United States v. Ishaard Scales ( 2018 )


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  •                                     UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 16-4102
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    ISHAARD MARTAE SCALES, a/k/a Monte Hayes,
    Defendant - Appellant.
    Appeal from the United States District Court for the Middle District of North Carolina, at
    Greensboro. James A. Beaty, Jr., Senior District Judge. (1:15-cr-00108-JAB-1)
    Submitted: February 9, 2018                                  Decided: February 23, 2018
    Before DUNCAN, KEENAN, and FLOYD, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    Louis C. Allen, Federal Public Defender, John A. Duberstein, Assistant Federal Public
    Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greensboro, North
    Carolina, for Appellant. Sandra J. Hairston, Acting United States Attorney, Robert A.J.
    Lang, Assistant United States Attorney, OFFICE OF THE UNITED STATES
    ATTORNEY, Winston-Salem, North Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Ishaard Martae Scales appeals from his 55-month sentence imposed pursuant to
    his guilty plea to possession of a firearm by a convicted felon, in violation of 
    18 U.S.C. § 922
    (g) (2012). On appeal, Scales asserts that his sentence was erroneously enhanced
    under U.S. Sentencing Guidelines Manual § 2K2.1(a)(4)(A) (2015). Specifically, he
    contends that his prior consolidated convictions for North Carolina common law robbery
    were not crimes of violence under the Sentencing Guidelines and, thus, were not proper
    predicate convictions. We affirm.
    In considering the district court’s Guidelines calculations, we review the district
    “court’s factual findings for clear error and its legal conclusions de novo.” United
    States v. Dodd, 
    770 F.3d 306
    , 309 (4th Cir. 2014) (internal quotation marks omitted). We
    “review de novo the question whether a prior state conviction constitutes a predicate
    felony conviction for purposes of a federal sentence enhancement.” United States v.
    Valdovinos, 
    760 F.3d 322
    , 325 (4th Cir. 2014). In so doing, we are not limited to the
    district court’s rationale, but instead “may affirm on any grounds apparent from the
    record.” United States v. Riley, 
    856 F.3d 326
    , 328 (4th Cir.) (internal quotation marks
    omitted), cert. denied, 
    138 S. Ct. 273
     (2017).
    An enhanced base offense level applies under USSG § 2K2.1(a)(4)(A) if “the
    defendant committed any part of the instant offense subsequent to sustaining one felony
    conviction of either a crime of violence or a controlled substance offense.” As applied to
    this section at the time of Scales’ sentencing, “crime of violence” is defined as an offense
    punishable by more than one year of imprisonment that “(1) has as an element the use,
    2
    attempted use, or threatened use of physical force against the person of another [(the
    ‘force clause’)], 1 or (2) is burglary of a dwelling, arson, or extortion, involves use of
    explosives [(the ‘enumerated offenses clause’)], or otherwise involves conduct that
    presents a serious potential risk of physical injury to another [(the ‘residual clause’)].”
    USSG § 4B1.2(a); see USSG 2K2.1 cmt. n.1 (incorporating “crime of violence”
    definition in USSG § 4B1.2(a) and its commentary). The commentary to USSG § 4B1.2
    in effect at the time of Scales’ sentencing enumerated other offenses as crimes of
    violence, including robbery. USSG § 4B1.2 cmt. n.1. 2
    In Johnson v. United States, 
    135 S. Ct. 2551
    , 2563 (2015), the Supreme Court held
    that the identically worded residual clause of the Armed Career Criminal Act (“ACCA”) 3
    was unconstitutionally vague. In Beckles v. United States, 
    137 S. Ct. 886
    , 892 (2017),
    however, the Supreme Court declined to extend Johnson’s reasoning to the Guidelines,
    holding that “the Guidelines are not subject to a vagueness challenge under the Due
    Process Clause,” and thus the residual clause of USSG § 4B1.2(a)(2) “is not void for
    vagueness.”
    1
    After United States v. Gardner, 
    823 F.3d 793
    , 804 (4th Cir. 2016), it is clear that
    North Carolina common law robbery is not a crime of violence under the force clause.
    United States v. Montes-Flores, 
    736 F.3d 357
    , 363 (4th Cir. 2013) (relying on decisions
    evaluating whether an offense qualifies as an ACCA violent felony “interchangeably”
    with decisions evaluating whether an offense qualifies as a Guidelines crime of
    violence)(citation omitted).
    2
    USSG § 4B1.2 was amended in 2016.
    3
    
    18 U.S.C. § 924
    (e) (2012).
    3
    Scales first contends that, in determining whether his North Carolina common law
    robbery conviction satisfies the crime of violence definition, the district court may not
    properly rely on the residual clause, because such reliance would require consideration of
    the commentary which Scales contends was improperly issued. However, we held in
    United States v. Jarmon, 
    596 F.3d 228
     (4th Cir. 2010), without reference to the
    commentary, that the North Carolina offense of larceny from the person satisfies the
    residual clause of USSG § 4B1.2(a)(2) because it is similar in kind and degree of risk to
    the enumerated offense of burglary. Id. at 233. We explained that, although “larceny
    from the person does not necessarily involve violence,” it creates “a similar risk of
    violent confrontation” because “it requires the offender to make purposeful, aggressive
    moves to part the victim from his or her property.” Id. at 232. “In fact, because larceny
    from the person requires that the offender take the property from the protection or control
    of the victim, the victim’s presence is assured, and the odds of a violent confrontation are
    even higher than in a generic burglary, where the victim is often absent.” Id. at 232-33.
    As “[l]arceny from the person is a lesser included offense of common law robbery,”
    North Carolina v. White, 
    542 S.E.2d 265
    , 267 (N.C. Ct. App. 2001), common law
    robbery also necessarily qualifies as a residual clause crime of violence under Jarmon.
    See also United States v. Gattis, 
    877 F.3d 150
    , 154-60 (4th Cir. 2017) (holding that North
    Carolina robbery constitutes “robbery” as enumerated in the amended version of USSG §
    4B1.2(a)(2), and rejecting defendant’s argument that North Carolina robbery swept more
    broadly than generic robbery).
    4
    Scales next argues that a sentencing court’s reliance on the residual clause in
    USSG § 4B1.2(a)(2) is error because the clause is impossible to interpret correctly and
    was inappropriately adopted for the reasons discussed in Johnson.          To support this
    argument, Scales relies on the Sentencing Commission’s difficulty in applying the
    residual clause and its August 2016 amendment removing the clause from USSG
    § 4B1.2(a)(2). We find Scales’ challenge to be without merit. See United States v.
    Wurie, 
    867 F.3d 28
     (1st Cir. 2017), cert. denied, 
    2018 WL 311678
     (U.S. Jan. 8, 2018)
    (rejecting similar argument finding that neither Beckles nor Johnson altered how the
    Guidelines’ residual clause should be interpreted); Riley, 856 F.3d at 328 (“Despite
    Johnson, . . . the residual clause of the career offender guideline remains valid.”); United
    States v. Mack, 
    855 F.3d 581
    , 585 (4th Cir. 2017) (“With the residual clause remaining in
    force, we must now apply § 4B1.2(a) with all its relevant language, including the residual
    clause and any Guidelines Commentary that may explain it.”).
    Accordingly, we affirm Scales’ sentence.        We dispense with oral argument
    because the facts and legal contentions are adequately presented in the materials before
    this court and argument would not aid the decisional process.
    AFFIRMED
    5