US v. Derrick Lee

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:14-cr-00196-WO-1 Copies to all parties and the district court/agency. [999908411].. [15-4081]

Appeal: 15-4081

Doc: 42

Filed: 08/11/2016

Pg: 1 of 7

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4081

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DERRICK DESHAWN LEE, a/k/a Derrick Deshaune Lee,
Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.
William L. Osteen,
Jr., Chief District Judge. (1:14-cr-00196-WO-1)

Submitted:

August 31, 2015

Before GREGORY,
Judges.

Chief

Judge,

Decided:

and

AGEE

and

August 11, 2016

KEENAN,

Circuit

Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.

Louis C. Allen, Federal Public Defender, Kathleen A. Gleason,
Assistant Federal Public Defender, Greensboro, North Carolina,
for Appellant.
Ripley Rand, United States Attorney, Kyle D.
Pousson, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 15-4081

Doc: 42

Filed: 08/11/2016

Pg: 2 of 7

PER CURIAM:
Derrick Deshawn Lee appeals his conviction and 200–month
sentence

for

being

a

felon

in

possession

violation of 18 U.S.C. § 922(g)(1) (2012).
district

court

constructively

amended

the

of

ammunition,

in

Lee argues that the
indictment

in

its

instructions to the jury and that it was required to submit to
the jury the question of whether he had three prior violent
felonies under the Armed Career Criminal Act (ACCA), 18 U.S.C.
§ 924(e) (2012).

We ordered supplemental briefing regarding the

effect of Johnson v. United States, 135 S. Ct. 2551, 2563 (2015)
(invalidating
enhancement.

ACCA’s

residual

clause),

on

Lee’s

ACCA

We affirm Lee’s conviction, vacate Lee’s sentence,

and remand for resentencing without the ACCA enhancement.
We

first

address

Lee’s

claim

that

constructively amended the indictment.

the

district

court

The indictment charged

Lee with possessing “approximately ten rounds” of ammunition.
Three of these rounds were found in Lee’s pocket while the rest
were

found

in

a

nearby

firearm.

During

deliberations,

the

jurors inquired whether they could convict Lee of possessing
only three rounds.

Over Lee’s objection, the district court

answered that they could, as long as they unanimously agreed
regarding which rounds Lee possessed.

Lee contends that this

instruction constructively amended the indictment.

2

Appeal: 15-4081

Doc: 42

Filed: 08/11/2016

Pg: 3 of 7

“We review the correctness of a jury instruction regarding
the

elements

challenged

of

an

offense,”

instruction

including

constructively

claims

amended

the

that

the

indictment,

“de novo, as a question of law.”

United States v. Ali, 735 F.3d

176,

district

186

(4th

Cir.

2013).

A

court

constructively

amends an indictment when it, “through its instructions to the
jury,

. . .

broadens

the

bases

charged in the indictment.”

for

conviction

beyond

those

United States v. Allmendinger, 706

F.3d 330, 339 (4th Cir. 2013).

However, when the indictment

alleges multiple facts that could each independently establish
an element of the offense, the jury may properly convict based
on any of those facts.

United States v. Robinson, 627 F.3d 941,

958 (4th Cir. 2010).
The indictment alleged that Lee possessed approximately ten
rounds of ammunition.

Because a finding that he possessed any

of these rounds could independently establish that he possessed
ammunition, we conclude that the jury was permitted to convict
based

on

its

unanimous

finding

that

he

possessed

rounds that were recovered from his pocket.
706

F.3d

at

339-40

(finding

no

constructive

the

three

Cf. Allmendinger,
amendment

where

Government “proved a more narrow conspiracy than was charged”).
Accordingly, we affirm Lee’s conviction.
We

next

consider

applying the ACCA.

whether

the

district

court

erred

by

Because Lee did not argue in the district
3

Appeal: 15-4081

Doc: 42

Filed: 08/11/2016

Pg: 4 of 7

court that his prior convictions were not violent felonies, we
review this issue for plain error.

United States v. Fuertes,

805 F.3d 485, 497 (4th Cir. 2015), cert. denied, 136 S. Ct. 1220
(2016).

To demonstrate plain error, Lee “must show: (1) there

was an error; (2) the error was . . . [plain]; [and] (3) the
error

affected

[his]

substantial

quotation marks omitted).

rights.”

Id.

(internal

“An error is plain if the settled law

of the Supreme Court or this circuit establishes that an error
has occurred.”

United States v. Carthorne, 726 F.3d 503, 516

(4th Cir. 2013).

In determining whether an error is plain, we

examine the state of the law at the time of our review, not at
the time of the district court’s decision.

Id.

The ACCA applies only if the defendant “has three previous
convictions

. . .

offense, or both.”

for

a

violent

felony

18 U.S.C. § 924(e)(1).

or

a

serious

drug

Under Johnson, a

felony is considered “violent” only if it “has as an element the
use, attempted use, or threatened use of physical force against
the person of another” or “is burglary, arson, or extortion,
[or] involves use of explosives.”
Johnson, 135 S. Ct. at 2563.

18 U.S.C. § 924(e)(2)(B); see

The district court applied the

ACCA based upon three prior North Carolina felony convictions:

4

Appeal: 15-4081

Doc: 42

Filed: 08/11/2016

Pg: 5 of 7

(1) second-degree murder, (2) voluntary manslaughter, and (3)
attempted second-degree arson. 1
Under North Carolina law, “[t]he elements of an attempt to
commit any crime are: (1) the intent to commit the substantive
offense, and (2) an overt act done for that purpose which goes
beyond mere preparation, but (3) falls short of the completed
offense.”

State v. Miller, 477 S.E.2d 915, 921 (N.C. 1996).

“The elements of [North Carolina] second-degree arson are: (1)
the willful and malicious burning (2) of the dwelling (i.e.,
inhabited) house of another; (3) which is unoccupied at the time
of the burning.”
App.

2002).

require

that

State v. Scott, 564 S.E.2d 285, 293 (N.C. Ct.

Because
the

attempted

defendant

second-degree

commit

the

offense

arson
of

does

not

arson,

but

instead requires that that offense not be completed, we conclude
that it does not constitute generic arson under the ACCA.

Cf.

James v. United States, 550 U.S. 192, 197 (2007) (holding that
attempted burglary under Florida law did not constitute generic
burglary because Florida attempt statute required that attempt
1

Lee also has a prior North Carolina conviction for felony
common-law robbery.
The Government argues that this conviction
provides another ACCA predicate.
However, after the Government
filed its supplemental brief, we held in United States v.
Gardner, __ F.3d __, No. 14-4533, 2016 WL 2893881, at *5-8 (4th
Cir. May 18, 2016), that North Carolina common-law robbery is
not a valid ACCA predicate under Johnson. Accordingly, Gardner
precludes the use of Lee’s robbery conviction as an ACCA
predicate.

5

Appeal: 15-4081

Doc: 42

Filed: 08/11/2016

Pg: 6 of 7

not succeed), abrogated on other grounds by Johnson, 135 S. Ct.
at 2563.

Nor does attempted second-degree arson require the

use, attempted use, or threatened use of physical force against
the

person

of

another.

Accordingly,

we

conclude

that

the

district court plainly erred under Johnson in relying on Lee’s
attempted second-degree arson conviction as an ACCA predicate.
We need not decide whether the district court plainly erred in
relying on Lee’s murder and manslaughter convictions as ACCA
predicates because even if these predicates are not implicated
by Johnson, they provide only two of the three violent felonies
required for an enhancement under the ACCA. 2
Although
under

the

decision

the

law
is

progeny.

district

that

plainly
This

existed

court
at

erroneous

error

correctly

the
in

affected

applied

the

ACCA
this

time

of

sentencing,

light

of

Johnson

Lee’s

substantial

and

rights

its
by

increasing his statutory term of imprisonment from a maximum of
10 years to a minimum of 15 years.
(e) (2012).

See 18 U.S.C. § 924(a)(2),

Accordingly, we affirm Lee’s conviction, vacate

Lee’s sentence, and remand for resentencing without the ACCA
enhancement.

We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials
2

Because we hold that the ACCA is inapplicable, we do not
reach Lee’s argument that the district court erred by failing to
submit his prior convictions to the jury.

6

Appeal: 15-4081

before

Doc: 42

this

court

Filed: 08/11/2016

and

Pg: 7 of 7

argument

would

not

aid

the

decisional

process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED

7