United States v. Hemingway , 38 F. App'x 142 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 01-4211
KEVIN LAMONT HEMINGWAY, a/k/a
Kevin Lanard Hemingway,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Charleston.
Patrick Michael Duffy, District Judge.
(CR-99-1096)
Argued: January 25, 2002
Decided: March 29, 2002
Before WILLIAMS, MOTZ, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Ann Briks Walsh, Assistant Federal Public Defender,
Charleston, South Carolina, for Appellant. Michael Rhett DeHart,
Assistant United States Attorney, Charleston, South Carolina, for
Appellee. ON BRIEF: Scott N. Schools, United States Attorney,
Bruce Howe Hendricks, Assistant United States Attorney, Charleston,
South Carolina, for Appellee.
2 UNITED STATES v. HEMINGWAY
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Kevin Hemingway appeals from the 198-month sentence imposed
upon him, after his conviction on firearms and drug charges, pursuant
to the Armed Career Criminal Act (ACCA), 18 U.S.C.A. § 924(e)
(West 2000). He contends that he did not meet the ACCA’s definition
of an armed career criminal because he did not have three prior con-
victions for violent or drug-related felonies, as is required to trigger
the enhanced sentencing provisions of the ACCA. Specifically, Hem-
ingway argues that the district court erred in determining that one of
the three predicate convictions relied on by the Government, a 1990
conviction in the Court of General Sessions of South Carolina for
"pointing or presenting" a gun at another person in violation of S.C.
Code Ann. § 16-23-410 (Law. Co-op. 1985), was a "violent felony."
Finding no reversible error, we affirm.
I.
Hemingway pleaded guilty on March 28, 2000 to three counts of
an indictment pending against him: two counts of being a felon in
possession of a firearm in violation of 18 U.S.C.A. § 922(g)(1) (West
2000), and one count of knowingly and intentionally possessing
cocaine in violation of 21 U.S.C.A. § 844(a) (West 1999). Both of the
felon-in-possession counts against Hemingway referenced the ACCA.
At his sentencing hearing, Hemingway conceded that he had two
qualifying violent felony convictions but disputed that the third con-
viction identified by the Government, his conviction in 1990 under
S.C. Code Ann. § 16-23-410, met the statutory definition of "violent
felony" in the ACCA. More specifically, Hemingway challenged the
Government’s characterization of that crime as "violent."1
1
Hemingway concedes that because his 1990 conviction was punish-
able by imprisonment for more than one year, it is a felony for purposes
of § 924(e). See 18 U.S.C.A. § 924(e)(2)(B).
UNITED STATES v. HEMINGWAY 3
The district court concluded that the 1990 conviction was for a vio-
lent felony and that Hemingway therefore qualified as an armed
career criminal under § 924(e). The district court then sentenced
Hemingway to concurrent terms of 198 months in prison as to each
of the felon-in-possession counts and 12 months as to the cocaine
possession count. Hemingway timely noted this appeal.
II.
On appeal, Hemingway contends that the district court erred by
characterizing his 1990 conviction as violent. We review de novo the
determination of whether a prior conviction constitutes a violent fel-
ony for purposes of the ACCA. United States v. Brandon, 247 F.3d
186, 188 (4th Cir. 2001).
A.
The ACCA mandates a 15-year minimum prison sentence for a
person convicted of a weapons offense under 18 U.S.C.A. § 922(g) if
that person has "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.A. § 924(e)(1). The term "violent
felony," for purposes of the ACCA,
means any 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 explo-
sives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another . . . .
18 U.S.C.A. § 924(e)(2)(B). In determining whether the offense
underlying the prior conviction involves the necessary use or threat
of physical force or presents a serious risk of injury, we employ "a
formal categorical approach, looking only to the statutory definitions
of the prior offenses, and not to the particular facts underlying those
4 UNITED STATES v. HEMINGWAY
convictions." Taylor v. United States, 495 U.S. 575, 600 (1990);
United States v. Frazier-El, 204 F.3d 553, 562 (4th Cir. 2000); United
States v. Coleman, 158 F.3d 199, 201-02 (4th Cir. 1998) (en banc)
(noting also that in the narrow class of cases where the definition of
the offense allows for its commission in two ways, one of which does
not involve the use or threat of force, a court "must look past the fact
of conviction and the elements of the offense to determine which type
of offense supported the defendant’s conviction").
Section 16-23-410 of the Code of Laws of South Carolina provides
that "[i]t shall be unlawful for any person to present or point at any
other person any loaded or unloaded firearm . . . ." Hemingway con-
tends that this statute contemplates two ways of committing the
offense described — either by pointing a firearm at another person or
by "presenting" a firearm. He contends that the district court erred in
implicitly determining that the offense described by section 16-23-
410 may be committed in only one way and in determining that the
use or threat of use of physical force is an element of any such com-
mission.
B.
We turn now to an analysis of the offense defined in section 16-23-
410 to determine whether it satisfies the requirements of the ACCA.
This circuit has addressed the South Carolina offense defined in sec-
tion 16-23-410 in a context very similar to that presented here. Ana-
lyzing whether the offense is a "crime of violence" under the
definition of that term found in 18 U.S.C.A. § 16, we held that
"[p]ointing a firearm at a person is an offense ‘that, by its nature,
involves a substantial risk that physical force against the person . . .
of another may be used in the course of committing the offense.’"
United States v. Thompson, 891 F.2d 507, 509 (4th Cir. 1989) (quot-
ing 18 U.S.C.A. § 16(b) (West Supp. 1989)).2 Thus, we concluded,
2
In Thompson, we analyzed a violation of section 16-23-410 to deter-
mine whether it met the definition of "crime of violence" in the then-
current version of the Guidelines’ career offender provisions, U.S. Sen-
tencing Guidelines Manual (U.S.S.G.) § 4B1.2. At the time, U.S.S.G.
§ 4B1.2’s definition of "crime of violence" was drawn from 18 U.S.C.A.
UNITED STATES v. HEMINGWAY 5
"the South Carolina firearm offense is a crime of violence under 18
U.S.C. § 16(b) . . . ." Id.Hemingway contends that Thompson is distinguishable because it
addressed only the "pointing" aspect of an offense that may in fact be
committed in either of two ways, either by pointing a firearm at
another or by presenting a firearm in a nonthreatening manner. The
commission of this offense by merely "presenting" a firearm, he
argues, was not the issue in Thompson. Hemingway relies entirely on
the statute’s words — "[i]t shall be unlawful for any person to present
or point at any other person any loaded or unloaded firearm" — as
the basis for his contention that "presenting" a firearm is a different
method of committing this offense than "pointing" a firearm.
The question of whether a section 16-23-410 offense may be com-
mitted in either of two ways is only significant if "one of [the ways
of committing the offense] requires the use, attempted use, or threat-
ened use of physical force and [the other] does not." United States v.
Coleman, 158 F.3d at 202. Even assuming that "presenting" and
§ 16. We determined in Thompson that a section 16-23-410 violation was
a crime of violence under 18 U.S.C.A. § 16(b) and therefore also under
the Guidelines. Section 16(b) stated (and still states) that "any . . . offense
that is a felony and that, by its nature, involves a substantial risk that
physical force against the person or property of another may be used in
the course of committing the offense" is a crime of violence. Section
4B1.2 of the Guidelines has since been amended and no longer incorpo-
rates the definition of "crime of violence" from § 16. See U.S.S.G. app.
C, amend. 268 (1997) (effective November 1, 1989, amending U.S.S.G.
§ 4B1.2 by, inter alia, deleting the cross-reference to 18 U.S.C.A. § 16and inserting a definition of the term "crime of violence" nearly identical
to § 924(e)’s definition of violent felony). Neither the difference between
the language of § 16 and that of the ACCA nor the Guidelines amend-
ment detracts from the persuasive impact of our holding in Thompson
that a section 16-23-410 offense satisfies the definition of crime of vio-
lence under 18 U.S.C.A. § 16. A crime of violence "that, by its nature,
involves a substantial risk that physical force against the person . . . of
another may be used," 18 U.S.C.A. § 16(b), likewise "presents a serious
potential risk of physical injury to another," 18 U.S.C.A.
§ 924(e)(2)(B)(ii).
6 UNITED STATES v. HEMINGWAY
"pointing" a firearm are different ways of committing a section 16-23-
410 offense, commission of either would qualify as a predicate vio-
lent felony if both require the requisite use or threat of force. In other
words, if any commission of a section 16-23-410 offense would sat-
isfy § 924(e)’s "violent felony" definition, there are not, for purposes
of the inquiry here, materially different ways of committing such an
offense.
The South Carolina Supreme Court has addressed the elements of
a violation of section 16-23-410 explicitly. The elements of a viola-
tion of the section, stated the court, are "(1) a pointing or presenting;
(2) a loaded or unloaded firearm; and (3) at another." State v. Walsh,
388 S.E.2d 777, 779 (S.C. 1990), overruled on other grounds by State
v. Easler, 489 S.E.2d 617, 623 n.14 (S.C. 1997). Because a firearm’s
being directed "at another" is an element of this offense under the
South Carolina Supreme Court’s interpretation, the word "at" in the
phrase "to present or point at another" clearly modifies both "point"
and "present." In other words, whatever conduct is described by the
phrase "present or point at" in section 16-23-410, it must involve the
directing of a firearm at another person. Hemingway accepts this
proposition, as he must, but argues that presenting a gun at another
is significantly different from pointing a gun at another. Webster’s
Dictionary, however, gives as a definition of present "to aim, point,
or direct so as to face something or in a particular direction." Web-
ster’s Third New International Dictionary 1793 (1986). We thus can-
not agree with Hemingway’s argument that presenting a gun is a
materially different way of committing this offense from pointing a
gun for purposes of the ACCA.3
3
We recognize that as a matter of ordinary, modern English usage the
construction "present a firearm at another" is not a familiar one. Neither,
however, is it entirely unknown in our nation’s jurisprudence. Indeed, a
brief survey indicates that the construction was not uncommon in the
past. See, e.g., McGhee v. Maryland, 267 A.2d 306, 309 (Md. Ct. Spec.
App. 1970) ("[T]he better opinion . . . is . . . that if a person presents a
gun at another, or threatens him with a stick or other weapon, and
thereby reasonably puts him in fear and causes him to act on the defen-
sive, or to retreat, there is an assault, whether there is any actual intention
to injure or not.") (internal quotation omitted); State v. Kuum, 178 P. 288,
291 (Mont. 1919) ("[I]f one person presents a loaded firearm at another,
UNITED STATES v. HEMINGWAY 7
Because we reject the reading of section 16-23-410 offered by
Hemingway, his conviction under that statute is indistinguishable
from the conviction we analyzed in Thompson. In Thompson, we con-
cluded that "[p]ointing a firearm at a person is an offense ‘that, by its
nature, involves a substantial risk that physical force against the per-
son . . . of another may be used in the course of committing the
offense.’" 891 F.2d at 509 (quoting 18 U.S.C. § 16(b)). We reasoned
there that "common sense" indicates that any time a gun is pointed at
a person, a substantial risk is presented that physical force may be
used because of the inherently dangerous nature of the act. Id. On the
basis of that conclusion, as well as the South Carolina Supreme
Court’s holding that section 16-23-410 may be violated only by con-
duct involving directing a firearm at another, we have no trouble con-
cluding that the same conduct "presents a serious potential risk of
physical injury to another," 18 U.S.C.A. § 924(e)(2)(B)(ii).4
III.
In sum, based upon the South Carolina Supreme Court’s interpreta-
tion of section 16-23-410 and our own examination of the risk pre-
with a purpose to do the other an injury or put him in fear, he is guilty
of doing an unlawful act . . . ."); State v. Montgomery, 79 S.W. 693, 694
(Mo. 1904) ("Is it the law that, if the president or cashier of a bank
should be temporarily absent from the bank, a robber may with impunity
enter the bank, and present a revolver or gun at the clerks left in charge,
and take all the money of the bank, and escape punishment for rob-
bery?"); Agee v. Commonwealth, 5 S.W. 47, 47 (Ky. 1887) ("Upon the
day previous to the killing there had been a quarrel between the two men;
and when, upon the succeeding day, it was renewed, and the killing
occurred, the deceased, according to the statement of the accused, pre-
sented a pistol at him, while the sister of the deceased was trying to also
present a gun at him."); Caldwell v. State, 5 Tex. 18 (1849) ("Where one
man, with manifestations of ill-will or under the influence of unfriendly
feelings, presents his gun at another, that the gun is loaded is a presump-
tion resulting from well-established principles of law.").
4
Because we conclude that Hemingway’s conviction satisfies the defi-
nition of violent felony under § 924(e)(2)(B)(ii), we do not address the
question of whether it also satisfies the definition under
§ 924(e)(2)(B)(i).
8 UNITED STATES v. HEMINGWAY
sented by the conduct that the statute proscribes, we conclude that a
conviction under section 16-23-410 is a violent felony as that term is
defined in the ACCA. The judgment of the district court is accord-
ingly affirmed.
AFFIRMED