United States v. Taste , 303 F. App'x 149 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4388
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTONIO TASTE,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Jr.,
District Judge. (1:07-cr-00280-WO-1)
Submitted: November 18, 2008 Decided: December 16, 2008
Before TRAXLER, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, Gregory Davis,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Winston-Salem, North
Carolina, for Appellant. Angela Hewlett Miller, Assistant
United States Attorney, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
Antonio Taste appeals the 180-month sentence the
district court imposed after he pled guilty to possession of a
firearm by a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1) (2006). Counsel submitted a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), averring there are no
meritorious issues for appeal, but suggesting this court should
consider whether the district court erred by enhancing Taste’s
sentence, pursuant to 18 U.S.C. § 924(e)(1) (2006), because he
had at least three previous convictions for violent felonies.
Specifically, Taste was convicted of four counts of breaking or
entering in North Carolina state court in 2007 and was convicted
of strong arm robbery in South Carolina state court in 1998.
Under § 924(e), a “violent felony” is defined as a
crime punishable by imprisonment for a term exceeding one year
that is one of several specified offenses, or a crime that
“otherwise involves conduct that presents a serious potential
risk of physical injury to another.” 18 U.S.C.
§ 924(e)(2)(B)(ii) (2006). In considering whether the district
court properly designated Taste an armed career criminal, we
review the district court’s legal determinations de novo and its
factual findings for clear error. United States v. Wardrick,
350 F.3d 446, 451 (4th Cir. 2003). In determining whether a
crime is a violent felony within the meaning of § 924(e), the
offense is considered generically in terms of how the law
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defines the offense and not in terms of how an individual
offender might have committed it on a particular occasion.
Begay v. United States, 128 S. Ct. 1581, 1584 (2008). In
particular, “the phrase ‘maximum term of imprisonment . . .
prescribed by law’ for the ‘offense’ was not meant to apply to
the top sentence in a guidelines range.” United States v.
Rodriguez, 128 S. Ct. 1783, 1792 (2008).
In United States v. Harp, 406 F.3d 242 (4th Cir.
2005), the defendant argued that one of his Armed Career
Criminal Act predicate convictions, a North Carolina Class I
felony, did not qualify as “an offense punishable by a term of
imprisonment of more than one year” because “the maximum non-
aggravated punishment” was twelve months. Harp, 406 F.3d at
245-46. Declining, as in United States v. Jones, 195 F.3d 205(4th Cir. 1999), to apply an “individualized analysis,” we held
in Harp that, “to determine whether a conviction is a crime
punishable by a prison term exceeding one year, Jones dictates
that we consider the maximum aggravated sentence that could be
imposed for that crime upon a defendant with the worst possible
criminal history.” Harp, 406 F.3d at 246.
Taste acknowledges that the maximum sentences that
could be imposed upon any defendant for his prior convictions
exceed one year. Accordingly, the district court did not err in
applying the § 924(e)(1) enhancement.
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In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm the district court’s judgment. This court
requires that counsel inform Taste, in writing, of the right to
petition the Supreme Court of the United States for further
review. If Taste 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. Counsel’s motion must state that a copy thereof
was served on Taste.
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
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