United States v. Goforth , 112 F. App'x 897 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4078
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JASON ROBERT GOFORTH,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Chief District Judge. (CR-03-320)
Submitted: June 9, 2004 Decided: November 2, 2004
Before MOTZ, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, John A. Dusenbury,
Jr., Assistant Federal Public Defender, Greensboro, North Carolina,
for Appellant. Anna Mills Wagoner, United States Attorney,
Robert M. Hamilton, Assistant United States Attorney, Greensboro,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Jason Robert Goforth pled guilty pursuant to a written
plea agreement to one count of bank robbery, 18 U.S.C. § 2113(a)
(2000), and one count of knowingly possessing body armor after
having been convicted of a felony, 18 U.S.C. §§ 931 and 924(a)(7)
(2000). He was sentenced to 113 months in prison. Goforth does
not challenge his convictions but appeals the determination of his
sentence. We affirm.
In its Presentence Investigation Report (“PSR”), the
probation office recommended that Goforth be sentenced as a “career
offender” under U.S. Sentencing Guidelines Manual § 4B1.1 (2002).
The predicate crimes for this recommendation included Goforth’s
1999 state court conviction for possessing a dangerous weapon while
in prison. The district court decided to sentence Goforth as a
career offender, holding, over defendant’s objection, that the
state conviction for possessing a dangerous weapon in prison
qualified as a “crime of violence” under USSG § 4B1.2.
Specifically, the district court held that possession of a weapon
by an inmate is “categorically” a crime of violence because of the
“danger that is presented by the possession of a weapon in a prison
setting.”
Under USSG § 4B1.1, a defendant is a “career offender” if
(1) the defendant was at least eighteen years old at the time the
defendant committed the instant offense of conviction; (2) the
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instant offense of conviction is a felony that is either a crime of
violence or a controlled substance offense; and (3) the defendant
has at least two prior felony convictions of either a crime of
violence or a controlled substance offense. In determining whether
a predicate offense is a “crime of violence,” a sentencing court
should use a categorical approach and look to the fact of
conviction and the statutory definition of the prior offense. See
United States v. Johnson, 953 F.2d 110, 114-15 (4th Cir. 1991).
The court determines if the statutory or common law definition of
the offense “list[s] as an element ‘the use, attempted use, or
threatened use of physical force.’” United States v. Wilson, 951
F.2d 586, 588 (4th Cir. 1991).
If this inquiry is not determinative, the sentencing
court must determine if the crime “‘otherwise involves conduct that
presents a serious potential risk of physical injury to another.’”
United States v. Martin, 215 F.3d 470, 472 (4th Cir. 2000) (quoting
USSG § 4B1.2(a)(2)). In making this determination, the court must
consider only the facts charged in the indictment, and “[i]f that
effort is unavailing, . . . consider whether the offense of
conviction is a crime of violence in the abstract.” Id. at 473.
Whether a prior conviction is a crime of violence is a question of
law that this Court reviews de novo. United States v. Dickerson,
77 F.3d 774, 775 (4th Cir. 1996).
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We conclude the district court did not err in
determining that possession of a dangerous weapon by a prisoner is
a “crime of violence” because of the inherent nature of the crime
and its serious potential risk for physical injury to another. See
United States v. Kenney, 310 F.3d 135, 137 (3rd Cir. 2002); United
States v. Vahovick, 160 F.3d 395, 397-98 (7th Cir. 1998); United
States v. Young, 990 F.2d 469, 472-73 (9th Cir. 1993); see also
United States v. Romero, 122 F.3d 1334, 1340-41 (10th Cir. 1997)
(holding that conveying a weapon in federal prison is a “violent
felony” for purposes of applying the Armed Career Criminal Act).
We therefore affirm Goforth’s sentence. 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
*
In light of the opinion issued by this Court in United
States v. Hammoud, 381 F.3d 316, 353 (4th Cir. 2004), we hold that
Blakely v. Washington, 124 S. Ct. 2531 (2004), does not impact
Goforth’s sentence.
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