United States v. Darryl Johnson , 508 F. App'x 277 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4549
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DARRYL LEE JOHNSON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(2:08-cr-00930-DCN-7)
Submitted: January 29, 2013 Decided: February 6, 2013
Before MOTZ and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
N. Elliott Barnwell, Charleston, South Carolina, for Appellant.
Sean Kittrell, Peter Thomas Phillips, Assistant United States
Attorneys, Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Darryl Lee Johnson pleaded guilty to conspiracy to
possess with intent to distribute and distribute heroin, in
violation of 21 U.S.C. §§ 841(a), 841(b)(1)(C), 846 (2006); and
three counts of possession with intent to distribute and
distribution of heroin, in violation of 21 U.S.C. §§ 841(a),
(b)(1)(C) (2006). The district court sentenced Johnson to 151
months of imprisonment, following its finding that Johnson was a
career offender based on his prior South Carolina convictions
for possession with intent to distribute marijuana and assault
and battery of a high and aggravated nature (“ABHAN”). Johnson
appealed, and we vacated the sentence and remanded for the
district court to determine, under the modified categorical
approach, whether Johnson’s prior ABHAN conviction qualified as
a predicate offense for purposes of the career offender
enhancement under the Guidelines. United States v. Johnson, 475
F. App’x 494 (4th Cir. 2012) (unpublished).
On remand, the district court again concluded that
Johnson was a career offender, and resentenced him to 151 months
of imprisonment. Johnson now appeals. Appellate counsel has
filed a brief pursuant to Anders v. California, 386 U.S. 738(1967), questioning whether the district court erred in finding
that Johnson’s ABHAN conviction qualified as a crime of
violence. Although Johnson was informed of the right to file a
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supplemental pro se brief, he has not done so. For the reasons
that follow, we affirm.
We review the district court’s conclusion that
Johnson’s prior offense was a crime of violence for sentencing
enhancement purposes de novo. See United States v. Gomez, 690
F.3d 194, 197 (4th Cir. 2012). Under the Sentencing Guidelines,
a defendant is classified as a career offender if he was
eighteen years old at the time he committed the offense of
conviction, the offense of conviction is a felony crime of
violence or controlled substance offense, and he has sustained
at least two prior felony convictions for crimes of violence or
controlled substance offenses. U.S. Sentencing Guidelines
Manual (“USSG”) § 4B1.1(a) (2012). A crime of violence is an
offense punishable by a term exceeding one year of imprisonment
that “(1) has as an element the use, attempted use, or
threatened use of physical force against the person of another,
or (2) is burglary of a dwelling, arson, or extortion, involves
use of explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another.” USSG
§ 4B1.2(a).
Under the modified categorical approach, applied “only
when a statute prohibits different types of behavior such that
it can be construed to enumerate separate crimes,” a district
court must determine which part of the statute at issue a
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defendant violated, without recourse to whether the specific
conduct of the defendant constituted a purposeful, violent, and
aggressive act. Gomez, 690 F.3d at 198 (internal quotation
marks and citation omitted). In so doing, in the context of a
guilty plea, the court may review the terms of the plea
agreement, the transcript of the plea colloquy and the factual
basis for the plea, or other comparable judicial records to
determine whether a prior conviction constituted a violent
felony or crime of violence. 1 See Shepard v. United States, 544
U.S. 13, 26 (2005).
Under South Carolina law, ABHAN is a common law
offense that requires “an unlawful act of violent injury
accompanied by circumstances of aggravation.” State v. White,
605 S.E.2d 540, 543 (S.C. 2004) (internal quotation marks and
citation omitted). 2 The circumstances of aggravation include
“the use of a deadly weapon, the intent to commit a felony,
infliction of serious bodily injury, great disparity in the ages
1
The determination of whether an offense is a violent
offense under the Armed Career Criminal Act is the same as the
determination of whether an offense qualifies under the career
offender provisions of the Guidelines. See Gomez, 690 F.3d at
197.
2
Johnson was convicted of ABHAN in 2008, prior to the
codification of that offense in South Carolina. See State v.
Green, 724 S.E.2d 664, 674 n.9 (S.C. 2012) (citing S.C. Code
Ann. § 16-3-600 (Supp. 2011)).
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or physical conditions of the parties, a difference in gender,
the purposeful infliction of shame and disgrace, taking indecent
liberties or familiarities with a female, and resistance to
lawful authority.” Id. (internal quotation marks and citation
omitted); see also Johnson v. United States, 130 S. Ct. 1265,
1269 (2010) (federal courts are bound by the state supreme
court’s interpretation of state law, including determination of
the elements of the offense).
Here, the district court correctly concluded, as
Johnson concedes, that the transcript of Johnson’s guilty plea
demonstrates that the offense of conviction involved the
aggravating circumstance of infliction of serious bodily injury.
We conclude that this offense has as an element the use,
attempted use, or threatened use of physical force against the
person of another. See USSG § 4B1.2(a)(1); see also United
States v. Wright, 594 F.3d 259, 263 (4th Cir. 2010) (conviction
for aggravated assault and battery is violent felony because it
has as an element the use, attempted use, or threatened use of
physical force against person of another). We therefore further
conclude that the district court did not err in determining that
Johnson’s prior conviction for ABHAN qualified as a crime of
violence under the modified categorical approach and he was
therefore a career offender.
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We have examined the entire record in accordance with
the requirements of Anders and have found no meritorious issues
for appeal. Accordingly, we affirm the judgment of the district
court.
This court requires that counsel inform Johnson, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Johnson requests that a
petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may move in this court for
leave to withdraw from representation. Counsel’s motion must
state that a copy thereof was served on Johnson. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED
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