US v. Darryl Harcum

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:06-cr-00434-RDB-1. Copies to all parties and the district court/agency. [998744523]. [10-4731]

Appeal: 10-4731

Document: 43

Date Filed: 12/15/2011

Page: 1 of 7

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-4731

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DARRYL HARCUM,
Defendant -

Appellant.

Appeal from the United States District Court for the District of
Maryland, at Baltimore.
Richard D. Bennett, District Judge.
(1:06-cr-00434-RDB-1)

Submitted:

October 31, 2011

Decided:

December 15, 2011

Before NIEMEYER, KING, and KEENAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

James Wyda, Federal Public Defender, Sapna Mirchandani, Staff
Attorney,
Greenbelt,
Maryland,
for
Appellant.
Rod
J.
Rosenstein, United States Attorney, Benjamin M. Block, Assistant
United States Attorney, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 10-4731

Document: 43

Date Filed: 12/15/2011

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PER CURIAM:
Darryl
possession

of

Harcum
a

was

firearm

convicted

by

a

in

convicted

2007

of

felon,

unlawful
18

U.S.C.

§ 922(g)(1) (2006), and sentenced as an armed career criminal to
a term of 235 months imprisonment.
(West

2000

concluded

&

that

Supp.

2011).

In

the

district

court

See 18 U.S.C.A. § 924(e)
Harcum’s
had

first

appeal,

properly

applied

we
the

modified categorical approach to determine that he was an armed
career criminal, 1 but vacated his sentence, and

remanded for

further proceedings on the ground that the district court erred
in relying on the facts set out in the Statement of Charges
filed in one Maryland court to determine that Harcum’s prior
Maryland second degree assault conviction was a violent felony
when

he

different

pled

guilty

Maryland

to

court

a

criminal

which

information

contained

no

filed

facts.

in

a

United

States v. Harcum, 587 F.3d 219, 224-25 (4th Cir. 2009).
On
resentencing,

remand,

the

permitted

district
the

court

government

conducted
to

a

de

novo

introduce

the

transcript of Harcum’s guilty plea to second degree assault, and
determined that the assault conviction qualified as a violent

1

See Shepard v. United States, 544 U.S. 13 (2005); United
States v. Simms, 441 F.3d 313 (4th Cir. 2006).

2

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Document: 43

felony.

Date Filed: 12/15/2011

Page: 3 of 7

The court sentenced Harcum to the mandatory minimum

180-month sentence.
Harcum now appeals his new sentence, contending that
(1) the court erred in conducting a de novo resentencing; (2)
the plea transcript did not prove the assault was a violent
felony; and (3) recent decisions from the Supreme Court and this
court required the court to use a categorical approach rather
than

a

modified

categorical

degree assault conviction.

approach

to

construe

the

second

We affirm.

Initially, we find no error in the district court’s
decision to conduct a de novo resentencing hearing and to permit
the

government

to

introduce

a

transcript

of

the

guilty

plea

colloquy for Harcum’s second degree assault conviction.

Our

direction to the district court on remand left the scope of the
resentencing

to

the

discretion

of

the

court.

United

See

States v. Bell, 5 F.3d 64, 67 (4th Cir. 1993) (“[T]o the extent
that the mandate of the appellate court instructs or permits
reconsideration

of

sentencing

issues

on

remand,

the

district

court may consider the issue de novo, entertaining any relevant
evidence on that issue that it could have heard at the first
hearing.”) (internal quotation marks omitted).
Next,

Harcum

asserts

for

the

first

time

that

the

guilty plea transcript did not prove that the assault was a
violent

felony

because

he

did

not
3

adopt

or

admit

the

facts

Appeal: 10-4731

Document: 43

proffered

by

the

Date Filed: 12/15/2011

state

Page: 4 of 7

prosecutor.

Generally,

the

issue

of

whether a prior conviction qualifies as a crime of violence is
reviewed de novo. 2

United States v. Donnell, ___ F.3d ___, 2011

WL 5101566, at *2 (4th Cir. Oct. 27, 2011).
argument

for

plain

error

because

it

was

not

Reviewing this
preserved

for

appeal, United States v. Olano, 507 U.S. 725 (1993), we conclude
that the district court did not err, plainly or otherwise, in
relying on the facts proffered by the government as the factual
basis for the guilty plea to find that Harcum’s second degree
assault conviction was a violent felony.
Harcum seeks to analogize his situation to that of the
defendant in United States v. Alston, 611 F.3d 219 (4th Cir.
2010),

who

confirming

entered
the

Alford 3

plea,

not

underlying

the

plea,

an

facts

reasons of self-interest.”

admitting
but

guilt

pleading

or

“for

United States v. Taylor, ___ F.3d

___, 2011 WL 5034576, at *7 (4th Cir. Oct. 24, 2011) (rejecting
similar

claim).

agreement.

Harcum

pled

guilty

pursuant

to

a

plea

When asked by the judge whether he was pleading

guilty because he was, in fact, guilty, Harcum responded, “Yes.”

2

Cases construing “crime of violence” under the Guidelines
and “violent felony” under § 924(e) are both applicable because
the language is nearly identical. United States v. Knight, 606
F.3d 171, 173 n.1 (4th Cir. 2010).
3

North Carolina v. Alford, 400 U.S. 25, 25-26 (1970).

4

Appeal: 10-4731

When

Document: 43

asked

how

Date Filed: 12/15/2011

he

pleaded

responded, “Guilty.”

to

Page: 5 of 7

second

degree

assault,

Harcum

The factual basis for his guilty plea was

that he punched the victim, who fell backward through a plate
glass window and suffered injuries, including a severed tendon
and artery.

After hearing the facts presented, Harcum agreed

that the state’s witnesses would so testify.

When asked, before

sentence was imposed, if he wished to say anything to the judge,
Harcum declined to speak.
Alford

plea

because

he

Harcum’s plea was not analogous to an
specifically

admitted

raised no objection to the factual basis.

his

guilt

and

See Taylor, 2011 WL

5034576, at *8 (refusing “to dress a perfectly ordinary guilty
plea

in

garb

Alford

in

order

to

avoid

[a

§ 924(e)]

enhancement.”).
Last, Harcum contends that the district court erred in
using

a

modified

categorical

approach.

He

asserts

that

the

legal landscape has changed since his first appeal was decided.
Generally, to decide whether a prior conviction constitutes a
violent

felony,

the

district

court

should

use

a

categorical

approach.

James v. United States, 550 U.S. 192, 202 (2007);

Shepard

United

v.

States,

544

U.S.

13,

19-20

(2005);

United

States v. Kirksey, 138 F.3d 120, 124-25 (4th Cir. 1998).

Under

this approach, the court may “rel[y] only on (1) the fact of
conviction

and

(2)

the

Kirksey, 138 F.3d at 124.

definition

of

the

prior

offense.”

In a limited class of cases, however,
5

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Date Filed: 12/15/2011

Page: 6 of 7

where the definition of the underlying crime encompasses both
violent and non-violent conduct, “a sentencing court may use a
modified categorical approach to look beyond the fact of the
conviction and the elements of the offense to determine which
category of behavior underlies the prior conviction.”

Donnell,

2011 WL 5101566, at *2 (citing Johnson v. United States, 130 S.
Ct. 1265, 1273 (2010)).

When the conviction results from a

guilty plea, “a court may look to the statement of factual basis
for the charge shown by a transcript of plea colloquy or by
written plea agreement presented to the court, or by a record of
comparable

findings

entering the plea.”

of

fact

adopted

by

the

defendant

upon

Donnell, 2011 WL 5101566, at *2 (quoting

Shepard, 544 U.S. at 20 (citation omitted)); see also Harcum,
587 F.3d at 223.
Harcum argues that, after his appeal was decided, the
Supreme Court’s decision in Johnson and this court’s decision in
United States v. Rivers, 595 F.3d 558 (4th Cir. 2010), narrowed
the circumstances in which the modified categorical approach may
be used, and that these decisions as well as decisions from
other

circuits

now

require

use

of

a

categorical

approach

to

analyze a prior Maryland second degree assault conviction.
However, we have very recently held that, in Maryland,
second degree assault “encompasses several distinct crimes, some
of which qualify as violent felonies and others of which do
6

Appeal: 10-4731

not,”

Document: 43

Date Filed: 12/15/2011

and

sentencing

modified

thus

a

categorical

conviction

for

court

approach

Maryland

to

second

Page: 7 of 7

is

determine

degree

violence” or a violent felony.

“entitled

to

use

whether

assault

is

a

a

the

prior

crime

of

Donnell, 2011 WL 5101566, at *3

(quoting Alston, 611 F.3d at 222-23); see Md. Code Ann., Crim.
Law §§ 3-203, -201(b) (LexisNexis 2010).

Accordingly, contrary

to Harcum’s assertion on appeal, the district court was correct
in using a modified categorical approach.

Thus, the district

court’s consideration of the transcript of Harcum’s guilty plea
to

second

degree

assault

was

permissible.

Moreover,

the

district court correctly concluded that Harcum’s second degree
assault conviction was a violent felony.
We
district
facts

court.

and

materials

therefore

legal
before

We

affirm

dispense

the
with

sentence
oral

argument

contentions

are

adequately

the

and

argument

court

imposed

by

the

because

the

presented

would

not

in

the

aid

the

decisional process.
AFFIRMED

7