United States v. Redd , 372 F. App'x 413 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5168
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GARFIELD REDD,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Williams D. Quarles, Jr., District
Judge. (1:07-cr-00470-WDQ-1)
Submitted: March 4, 2010 Decided: March 30, 2010
Before NIEMEYER, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James Wyda, Federal Public Defender, Meghan S. Skelton,
Assistant Federal Public Defender, Greenbelt, Maryland, for
Appellant. Rod J. Rosenstein, United States Attorney, George
J. Hazel, Assistant United States Attorney, Baltimore, Maryland,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Garfield Redd pled guilty to possession of a firearm
by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1),
924(a)(2) (2006). Redd was sentenced under the Armed Career
Criminal Act (“ACCA”), 18 U.S.C. § 924(e) (2006), to 240 months‟
imprisonment. Redd appeals, arguing that the district court
erred in finding that he had the requisite number of qualifying
predicate convictions under the ACCA. Finding no error, we
affirm.
In considering whether the district court properly
designated Redd as an armed career criminal, this court reviews
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). A defendant is an armed
career criminal, subject to a minimum fifteen-year sentence,
when he violates § 922(g)(1) and has three prior convictions for
violent felonies or serious drug offenses that were committed on
different occasions. 18 U.S.C. § 924(e)(1); U.S. Sentencing
Guidelines Manual § 4B1.4(a) (2007). A “violent felony” is
defined by the ACCA as any crime punishable by imprisonment for
a term exceeding one year that “has as an element the use,
attempted use, or threatened use of physical force against the
person of another.” 18 U.S.C. § 924(e)(2)(B)(i). To determine
whether an offense under state law falls within the definition
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of a violent felony, this Court uses a categorical approach,
which “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. Taylor v. United States,
495 U.S. 575, 590-91 (1990). We find the district court
properly determined that Redd had the three necessary qualifying
predicate convictions to warrant the armed career criminal
designation.
Redd first argues on appeal his prior conviction for
distribution of cocaine could not be considered a predicate
offense because he was only sixteen years old at the time of the
offense and seventeen years old at the time of conviction. The
statutory definition of a “serious drug offense” includes “an
offense under State law, involving manufacturing, distributing,
or possessing with intent to manufacture or distribute, a
controlled substance (as defined in section 102 of the
Controlled Substances Act (21 U.S.C. 802)), for which a maximum
term of imprisonment of ten years or more is prescribed by law.”
18 U.S.C. § 924(e)(2)(A)(ii). In the presentence report, the
probation officer noted that Redd pled guilty to and was
convicted of possession with intent to distribute cocaine in
Maryland state court in March 1988. He was sentenced to ten
years‟ imprisonment. Redd‟s conviction was for a serious drug
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offense and constitutes the first predicate offense for armed
career criminal status. See Taylor, 495 U.S. at 600 (noting
that, to determine whether a prior conviction may be counted
under the ACCA, the court looks to the statutory definition of
the prior offense and not to the particular facts underlying
that conviction); United States v. Wright, ___ F.3d __, 2010 WL
376549, at *5 (4th Cir. Feb. 3, 2010) (finding no error in
district court‟s reliance on prior juvenile convictions to
enhance sentence under ACCA).
The district court also properly found that Redd‟s two
Maryland convictions for first-degree assault qualified as
predicate offenses under the ACCA. Under Maryland law, a person
is guilty of first-degree assault if he “intentionally cause[s]
or attempt[s] to cause serious physical injury to another.” Md.
Code Ann. Crim., Law § 3-202 (LexisNexis Supp. 2008). Because
the elements of first-degree assault under Maryland law
encompass the use or attempted use of physical force, these two
offenses categorically qualify as ACCA predicates. See
Johnson v. United States, ___ S. Ct. ___, 2010 WL 693687, at *6
(U.S. Mar. 2, 2010) (“We think it clear that in the context of a
statutory definition of „violent felony,‟ the phrase “physical
force” means violent force-that is, force capable of causing
physical pain or injury to another person.”); but see United
States v. Coleman, 158 F.3d 199, 204 (4th Cir. 1998) (holding
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Maryland common law assault is not per se violent felony within
the meaning of ACCA); United States v. Kirksey, 138 F.3d 120,
125 (4th Cir. 1998) (describing common law assault in Maryland to
include, inter alia, “any unlawful force used against a person
of another, no matter how slight”).
Because all three prior convictions qualify as
categorical predicate offenses under the ACCA, Redd‟s reliance
on Taylor and Shepard v. United States, 544 U.S. 13 (2005)
(holding that a court‟s inquiry as to disputed facts in
connection with a prior conviction is limited to the terms of
the charging document, a plea agreement, a transcript of the
plea colloquy, or a comparable judicial record), is misplaced.
While a sentencing court is not permitted to resolve disputed
facts about a prior conviction that are not evident from “the
conclusive significance of a prior judicial record,” Shepard,
544 U.S. at 25, a determination that a defendant is eligible for
sentencing under the ACCA may be based on a judge‟s
determination that the predicate convictions are for violent
felonies or drug trafficking crimes if the qualifying facts are
inherent in the predicate convictions and the court is not
required to perform additional fact finding. See United
States v. Thompson, 421 F.3d 278, 282-83 (4th Cir. 2005).
In his reply brief, Redd argues that, even if these
prior convictions are categorically considered predicate
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offenses under the ACCA, the Government failed to carry its
burden of establishing the fact of these convictions and was not
entitled to rely solely on the presentence report. Contrary to
Redd‟s argument, we have held that a sentencing court is
entitled to rely on “the conclusive significance” of the record,
see Shepard, 544 U.S. at 25, as set out in the presentence
report. Thompson, 421 F.3d at 285 (sentencing court entitled to
rely on the presentence report because it “bears the earmarks of
derivation from Shepard-approved sources”); see generally United
States v. Love, 134 F.3d 595, 606 (4th Cir. 1998) (quoting
United States v. Terry, 916 F.2d 157, 162 (4th Cir. 1990)) (“A
mere objection to the finding in the presentence report is not
sufficient. . . . Without an affirmative showing the information
is inaccurate, the court is „free to adopt the findings of the
[presentence report] without more specific inquiry or
explanation.‟”).
We therefore find that the district court did not err
in determining that Redd had the requisite number of qualifying
predicate convictions to warrant the armed career criminal
designation.* Accordingly, we affirm Redd‟s sentence. We
dispense with oral argument because the facts and legal
*
Because Redd has three prior convictions that qualify as
predicate offenses under the ACCA, we need not address his
arguments as to the fourth prior conviction for assault.
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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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