US v. Difankh Asar

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 7:10-cr-00429-GRA-1 Copies to all parties and the district court/agency. [998849454]. [10-5263]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-5263

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DIFANKH ASAR, a/k/a James Walter Gist,
Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Spartanburg.
G. Ross Anderson, Jr., Senior
District Judge. (7:10-cr-00429-GRA-1)

Submitted:

April 30, 2012

Decided:

May 8, 2012

Before KING and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Andrew J. Johnston, Spartanburg, South Carolina, for Appellant.
William N. Nettles, United States Attorney, William J. Watkins,
Jr., Maxwell B. Cauthen, III, Assistant United States Attorneys,
Greenville, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Difankh Asar pled guilty to one count of possession of
a firearm by a person previously convicted of a felony offense.
The

district

court

determined

that

Asar

had

three

prior

convictions for violent felony offenses and sentenced him under
the armed career criminal provisions to 180 months imprisonment.
Asar appeals, contending that he had only two qualifying violent
felonies, and that the district court erred in determining that
his prior convictions for pointing or presenting a firearm and
for assault and battery of a high and aggravated nature were
qualifying violent felonies.

We affirm.

A defendant qualifies as an armed career criminal if
he violates 18 U.S.C. § 922(g)(1) (2006) and has three prior
convictions for violent felonies or serious drug offenses.
U.S.C. § 924(e)(1) (2006).

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A violent felony is one that “has as

an element the use, attempted use, or threatened use of physical
force against the person of another . . . or otherwise involves
conduct

that

presents

injury to another.”

a

serious

potential

risk

of

physical

18 U.S.C. § 924(e)(2)(B); U.S. Sentencing

Guidelines Manual § 4B1.2(a) (2009).

This court reviews de novo

the

that

district

court’s

determination

qualifies as a “violent felony.”
436 F.3d 449, 456 (4th Cir. 2006).

2

a

prior

conviction

See United States v. Green,

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Asar

challenges

the

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district

court’s

determination

that his two convictions for pointing a firearm, S.C. Code Ann.
§

16-23-410,

constituted

§ 4B1.2(a)(1).

The

“crime[s]

statute

in

of

violence”

question

under

criminalizes:

(i) pointing or presenting; (ii) a loaded or unloaded firearm;
(iii) at another person.

State v. Burton, 589 S.E.2d 6, 8 (S.C.

2003).
This court has held that pointing a firearm is a crime
of violence under § 4B1.2(a)(2), the career offender provision.
United States v. Byrd, 400 F. App’x 718, 720-21 (4th Cir. 2010),
cert. denied, 131 S. Ct. 1835 (2011); United States v. Thompson,
891 F.2d 507, 509-10 (4th Cir. 1989).

The Guideline defining

“crime of violence” under the career offender provision mirrors
the

definition

criminal

of

provisions,

“violent
and

felony”

therefore

under
the

the

court

armed

career

“rel[ies]

upon

precedents evaluating whether an offense constitutes a violent
felony under the Armed Career Criminal Act [ ] interchangeably
with

precedents

evaluating

whether

an

offense

crime of violence under USSG § 4B1.2(a).”

constitutes

a

United States v.

Clay, 627 F.3d 959, 965 (4th Cir. 2010).
We
correctly
firearm

conclude,

determined
at

another

therefore,

that

Asar’s

constituted

that
two

the

offenses

violent

district
of

felonies

court

pointing
and

a

were

properly found to be predicate offenses for the armed career
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criminal sentencing enhancement.

See Byrd, 400 F. App’x at 721

(holding that pointing or presenting a firearm under S.C. Code
Ann.

§

16–23–410,

“constitutes

a

‘crime

of

violence’

under

§ 4B1.2(a)(2), even after Begay [v. United States, 553 U.S. 137
(2008)]”).
In

light

of

this

determination

and

because

Asar

conceded that he had two other predicate violent felonies — for
burglary

and

armed

robbery

—

he

had

three

predicate

violent

felony convictions and thus qualified for armed career criminal
status.

We therefore need not address Asar’s challenge to the

district court’s determination that the assault and battery of a
high

and

aggravated

nature

conviction

also

qualified

as

a

predicate violent felony.
Accordingly,

because

the

district

court

correctly

determined that Asar had at least three prior convictions for
violent felonies and thus qualified to be sentenced as an armed
career
dispense

criminal,
with

we

oral

affirm
argument

Asar’s

180-month

because

the

sentence.

facts

and

We
legal

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

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