United States v. Jerry Adams, Jr. , 457 F. App'x 338 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4270
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JERRY VERNON ADAMS, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:09-cr-01365-RBH-1)
Submitted: November 29, 2011 Decided: December 15, 2011
Before WILKINSON, KING, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Matthew M. Robinson, ROBINSON & BRANDT, P.S.C., Covington,
Kentucky, for Appellant. William N. Nettles, United States
Attorney, Robert F. Daley, Jr., Alfred W. Bethea, Jr., Assistant
United States Attorneys, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jerry Vernon Adams pled guilty, pursuant to a written
plea agreement, to being a felon in possession of a firearm, 18
U.S.C. § 922(g) (2006), and was sentenced as an armed career
criminal, 18 U.S.C. § 924(e)(1) (2006), to 180 months in prison.
Adams appeals, claiming that his prior convictions for (1)
assault and battery of a high and aggravated nature (“ABHAN”);
(2) discharging a firearm into a dwelling; (3) felony breaking
or entering; and (4) burglary in the second degree should not
have been counted as predicate felonies for armed career
criminal purposes. We affirm.
A defendant is an armed career criminal when he
violates § 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 . . . or otherwise involves conduct that presents a
serious potential risk of physical injury to another.” 18
U.S.C. § 924(e)(2)(B); U.S. Sentencing Guidelines Manual § 4B1.2
(a) (2010).
To decide whether a prior conviction constitutes a
violent felony, the district court generally must use a
categorical approach. James v. United States, 550 U.S. 192, 202
(2007); Shepard v. United States, 544 U.S. 13, 19-20 (2005);
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United States v. Kirksey, 138 F.3d 120, 124-25 (4th Cir. 1998).
Under this approach, the court may “rel[y] only on (1) the fact
of conviction and (2) the definition of the prior offense.”
Kirksey, 138 F.3d at 124. In a limited class of cases, however,
where the definition of the underlying crime encompasses both
violent and non-violent conduct, “a sentencing court may use a
modified categorical approach to look beyond the fact of the
conviction and the elements of the offense to determine which
category of behavior underlies the prior conviction.” United
States v. Donnell, ___F.3d___, 2011 WL 5101566 (4th Cir. 2011),
at *2 (citing Johnson v. United States, ___U.S.___, 130 S. Ct.
1265, 1273 (2010)). When the conviction results from a guilty
plea, “a court may look to the statement of factual basis for
the charge shown by a transcript of plea colloquy or by written
plea agreement presented to the court, or by a record of
comparable findings of fact adopted by the defendant upon
entering the plea.” Donnell, 2011 WL 5101566, at *2 (quoting
Shepard, 544 U.S. at 20 (citation omitted)); see also United
States v. Harcum, 587 F.3d 219, 223 (4th Cir. 2009).
Adams argues that his South Carolina ABHAN conviction
should not have been considered a violent felony. We need not
resolve this issue because we find that Adams had more than the
requisite number of violent felony convictions to be sentenced
as an armed career criminal.
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Applying the modified categorical approach, the
district court appropriately concluded that Adams’ conviction
for discharging a firearm into a dwelling constituted a violent
crime. The indictment charged that Adams “willfully and
unlawfully discharge[d] and cause[d] to be discharged a certain
firearm at and into a house, occupied as a dwelling.” Adams
pled guilty to the charge “as indicted.” We find that this
offense involved conduct that presented a “serious potential
risk of physical injury to another,” within the meaning of the
ACCA. With respect to Adams’ conviction for felony breaking or
entering, the district court properly found that this conviction
qualifies categorically as a violent felony. See United
States v. Thompson, 588 F.3d 197 (4th Cir. 2009) (holding that
North Carolina felony breaking or entering offense qualifies as
a violent felony for purposes of ACCA), cert. denied, 130 S. Ct.
1916 (2010).
The district court also properly applied the modified
categorical in determining that Adams’ conviction for second
degree burglary qualified as a violent felony. Moreover, Adams
also had four other separate qualifying burglaries in the second
degree not counted by the district court.
Because Adams had at least three prior violent felony
convictions, he was properly sentenced as an armed career
criminal. Accordingly, we affirm his sentence. We dispense
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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
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