US v. Jerry Adams, Jr.

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 4:09-cr-01365-RBH-1. Copies to all parties and the district court/agency. [998744548]. [11-4270]

Appeal: 11-4270

Document: 52

Date Filed: 12/15/2011

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-4270

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JERRY VERNON ADAMS, JR.,
Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:09-cr-01365-RBH-1)

Submitted:

November 29, 2011

Decided:

December 15, 2011

Before WILKINSON, KING, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Matthew M. Robinson, ROBINSON & BRANDT, P.S.C., Covington,
Kentucky, for Appellant.
William N. Nettles, United States
Attorney, Robert F. Daley, Jr., Alfred W. Bethea, Jr., Assistant
United States Attorneys, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Jerry Vernon Adams pled guilty, pursuant to a written
plea agreement, to being a felon in possession of a firearm, 18
U.S.C. § 922(g) (2006), and was sentenced as an armed career
criminal, 18 U.S.C. § 924(e)(1) (2006), to 180 months in prison.
Adams

appeals,

claiming

that

his

prior

convictions

for

(1)

assault and battery of a high and aggravated nature (“ABHAN”);
(2) discharging a firearm into a dwelling; (3) felony breaking
or entering; and (4) burglary in the second degree should not
have

been

counted

as

criminal purposes.
A

predicate

felonies

for

armed

career

We affirm.

defendant

is

an

armed

career

criminal

when

he

violates § 922(g)(1) and has three prior convictions for violent
felonies or serious drug offenses. 18 U.S.C. § 924(e)(1).

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 a
serious

potential

risk

of

physical

injury

to

another.”

18

U.S.C. § 924(e)(2)(B); U.S. Sentencing Guidelines Manual § 4B1.2
(a) (2010).
To
violent

decide

felony,

whether

the

categorical approach.

a

prior

district

court

conviction
generally

constitutes
must

use

a
a

James v. United States, 550 U.S. 192, 202

(2007); Shepard v. United States, 544 U.S. 13, 19-20 (2005);
2

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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,

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.”

United

States v. Donnell, ___F.3d___, 2011 WL 5101566 (4th Cir. 2011),
at *2 (citing Johnson v. United States, ___U.S.___, 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

comparable

presented

findings

entering the plea.”

of

to
fact

the

court,

adopted

by

or
the

by

a

record

defendant

of

upon

Donnell, 2011 WL 5101566, at *2 (quoting

Shepard, 544 U.S. at 20 (citation omitted)); see also United
States v. Harcum, 587 F.3d 219, 223 (4th Cir. 2009).
Adams argues that his South Carolina ABHAN conviction
should not have been considered a violent felony.

We need not

resolve this issue because we find that Adams had more than the
requisite number of violent felony convictions to be sentenced
as an armed career criminal.
3

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Applying
district

court

Date Filed: 12/15/2011

the

modified

appropriately

Page: 4 of 5

categorical

concluded

that

approach,

Adams’

the

conviction

for discharging a firearm into a dwelling constituted a violent
crime.

The

indictment

charged

that

Adams

“willfully

and

unlawfully discharge[d] and cause[d] to be discharged a certain
firearm at and into a house, occupied as a dwelling.”
pled guilty to the charge “as indicted.”
offense

involved

conduct

that

presented

Adams

We find that this
a

“serious

potential

risk of physical injury to another,” within the meaning of the
ACCA.

With respect to Adams’ conviction for felony breaking or

entering, the district court properly found that this conviction
qualifies

categorically

as

a

violent

felony.

See

United

States v. Thompson, 588 F.3d 197 (4th Cir. 2009) (holding that
North Carolina felony breaking or entering offense qualifies as
a violent felony for purposes of ACCA), cert. denied, 130 S. Ct.
1916 (2010).
The district court also properly applied the modified
categorical

in

determining

that

Adams’

conviction

degree burglary qualified as a violent felony.

for

second

Moreover, Adams

also had four other separate qualifying burglaries in the second
degree not counted by the district court.
Because Adams had at least three prior violent felony
convictions,
criminal.

he

was

properly

sentenced

as

an

Accordingly, we affirm his sentence.
4

armed

career

We dispense

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with oral argument because the facts and legal contentions are
adequately

presented

in

the

materials

before

the

court

and

argument would not aid the decisional process.
AFFIRMED

5