United States v. Brown ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 94-5731
WARDELL BROWN,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Joseph F. Anderson, Jr., District Judge.
(CR-93-277-3)
Submitted: February 7, 1996
Decided: February 29, 1996
Before MURNAGHAN and WILLIAMS, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Allen B. Burnside, Assistant Federal Public Defender, Columbia,
South Carolina, for Appellant. Sean Kittrell, OFFICE OF THE
UNITED STATES ATTORNEY, Columbia, South Carolina, for
Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Wardell Brown appeals from his conviction by a jury for possess-
ing a firearm as a felon, 18 U.S.C.A. §§ 922(g), 924(e) (West Supp.
1995). The district court sentenced Brown as an armed career crimi-
nal under § 924(e) and USSG § 4B1.4. 1 to 262 months' imprisonment.
Counsel has filed a brief pursuant to Anders v. California, 386 U.S.
738 (1967), raising three issues but stating that in his view there exist
no nonfrivolous grounds for appeal. Brown has filed a supplemental
brief raising two additional issues. After a complete review of the
entire record, we affirm.
First, Brown contends that the evidence was insufficient to support
his conviction. The evidence adduced at Brown's trial consisted of the
testimony of the two arresting officers, Jerry Maldonado and Jeffrey
Naylor. According to those officers, they received a radio dispatch to
be on the look-out for an individual by the name of Wardell wearing
a camouflage army jacket and a blue skull cap. Maldonado spotted
Brown walking down Main Street and matching the description
received by the dispatcher. When asked to come to the patrol car,
Brown ran and was seen throwing an object which was retrieved and
turned out to be a .32 caliber handgun. The officers also retrieved six
rounds of matching ammunition on Brown's person. It is undisputed
that Brown has several prior felony convictions. We find this evi-
dence sufficient to support Brown's conviction for being a felon in
possession of a firearm. See Glasser v. United States, 315 U.S. 60, 80
(1942) (conviction must be sustained if, viewing the evidence in the
light most favorable to the Government, there exists substantial evi-
dence to support the verdict).
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1 United States Sentencing Commission, Guidelines Manual (Nov.
1993).
2
Second, Brown contends that the district court abused its discretion
by refusing to define reasonable doubt after requested to do so by the
jury. The jury sent a note requesting a definition of reasonable doubt.
The district court declined the request, but recharged the jury with its
original instruction on reasonable doubt. Because that instruction met
constitutional standards, the district court did not abuse its discretion
in refusing to further define reasonable doubt. See United States v.
Reives, 15 F.3d 42 (4th Cir. 1994) (district court may refuse to give
definition of "reasonable doubt" even when definition is requested by
jury), cert. denied, 62 U.S.L.W. 3825 (U.S. June 13, 1994).
Third, Brown alleges that he was improperly sentenced under
§ 924(e) because the four state convictions (occurring in 1971, 1975,
1981, and 1988) relied upon to sentence him as an armed career crim-
inal were classified as misdemeanors under state law. Section
924(e)(1) establishes a mandatory minimum sentence of fifteen years
without parole for any person who has violated 18 U.S.C. § 922(g)
and who has had at least three prior convictions for, inter alia, a "vio-
lent felony." Section 924(e)(2)(B) defines a"violent felony" to
include "any crime punishable by imprisonment for a term exceeding
one year." Section 921(a)(20) provides that this definition excludes
"any State offense classified by the laws of the State as a misdemea-
nor and punishable by a term of imprisonment of two years or less."
Although South Carolina categorized Brown's offenses (assault
and battery of a high and aggravated nature) as misdemeanors, each
carried a possible ten-year sentence. And Brown received sentences
on those convictions of four years, ten years, ten years, and nine
years, respectively. Therefore, they qualify as felonies for purposes of
§ 924(e).
Brown raises two additional grounds for appeal in his supplemental
brief. First he claims that the district court committed a Batson2 error
by granting the Government's reverse Batson motion during the first
jury selection. However, any such claim was rendered moot because
Brown was allowed to choose a second jury from a different panel
and was allowed to use all ten strikes without objection.
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2 Batson v. Kentucky, 476 U.S. 79 (1986).
3
Second, Brown alleges that the arresting officers failed to obtain a
signed written Miranda3 waiver from him. However, there is no such
requirement under Miranda. See United States v. Sledge, 546 F.2d
1120 (4th Cir.), cert. denied, 430 U.S. 910 (1977) (information on
Miranda rights may be given either in written or oral form).
Accordingly, we affirm the conviction and the sentence imposed by
the district court. In accordance with Anders , we have examined the
entire record in this case and find no meritorious issues for appeal.
This court requires that counsel inform his client, in writing, of his
right to petition the Supreme Court of the United States for further
review. If the client requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel may
move in this court for leave to withdraw from representation. Coun-
sel's motion must state that a copy thereof was served on the client.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the record and briefs and oral argu-
ment would not aid the decisional process.
AFFIRMED
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3 Miranda v. Arizona, 384 U.S. 436 (1966).
4