United States v. Hickman , 358 F. App'x 488 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4148
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ROBERT HICKMAN,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:08-cr-00507-TLW-1)
Submitted: November 5, 2009 Decided: December 28, 2009
Before MOTZ, DUNCAN, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James T. McBratney, Jr., MCBRATNEY LAW FIRM, P.A., Florence,
South Carolina, for Appellant. W. Walter Wilkins, United States
Attorney, Carrie A. Fisher, Assistant United States Attorney,
Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert Hickman pled guilty pursuant to a plea
agreement to one count of being a felon in possession of
ammunition, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2),
(e) (2006). He was found to be an armed career criminal under
the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), and
U.S. Sentencing Guidelines Manual § 4B1.4 (2007), and was
sentenced to 185 months’ imprisonment. Hickman appeals, arguing
that the district court erred in concluding that his prior South
Carolina convictions for burglary in the third degree and
failure to stop for a blue light qualified as predicate offenses
warranting application of the enhanced penalty of the ACCA.
Finding no error, we affirm.
In determining whether the district court properly
sentenced Hickman as an armed career criminal, we review its
factual findings for clear error and its legal conclusions de
novo. E.g., United States v. Wardrick, 350 F.3d 446, 451
(4th Cir. 2003). A defendant is subject to the enhanced penalty
of the ACCA when he violates 18 U.S.C. § 922(g)(1) and has three
prior convictions for violent felonies or serious drug offenses.
18 U.S.C. § 924(e)(1). A violent felony is one that “has as an
element the use, attempted use, or threatened use of physical
force against the person of another,” “is burglary, arson, or
extortion, involves use of explosives, or otherwise involves
2
conduct that presents a serious potential risk of physical
injury to another.” Id. § 924(e)(2)(B)(i)-(ii).
To determine whether a state offense falls within the
definition of a violent felony, we employ a categorical approach
that “takes into account only the definition of the offense and
the fact of conviction.” United States v. Pierce, 278 F.3d 282,
286 (4th Cir. 2002). The particular label or categorization
under state law is not controlling. See Taylor v. United
States, 495 U.S. 575, 590-91 (1990). For purposes of the ACCA,
“a person has been convicted of burglary . . . if he is
convicted of any crime, regardless of its exact definition or
label, having the basic elements of unlawful or unprivileged
entry into, or remaining in, a building or structure, with
intent to commit a crime.” Id. at 599 (emphasis added). While
a court normally may look only to the fact of the conviction and
the statutory definition, because some states broadly define
burglary to include places other than buildings, the categorical
approach “may permit the sentencing court to go beyond the mere
fact of conviction.” Id. at 602; see Shepard v. United States,
544 U.S. 13, 16-17 (2005). A state offense will constitute
burglary if the jury was required “to find all the elements of
generic burglary in order to convict the defendant,” and “the
indictment or information and jury instructions show that the
defendant was charged only with a burglary of a building,” so
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“the jury necessarily had to find an entry of a building to
convict.” Taylor, 495 U.S. at 602.
Under South Carolina law, “[a] person is guilty of
burglary in the third degree if the person enters a building
without consent and with intent to commit a crime therein.”
S.C. Code Ann. § 16-11-313(A) (2003). For purposes of the
statute, a building means “any structure, vehicle, watercraft,
or aircraft . . . [w]here any person lodges or
lives . . . people assemble . . . or where goods are stored.”
S.C. Code Ann. § 16-11-310(1)(a)-(b) (2003). South Carolina
defines burglary in the third degree more broadly than the
generic definition. Therefore, we must determine whether the
jury would have been required to find Hickman guilty of generic
burglary in order to convict him.
A district court may rely on a prepared presentence
investigation report (“PSR”) to determine whether a prior crime
qualifies as a predicate offense under the ACCA. See United
States v. Thompson, 421 F.3d 278, 285 (4th Cir. 2005). The PSR
prepared for Hickman’s sentencing reveals that his conviction
for burglary in the third degree involved his entry into a
building. Therefore, this offense constituted generic burglary
for purposes of the ACCA. Despite Hickman’s argument that Begay
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v. United States, 128 S. Ct. 1581 (2008), 1 and its progeny
require a different analysis to determine whether a prior crime
qualifies as a violent felony, the Supreme Court made clear in
Begay that § 924(e)(2)(B)(ii) still “covers a felony that is one
of the example crimes” specifically enumerated in the statute.
Id. at 1586. Because Hickman concedes that he has two other
prior convictions that qualify as predicate offenses under the
ACCA, we conclude that the district court did not err in
applying the enhancement. 2
Accordingly, we affirm the district court’s judgment.
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
1
Begay held that, under the “residual clause” of
§ 924(e)(2)(B)(ii), a predicate offense must be similar to one
of the four enumerated violent felonies, not only in degree of
risk posed, but in kind--it must be “purposeful, violent, and
aggressive conduct.” 128 S. Ct. at 1585-86.
2
In light of our determination that Hickman’s conviction
for burglary in the third degree constituted a third predicate
offense under the ACCA, we need not evaluate whether Hickman’s
conviction for failure to stop for a blue light also qualified
as a predicate offense.
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