United States v. Deltrick Dandy ( 2019 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-4207
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DELTRICK DUJUAN DANDY,
Defendant - Appellant.
Appeal from the United States District Court for the District of South Carolina, at
Spartanburg. Bruce H. Hendricks, District Judge. (7:18-cr-00577-BHH-1)
Submitted: October 29, 2019 Decided: November 6, 2019
Before GREGORY, Chief Judge, and MOTZ and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jeremy A. Thompson, LAW OFFICE OF JEREMY A. THOMPSON, LLC, Irmo, South
Carolina, for Appellant. Sherri A. Lydon, United States Attorney, Columbia, South
Carolina, D. Josev Brewer, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Deltrick Dandy pled guilty to possessing a firearm as a convicted felon, in violation
of 18 U.S.C. § 922(g)(1) (2012). Dandy appeals his 180-month sentence, which the district
court imposed pursuant to the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)
(2012). We affirm.
The ACCA’s 15-year mandatory minimum sentence applies to defendants who
violate § 922(g)(1) and have sustained three previous convictions “for a violent felony or
a serious drug offense, or both, committed on occasions different from one another.” 18
U.S.C. § 924(e)(1). Dandy argues that he only has one prior conviction, a South Carolina
conviction for pointing and presenting a firearm, that qualifies as an ACCA predicate. He
contends that the district court erred in categorizing two prior South Carolina convictions
for criminal domestic violence (CDV) as “violent felonies.” *
This Court reviews de novo the district court’s determination that a state crime
qualifies as a predicate offense under the ACCA. United States v. Burns-Johnson, 864
F.3d 313, 315 (4th Cir. 2017). “However, when a defendant has not objected to that
classification before the district court, we review such a question for plain error.” United
States v. Carthorne, 726 F.3d 503, 509 (4th Cir. 2013) (addressing unpreserved objection
to career offender enhancement). “To establish plain error, a defendant has the burden of
*
Dandy also contends that the district court erred in including two South Carolina
convictions for possession with intent to distribute marijuana (PWID) as predicate
offenses. However, the presentence report (PSR) clarified that Dandy’s two PWID
convictions were not considered for purposes of the ACCA, and the district court adopted
the PSR in its entirety.
2
showing: (1) that an error was made; (2) that the error was plain; and (3) that the error
affected his substantial rights.” Id. at 510. Because Dandy first raises this challenge on
appeal, we review for plain error.
A violent felony is defined as “any crime punishable by imprisonment for a term
exceeding one year . . . that has as an element the use, attempted use, or threatened use of
physical force against the person of another.” 18 U.S.C. § 924 (e)(2)(B)(i). Dandy argues
that his CDV convictions are not “violent felonies” under the ACCA “because CDV
essentially criminalizes simple assault and battery” and does not meet the violent force
requirement of Johnson v. United States, 559 U.S. 133, 140 (2010) (explaining that “the
phrase ‘physical force’ [in § 924(e)(2)(B)] means violent force—that is, force capable of
causing physical pain or injury to another person”). However, we recently rejected this
argument and held that the fact that CDV “requires at least a threat of physical harm or
injury under circumstances reasonably creating fear of imminent peril . . . satisfies the
Supreme Court’s definition of physical force under the ACCA.” United States v.
Drummond, 925 F.3d 681, 694, 696 (4th Cir. 2019) (holding “that South Carolina CDV
statute categorically qualifies as a violent felony under the ACCA”). Accordingly, the
district court did not err in characterizing Dandy’s CDV convictions as ACCA predicate
offenses.
We therefore affirm the district court’s judgment. 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
3