United States v. Kendall Cohen , 462 F. App'x 391 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4636
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KENDALL T. COHEN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, Senior
District Judge. (2:09-cr-00160-PMD-1)
Submitted: January 12, 2012 Decided: January 30, 2012
Before NIEMEYER and GREGORY, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Ann Briks Walsh, Assistant Federal Public Defender, Charleston,
South Carolina, for Appellant. William N. Nettles, United
States Attorney, Matthew J. Modica, Assistant United States
Attorney, Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kendall T. Cohen was convicted pursuant to a guilty
plea and sentenced as an armed career criminal to a total of 223
months in prison for possession of a firearm after being
convicted of a felony, in violation of 18 U.S.C. § 922(g)(1)
(2006). On appeal, Cohen argues that the district court
incorrectly counted a prior conviction for assault and battery
of a highly aggravated nature (“ABHAN”) as a predicate offense
under the Armed Career Criminal Act (“ACCA”), and that the
evidence introduced at sentencing did not support a one-level
enhancement for use or possession of a firearm in connection
with a crime of violence. Finding no error, we affirm.
Cohen did not argue below that his ABHAN conviction
was not an ACCA predicate. Because Cohen did not raise his
claim of error in the district court, this court’s review is for
plain error. United States v. Lynn, 592 F.3d 572, 577 (4th Cir.
2010). Thus, Cohen bears the burden of showing “that an error
(1) was made, (2) is plain (i.e., clear or obvious), and (3)
affects substantial rights.” Id.The district court's conclusion that Cohen's South
Carolina ABHAN conviction was a violent felony, however, is not
erroneous. See United States v. Wright, 594 F.3d 259, 263 (4th
Cir.) (S.C. aggravated assault and battery [i.e., ABHAN], is a
violent felony), cert denied, 131 S. Ct. 507 (2010).
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Additionally, the parties have overlooked the fact that the
presentence report identified four predicate felonies, and Cohen
challenges only one. We therefore reject Cohen’s argument.
We also find no error in the district court’s finding
that Cohen possessed the firearm in connection with a violent
felony for the purposes of applying a one-level Guidelines
enhancement. U.S. Sentencing Guidelines Manual §§ 4B1.4(b)(3),
4B1.2(a) (2009). The Government submitted evidence at
sentencing that Cohen’s actions as he was being pursued put the
arresting officer in reasonable apprehension of an imminent
attack with a deadly weapon. We find no clear error in the
district court’s factual finding. See United States v. Dawkins,
202 F.3d 711, 714 (4th Cir. 2000).
Accordingly, we affirm the judgment of the district
court. We dispense 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
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