United States v. Leroy Scrivner ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4021
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LEROY SCRIVNER,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:09-cr-00077-RDB-1)
Submitted: June 29, 2012 Decided: August 6, 2012
Before KING, DUNCAN, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James Wyda, Federal Public Defender, Paresh S. Patel, Staff
Attorney, Greenbelt, Maryland, for Appellant. Rod J.
Rosenstein, United States Attorney, Mushtaq Z. Gunja, Assistant
United States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Leroy Scrivner plead guilty to one count of being a
felon in possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(1) (2006). On appeal, Scrivner challenges the finding
that he was a career offender under U.S. Sentencing Guidelines
Manual § 2K2.1(a)(2) because he does not have the required two
qualifying convictions. We affirm.
Scrivner was found to be a career offender under the
Guidelines because he had a prior conviction for a controlled
substance offense and a December 3, 1999 conviction for a crime
of violence. Scrivner concedes that the controlled substance
offense was a qualifying conviction. He challenges the district
court’s decision to refer to the statement of probable cause to
find that his December 3, 1999 Maryland conviction for second
degree assault was a crime of violence.
This appeal was placed in abeyance for United
States v. Donnell, 661 F.3d 890 (4th Cir. 2011), which held that
the district court erred by relying on the unincorporated
statement of probable cause to find that the second degree
assault conviction could be considered a crime of
violence. Id., at 896-97. Accordingly, we conclude, and the
Government concedes, that the district court erred by referring
to the unincorporated statement of probable cause and finding
that Scrivner’s assault conviction was a crime of violence.
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Nevertheless, we conclude the error is harmless.
Under the harmless error standard, we will reverse unless the
Government bears its burden of showing that the error affects
Scrivner’s substantial rights. United States v. Rodriguez, 433
F.3d 411, 415-16 (4th Cir. 2006). The Government notes that
Scrivner also stood convicted of resisting arrest, which was as
a result of the same incident that led to the second degree
assault conviction. In United States v. Jenkins, 631 F.3d 680,
685 (4th Cir. 2011), decided while this appeal was in abeyance
for Donnell, the court held that Maryland’s common law offense
of resisting arrest is categorically a crime of violence under
the residual clause of USSG § 4B1.2(a)(2).
Because Scrivner’s conviction for resisting arrest is
categorically a crime of violence, the district court’s
procedural error at sentencing was harmless. We note that
Scrivner’s argument that the Government waived arguing that the
resisting arrest conviction is a crime of violence is without
merit. We may affirm on any grounds apparent on the
record. United States v. Smith, 395 F.3d 516, 519 (4th Cir.
2005). Also, the Government did not take an inconsistent
position at sentencing regarding the resisting arrest
conviction. In addition, there is no need for any additional
factfinding. Furthermore, we reject Scrivner’s argument that
the residual clause of USSG § 4B1.2(a)(2) is void for
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vagueness. See United States v. Hudson, 673 F.3d 263, 268-69
(4th Cir. 2012), petition for cert. filed, No. 11-10743 (June 5,
2012) (citing Sykes v. United States, 131 S. Ct. 2277(2011)); see also United States v. Hart, 674 F.3d 33, 41 n.3
(1st Cir. 2012) (citing James v. United States, 550 U.S. 192,
210 n.6 (2007)); United States v. Gore, 636 F.3d 728, 742 (5th
Cir. 2011) (same).
Accordingly, we affirm the conviction and 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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