United States v. Justin Barr ( 2022 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-4490
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JUSTIN DEWAYNE BARR,
Defendant - Appellant.
Appeal from the United States District Court for the District of South Carolina, at Florence.
R. Bryan Harwell, Chief District Judge. (4:17-cr-00377-RBH-1)
Submitted: October 27, 2021 Decided: January 14, 2022
Before GREGORY, Chief Judge, and KING and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David Alan Brown, Sr., Rock Hill, South Carolina, for Appellant. Sherri A. Lydon, United
States Attorney, Columbia, South Carolina, Lauren L. Hummel, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Florence, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Justin Dewayne Barr pled guilty, pursuant to a written plea agreement, to possession
of a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1), and possession with
intent to distribute a quantity of cocaine and cocaine base, in violation of 21 U.S.C.
§ 841(a)(1). He appeals, arguing that he was improperly sentenced under the Armed
Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). The Government seeks to dismiss
the appeal based on the appellate waiver in the plea agreement.
We have recently held that an appellate waiver does not foreclose review of a
sentence claimed to be “imposed in excess of the maximum penalty provided by statute.
United States Cornette, 932 F.3d 204, 209 (4th Cir. 2019). Because Barr claims that his
sentence exceeds the maximum sentence provided in the statute, we find that the waiver
does not bar review of his claims. Therefore, we deny the motion to dismiss.
Turning to the merits of Barr’s arguments, we find no reversible error in the district
court’s determination that he qualified as an armed career criminal. Barr first claims that
his conviction for distribution of cocaine base does not qualify as a “serious drug offense”
within the meaning of § 924(e). A serious drug offense means “an offense under State law,
involving manufacturing, distributing, or possessing with intent to manufacture or
distribute, a controlled substance . . . , for which a maximum term of imprisonment of ten
years or more is prescribed by law.” 18 U.S.C. § 924(e)(2)(A)(ii). We review de novo the
legal question of whether a prior conviction qualifies as a predicate for the ACCA. United
States v. Furlow, 923 F.3d 311, 317 (4th Cir. 2019). We have reviewed the record and
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conclude that the district court did not err in determining that Barr’s prior state conviction
qualified as a serious drug offense within the meaning of the ACCA.
Next, Barr claims that his conviction for South Carolina strong arm robbery was
improperly counted as a crime of violence because it was based on an Alford *plea. This
court has held that South Carolina strong arm robbery qualifies categorically as a crime of
violence under the ACCA. See United States v. Doctor, 842 F.3d 306 (4th Cir. 2016).
Nevertheless, Barr argues that, under this Court’s holding in United States v. Alston, 611
F.3d 219 (4th Cir. 2010), a conviction pursuant to an Alford plea does not qualify as a
predicate offense. In Alston, we addressed whether a Maryland second-degree assault
conviction based on an Alford plea constituted a crime of violence. Applying the modified
categorical approach, we held that the district court may not determine whether a prior
conviction resulting from Alford plea constitutes a crime of violence by relying on “facts
neither inherent in the conviction nor admitted by the defendant.” Id. at 226. Barr’s
reliance on Alston is misplaced. Unlike the conviction at issue in Alston, strong arm
robbery is categorically a crime of violence. See Doctor, 842 F.3d 306. Therefore, this
claim fails as well.
We have also independently reviewed the record for possible error in light of Rehaif
v. United States, 139 S. Ct. 2191 (2019) and Greer v. United States, 141 S. Ct. 2090 (2021).
Given Barr’s criminal history and statements he made at his Fed. R. Crim. P. 11 hearing,
we find no error. We therefore affirm Barr’s sentence. We dispense with oral argument
*
North Carolina v. Alford, 400 U.S. 25 (1970).
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because the facts and legal contentions are adequately presented in the materials before this
court and argument would not aid the decisional process.
AFFIRMED
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