United States v. Gene Ward, Jr. , 707 F. App'x 165 ( 2017 )


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  •                                      UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 17-4047
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    GENE WARD, JR.,
    Defendant - Appellant.
    Appeal from the United States District Court for the Eastern District of North Carolina, at
    Greenville. Terrence W. Boyle, District Judge. (4:16-cr-00006-BO-1)
    Submitted: December 21, 2017                                Decided: December 27, 2017
    Before WILKINSON and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit
    Judge.
    Affirmed by unpublished per curiam opinion.
    Louis C. Allen, Acting Federal Public Defender, Stephen C. Gordon, Assistant Federal
    Public Defender, Raleigh, North Carolina, for Appellant. John Stuart Bruce, United States
    Attorney, Jennifer P. May-Parker, First Assistant United States Attorney, Phillip A. Rubin,
    Assistant United States Attorney, Raleigh, North Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Gene Ward, Jr., pled guilty to possession of a firearm by a convicted felon, in
    violation of 
    18 U.S.C. § 922
    (g)(1) (2012). The probation officer recommended a base
    offense level of 20 because Ward committed the instant offense subsequent to sustaining a
    felony conviction for a crime of violence—namely, North Carolina common law robbery.
    See U.S. Sentencing Guidelines Manual §§ 2K2.1(a)(4)(A) & cmt. n.1, 4B1.2(a) (2016).
    The district court overruled Ward’s objection to the enhanced offense level, concluding
    that the prior conviction qualifies as a crime of violence because Ward used a shotgun to
    facilitate the robbery. The court sentenced Ward to 51 months’ imprisonment, within his
    advisory Sentencing Guidelines range. On appeal, Ward primarily argues that North
    Carolina common law robbery does not meet the Guidelines’ definition of crime of
    violence. He also briefly contends that the court improperly examined the facts underlying
    his prior conviction to find that the offense qualifies as a crime of violence. Finding no
    reversible error, we affirm.
    Generally, to determine whether a prior offense qualifies as a crime of violence, the
    sentencing court must apply the categorical approach. United States v. Dozier, 
    848 F.3d 180
    , 183 (4th Cir. 2017). “The categorical approach directs courts to examine only the
    elements of the state offense and the fact of conviction, not the defendant’s conduct.”
    United States v. Doctor, 
    842 F.3d 306
    , 308 (4th Cir. 2016), cert. denied, 
    137 S. Ct. 1831
    (2017). In evaluating a state offense, the sentencing court determines the “minimum
    conduct” to which there is “a realistic probability, not a theoretical possibility that a state
    would apply the law.” United States v. Winston, 
    850 F.3d 677
    , 684 (4th Cir. 2017) (internal
    2
    quotation marks omitted).      The sentencing court may, however, apply a modified
    categorical approach—permitting reliance on a limited class of documents to determine the
    elements of the defendant’s specific crime—to a “divisible” statute listing elements in the
    alternative to define multiple crimes. Mathis v. United States, 
    136 S. Ct. 2243
    , 2249
    (2016).
    We agree that the district court improperly examined the facts underlying Ward’s
    prior conviction for North Carolina common law robbery to find that the offense qualifies
    as a crime of violence. See United v. Gardner, 
    823 F.3d 793
    , 802-03 (4th Cir. 2016)
    (holding that North Carolina common law robbery is indivisible and, therefore, modified
    categorical approach is inapplicable). We conclude, however, that the court’s error was
    harmless. Contrary to Ward’s argument, we recently held that North Carolina common
    law robbery categorically qualifies a crime of violence as defined in § 4B1.2(a) and
    incorporated by reference into § 2K2.1(a)(4)(A). United States v. Gattis, ___ F.3d ___,
    No. 16-4663, 
    2017 WL 6001522
    , at *1, *4, *7 (4th Cir. Dec. 4, 2017); see United States v.
    Jones, 
    740 F.3d 127
    , 135 (3d Cir. 2014) (holding that sentencing court’s improper use of
    modified categorical approach may be harmless if defendant’s conviction categorically
    qualifies as crime of violence).
    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 this court and argument would not aid the decisional process.
    AFFIRMED
    3
    

Document Info

Docket Number: 17-4047

Citation Numbers: 707 F. App'x 165

Judges: Duncan, Hamilton, Per Curiam, Wilkinson

Filed Date: 12/27/2017

Precedential Status: Non-Precedential

Modified Date: 10/19/2024