United States v. Franklin White , 441 F. App'x 190 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5140
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FRANKLIN JOE WHITE, a/k/a Joe Franklin White,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, Senior
District Judge. (2:09-cr-00692-PMD-1)
Submitted: May 19, 2011 Decided: July 29, 2011
Before TRAXLER, Chief Judge, and DUNCAN and WYNN, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
Cameron J. Blazer, Assistant Federal Public Defender, OFFICE OF
THE FEDERAL PUBLIC DEFENDER, Charleston, South Carolina, for
Appellant. William N. Nettles, United States Attorney,
Columbia, South Carolina, Sean Kittrell, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston,
South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Franklin Joe White appeals an 87-month sentence he
received after pleading guilty to possession of a firearm by a
convicted felon, see 18 U.S.C. § 922(g)(1). Finding no error,
we affirm.
I.
White pleaded guilty in April 2010 to one count of
possession of a firearm by a convicted felon based on conduct
that took place in September 2008. A presentence report (“PSR”)
was prepared, which determined that White’s advisory guidelines
range should be 70-87 months. This calculation was based, in
part, on the probation officer’s view that a January 2008 South
Carolina conviction of White’s for assault and battery of a high
and aggravated nature (“ABHAN”) qualified as a “crime of
violence” under the Guidelines. U.S.S.G. § 2K2.1(a)(2) (2009).
The indictment underlying the ABHAN conviction alleged:
Joe Franklin White did in Georgetown County on or
about January 23, 2008, commit an assault and battery
upon the victim, Fredrena Cheley, constituting an
unlawful act of violent injury to the person of the
said victim, accompanied with circumstances of
aggravation, including but not limited to: use of a
deadly weapon and by hitting the victim in the mouth
with a closed fist, and by putting a .38 caliber
handgun to her head, pulling back the hammer, this in
violation of the Common Law Crime of Assault and
Battery, High and Aggravated Nature.
J.A. 180a-180b (internal quotation marks omitted).
2
Although White objected to the PSR’s treatment of the
ABHAN conviction as a crime of violence, the district court
overruled his objection, adopted the PSR’s recommended guideline
range, and sentenced White to the high end of that range.
II.
White challenges the district court’s determination
that his ABHAN conviction constituted a crime of violence. We
disagree. 1
The guidelines set a base offense level of at least 24
for a § 922(g) offense “if the defendant committed any part of
the . . . offense subsequent to sustaining at least two felony
convictions of . . . a crime of violence.” U.S.S.G.
§ 2K2.1(a)(2). It is undisputed that White had two such
convictions if the ABHAN conviction was of a crime of violence,
and thus it is to that issue that we now turn.
Whether a prior conviction is of a crime of violence
is an issue we consider de novo. See United States v. Jenkins,
631 F.3d 680, 682 (4th Cir. 2011). As is relevant here, a crime
of violence, for U.S.S.G. § 2K2.1(a)(2) purposes, is an offense
that “involves conduct that presents a serious potential risk of
1
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.
3
physical injury to another.” U.S.S.G. § 4B1.2(a)(2); see
U.S.S.G. § 2K2.1 cmt. (n.1) (providing that “‘[c]rime of
violence’ has the meaning given that term in § 4B1.2(a)”).
To decide whether a prior conviction constitutes a
crime of violence, the sentencing court normally should employ a
“categorical approach.” Taylor v. United States, 495 U.S. 575,
600 (1990); United States v. Kirksey, 138 F.3d 120, 124–25 (4th
Cir. 1998). Under this approach, the court may “look only to
the fact of conviction and the statutory definition of the prior
offense.” Taylor, 495 U.S. at 602. The court must consider
“whether the conduct encompassed by the elements of the offense,
in the ordinary case, presents a serious potential risk of
injury to another.” United States v. Seay, 553 F.3d 732, 737
(4th Cir. 2009) (internal quotation marks omitted).
In a limited class of cases, however, in which the
definition of the underlying crime encompasses both violent and
non-violent conduct such that they “constitute at least two
separate crimes for [sentencing] purposes,” United States v.
Rivers, 595 F.3d 558, 563 (4th Cir. 2010), cert. denied, 79
U.S.L.W. 3661 (2011), a sentencing court may look beyond the
statutory definition. See United States v. Clay, 627 F.3d 959,
966 (4th Cir. 2010); Seay, 553 F.3d at 737. This “modified
categorical approach” allows courts “to determine which
statutory phrase was the basis for the conviction by consulting
4
the trial record-including charging documents.” Johnson v.
United States, 130 S. Ct. 1265, 1273 (2010) (internal quotation
marks omitted).
The government maintains that even assuming arguendo
that ABHAN is not categorically a crime of violence, it
effectively encompasses several different types of conduct and
White’s ABHAN indictment shows he pled guilty to a type that
generally “presents a serious potential risk of physical injury
to another.” We agree.
At the time of White’s ABHAN conviction, ABHAN was the
common law crime of committing “an unlawful act of violent
injury to another accompanied by circumstances of aggravation.” 2
State v. Patterson, 522 S.E.2d 845, 853 (S.C. Ct. App. 1999);
see Gay v. Ariail, 673 S.E.2d 418, 419 n.1 (S.C. 2009).
Aggravating circumstances included
the use of a deadly weapon, the infliction of serious
bodily injury, the intent to commit a felony, great
disparity between the ages and physical conditions of
the parties involved, . . . the difference in the
sexes . . .[,] indecent liberties or familiarities
with a female, the purposeful infliction of shame and
disgrace, and resistance to lawful authority.
2
After White was convicted, South Carolina enacted the
Omnibus Crime Reduction and Sentencing Reform Act of 2010, S.
1154, 2009-10 Leg. 118th Sess. (S.C. 2010), which, among other
things, redefined and classified degrees of criminal assault.
5
State v. Tyndall, 518 S.E.2d 278, 285 (S.C. Ct. App. 1999)
(emphasis omitted).
This list demonstrates the varied nature of the types
of conduct ABHAN encompasses. On one end of the violence
spectrum, an ABHAN may be committed by a “stranger on the street
embrac[ing] a young lady” or “a large man improperly fondl[ing]
a child.” State v. DeBerry, 157 S.E.2d 637, 640 (S.C. 1967).
On the other end, ABHAN can be accomplished by committing an
assault and battery with a deadly weapon, which would almost
always “present[] a serious potential risk of physical injury to
another.” Since it is undisputed that White’s indictment shows
that his offense fell within that violent class, the district
court correctly counted White’s ABHAN as a predicate offense.
III.
In sum, because we conclude that the district court
properly found that White’s ABHAN conviction was of a crime of
violence, we affirm his sentence.
AFFIRMED
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