United States v. Bryant , 329 F. App'x 435 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4031
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
COYT BRYANT,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard,
Senior District Judge. (4:06-cr-00035-H-1)
Submitted: July 8, 2009 Decided: July 20, 2009
Before TRAXLER, Chief Judge, and MOTZ and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Richard Croutharmel, Raleigh, North Carolina, 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Unpublished opinions are not binding precedent in this circuit.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:
Coyt Bryant appeals his conviction on a guilty plea
and sentence on a charge of possession of a firearm by a
convicted felon, in violation of 18 U.S.C. §§ 922(g), 924
(2006). The district court enhanced Bryant’s sentence, after
determining that he qualified as an Armed Career Criminal, and
sentenced him to 195 months’ imprisonment and a five-year term
of supervised release. On appeal, Bryant challenges only the
district court’s reliance on a prior New York state conviction
for second degree attempted burglary, asserting that the
conviction does not qualify as a predicate offense under the
Armed Career Criminal Act (“ACCA”) because he received a
sentence of exactly one year. We affirm.
Under § 924(e), a “violent felony” is defined as a
crime punishable by imprisonment for a term exceeding one year
that is one of several specified offenses, or a crime that
“otherwise involves conduct that presents a serious potential
risk of physical injury to another.” 18 U.S.C.
§ 924(e)(2)(B)(ii) (2006). In determining whether a crime is a
violent felony within the meaning of § 924(e), the offense
properly is considered generically in terms of how the offense
is defined under the law, rather than in terms of how an
individual offender might have committed it on a given occasion.
Begay v. United States, 128 S. Ct. 1581, 1584 (2008).
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Declining, as in United States v. Jones, 195 F.3d 205 (4th Cir.
1999), to apply an “individualized analysis,” we held in United
States v. Harp, 406 F.3d 242 (4th Cir. 2005), that, “to
determine whether a conviction is for a crime punishable by a
prison term exceeding one year, Jones dictates that we consider
the maximum aggravated sentence that could be imposed for that
crime upon a defendant with the worst possible criminal
history.” Harp, 406 F.3d at 246 (emphasis omitted).
Bryant does not dispute that the maximum sentence that
could be imposed upon any defendant under the law in New York
for a conviction for second degree attempted burglary could
exceed one year. * Accordingly, we find no error by the district
court in applying the § 924(e)(1) enhancement, and we affirm
Bryant’s conviction and 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
*
A court may take judicial notice of statutory penalties.
See, e.g., United States v. Williams, 442 F.3d 1259, 1261 (10th
Cir. 2006) (“statutes are considered legislative facts” of which
the authority of courts to take judicial notice is
“unquestionable”).
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