Dominique Carmichael v. US

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:08-cr-00360-F-1 Copies to all parties and the district court/agency. [998507826] [09-4963]

Case: 09-4963

Document: 37

Date Filed: 01/21/2011

Page: 1

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-4963

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DOMINIQUE CARMICHAEL,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern.
Louise W. Flanagan,
Chief District Judge. (5:08-cr-00360-F-1)

Submitted:

November 30, 2010

Decided:

January 21, 2011

Before WILKINSON, KING, and DAVIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Mark A. Yurachek, THE LAW OFFICES OF MARK ALLEN YURACHEK, LLC,
Atlanta, Georgia, for Appellant.
George E. B. Holding, United
States Attorney, Anne M. Hayes, Jennifer P. May-Parker,
Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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Date Filed: 01/21/2011

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PER CURIAM:
Dominique Carmichael pled guilty to possession of a
firearm and ammunition by a convicted felon, in violation of 18
U.S.C.A. §§ 922(g)(1), 924(a)(2) (West 2000 & Supp. 2010).

The

district court designated Carmichael an armed career criminal
and sentenced him to 188 months in prison.

Carmichael appeals,

alleging that the district court erred by sentencing him as an
armed career criminal.

Finding no error, we affirm Carmichael’s

sentence.
In

the

presentence

report

(“PSR”),

the

probation

officer recommended that Carmichael be sentenced as an armed
career criminal as defined in U.S. Sentencing Guidelines Manual
§ 4B1.4 (2008), finding that Carmichael had at least three prior
convictions for violent felonies, namely three North Carolina
common law robbery convictions, committed on occasions different
from one another.

Carmichael’s guidelines range with the armed

career criminal designation was 180 to 188 months in prison.
Carmichael

objected

to

the

armed

career

criminal

designation, asserting that he committed only two, not three,
common

law

robberies.

He

admitted

the

common

law

robbery

convictions for crimes committed on November 19, 1997, and March
8, 2001, but he stated he had no recollection of committing the
common law robbery on November 16, 1997.
overruled

Carmichael’s

objection,
2

noting

The district court
that

court

records

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Document: 37

identified

him

by

birth

the

person

as

robberies.

name,

Date Filed: 01/21/2011

social

who

security

committed

number,

all

three

Page: 3

and

date

common

of
law

The court sentenced him to 188 months in prison.
On appeal, Carmichael first argues that North Carolina

common law robbery does not qualify as a violent felony for
purposes of the Armed Career Criminal Act (“ACCA”).

Because

Carmichael raises this claim for the first time on appeal, we
review it for plain error.

Fed. R. Crim. P. 52(b); United

States v. Olano, 507 U.S. 725, 732 (1993).
Under the ACCA, a person convicted under § 922(g)(1)
who

has

three

or

more

convictions

for

violent

felonies

or

serious drug offenses “shall be . . . imprisoned not less than
fifteen years.”
2010).

18 U.S.C.A. § 924(e)(1) (West 2000 & Supp.

A violent felony is defined as

[A]ny crime punishable by imprisonment
exceeding one year, . . . that--

for

a

term

(i) has as an element the use, attempted use, or
threatened use of 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.A. § 924(e)(2)(B).

Under North Carolina law, “[c]ommon

law robbery is defined as the felonious, non-consensual taking
of money or personal property from the person or presence of
another by means of violence or fear.”
3

State v. Herring, 370

Case: 09-4963

S.E.2d

363,

Document: 37

368

(N.C.

citation omitted).

1988)

Date Filed: 01/21/2011

(internal

Page: 4

quotation

marks

and

Although this offense does not necessarily

have “as an element the use, attempted use, or threatened use of
physical

force

against

the

person

of

another,”

§ 924(e)(2)(B)(i), and is not “burglary, arson, or extortion,
[. . . and

does

not]

involve[]

use

of

explosives,”

§ 924(e)(2)(B)(ii), it qualifies as a violent felony under the
residual
conduct

clause
that

in

§ 924(e)(2)(B)(ii),

presents

injury to another.”

a

serious

in

that

potential

risk

it
of

“involves
physical

§ 924(e)(2)(B)(ii).

In United States v. Jarmon, 596 F.3d 228, 230-33 (4th
Cir.), cert. denied, 131 S. Ct. 145 (2010), we held that a North
Carolina conviction for larceny from the person was a “crime of
violence” under the federal sentencing guidelines. 1
from

the

person

differs

from

[common

law]

“‘[L]arceny

robbery

in

that

larceny from the person lacks the requirement that the victim be
put in fear.’”

State v. Carter, 650 S.E.2d 650, 653-54 (N.C.

Ct. App. 2007) (quoting State v. Buckom, 401 S.E.2d 362, 365
1

“Because the language defining a violent felony in [18
U.S.C.A.] § 924(e) [of the ACCA] is nearly identical to and
materially indistinguishable from the language defining a crime
of violence in . . . § 4B1.2 [of the federal sentencing
guidelines],” we rely on case law interpreting both provisions
when deciding whether a prior offense qualifies as a “crime of
violence” or “violent felony.”
United States v. Roseboro, 551
F.3d 226, 229 n.2 (4th Cir. 2009), abrogated on other grounds by
United States v. Rivers, 595 F.3d 558 (4th Cir. 2010).

4

Case: 09-4963

(N.C. 1991)).

Document: 37

Date Filed: 01/21/2011

Page: 5

“[L]arceny from the person entails less violence

than robbery.”

Jarmon, 596 F.3d at 232.

Because the “less

violent” offense of larceny from the person is a violent felony
for purposes of the ACCA, we conclude that North Carolina common
law robbery also qualifies as a violent felony. 2
Carmichael
sentencing

him

as

also
an

argues
armed

that

career

the

court

criminal

erred

because

in
the

Government failed to prove that he had three prior convictions.
To the extent that Carmichael seeks to assert that the district
court

erred

in

sentencing

him

as

an

armed

career

criminal

because the fact of his prior convictions was not charged in the
indictment, admitted by him, or found by a jury, his argument is
foreclosed by United States v. Thompson, 421 F.3d 278, 286 (4th
Cir. 2005), and United States v. Cheek, 415 F.3d 349, 350 (4th
Cir. 2005).

2

Without addressing Jarmon, Carmichael argues that under
the Supreme Court’s recent decision in Johnson v. United States,
130 S. Ct. 1265 (2010), common law robbery does not qualify as a
violent felony because use of physical force is not necessarily
an element of the offense.
However, Carmichael’s reliance on
Johnson interpreted § 924(e)(2)(B)(i),
Johnson is misplaced.
which defines a “violent felony” as one that “has as an element
the use, attempted use, or threatened use of physical force
against the person of another,” whereas North Carolina common
law robbery fits within the definition of a violent felony in
the residual clause of § 924(e)(2)(B)(ii), which does not
include as an element the use, attempted use, or threatened use
of force.

5

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In the district court, Carmichael did not dispute the
common law robbery convictions for the offenses that occurred on
November 19, 1997, and March 8, 2001, but claimed to have no
recollection of having been convicted of or having committed the
common

law

robbery

that

occurred

on

November

16,

1997.

He

contends that, when he challenged the predicate offenses upon
which

his

armed

career

criminal

designation

was

based,

the

Government was required to provide evidence establishing these
convictions and failed to do so.
In

response

to

Carmichael’s

objection

to

the

information in the PSR that he had committed all three offenses,
the

probation

officer

stated

that

the

state

superior

court

records identified Carmichael by name, social security number,
and date of birth as the person who committed all three common
law robberies.

Carmichael provided no documentation to support

his

he

claim

offense.

that

had

not

committed

the

November

16,

1997,

As we have explained:

A mere objection to the finding in the presentence
report is not sufficient.
The defendant has an
affirmative
duty
to
make
a
showing
that
the
information in the presentence report is unreliable,
and articulate the reasons why the facts contained
therein are untrue or inaccurate.
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.
The burden is on the defendant to show the inaccuracy
or unreliability of the presentence report.

6

Case: 09-4963

United

States

v.

Document: 37

Terry,

916

Date Filed: 01/21/2011

F.2d

157,

162

Page: 7

(4th

Cir.

1990)

(internal quotation marks, alterations, and citations omitted);
see United States v. Randall, 171 F.3d 195, 210-11 (4th Cir.
1999).

It was Carmichael’s burden to refute the facts set forth

in the PSR and he failed to do so.
For these reasons, we conclude that the district court
did

not

qualifying

clearly

err

predicate

criminal designation.
dispense

with

oral

in

finding

convictions

that
to

Carmichael

support

his

had

armed

three
career

Accordingly, we affirm his sentence.
argument

because

the

facts

and

We

legal

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

AFFIRMED

7