United States v. Carmichael , 408 F. App'x 769 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4963
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DOMINIQUE CARMICHAEL,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Louise W. Flanagan,
Chief District Judge. (5:08-cr-00360-F-1)
Submitted: November 30, 2010 Decided: January 21, 2011
Before WILKINSON, KING, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mark A. Yurachek, THE LAW OFFICES OF MARK ALLEN YURACHEK, LLC,
Atlanta, Georgia, for Appellant. George E. B. Holding, United
States Attorney, Anne M. Hayes, Jennifer P. May-Parker,
Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dominique Carmichael pled guilty to possession of a
firearm and ammunition by a convicted felon, in violation of 18
U.S.C.A. §§ 922(g)(1), 924(a)(2) (West 2000 & Supp. 2010). The
district court designated Carmichael an armed career criminal
and sentenced him to 188 months in prison. Carmichael appeals,
alleging that the district court erred by sentencing him as an
armed career criminal. Finding no error, we affirm Carmichael’s
sentence.
In the presentence report (“PSR”), the probation
officer recommended that Carmichael be sentenced as an armed
career criminal as defined in U.S. Sentencing Guidelines Manual
§ 4B1.4 (2008), finding that Carmichael had at least three prior
convictions for violent felonies, namely three North Carolina
common law robbery convictions, committed on occasions different
from one another. Carmichael’s guidelines range with the armed
career criminal designation was 180 to 188 months in prison.
Carmichael objected to the armed career criminal
designation, asserting that he committed only two, not three,
common law robberies. He admitted the common law robbery
convictions for crimes committed on November 19, 1997, and March
8, 2001, but he stated he had no recollection of committing the
common law robbery on November 16, 1997. The district court
overruled Carmichael’s objection, noting that court records
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identified him by name, social security number, and date of
birth as the person who committed all three common law
robberies. The court sentenced him to 188 months in prison.
On appeal, Carmichael first argues that North Carolina
common law robbery does not qualify as a violent felony for
purposes of the Armed Career Criminal Act (“ACCA”). Because
Carmichael raises this claim for the first time on appeal, we
review it for plain error. Fed. R. Crim. P. 52(b); United
States v. Olano, 507 U.S. 725, 732 (1993).
Under the ACCA, a person convicted under § 922(g)(1)
who has three or more convictions for violent felonies or
serious drug offenses “shall be . . . imprisoned not less than
fifteen years.” 18 U.S.C.A. § 924(e)(1) (West 2000 & Supp.
2010). A violent felony is defined as
[A]ny crime punishable by imprisonment for a term
exceeding one year, . . . that--
(i) has as an element the use, attempted use, or
threatened use of physical force against the person of
another; or
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury
to another.
18 U.S.C.A. § 924(e)(2)(B). Under North Carolina law, “[c]ommon
law robbery is defined as the felonious, non-consensual taking
of money or personal property from the person or presence of
another by means of violence or fear.” State v. Herring, 370
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S.E.2d 363, 368 (N.C. 1988) (internal quotation marks and
citation omitted). Although this offense does not necessarily
have “as an element the use, attempted use, or threatened use of
physical force against the person of another,”
§ 924(e)(2)(B)(i), and is not “burglary, arson, or extortion,
[. . . and does not] involve[] use of explosives,”
§ 924(e)(2)(B)(ii), it qualifies as a violent felony under the
residual clause in § 924(e)(2)(B)(ii), in that it “involves
conduct that presents a serious potential risk of physical
injury to another.” § 924(e)(2)(B)(ii).
In United States v. Jarmon, 596 F.3d 228, 230-33 (4th
Cir.), cert. denied, 131 S. Ct. 145 (2010), we held that a North
Carolina conviction for larceny from the person was a “crime of
violence” under the federal sentencing guidelines. 1 “‘[L]arceny
from the person differs from [common law] robbery in that
larceny from the person lacks the requirement that the victim be
put in fear.’” State v. Carter, 650 S.E.2d 650, 653-54 (N.C.
Ct. App. 2007) (quoting State v. Buckom, 401 S.E.2d 362, 365
1
“Because the language defining a violent felony in [18
U.S.C.A.] § 924(e) [of the ACCA] is nearly identical to and
materially indistinguishable from the language defining a crime
of violence in . . . § 4B1.2 [of the federal sentencing
guidelines],” we rely on case law interpreting both provisions
when deciding whether a prior offense qualifies as a “crime of
violence” or “violent felony.” United States v. Roseboro, 551
F.3d 226, 229 n.2 (4th Cir. 2009), abrogated on other grounds by
United States v. Rivers, 595 F.3d 558 (4th Cir. 2010).
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(N.C. 1991)). “[L]arceny from the person entails less violence
than robbery.” Jarmon, 596 F.3d at 232. Because the “less
violent” offense of larceny from the person is a violent felony
for purposes of the ACCA, we conclude that North Carolina common
law robbery also qualifies as a violent felony. 2
Carmichael also argues that the court erred in
sentencing him as an armed career criminal because the
Government failed to prove that he had three prior convictions.
To the extent that Carmichael seeks to assert that the district
court erred in sentencing him as an armed career criminal
because the fact of his prior convictions was not charged in the
indictment, admitted by him, or found by a jury, his argument is
foreclosed by United States v. Thompson, 421 F.3d 278, 286 (4th
Cir. 2005), and United States v. Cheek, 415 F.3d 349, 350 (4th
Cir. 2005).
2
Without addressing Jarmon, Carmichael argues that under
the Supreme Court’s recent decision in Johnson v. United States,
130 S. Ct. 1265 (2010), common law robbery does not qualify as a
violent felony because use of physical force is not necessarily
an element of the offense. However, Carmichael’s reliance on
Johnson is misplaced. Johnson interpreted § 924(e)(2)(B)(i),
which defines a “violent felony” as one that “has as an element
the use, attempted use, or threatened use of physical force
against the person of another,” whereas North Carolina common
law robbery fits within the definition of a violent felony in
the residual clause of § 924(e)(2)(B)(ii), which does not
include as an element the use, attempted use, or threatened use
of force.
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In the district court, Carmichael did not dispute the
common law robbery convictions for the offenses that occurred on
November 19, 1997, and March 8, 2001, but claimed to have no
recollection of having been convicted of or having committed the
common law robbery that occurred on November 16, 1997. He
contends that, when he challenged the predicate offenses upon
which his armed career criminal designation was based, the
Government was required to provide evidence establishing these
convictions and failed to do so.
In response to Carmichael’s objection to the
information in the PSR that he had committed all three offenses,
the probation officer stated that the state superior court
records identified Carmichael by name, social security number,
and date of birth as the person who committed all three common
law robberies. Carmichael provided no documentation to support
his claim that he had not committed the November 16, 1997,
offense. As we have explained:
A mere objection to the finding in the presentence
report is not sufficient. The defendant has an
affirmative duty to make a showing that the
information in the presentence report is unreliable,
and articulate the reasons why the facts contained
therein are untrue or inaccurate. Without an
affirmative showing the information is inaccurate, the
court is free to adopt the findings of the presentence
report without more specific inquiry or explanation.
The burden is on the defendant to show the inaccuracy
or unreliability of the presentence report.
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United States v. Terry, 916 F.2d 157, 162 (4th Cir. 1990)
(internal quotation marks, alterations, and citations omitted);
see United States v. Randall, 171 F.3d 195, 210-11 (4th Cir.
1999). It was Carmichael’s burden to refute the facts set forth
in the PSR and he failed to do so.
For these reasons, we conclude that the district court
did not clearly err in finding that Carmichael had three
qualifying predicate convictions to support his armed career
criminal designation. Accordingly, we affirm his sentence. 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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