by reference to “the terms of

the charging document, the terms of a plea agreement or transcript

of colloquy . . ., or to some comparable judicial record of this

.

     The ACCA defines "violent felony" as

     any crime punishable by imprisonment for a term exceeding
     one year, or any act of juvenile delinquency involving
     the use or carrying of a firearm, knife, or destructive
     device that would be punishable by imprisonment for such
     term if committed by an adult that-- (I)       has as an
     element the use, attempted use, or threatened use of

                                   5
     physical force against the person of another; or (ii) is
     burglary,   arson,  or   extortion,   involves  use   of
     explosives, or otherwise involves conduct that presents
     a serious potential risk of physical injury to another .
     . .

18 U.S.C. § 924 (e)(2)(B) (emphasis added).

     A court is to employ "a categorical approach" in determining

whether   a   prior   conviction   properly       serves   as    a    predicate

conviction under the ACCA.         

(citing

Taylor v. United States, 

, 600 (1990)).             In accord with

this approach, a sentencing court must first look to the statutory

definition of the offense of conviction.            

of

which the defendant was convicted has as an element the use,

attempted use, or threatened use of force, then the requirement of

a "violent felony" has been fulfilled.           United States v. Presley,

, 69 (4th Cir. 1995).      However,

     "[i]n cases where the state conviction can be violated in
     a number of ways, some of which would support enhancement
     under § 924(e) and some of which would not, the
     categorical approach permits the sentencing court [to] go
     beyond the fact of conviction and the statutory
     definition of the underlying crime [to] examine the
     indictment, other charging papers, or jury instructions
     to determine whether the defendant was charged with a
     crime that meets the requirements of § 924(e)."
     

  (citations   omitted)
     (alterations in original).

     In   determining   whether    the   prior    convictions        arise   from

offenses that occurred on "occasions different from one another" a

court is to consider "only those predicate offense that can be

isolated with a beginning and an end -- ones that constitute an


                                    6
occurrence unto themselves." United States v. Letterlough, 

, 335 (4th Cir. 1995).          The court thus considers such factors as

(I)    whether    the     offenses    occurred          in    different      geographic

locations,       (ii)    whether     the       nature        of    the    offenses    was

substantively different, and (iii) whether the offenses involved

multiple victims or multiple criminal objectives.                        

.         Williams contends that the district court looked

beyond Shepard-approved sources in its findings as to his predicate

convictions.



                                           A.

       Williams first argues that the Government did not prove that

his burglaries constituted "violent felon[ies]" under the ACCA. In

Taylor, the Supreme Court held that "a person has been convicted of

burglary for purposes of a § 924(e) enhancement if he is convicted

of any crime, regardless of its exact definition or label, having

the basic elements of unlawful or unprivileged entry into, or

remaining in, a building or structure, with intent to commit a

.         When a state statute does not follow

this generic definition, however, the Court explained in Shepard

that    a   sentencing      court    can        look    to    an    indictment,      jury

instructions, a transcript of a plea colloquy, or other comparable

sources "to determine whether a plea of guilty to burglary defined




                                           7
by a nongeneric statute necessarily admitted elements of the

generic offense . . . 

.

      Williams was convicted of statutory burglary under Va. Code

Ann. § 18.2-91, which does not require the elements of generic

burglary identified in Taylor.          Thus, the sentencing court had to

look to Shepard-approved sources to determine whether Williams’s

convictions     satisfied    the    elements     of   generic   burglary.     At

sentencing the Government offered the indictment that charged

Williams "did break and enter in the nighttime the dwelling house

of   Theresa    Smith,    with     intent   to   commit   larceny,"    and   the

corresponding jury verdict form, which found Williams "guilty of

breaking and entering the property of Theresa Smith as charged in

the indictment."         The Government also offered the verdict form

finding Williams guilty of "breaking and entering the property of

Sylvia Coleman," and the jury instructions for both burglary

charges, which instructed the jury that it must find that (1) "the

defendant without permission in the nighttime entered or in the

daytime broke and entered a dwelling house" and (2) "[t]hat he did

so with intent to commit larceny."          These Shepard-approved sources

clearly show that Williams was convicted of the generic form of

burglary.      Thus, these burglaries constitute "violent felon[ies]"

under the ACCA.

      Williams also contends that the district court could not have

determined,      using    only     Shepard-approved       sources,    that   the


                                        8
burglaries were separate from one another.2 This argument presents

a close question.    Although the robberies are alleged to have

occurred on the same day, the jury instructions and verdict forms

refer separately to the "property" or "dwelling" of Sylvia Coleman

and the "property" or “dwelling" of Theresa Smith.     We need not

resolve this question, however, for even if we were to consider the

burglaries as one predicate offense, the Government, as explained

within, still has shown three other predicate offenses.



                                B.

     Williams next contends that larceny from the person does not

qualify as a "violent felony" under the ACCA because the crime, as

defined by Virginia law, does not include as an element the use,

attempted use, or threatened use of physical force, as required by

the ACCA.   We have previously rejected a very similar argument.

     In United States v. Smith, 

(2004), we considered

whether the Virginia statute at issue here, Va.Code Ann. § 18.2-95,

qualified as a "crime of violence" for the purposes of applying an


     2
      Williams also maintains that because he was indicted for both
burglaries and for the robbery of Jonhette Daniels on the same day
-- May 9, 1998 -- it is impossible to tell from Shepard-approved
sources whether the Daniels’s robbery arose from criminal conduct
separate from the burglaries.       This argument is meritless.
Unquestionably, Shepard-approved documents demonstrate that the
Daniel’s robbery was separate from the two burglaries.          The
indictments indicate that the burglaries took place on March 23,
1988, whereas the Daniels’s robbery took place on March 5, 1988.
Furthermore, the nature of the offenses was substantively
different. Under Letterlough and Hobbs, Daniels’s robbery was
separate from the burglaries.

                                 9
enhancement      under    the    career       offender    guideline      of   the    U.S.

Sentencing Guidelines.           See U.S.S.G. § 4B1.1 (2002).                 We noted

that, as Williams argues, under Virginia law larceny from the

person does not "contain as an element the use, attempted use, or

threatened use of physical force."               

.            Thus,

the   offense    can     qualify    as    a    crime     of   violence    only      if   it

“'otherwise involves conduct that presents a serious potential risk

of    physical    injury    to     another.'"          

4B1.2(a)(2)).      In Smith we concluded that larceny from the person

is a crime of violence "in the abstract" because "[t]he offense

recognizes an enhanced societal concern for conduct that implicates

at least a potential for personal assault, conduct that involves

the person of the victim and jeopardizes his personal security."

omitted).

       Although Smith involved the Sentencing Guidelines rather than

the ACCA, the definition of a “violent felony” under the ACCA --

"conduct that presents a serious potential risk of physical injury

to another" -- is identical to the definition of a “crime of

violence” under the Sentencing Guidelines.                    Accordingly, we see no

reason why the logic in Smith should not extend to the ACCA.                        Thus,

Williams's conviction for larceny from the person qualifies as a

predicate “violent felony” under the ACCA.




                                          10
                                    C.

     Finally, Williams argues that based on the evidence in the

record, the sentencing court could not conclude that his two

robbery convictions qualify as "violent felon[ies]" under the ACCA.

Robbery in Virginia requires "the taking, with intent to steal, of

the personal property of another, from his person or in his

presence, against his will, by violence or intimidation." 

(citing Hoke v. Commonwealth, 

, 310, 

, 599, cert. denied, 

(1989)).               Williams

focuses on the words "or intimidation" to argue that "intimidation"

does not necessarily require the use, attempted use, or threatened

use of physical force.      Thus, according to Williams, without more

information   from    the   Government,   a   sentencing   court   may   not

conclude   that   a   defendant   convicted   under   Virginia's   robbery

statute has committed a violent felony.

     However, we have previously held, in examining the same

statute under which Williams was convicted -- Va.Code Ann. §

18.2-58 -- that robbery in Virginia is a violent felony:

     Violence is the use of force. Intimidation is the threat
     of the use of force. Thus, because robbery in Virginia
     has as an element the use or threatened use of force,
     [the defendant's] robbery convictions were properly used
     as predicates under ACCA.

.

     Williams urges us to disavow Presley in light of the Supreme

Court's recent holding in Shepard.        Although Shepard explains the


                                    11
procedure to be followed when statutory elements do not satisfy the

definition of a “violent felony” under the ACCA, we held in Presley

that       any   violation   of   Virginia's   robbery   statute   necessarily

constitutes a predicate conviction under the ACCA.                 Nothing in

Shepard requires us to reconsider that holding.             Thus, Williams's

two prior robbery convictions qualify as predicate offenses under

the ACCA.3

       In sum, the district court properly found the presence of at

least four predicate convictions: one larceny from the person; at

least one burglary; and two robberies.



                                        IV.

       For the foregoing reasons, the judgment of the district court

is

                                                                     AFFIRMED.




       3
      Williams asks that we remand the case to the district court
to determine whether he qualifies as a career offender under the
Sentencing Guidelines.     A remand is unnecessary because the
Government has never argued that Williams qualifies as a career
offender under the Guidelines.      Williams also objects to the
calculation of his criminal history in the PSR, although he makes
little in the way of an argument beyond noting his objection. We
conclude that the appellate waiver in his plea agreement extends to
this claim, and thus we do not consider it.

                                        12