United States v. Edward Light, Jr. , 498 F. App'x 238 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5138
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EDWARD HARDY LIGHT, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:11-cr-00017-JPB-DJJ-1)
Submitted: August 14, 2012 Decided: November 29, 2012
Before WILKINSON, MOTZ, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
William T. Rice, Martinsburg, West Virginia, for Appellant.
William J. Ihlenfeld, II, United States Attorney, Paul T.
Camilletti, Assistant United States Attorney, Martinsburg, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Edward Hardy Light, Jr., appeals the 262-month
sentence imposed following his guilty plea to possessing
firearms in furtherance of a drug trafficking offense, in
violation of 18 U.S.C. § 924(c)(1)(A) (2006). On appeal,
counsel for Light filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), certifying that there were no
nonfrivolous issues, but asking this court to review the
district court’s determination that Light had the requisite two
prior felony convictions for crimes of violence such that he
qualified for sentencing as a career offender. See U.S.
Sentencing Guidelines Manual (“USSG”) § 4B1.1 (2010). Although
advised of his right to do so, Light did not file a pro se
supplemental brief. The Government did not file a response.
During our initial Anders review, we discerned three
nonfrivolous issues related to the career offender designation
including whether, in light of our recent opinion in United
States v. Gomez, 690 F.3d 194 (4th Cir. 2012), the district
court erred in its application of the modified categorical
approach. We directed the parties to submit merits briefs on
these points. Light’s attorney submitted a comprehensive brief,
asking us to vacate the sentence and to remand this case for
resentencing. The Government, in its brief, concedes that the
district court’s use of the modified categorical approach in
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this case runs afoul of Gomez, but argues that we should
nonetheless affirm because the error is harmless. For the
reasons that follow, we affirm.
We review de novo whether a prior conviction qualifies
as a “crime of violence” for purposes of a sentencing
enhancement. United States v. King, 673 F.3d 274, 278 (4th
Cir.), cert. denied, 81 U.S.L.W. 3164 (U.S. Oct. 1, 2012) (No.
11-10786). To determine if a state conviction qualifies as a
crime of violence, two interpretive methods — the categorical
approach and the modified categorical approach — are
“potentially applicable.” United States v. Clay, 627 F.3d 959,
966 (4th Cir. 2010). Under the categorical approach, the court
may “look only to the fact of conviction and the statutory
definition of the prior offense.” Taylor v. United States, 495
U.S. 575, 602 (1990). The categorical approach should be
utilized unless the “statute broadly criminalizes conduct that
could be generally committed in multiple ways, some violent and
some not.” Clay, 627 F.3d at 966 (internal quotation marks
omitted); see Taylor, 495 U.S. at 600-02. As we recently
stated, the sentencing court may utilize the modified
categorical approach only when the statute of conviction is
divisible on the use-of-force element. Gomez, 690 F.3d at 200.
The Government contends that Light’s 1989 Virginia
conviction for throwing a missile at an occupied vehicle, in
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violation of Va. Code Ann. § 18.2-154 (2009), qualifies as a
categorical crime of violence such that his career offender
designation should be affirmed despite the Gomez error. We
agree. See USSG § 4B1.2(a)(1) (defining “crime of violence” to
include those offenses that have “as an element the use,
attempted use, or threatened use of physical force against the
person of another”); Begay v. United States, 553 U.S. 137, 144–
46 (2008) (explaining that a predicate conviction under the
residual clause of 18 U.S.C. § 924(e)(2)(B) * must reflect the
same type of “purposeful, violent, and aggressive conduct” as
the specifically enumerated crimes); see also Sykes v. United
States, 131 S. Ct. 2267, 2275-76 (2011) (reaffirming that
sentencing courts must consider the “[s]erious and substantial
risks” of physical injury “inherent” in a crime when determining
whether a prior conviction qualifies as a violent felony).
Although Light asserts no other challenge to the
reasonableness of his sentence, because this appeal is taken
pursuant to Anders, we have reviewed the sentence and conclude
*
We of course “rely on precedents evaluating whether an
offense constitutes a ‘crime of violence’ under the Guidelines
interchangeably with precedents evaluating whether an offense
constitutes a ‘violent felony’ under the [Armed Career Criminal
Act], because the two terms have been defined in a manner that
is ‘substantively identical.’” King, 673 F.3d at 279 n.3
(quoting United States v. Jarmon, 596 F.3d 228, 231 n.* (4th
Cir. 2010)).
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that it is otherwise procedurally and substantively reasonable.
The sentence is procedurally reasonable inasmuch as the district
court properly calculated the applicable Guidelines range and
appropriately explained the sentence in the context of the
relevant 18 U.S.C. § 3553(a) (2006) factors. See Gall v. United
States, 552 U.S. 38, 51 (2007). Further, the within-Guidelines
sentence is presumptively substantively reasonable, and we
discern no basis to rebut that presumption. United States v.
Abu Ali, 528 F.3d 210, 261 (4th Cir. 2008); see Rita v. United
States, 551 U.S. 338, 347 (2007).
Finally, in fulfilling our duty under Anders, we next
review Light’s conviction. Because Light has not challenged the
validity of his guilty plea in the district court, we review
only for plain error. United States v. Martinez, 277 F.3d 517,
524–27 (4th Cir. 2002). Our review of the record reveals that
the district court fully complied with the dictates of Fed. R.
Crim. P. 11 and committed no error warranting correction on
plain error review.
In accordance with Anders, we have reviewed the entire
record in this case and have found no other potentially
meritorious issues for appeal. We therefore affirm the judgment
of the district court. This court requires that counsel inform
Light, in writing, of the right to petition the Supreme Court of
the United States for further review. If Light requests that a
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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 Light. 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
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