United States v. Wright , 31 F. App'x 211 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4254
JOSEPH WRIGHT,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Catherine C. Blake, District Judge.
(CR-00-414-CCB)
Submitted: October 31, 2001
Decided: February 22, 2002
Before WILLIAMS, MICHAEL, and MOTZ, Circuit Judges.
Affirmed in part and vacated and remanded in part by unpublished
per curiam opinion.
COUNSEL
Howard L. Cardin, CARDIN & GITOMER, P.A., Baltimore, Mary-
land, for Appellant. Stephen M. Schenning, United States Attorney,
Jonathan P. Luna, Assistant United States Attorney, Baltimore, Mary-
land, for Appellee.
2 UNITED STATES v. WRIGHT
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Joseph Wright pleaded guilty to possession of a firearm by a con-
victed felon, 18 U.S.C.A. § 922(g)(1) (West 2000). At sentencing,
Wright conceded—and the district court found—that he was an armed
career criminal under 18 U.S.C.A. § 924(e)(1) (West 2000). Wright
received a fifteen-year sentence. He timely appeals his conviction and
sentence. We affirm his conviction but vacate his sentence and
remand for resentencing.
I
Wright first contends that the district court erred when it denied his
motion to suppress the handgun that Baltimore City police officers
retrieved from his shorts pocket during an investigatory stop. We
review for clear error a district court’s factual findings informing its
ruling on a suppression motion. Legal conclusions are reviewed de
novo. United States v. Johnson, 114 F.3d 435, 439 (4th Cir. 1997).
Wright argues that Officer Amador and Officer Fletcher, who testi-
fied at the suppression hearing, told different stories about the events
leading to the recovery of the gun and his subsequent arrest. We con-
clude that their testimony did not differ in any material respect. Spe-
cifically, there was no contradiction in the following, significant
testimony: Wright was in a high-crime area; the officers noticed an
irregular bulge in his shorts pocket, suggesting that he was carrying
a gun; once Wright saw the officers, who were in uniform but sitting
in an unmarked police car, he immediately began walking away from
the officers’ car; as he walked away, Officer Amador saw the clear
outline of a handgun in the pocket; Wright appeared nervous; and, as
Officer Amador instructed Wright to raise his arms and began to frisk
Wright, Officer Fletcher observed the butt of a gun protruding from
Wright’s pocket.
UNITED STATES v. WRIGHT 3
The district court correctly concluded that there was a valid investi-
gatory stop under Terry v. Ohio, 392 U.S. 1 (1968). Wright was in a
high-crime area, he walked away from the officers immediately after
he saw them, both officers observed an irregular bulge indicative of
the presence of a firearm in his shorts pocket, and Amador saw the
clear outline of a handgun in the pocket. This gave the officers the
requisite "minimal level of objective justification for making the
stop." United States v. Wardlow, 528 U.S. 119, 123 (2000). Contrary
to Wright’s assertion, the valid Terry stop was not prematurely con-
verted into an arrest, for the officers’ actions prior to discovery and
seizure of the gun were limited in their intrusiveness and lasted "no
longer than necessary to verify or dispel the officer[s’] suspicion."
United States v. Leshuk, 65 F.3d 1105, 1109 (4th Cir. 1995). We con-
clude that the stop and subsequent arrest did not violate the Fourth
Amendment.
II
Wright next challenges his sentence as an armed career criminal.
He first contends that his sentence violates the rule of Apprendi v.
New Jersey, 530 U.S. 466 (2000), because his status as an armed
career criminal was neither charged in the indictment nor found by a
jury beyond a reasonable doubt. Apprendi held that, "other than the
fact of a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted
to a jury, and proved beyond a reasonable doubt." Id. at 490. Because
Apprendi specifically exempts "the fact of a prior conviction" from
the rule that a jury decide certain penalty-enhancing factors, Apprendi
is of no help to Wright.
Next, although Wright conceded at sentencing that he should be
sentenced as an armed career criminal, he now contends that the dis-
trict court did not employ the methodology required by United States
v. Kirksey, 138 F.3d 120 (4th Cir. 1998), when it found that he had
the requisite three convictions for violent felonies, serious drug
offenses, or both under 18 U.S.C.A. § 924(e)(1), (e)(2). While Wright
agrees that two drug convictions qualify under the statute, he con-
tends that none of his convictions for assault or battery were shown
to qualify under Kirksey as violent felonies. Because Wright raises
4 UNITED STATES v. WRIGHT
this issue for the first time on appeal, our review is for plain error. See
United States v. Olano, 507 U.S. 725, 731-32 (1993).
In Kirksey, we were confronted with whether Maryland state con-
victions of common law assault and battery qualified as predicate
crimes of violence for purposes of establishing career offender status.
Kirksey instructs that the sentencing court must first employ a cate-
gorical approach to determine if a prior conviction constitutes a crime
of violence. The categorical approach requires the court to rely only
upon the fact of conviction and the definition of the prior offense.
Kirksey, 138 F.3d at 124. If the definition of the prior crime is ambig-
uous (as was the case for the Maryland common law crimes of assault
and battery), the district court is to look beyond the definition of the
crime to the charging document and any statements incorporated into
that document. Id. at 124-26. The Kirksey methodology applies
equally in cases where the sentencing court must decide whether a
prior conviction is a qualifying violent felony for purposes of deter-
mining armed career criminal status. United States v. Coleman, 158
F.3d 199, 201-203 (4th Cir. 1998).
Wright’s presentence report reveals that he pleaded guilty in 1988
to second degree assault,* he pleaded guilty in 1991 to common law
battery, and he pleaded guilty in 1997 to second degree assault, Md.
Ann. Code art. 27, § 12A. The district court did not make the findings
required by Kirksey and Coleman with regard to any of these convic-
tions. Instead, the court summarily concluded that all the convictions
qualified under § 924(e)(2)(B). Because the categorical approach is
not enlightening with respect to any of these convictions, the district
court should have consulted the respective charging documents.
The error in this case was plain. Wright properly was found to have
only two of the required three qualifying convictions for armed career
criminal status. As such, he was not subject to treatment as an armed
career criminal, but to a sentence of between seventy-seven and
ninety-six months, absent an upward departure. His fifteen-year sen-
tence as an armed career criminal therefore affected his substantial
rights. We accordingly vacate his sentence and remand for resentenc-
ing. At resentencing, the district court should make the findings
*It is likely that the offense actually was common law assault.
UNITED STATES v. WRIGHT 5
required by Kirksey and Coleman to determine whether Wright has a
third conviction that qualifies him for sentencing as an armed career
criminal.
III
We therefore affirm Wright’s conviction. His sentence is vacated
and the matter remanded for resentencing consistent with this opinion.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED IN PART; VACATED AND
REMANDED IN PART