United States v. Kasey ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4621
RICKY LYNN KASEY,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
Jackson L. Kiser, Senior District Judge.
(CR-02-1)
Submitted: February 28, 2003
Decided: March 28, 2003
Before MICHAEL, TRAXLER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Randy V. Cargill, MAGEE, FOSTER, GOLDSTEIN & SAYERS,
P.C., Roanoke, Virginia, for Appellant. John L. Brownlee, United
States Attorney, Anthony P. Giorno, Assistant United States Attorney,
Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. KASEY
OPINION
PER CURIAM:
Ricky Lynn Kasey appeals from his conviction and sentence
imposed for two counts of felon in possession of a firearm, in viola-
tion of 18 U.S.C. § 922(g)(1) (2000). Kasey argues that the district
court erred in denying his motion to suppress and in determining that
he had a third conviction for a serious drug offense qualifying him as
an armed career criminal under 18 U.S.C. § 924(e) (2000). Finding no
error, we affirm.
We agree with the district court that there was no Fourth or Fifth
Amendment violation related to items seized during execution of the
search warrant or by Officer Davis’s questions posed to Kasey regard-
ing the rifle seen by Officer Carr. We do not find that the district
court’s factual findings regarding the motion to suppress were clearly
erroneous or that the court’s decision regarding the seizure was error.
See United States v. Rusher, 966 F.2d 868, 973 (4th Cir. 1992). We
therefore affirm this ruling on the reasoning of the district court. See
United States v. Kasey, No. CR-02-1 (W.D. Va. filed May 3, 2002 &
entered May 6, 2002).
Next, Kasey contests the district court’s determination that he qual-
ified as an armed career criminal under 18 U.S.C. § 924(e). A person
who violates 18 U.S.C. § 922(g) and who has three previous convic-
tions for a serious drug offense, a violent felony, or both is subject to
a minimum fifteen-year prison term. 18 U.S.C. § 924(e)(1). A "seri-
ous drug offense" under state law includes an offense involving dis-
tributing or possessing with intent to distribute a controlled substance
for which the maximum term of imprisonment is at least ten years. 18
U.S.C. § 924(e)(2)(A)(i).
Kasey concedes that he has two prior qualifying convictions. He
contests the third conviction used: a New Jersey conviction for pos-
session of cocaine with intent to distribute. Kasey was convicted of
the charge in violation of Section 2C:35-5(a)(1) of the New Jersey
Code, a first degree crime. A first degree crime is punishable by a
maximum term of twenty years of imprisonment. N.J. Stat. Ann.
§ 2C:43-6(a)(1) (West 2002).
UNITED STATES v. KASEY 3
The judgment order notes that the conviction is under the first
degree statute, but the offense was "treated as second degree for sen-
tencing." (JA 126). The punishment for a crime of the second degree
is "between five and ten years imprisonment." N.J. Code Ann.
§ 2C:43-6(a)(2) (West 2002). Kasey argues that the offense was
treated as a second degree offense and therefore the corresponding
second degree punishment range should apply. Because the second
degree range is between five and ten years, the maximum would not
include ten years, Kasey argues, and therefore the offense does not
qualify as a serious drug offense under 18 U.S.C. § 924(e).
We conclude that the language of 18 U.S.C. § 924(e) clearly states
that the defendant must have three or more convictions for serious
drug offenses. The statute does not contemplate that the resulting
actual punishment is relevant so long as the offense of conviction car-
ried a statutory maximum sentence of ten years or more. Because
Kasey was convicted of the first degree offense, we find that the dis-
trict court did not err in finding it constituted a qualifying offense
under § 924(e).
We therefore affirm the judgment. 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