United States v. James Moore , 472 F. App'x 212 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4082
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JAMES EUGENE MOORE, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:09-cr-00002-RLV-DSC-1)
Submitted: March 14, 2012 Decided: March 28, 2012
Before SHEDD, DUNCAN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Randolph Marshall Lee, Charlotte, North Carolina, for Appellant.
Amy Elizabeth Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James Eugene Moore, Jr., pled guilty to one count of
possession of a firearm by a convicted felon, in violation of
18 U.S.C. §§ 922(g)(1), 924(e) (2006) (“count one”), and one
count of possession of an unregistered firearm, in violation of
26 U.S.C. §§ 5841, 5861(d), and 5871 (2006) (“count two”). The
district court determined that Moore was an armed career
criminal under the U.S. Sentencing Guidelines Manual (“USSG”)
(2009) and 18 U.S.C. § 924(e) and sentenced him to 180 months’
imprisonment on count one and a concurrent term of 120 months’
imprisonment on count two. On appeal, counsel has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), stating
that there are no meritorious issues for appeal, but questioning
whether the district court erred in concluding that Moore’s
prior North Carolina state conviction for burning of a
schoolhouse qualified as a predicate conviction warranting
application of the enhanced sentence mandated by the Armed
Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). Moore has
filed two pro se supplemental briefs and a letter we construe as
another pro se supplemental brief. We affirm.
A defendant is properly designated an armed career
criminal if he is subject to an enhanced sentence under the
provisions of 18 U.S.C. § 924(e). USSG § 4B1.4(a). The
enhanced sentence under 18 U.S.C. § 924(e) applies to a
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defendant who violates 18 U.S.C. § 922(g) and has “three
previous convictions . . . for a violent felony or a serious
drug offense, or both, committed on occasions different from one
another.” 18 U.S.C. § 924(e)(1). A “violent felony” is a crime
punishable by imprisonment for a term exceeding one year that is
“burglary, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential
risk of physical injury to another.” Id. § 924(e)(2)(B)(ii).
Whether a defendant’s prior conviction constitutes a
violent felony is an issue of law we review de novo. United
States v. Jenkins, 631 F.3d 680, 682 (4th Cir. 2011). To decide
whether a prior conviction constitutes a violent felony, courts
utilize a categorical approach. Id. at 684. This approach
“look[s] only to the elements of the offense . . . . [and]
examin[es] [the offense] in terms of how the law defines it and
not in terms of how an individual offender might have committed
it on a particular occasion.” Id. (internal quotation marks and
alteration omitted).
A person is guilty of burning of a schoolhouse in
North Carolina if that person “wantonly and willfully set[s]
fire to or burn[s] or cause[s] to be burned or aid[s],
counsel[s,] or procure[s] the burning of, any schoolhouse or
building owned, leased[,] or used by any public or private
school, college[,] or educational institution.” N.C. Gen. Stat.
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§ 14-60 (2011). This court recently held that the modern,
generic crime of arson involves the burning of real or personal
property. United States v. Knight, 606 F.3d 171, 174-75
(4th Cir. 2010). Because the North Carolina statute
substantially corresponds to the generic, contemporary
definition of arson, Moore’s conviction under the statute is a
violent felony. The district court therefore did not err in
concluding that the conviction qualified as an ACCA predicate.
Additionally, in accordance with Anders, we have
reviewed the issues in Moore’s pro se supplemental briefs and
the entire record in this case and have found no meritorious
issues for appeal. We therefore affirm the district court’s
judgment. This court requires that counsel inform Moore, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Moore requests that a
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 Moore.
We dispense 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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