United States v. Walker , 293 F. App'x 991 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4913
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DEVON SHERMAIN WALKER, a/k/a Devon Sherman Walker,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Senior
District Judge. (1:07-cr-00077-WLO)
Submitted: September 10, 2008 Decided: September 25, 2008
Before MICHAEL, TRAXLER, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, William S. Trivette,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Robert A.
J. Lang, Assistant United States Attorney, Winston-Salem, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a plea agreement, Devon Shermain Walker pled
guilty to possession of a firearm by a felon, in violation of 18
U.S.C.A. §§ 922(g)(1), 924(e) (West 2000 & Supp. 2008). At
sentencing, the district court found that Walker’s prior
convictions classified him as an armed career criminal under the
Armed Career Criminal Act, 18 U.S.C.A. § 924(e) (“ACCA”). Walker
was sentenced to a term of 180 months’ imprisonment. Finding no
error, we affirm.
Following United States v. Booker, 543 U.S. 220 (2005),
appellate review of a district court’s imposition of a sentence is
for abuse of discretion. Gall v. United States, 128 S. Ct. 586,
597 (2007); United States v. Pauley, 511 F.3d 468, 473 (4th Cir.
2007). The appellate court must first ensure that the district
court committed no procedural error, such as “failing to calculate
(or improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the § 3553(a) factors,
selecting a sentence based on clearly erroneous facts, or failing
to adequately explain the chosen sentence — including an
explanation for any deviation from the Guidelines range.” Gall,
128 S. Ct. at 597.
Walker claims the district court erred in classifying him
as an armed career criminal. A defendant qualifies as an armed
career criminal under 18 U.S.C.A. § 924(e)(1) if he has three prior
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convictions for a violent felony or serious drug offense. In
determining whether a crime is a violent felony within the meaning
of the ACCA, the offense is considered generically in terms of how
the law defines it and not in terms of how an individual offender
might have committed the offense on a particular occasion. 18
U.S.C.A. § 924(e)(1), (e)(2)(B); Begay v. United States, 128 S. Ct.
1581, 1584 (2008). Walker concedes he has two qualifying violent
felony convictions, but he contests the use of a 2005 North
Carolina felony conviction for Habitual Misdemeanor Assault as the
third qualifying offense. See N.C. Gen. Stat. § 14-33.2 (2005).1
Walker argues that N.C. Gen. Stat. § 14-33.2 is a
recidivist felony and not a violent felony for the purposes of the
ACCA enhancement.2 However, “an offense committed by a repeat
offender is often thought to reflect greater culpability and thus
to merit greater punishment. Similarly, a second or subsequent
offense is often regarded as more serious because it portends
greater future danger and therefore warrants an increased sentence
for purposes of deterrence and incapacitation.” United States v.
Rodriguez, 128 S. Ct. 1783, 1789 (2008). The Supreme Court in
1
Walker pled guilty to N.C. Gen. Stat. § 14-33.2 after he
committed three misdemeanor assaults.
2
Although N.C. Gen. Stat. § 14-33.2 states that convictions
pursuant to that statute “shall not be used as a prior conviction
for any other habitual offense statute,” federal law governs
whether a particular state conviction is a qualifying predicate
offense under the ACCA. 18 U.S.C. § 921(a)(20) (2000).
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Rodriguez rejected the argument that a defendant is punished under
federal law for being treated as a recidivist under state law,
noting that “ACCA is itself a recidivist statute.” Id. In
addition, N.C. Gen. Stat. § 14-33.2 is not a sentencing enhancement
but a substantive felony offense. See State v. Smith, 533 S.E.2d
518, 520 (N.C. App. 2000). We thus conclude the district court did
not err when it classified Walker as an armed career criminal under
the ACCA.
Accordingly, we affirm Walker’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
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