United States v. Clapp , 71 F. App'x 279 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4206
WILLIAM DAVID CLAPP, JR.,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Abingdon.
James P. Jones, District Judge.
(CR-02-67)
Submitted: August 5, 2003
Decided: August 21, 2003
Before NIEMEYER, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Brian M. Ely, JESSEE, READ & ELY, P.C., Abingdon, Virginia, for
Appellant. John L. Brownlee, United States Attorney, Rick A. Mount-
castle, Assistant United States Attorney, Abingdon, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. CLAPP
OPINION
PER CURIAM:
William David Clapp appeals his 180-month sentence imposed
pursuant to the Armed Career Criminal Act, 18 U.S.C. § 924(e)
(2000), for a violation of 18 U.S.C. § 922(g)(1) (2000). Clapp’s sole
argument on appeal is that the district court erred in sentencing him
as an armed career criminal because his 1976 Tennessee conviction
for attempted second degree burglary is not a "violent felony" under
§ 924(e). We affirm.
Under 18 U.S.C. § 922(g)(1), it is unlawful for a convicted felon
to possess a firearm. An individual who violates § 922(g) faces a
minimum fifteen-year sentence if he has three prior convictions for
violent felonies or serious drug offenses. 18 U.S.C. § 924(e). To con-
stitute a violent felony for purposes of armed career criminal offender
status, the potential for injury is determinative. The court must focus
on the fact of conviction and the statutory definition of the crime,
rather than on the underlying facts of a particular conviction. Taylor
v. United States, 495 U.S. 575, 600-01 (1990). This court reviews
legal issues concerning sentences de novo. United States v.
Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989). Similarly, the legal
determinations attendant to the application of the Armed Career
Criminal Act are analyzed de novo. See 18 U.S.C. § 924(e)(1) (2000);
United States v. Brandon, 247 F.3d 186, 188 (4th Cir. 2001).
We have reviewed the record and the parties’ submissions and find
this appeal foreclosed by our decisions in United States v. Custis, 988
F.2d 1355 (4th Cir. 1993) (holding that attempted breaking and enter-
ing under Maryland law is a "violent felony" for purposes of 924(e)
because of its potential for physical confrontation), and United States
v. Thomas, 2 F.3d 79 (4th Cir. 1993) (same for attempted burglary
under New Jersey law). Accordingly, the judgment of the district
court is affirmed. 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