United States v. Brunson , 292 F. App'x 259 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4962
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DERRICK LAMONT BRUNSON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:06-cr-00343-TLW)
Submitted: August 27, 2008 Decided: September 11, 2008
Before WILKINSON, MICHAEL, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael A. Meetze, Assistant Federal Public Defender, Florence,
South Carolina; Aileen P. Clare, Research and Writing Specialist,
Columbia, South Carolina, for Appellant. Reginald I. Lloyd,
Assistant United States Attorney, Columbia, South Carolina; Rose
Mary Sheppard Parham, Assistant United States Attorney, Florence,
South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Derrick Lamont Brunson appeals his convictions for being
a felon in possession of a firearm and possession with intent to
distribute crack cocaine and marijuana. Brunson’s attorney has
filed a brief pursuant to Anders v. California, 386 U.S. 738(1967). Although concluding that there are no meritorious issues
for appeal, counsel questions whether the Fed. R. Crim. P. 11
hearing was sufficient; whether the firearm statute exceeded
Congress’s authority under the Commerce Clause; and whether the
district court erred in finding that Brunson’s predicate
convictions were violent offenses, even though Brunson’s plea
agreements for those convictions designated the offenses
non-violent. Brunson filed a pro se supplemental brief, further
discussing these issues and raising two additional claims: whether
the firearm statute violated the Second Amendment and whether the
predicate convictions needed to be proved beyond a reasonable
doubt. The Government declined to file a brief. After a careful
review of the record, we affirm.
I.
Because Brunson did not move in the district court to
withdraw his guilty plea, his Rule 11 hearing is reviewed for plain
error. United States v. Martinez, 277 F.3d 517, 525 (4th Cir.
2002). Before accepting a plea, the district court must ensure
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that the defendant understands the nature of the charges against
him, the mandatory minimum and maximum sentences, and various other
rights, so it is clear the defendant is knowingly and voluntarily
entering his plea. The court also must determine whether there is
a factual basis for the plea. Fed. R. Crim. P. 11(b); United
States v. DeFusco, 949 F.2d 114, 116 (4th Cir. 1991). Brunson does
not allege any specific deficiency, and our review of the plea
hearing transcript reveals that the district court conducted a
thorough Rule 11 colloquy, ensuring that Brunson’s plea was knowing
and voluntary and that there was an independent factual basis for
the plea.
II.
Brunson asserts that the firearm statute under which he
was convicted, 18 U.S.C. § 922(g)(1) (2000), exceeded Congress’s
authority under the Commerce Clause and violated the Second
Amendment. We have previously considered and rejected a similar
Commerce Clause challenge in United States v. Wells, 98 F.3d 808,
810-11 (4th Cir. 1996). Regarding the Second Amendment, the
Supreme Court has recently upheld the “longstanding prohibition on
the possession of firearms by felons.” District of Columbia v.
Heller, 128 S. Ct. 2783, 2816-17 (2008) (examining the Second
Amendment). Accordingly, Brunson’s constitutional challenges to
the firearm statute are meritless.
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III.
Brunson contended below, and again on appeal, that
certain of his predicate convictions were labelled nonviolent by
South Carolina pursuant to his state plea agreement. Brunson does
not specify to which predicate convictions he refers nor does he
submit the relevant plea agreements.
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.A. § 924(e)(1) (West Supp. 2008).
A defendant is a Career Offender when the instant offense was a
felony crime of violence or a felony controlled substance offense
and the defendant has at least two prior felony convictions for
crimes of violence or controlled substance offenses. U.S.
Sentencing Guidelines Manual § 4B1.1(a) (2006). For purposes of
both designations, a violent felony is defined as 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) (2000); USSG § 4B1.2(a)(1).
Brunson’s prior convictions included a 1995 conviction
for resisting arrest with a deadly weapon, a 1995 conviction for
assault and battery of a high and aggravated nature, and 1996
convictions for assault and battery of a high and aggravated nature
and possession with intent to distribute crack cocaine (arising out
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of the same incident). To determine whether a state-law offense
falls within the definition of a violent felony, we use the
categorical approach, which “takes into account only the definition
of the offense and the fact of conviction.” United States v.
Pierce, 278 F.3d 282, 286 (4th Cir. 2002). South Carolina defines
assault and battery of a high and aggravated nature as “the
unlawful act of violent injury to another accompanied by
circumstances of aggravation,” South Carolina v. Fennell, 531
S.E.2d 512, 516 (S.C. 2000), and defines resisting arrest with a
deadly weapon as resisting the lawful efforts of a law enforcement
officer with “the use or threat of use of a deadly weapon,” S.C.
Code Ann. § 16-3-625 (2003). Thus, both crimes are clearly crimes
of violence for the purposes of the designation as an Armed Career
Criminal or a Career Offender.
The only question remaining is whether an alleged state
plea agreement altering that designation can be considered. The
Supreme Court has held that, when making such a determination, the
trial court is required “to look only to the fact of conviction and
the statutory definition of the prior offense,” not to the facts
underlying the conviction. Taylor v. United States, 495 U.S. 575,
602 (1990). The court can look beyond the statute only when the
statute is “categorically overbroad, that is, if the statute covers
some crimes that are ‘crimes of violence’ and others that are not.”
See United States v. Diaz-Ibarra, 522 F.3d 343, 352 (4th Cir.
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2008). Here, Brunson’s prior offenses required a showing of
violence or force for conviction; thus, the district court properly
declined to consider documents or agreements beyond the statutes of
conviction in determining that Brunson’s prior offenses were
violent crimes.
IV.
Brunson contends that he should not have been sentenced
as an Armed Career Criminal because his prior convictions were not
proved beyond a reasonable doubt. However, this argument fails
under controlling precedent. See United States v. Thompson, 421
F.3d 278, 285-87 (4th Cir. 2005) (holding that where facts are
inherent in the convictions themselves, “[n]o finding of fact by a
jury is necessary”); see also United States v. Cheek, 415 F.3d 349,
352-54 (4th Cir. 2005) (holding that prior convictions used as the
basis for an Armed Career Criminal sentence need not be charged in
indictment or proven beyond a reasonable doubt).
V.
We have reviewed the record carefully pursuant to Anders,
and we find no meritorious issues for appeal. Accordingly, we
affirm Brunson’s convictions and sentence. This court requires
that counsel inform his client, in writing, of his right to
petition the Supreme Court of the United States for further review.
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If the client 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 the
client. 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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