US v. Thurman Brown


UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:07-cr-00479-WMN-1 Copies to all parties and the district court/agency. [998427271] [09-4452]

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US v. Thurman Brown Doc. 0 Case: 09-4452 Document: 60 Date Filed: 09/17/2010 Page: 1 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4452 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. THURMAN DOMINICK BROWN, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Baltimore. William M. Nickerson, Senior District Judge. (1:07-cr-00479-WMN-1) Submitted: September 2, 2010 Decided: September 17, 2010 Before KING, DUNCAN, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Gary E. Proctor, THE LAW OFFICES OF GARY E. PROCTOR, Baltimore, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, Rachel M. Yasser, Assistant United States Attorney, Baltimore, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. Case: 09-4452 Document: 60 Date Filed: 09/17/2010 Page: 2 PER CURIAM: Thurman Dominick Brown appeals the 180-month sentence imposed following his conviction by a jury of possession of a firearm by a convicted On felon, appeal, in violation argues of that 18 U.S.C. 2003 922(g)(1) (2006). Brown his second degree assault conviction was not a violent felony * and, therefore, that the district court erred in designating him an armed career criminal under the Armed Career Criminal Act ("ACCA"). Finding no reversible error, we affirm. Under the ACCA, a violent felony is any crime punishable by more than one year of imprisonment that "has as an element the use, attempted use, or threatened use of physical force against the person of another." 18 U.S.C.A. 924(e)(2)(B)(i) (West 2000 & Supp. 2010). When determining whether a conviction qualifies as a violent felony, "we use the required categorical approach, which takes into account only the definition of the offense and the fact of conviction." States v. Pierce, 278 F.3d 282, 286 (4th Cir. 2002). United We have recognized, however, that a conviction for second degree assault in Maryland is not per se a violent felony for purposes of the ACCA. United States v. Harcum, 587 F.3d 219, 224 (4th Cir. Brown does not dispute that his two 2004 drug convictions are predicate offenses under the ACCA. 2 * Case: 09-4452 Document: 60 Date Filed: 09/17/2010 Page: 3 2009). Thus, we must use a modified categorical approach and "look beyond the definition of the crime to examine the facts contained in the charging document on which the defendant was convicted." United States v. Kirksey, 138 F.3d 120, 124 (4th Cir. 1998); see Shepard v. United States, 544 U.S. 13, 26 (2005) (setting forth documents on which courts may rely in using modified categorical approach); see also United States v. Simms, 441 F.3d 313, 315-18 (4th Cir. 2006) (using Kirksey analysis of Maryland assault statute in ACCA analysis). With these standards in mind, we have reviewed the record on appeal and conclude that Brown's second degree assault conviction ACCA. constitutes a violent felony for purposes of the Thus, the district court did not err in designating Brown Accordingly, we affirm the judgment an armed career criminal. of the district court. We dispense with oral argument because the facts and legal before contentions the court are and adequately argument presented not in aid the the materials decisional would process. AFFIRMED 3

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