US v. Garfield Redd

Filing 920100330

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-5168 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. GARFIELD REDD, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Baltimore. Williams D. Quarles, Jr., District Judge. (1:07-cr-00470-WDQ-1) Submitted: March 4, 2010 Decided: March 30, 2010

Before NIEMEYER, KING, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. James Wyda, Federal Public Defender, Meghan S. Skelton, Assistant Federal Public Defender, Greenbelt, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, George J. Hazel, Assistant United States Attorney, Baltimore, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Garfield Redd pled guilty to possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 924(a)(2) (2006). 922(g)(1),

Redd was sentenced under the Armed Career

Criminal Act ("ACCA"), 18 U.S.C. § 924(e) (2006), to 240 months imprisonment. Redd appeals, arguing that the district court

erred in finding that he had the requisite number of qualifying predicate convictions affirm. In considering whether the district court properly under the ACCA. Finding no error, we

designated Redd as an armed career criminal, this court reviews the district courts legal determinations de novo and its

factual findings for clear error. 350 F.3d 446, 451 (4th Cir. 2003). career criminal, subject to a

United States v. Wardrick, A defendant is an armed fifteen-year sentence,

minimum

when he violates § 922(g)(1) and has three prior convictions for violent felonies or serious drug offenses that were committed on different Guidelines occasions. Manual 18 U.S.C. § 924(e)(1); A U.S. Sentencing felony" is

§ 4B1.4(a)

(2007).

"violent

defined by the ACCA as any crime punishable by imprisonment for a term exceeding one year that "has as an element the use, attempted use, or threatened use of physical force against the person of another." 18 U.S.C. § 924(e)(2)(B)(i). To determine

whether an offense under state law falls within the definition 2

of a violent felony, this Court uses a categorical approach, which "takes into account only the definition of the offense and the fact of conviction." 286 (4th Cir. 2002). United States v. Pierce, 278 F.3d 282, The particular label or categorization Taylor v. United States, find the district court

under state law is not controlling. 495 U.S. 575, 590-91 (1990). We

properly determined that Redd had the three necessary qualifying predicate convictions to warrant the armed career criminal

designation. Redd first argues on appeal his prior conviction for distribution of cocaine could not be considered a predicate

offense because he was only sixteen years old at the time of the offense and seventeen years old at the time of conviction. The

statutory definition of a "serious drug offense" includes "an offense under State law, involving manufacturing, distributing, or possessing with intent (as to manufacture in or distribute, 102 of a

controlled

substance

defined

section

the

Controlled Substances Act (21 U.S.C. 802)), for which a maximum term of imprisonment of ten years or more is prescribed by law." 18 U.S.C. § 924(e)(2)(A)(ii). probation officer noted that In the presentence report, the Redd pled guilty to and was

convicted of possession with intent to distribute cocaine in Maryland state court in March 1988. years imprisonment. He was sentenced to ten

Redds conviction was for a serious drug 3

offense and constitutes the first predicate offense for armed career criminal status. See Taylor, 495 U.S. at 600 (noting

that, to determine whether a prior conviction may be counted under the ACCA, the court looks to the statutory definition of the prior offense and not to the particular facts underlying that conviction); United States v. Wright, ___ F.3d __, 2010 WL 376549, at *5 (4th Cir. Feb. 3, 2010) (finding no error in district courts reliance on prior juvenile convictions to

enhance sentence under ACCA). The district court also properly found that Redds two Maryland convictions for first-degree assault qualified as

predicate offenses under the ACCA.

Under Maryland law, a person

is guilty of first-degree assault if he "intentionally cause[s] or attempt[s] to cause serious physical injury to another." Code Ann. Crim., Law § 3-202 (LexisNexis Supp. 2008). the elements of first-degree assault under Md.

Because law

Maryland

encompass the use or attempted use of physical force, these two offenses categorically qualify as ACCA predicates. See

Johnson v. United States, ___ S. Ct. ___, 2010 WL 693687, at *6 (U.S. Mar. 2, 2010) ("We think it clear that in the context of a statutory definition of ,,violent felony, the phrase "physical force" means violent force-that is, force capable of causing physical pain or injury to another person."); but see United States v. Coleman, 158 F.3d 199, 204 (4th Cir. 1998) (holding 4

Maryland common law assault is not per se violent felony within the meaning of ACCA); United States v. Kirksey, 138 F.3d 120, 125 (4th Cir. 1998) (describing common law assault in Maryland to include, inter alia, "any unlawful force used against a person of another, no matter how slight"). Because all three prior convictions qualify as

categorical predicate offenses under the ACCA, Redds reliance on Taylor and that Shepard a v. United inquiry States, as to 544 U.S. 13 (2005) in

(holding

courts

disputed

facts

connection with a prior conviction is limited to the terms of the charging document, a plea agreement, a transcript of the plea colloquy, or a comparable judicial record), is misplaced. While a sentencing court is not permitted to resolve disputed facts about a prior conviction that are not evident from "the conclusive significance of a prior judicial record," Shepard, 544 U.S. at 25, a determination that a defendant is eligible for sentencing under that the the ACCA may be based on are a for judges violent

determination

predicate

convictions

felonies or drug trafficking crimes if the qualifying facts are inherent required in to the predicate convictions fact and the court See is not

perform

additional

finding.

United

States v. Thompson, 421 F.3d 278, 282-83 (4th Cir. 2005). In his reply brief, Redd argues that, even if these prior convictions are categorically 5 considered predicate

offenses under the ACCA, the Government failed to carry its burden of establishing the fact of these convictions and was not entitled to rely solely on the presentence report. Redds argument, we have held that a Contrary to court is

sentencing

entitled to rely on "the conclusive significance" of the record, see Shepard, 544 U.S. at 25, as set out in the presentence report. Thompson, 421 F.3d at 285 (sentencing court entitled to

rely on the presentence report because it "bears the earmarks of derivation from Shepard-approved sources"); see generally United States v. Love, 134 F.3d 595, 606 (4th Cir. 1998) (quoting

United States v. Terry, 916 F.2d 157, 162 (4th Cir. 1990)) ("A mere objection to the finding in the presentence report is not sufficient. . . . Without an affirmative showing the information is inaccurate, the court is ,,free to adopt the findings of the [presentence report] without more specific inquiry or

explanation."). We therefore find that the district court did not err in determining that Redd had the requisite number of qualifying predicate convictions to warrant we the armed Redds the career criminal We legal

designation.* dispense
*

Accordingly, oral

affirm because

sentence. facts and

with

argument

Because Redd has three prior convictions that qualify as predicate offenses under the ACCA, we need not address his arguments as to the fourth prior conviction for assault.

6

contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED

7