US v. Marcus Byrd

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 7:08-cr-00665-HFF-1 Copies to all parties and the district court/agency. [998459602] [09-4499]

US v. Marcus Byrd

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Date Filed: 11/04/2010

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4499 UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. MARCUS JAMES BYRD, Defendant ­ Appellant.

Appeal from the United States District Court for the District of South Carolina, at Spartanburg. Henry F. Floyd, District Judge. (7:08-cr-00665-HFF-1) Submitted: August 5, 2010 Decided: November 4, 2010

Before GREGORY, SHEDD, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Scarlet B. Moore, Greenville, South Carolina, for Appellant. William N. Nettles, United States Attorney, William J. Watkins, Jr., Maxwell Cauthen, Assistant United States Attorneys, Greenville, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit.

Dockets.Justia.com

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PER CURIAM: After pleading guilty to one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) (2006), Marcus Byrd was sentenced to seventy months in prison. Challenging his sentence on appeal, Byrd contends that: (i) his prior felony a Ann. South firearm § Carolina at convictions person, were for in not level pointing violation "crime[s] under and of of U.S.

presenting S.C. Code violence"

another

16-23-410 an

(2003),

justifying

enhanced

offense

Sentencing Guidelines Manual ("USSG") § 2K2.1(a)(2) (2008); and (ii) the district court committed reversible error when it

imposed Byrd's sentence without an individualized assessment, in violation of United States v. Carter, 564 F.3d 325 (4th Cir. 2009). After determining that no reversible error occurred, we

affirm the district court's judgment. Considering Byrd's claims in reverse order, we first hold that the district court committed no reversible error when it failed to place individualized support for Byrd's sentence on the record. Byrd did not properly preserve his objection to the

adequacy of the district court's sentencing procedure by asking the district court to depart on from the correctly of the calculated relevant 18

Guidelines

range

based

consideration

U.S.C. § 3553 (2006) factors.

Thus, we review the district

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court's explanation behind Byrd's sentence for plain error. United States v. Lynn, 592 F.3d 572, 580 (4th Cir. 2010).

See

To require vacatur of his sentence, Byrd must show that an error: (i) was made; (ii) was plain (i.e., clear or obvious); and (iii) affected his substantial rights, see United States v. Massenburg, 564 F.3d 337, 342-43 (4th Cir. 2009). other words, even if this court in assumed support that of the In

district sentence

court's

cursory

explanation

Byrd's

constituted an obvious error in violation of Carter, Fed. R. Crim. P. 52(b) requires Byrd to also show that the district court's sentence lack of explanation See had a prejudicial United effect 129 on S. the Ct.

imposed.

Puckett v.

States,

1423, 1433 n.4 (2009).

Byrd has made no such showing.

We discern no reversible error in the district court's calculation of Byrd's Guidelines range. Section 2K2.1(a)(2) of

the Sentencing Guidelines provides for a base offense level of twenty-four for an unlawful possession of a firearm conviction if "the defendant to committed at any part two of the instant offense of

subsequent

sustaining

least

felony

convictions

either a crime of violence or a controlled substance offense." A "crime of violence" is defined in USSG § 4B1.2(a) as: any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that ­

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(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. USSG § 4B1.2 (2008). To crimes of determine violence, United whether we prior a convictions "categorical 575, 600 constitute approach." United Under

employ 495 U.S.

Taylor v.

States,

(1990);

States v. Kirksey, 138 F.3d 120, 124 (4th Cir. 1998).

this approach, the court may look only to the fact of conviction and the statutory definition of the prior offense. * 495 U.S. at 602. "generically" -- Taylor,

Thus, the court should consider the offense i.e., "in terms of how the law defines the

offense and not in terms of how an individual offender might

In a "narrow range of cases," resort to the statute of offense and fact of conviction will not confirm the predicate nature of the state crime. Taylor, 495 U.S. at 602. In those cases where it is evident from the statutory definition of the state crime that some violations of the statute are "crimes of violence" and others are not, this court applies a "modified" categorical approach. Soliman v. Gonzales, 419 F.3d 276, 285 (4th Cir. 2005). Because the statute at issue on this appeal criminalizes only one type of conduct, the use of a modified categorical approach would be inappropriate in this case. See United States v. Rivers, 595 F.3d 558, 563 (4th Cir. 2010) ("[O]nly when a statute prohibits different types of behavior such that it can be construed to enumerate separate crimes can a court modify the categorical approach to determine ACCA eligibility."). 4

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have committed it on a particular occasion."

Begay v. United

States, 553 U.S. 137, 141 (2008) (citations omitted). This court has previously held that a violation of § 16-23-410 qualifies as a predicate offense under a former

version of § 4B1.2(a)(2), as well as under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e) (2006). See United

States v. Thompson, 891 F.2d 507, 509 (4th Cir. 1989) (holding that a conviction under the South Carolina statute qualifies as a crime of violence under a former version of § 4B1.2(a)(2), while declining to determine whether it would qualify as a crime of violence under § 4B1.2(a)(1)); United States v. Hemingway, 38 F. App'x 142, 147 (4th Cir. March 29, 2002) (No. 01-4211) (unpublished after argument) (holding that a conviction under § 16-23-410 qualifies as a violent felony under the ACCA, which defines "violent felony" the same as "crime of violence" in

§ 4B1.2, because pointing or presenting a firearm at another "presents a serious potential risk of physical injury to

another") (internal quotation marks and citation omitted). After these holdings, however, the Supreme Court

decided Begay v. United States, in which it held that a "violent felony" under the residual clause of the ACCA must "typically involve purposeful, violent, and aggressive" conduct. U.S. at 144-45. See 553

This holding is applicable to the definition of United States v.

a "crime of violence" under § 4B1.2(a)(2). 5

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Seay, 553 F.3d 732, 738-39 (4th Cir.), cert. denied, 130 S. Ct. 127 (2009). Accordingly, Byrd argued at sentencing that his

§ 16-23-410 convictions were not "crimes of violence" under USSG § 4B1.2(a)(1) because such a crime does not have as an element "the use, attempted use, or threatened use of physical force against the person of another," and that Begay undercut this court's holdings in Hemingway and Thompson. In overruling Byrd's objection to his Guidelines range calculation, the district court declined to conduct a Begay-type analysis and instead found a violation of § 16-23-410 to be a "crime of violence" under USSG § 4B1.2(a)(1). district court correctly recognized that a We find that the person violates

§ 16-23-410 if he: (i) points or presents; (ii) a loaded or unloaded firearm; (iii) at another person. 589 S.E.2d 6, 8 (S.C. 2003). State v. Burton,

However, the articulated elements

of the crime cover a wide range of fact patterns and the only stated exceptions to the statute's coverage are when a firearm is pointed at another in self defense or when a firearm is pointed at or presented to another person as part of a

theatrical or like performance. (2003).

See S.C. Code Ann. § 16-23-410

Thus, although the act of pointing or presenting a

firearm at another may inherently be dangerous and almost always will be "accompanied by the use of physical force," Thompson,

891 F.2d at 509, it is simply not an articulated element of the 6

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offense that physical force be used, attempted or threatened before a violation will occur. Accordingly, we conclude that a

§ 16-23-410 conviction does not constitute a crime of violence under USSG § 4B1.2(a)(1). Despite the foregoing, the South Carolina Court of

Appeals recently construed the phrase "to present" in § 16-23410 as "offer[ing] to view in a threatening manner, or to show in a threatening manner." (S.C. Ct. App. 2010). In re Spencer R., 692 S.E.2d 569, 572

In so construing, the court recognized

that § 16-23-410 was not "perfectly analogous" to other states' firearm brandishing statutes -- which prohibit brandishing a

firearm in "a rude, angry, or threatening manner," Cal. Penal Code § 417(a)(2) (West 2009), "in an angry or threatening

manner[,]" Mo. Ann. Stat. § 571.030(1)(4) (West 2010), or "in such a manner as to reasonably induce fear in the mind of

another[,]" Va. Code Ann. § 18.2-282(A) (2009) -- but nonetheless concluded that a violation of the statute will occur so long as an individual "intend[s] to specifically threaten" another Thus, to have

individual. according spoken on to

See In re Spencer R., 692 S.E.2d at 573. the highest a South Carolina of state court

the

issue,

violation and a

§ 16-23-410

necessarily and, under

involves

"purposeful, still

violent,

aggressive" "crime of

conduct

accordingly,

constitutes

violence"

§ 4B1.2(a)(2), even after Begay. 7

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Because

this

court

may

affirm

the

district

court's

judgment on any grounds apparent from the record, see United States v. Smith, 395 F.3d 516, 518-19 (4th Cir. 2005), we hold that a § 16-23-410 under violation still constitutes and affirm a the "crime of

violence"

USSG

§ 4B1.2(a)(2)

district

court's judgment. facts and legal before

We dispense with oral argument because the contentions the court are and adequately argument presented not in aid the the

materials

would

decisional process. AFFIRMED

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