United States v. Clinton Bernard Frazier-El , 204 F.3d 553 ( 2000 )

Affirmed by published opinion. Judge NIEMEYER wrote the opinion, in which Senior Judge MAGILL joined. Judge MURNAGHAN wrote a dissenting opinion.

OPINION

NIEMEYER, Circuit Judge:

Clinton Frazier-El was convicted of possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g), and sentenced to 188 months imprisonment as an armed career criminal under 18 U.S.C. § 924(e). On appeal, he contends that the district court erred in (1) refusing to allow him to dismiss his court-appointed attorney and proceed pro se; (2) instructing the jury on the mens rea requirement of § 922(g); and (8) sentencing him as an armed career criminal. For the reasons that follow, we affirm.

I

Clinton Frazier-El purchased a 20-gauge shotgun from a Wal-Mart department store in Catonsville, Maryland, in November 1996, indicating on the required firearms transaction form that he had never been convicted of a crime punishable by imprisonment for a term exceeding one year. When a routine examination of Wal-Mart firearms sales records revealed that Frazier-El had been convicted of a battery and sentenced to a term of five years, law enforcement officers obtained a warrant for Frazier-El’s arrest. They executed the warrant at Frazier-El’s apartment on December 9, 1996. At the time of his arrest, Frazier-El was holding the shotgun that he had purchased at Wal-Mart a month earlier. He told law enforcement officers that he had “papers for the gun” and that, while he knew he was prohibited from possessing a handgun, he did not know he was prohibited from possessing a “long gun.”

Following Frazier-El’s arrest and the appointment of Jeffrey Risberg, a federal public defender, as his counsel, Risberg filed a motion for a psychiatric evaluation of Frazier-El’s competence to stand trial. At the April 1997 hearing on this motion, Frazier-El told the court, “I would prefer to have Ms. Watts represent me at this time and I am requesting the dismissal of Mr. Risberg as my attorney on these particular grounds and issues.” Frazier-El explained that he wanted to file dismissal motions based on the fact that he “was ordained a consecrated sheik under the prophet,” a fact that Risberg considered “irrelevant.” Frazier-El also stated, “I do not want to be represented by a public defender who thinks that the only defense that I have is to plead insanity or mental incompetency.” The district court responded, “I have denied your motion to replace Mr. Risberg with Ms. Watts.” At that point Frazier-El announced that Ris-berg “no longer represents me or speaks for me.” The district court directed Ris-berg to remain as Frazier-El’s attorney “in this proceeding for the purpose of this hearing today.”

After Dr. Neil Blumberg, a court-appointed psychiatrist, testified at the April 1997 hearing that Frazier-El “was not competent to stand trial” at that time because he was suffering from “schizophrenia paranoid type along with cocaine abuse, prior history of cocaine abuse,” Frazier-El stated:

I dismissed Mr. Risberg before this proceeding started in terms of bringing Dr. Blumberg to the witness stand and have him ask questions.... I at this particular point represent myself and I would like to cross-examine Dr. Blumberg since I am representing myself in this hearing.

The court, refusing to grant Frazier-El’s request, explained the nature of the hearing and then committed Frazier-El to the custody of the Attorney General for hospitalization, treatment, and further evaluation. When the court indicated that the decision was in Frazier-El’s best interest, Frazier-El responded, “I think this case could be more properly handled with another public defender.”

Eight months later, after Frazier-El’s hospitalization, a second competency hearing was conducted during which the court concluded that Frazier-El was competent to stand trial. The court adopted the conclusions of the “Camp Butner Evaluation Team,” which evaluated and treated Frazier-El. The report concluded that Frazier-El “has an understanding of the adversarial nature of criminal law and verbalizes an accurate understanding of criminal process, procedural protection of his rights, and the roles of courtroom personnel.” The report indicated, however, that Frazier-El persisted in his view that the United States government does not have authority over him because “he is a Moorish national.” The report explained:

We do not view his belief system to be delusional in nature, as it is loosely based on the doctrine of the Moorish Science Temple of America, a recognized organization in the United States. Mr. Frazier-El appeared to have exaggerated, added to, and distorted the doctrine to benefit himself. We attribute that behavior to his personality disorder and not to a severe mental illness.

During this hearing, Frazier-El spoke at length about the fact that members of the Moorish Science Temple were not subject to the United States courts and that the Moors were “being incarcerated and treated as slaves as federal contraband property.” Frazier-El complained that his attorney Risberg worked for the federal government and had “never worked in my interest.” When he sought to have Ris-berg removed as counsel, the court denied the motion.

At a motions hearing conducted on January 20, 1998, the day trial was scheduled to begin, Frazier-El again expressed his dissatisfaction with appointed counsel. He complained that Risberg had refused to file motions arguing that Frazier-El, as “an officer in the Moorish Science Temple,” was not subject to the court’s jurisdiction. The following colloquy ensued:

The Court: Is it your position that any attorney — that you would ask for a new attorney in every instance where the attorney would refuse to file the motions; is that your position?

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The Court: Your position is that the Court has no jurisdiction over you, is that right? That this court has no jurisdiction over you; is that your position?

Frazier-El: Well, yes, sir.

The Court: In other words, if you should represent yourself, you would want to argue that; is that correct?

Frazier-El: That would be one of the issues.

The Court: Just a minute. If I understand it, I have been advised this morning that in the event the Court does not excuse Mr. Risberg and appoint new counsel, you want to represent yourself; am I correct?

Frazier-El: Yes, sir.

The Court: And you would argue that this Court has no jurisdiction, in representing yourself; is that correct?

Frazier-El: That would be one of the issues, Judge, yes, it would.

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The Court: If I do not dismiss Mr. Risberg, did you want to represent yourself?.... You want to represent yourself?

Frazier-El: Yes, sir.

The Court: You want to present — your basic argument would be that this Court has no jurisdiction over you; is that right?

Frazier-El: That is one of the basic arguments.

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The Court: In other words, if new counsel were appointed and refused the same as Mr. Risberg, to proceed the way you desired, you would want another new counsel; is that correct? You want a lawyer who will take the position precisely that you are suggesting this morning; is that right? That is what you want?

Frazier-El: Yes, sir- If that is at all possible.

The court denied Frazier-El’s motion to substitute counsel and his request to represent himself. In doing so, the court stated its belief that Frazier-El’s efforts to substitute counsel and, failing that, to proceed pro se represented efforts “to argue matters which would not be permitted by the court.” The court continued:

He would argue that this Court has no jurisdiction and the Court has ruled that that motion and that argument is absolutely frivolous.

I think Mr. Frazier-El is in a position where he is not competent because of arguments he has made to represent himself. However, the Court is absolutely convinced that Mr. Frazier-El understands the nature of the proceedings and is able, if he so desires — he is an intelligent man — to assist in his own defense, if he so desires.

I think Mr. Frazier-El is trying to argue in this Court not applicable legal principles but positions taken by an organization whose position is very well known to the courts of this country. Therefore, the motion, Mr. Frazier-El, to represent yourself will again be denied based on the matters which you have presented.

Trial commenced the next morning, with Risberg acting as defense counsel. On January 22, 1998, the jury returned a verdict of guilty, and the court, having determined that Frazier-El had three prior convictions for “violent felonies,” sentenced Frazier-El as an armed career criminal under 18 U.S.C. § 924(e). This appeal followed.

II

As his principal argument on appeal, Frazier-El contends that the district court denied him his right to represent himself in violation of the Sixth Amendment. See Faretta v. California, 422 U.S. 806, 819, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (holding that the Sixth Amendment implicitly provides an affirmative right to self-representation).

Although the Sixth Amendment guarantees a criminal defendant “the Assistance of Counsel for his defence,” U.S. Const, amend. VI, Faretta held that it also protects an implied inverse right of self-representation. And the right of self-representation generally must be honored even if the district court believes that the defendant would benefit from the advice of counsel. See 422 U.S. at 834, 95 S.Ct. 2525; see also McKaskle v. Wiggins, 465 U.S. 168, 177 n. 8, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984). Because an exercise of the right of self-representation necessarily entails a waiver of the right to counsel — a defendant obviously cannot enjoy both rights at trial — the exercise of the right of self-representation must be evaluated by using many of the same criteria that are applied to determine whether a defendant has waived the right to counsel. An assertion of the right of self-representation therefore must be (1) clear and unequivocal, see Faretta, 422 U.S. at 835, 95 S.Ct. 2525; United States v. Lorick, 753 F.2d 1295, 1298 (4th Cir.1985); (2) knowing, intelligent and voluntary, see Godinez v. Moran, 509 U.S. 389, 400-01, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993); United States v. Singleton, 107 F.3d 1091, 1096 (4th Cir.1997); and (3) timely, see United States v. Lawrence, 605 F.2d 1321, 1325 n. 2 (4th Cir.1979).

The particular requirement that a request for self-representation be clear and unequivocal is necessary to protect against “an inadvertent waiver of the right to counsel by a defendant’s ‘occasional musings on the benefits of self-representation.’ ” United States v. Arlt, 41 F.3d 516, 519 (9th Cir.1994) (quoting Adams v. Carroll, 875 F.2d 1441, 1444 (9th Cir.1989)). This protection against an inadvertent waiver of the right to counsel is especially important because “representation by counsel does not merely tend to ensure justice for the individual criminal defendant, it marks the process as fair and legitimate, sustaining public confidence in the system and in the rule of law.” Singleton, 107 F.3d at 1102.

The requirement that a request for self-representation be clear and unequivocal also prevents a defendant from taking advantage of and manipulating the mutual exclusivity of the rights to counsel and self-representation. A defendant who vacillates at trial places the trial court in a difficult position because it “must ‘traverse ... a thin line’ between improperly allowing the defendant to proceed pro se, thereby violating his right to counsel, and improperly having the defendant proceed with counsel, thereby violating his right to self-representation.” Fields v. Murray, 49 F.3d 1024, 1029 (4th Cir.1995) (en banc) (quoting Cross v. United States, 893 F.2d 1287, 1290 (11th Cir.1990)). In ambiguous situations created by a defendant’s vacillation or manipulation, we must ascribe a “constitutional primacy” to the right to counsel because this right serves both the individual and collective good, as opposed to only the individual interests served by protecting the right of self-representation. Singleton, 107 F.3d at 1102; see also id. at 1096; Fields, 49 F.3d at 1029; United States v. Gillis, 773 F.2d 549, 559 (4th Cir.1985).

At bottom, the Faretta right to self-representation is not absolute, and “the government’s interest in ensuring the integrity and efficiency of the trial at times outweighs the defendant’s interest in acting as his own lawyer.” Martinez v. Court of Appeal of Cal., — U.S. -, 120 S.Ct. 684, 691, 145 L.Ed.2d 597 (2000) (holding that Faretta does not require that a criminal defendant be allowed to represent himself on direct appeal).

With these principles in hand, we now turn to Frazier-El’s contention that he was improperly denied his right of self-representation in this case. Any review of this contention must be considered against the background of Frazier-El’s overarching contention that, as an “officer in the Moorish Science Temple,” he was not subject to the jurisdiction of a United States district court. Beginning with his very first hearing, Frazier-El repeatedly instructed his counsel to assert that defense and to subpoena witnesses who were members of the Temple. His dissatisfaction with his appointed counsel resulted from counsel’s advice to Frazier-El that his arguments were meritless and irrelevant. And because of this advice from appointed counsel, Frazier-El alternatively sought representation by counsel who would assert the defense or self-representation.

Frazier-El’s first expression of his desire to represent himself came at the first competency hearing, during which he repeatedly insisted that he had dismissed counsel and that he would represent himself at the hearing. This hearing, however, was conducted for the sole purpose of evaluating Frazier-El’s competence to stand trial. The court heard expert testimony that Frazier-El suffered from paranoid schizophrenia and that he was incompetent to stand trial at that time. The Supreme Court has made clear that the standard of competence for waiving counsel is identical to the standard of competence for standing trial. See Godinez, 509 U.S. at 396-97, 113 S.Ct. 2680. Therefore, the district court’s refusal to permit Frazier-El to represent himself until the issue of competency was determined was clearly justified.

At Frazier-El’s second competency hearing, he again expressed dissatisfaction with Risberg and sought to have him removed as counsel. Significantly, however, Frazier-El did not express any desire to proceed pro se at this hearing.

Finally, on the day of trial, Frazier-El again sought to have Risberg removed as counsel and substitute counsel appointed. Through questioning, the court elicited the underlying motive for Frazier-El’s expression of dissatisfaction with appointed counsel — namely, the frustration he felt as a result of Risberg’s unwillingness to file frivolous motions based on Frazier-El’s membership in the Moorish Science Temple:

The Court: In other words, if new counsel were appointed and refused the same as Mr. Risberg, to proceed the way you desire, you would want another new counsel; is that correct? You want a lawyer who will take the position precisely that you are suggesting this morning; is that right? That is what you want?

Frazier-El: Yes, sir.... If that is at all possible.

The court also ascertained that Frazier-El’s alternative request for self-representation — should his request for substitute counsel be denied — was a manipulative effort by Frazier-El to assert the defenses himself. Thus the court said, “If I do not dismiss Mr. Risberg, did you want to represent yourself?” Frazier-El responded affirmatively, agreeing that he wanted to represent himself in order to present his jurisdictional argument.

The right of self-representation exists “to affirm the dignity and autonomy of the accused and to allow the presentation of what may, at least occasionally, be the accused’s best possible defense.” Wiggins, 465 U.S. at 176-77, 104 S.Ct. 944; cf. Martinez, 120 S.Ct. at 689 (noting that with the increased availability of competent counsel, the historical reasons for recognizing the right “do not have the same force”). The right does not exist, however, to be used as a tactic for delay, see Lawrence, 605 F.2d at 1324-25; for disruption, see Faretta, 422 U.S. at 834 n. 46, 95 S.Ct. 2525; for distortion of the system, see Singleton, 107 F.3d at 1102; or for manipulation of the trial process, see Lawrence, 605 F.2d at 1325. A trial court must be permitted to distinguish between a manipulative effort to present particular arguments and a sincere desire to dispense with the benefits of counsel. The circumstances surrounding Frazier-El’s purported waiver of his right to counsel and the assertion of his right to proceed without counsel in this case suggest more a manipulation of the system than an unequivocal desire to invoke his right of self-representation. Taking the record as a whole, see Singleton, 107 F.3d at 1097, we are satisfied that the district court was justified, when confronted with Frazier-El’s vacillation between his request for substitute counsel and his request for self-representation, in insisting that Frazier-El proceed with appointed counsel. See Martinez, 120 S.Ct. at 691 (in the context of an asserted Faretta right, recognizing the government’s interest in “ensuring the integrity and efficiency of the trial”).

In denying Frazier-El’s intermittent requests to represent himself, the district court stated that “Mr. Frazier-El is ... not competent because of arguments he made to represent himself.” If this particular statement by the court was intended as an explanation for its refusal to permit Frazier-El to proceed pro se, as Frazier-El now contends, it was an error of law. See Godinez, 509 U.S. at 399, 113 S.Ct. 2680 (“[T]he competence that is required of a defendant seeking to waive his right to counsel is the competence to waive the right, not the competence to represent himself’); Faretta, 422 U.S. at 836, 95 S.Ct. 2525 (defendant’s technical legal knowledge “not relevant to an assessment of his knowing exercise of the right to defend himself’). But we must assume that the court’s statement that Frazier-El was “not competent because of arguments he made to represent himself’ refers only to the legitimacy of the request and the arguments advanced, rather than to Frazier-El’s ability to make a knowing election of self-representation and waiver of counsel. This assumption is confirmed by what the court said next: “Frazier-El understands the nature of the proceedings and is able, if he so desires — -he is an intelligent man — to assist in his own defense, if he so desires.”

Ill

Frazier-El next contends that the district court erred in refusing to give the following proposed jury instruction on the mens rea requirement of 18 U.S.C. § 922(g):

For the government to prove this element beyond a reasonable doubt, you must find that the defendant knew that the firearm he possessed was of a type he was prohibited from possessing.

He argues that this instruction was necessary “because § 922(g) does not prohibit a felon from possessing all firearms.” Therefore, he maintains, for the jury to find that he knowingly possessed a firearm, “it should have been required to find that he knew that the firearm bore the characteristics that brought it within the scope of § 921(a)(3), i.e., that the defendant knew that the firearm was of the type that he was prohibited from possessing.”

Section 922(g) makes it unlawful for any person “who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year ... to ... possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” 18 U.S.C. § 922(g). “Firearm” is defined to mean “any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive.” 18 U.S.C. § 921(a)(3)(A). That section, however, specifically excludes “an antique firearm” from the definition of firearm. Id. The mens rea requirement of § 922(g) prescribes that the defendant act “knowingly” in committing the violation. 18 U.S.C. § 924(a)(2).

The district court instructed the jury on the mens rea requirement of § 922(g) as follows:

The government also must prove that Mr. Frazier-El acted knowingly. This means that he possessed the firearm purposely and voluntarily, and not by accident, mistake or carelessness. It also means that he knew that the weapon was a firearm, as we commonly use the word. However, the government is not required to prove that Mr. Frazier-El knew that he was breaking the law.

We believe that the district court’s instruction correctly stated the mens rea required for a violation of § 922(g). Under the district court’s instruction, while the jury would have to find that Frazier-El knew that his weapon was a firearm, it would not have to find that he knew the possession of a firearm constituted a violation of law. The conventional mens rea of criminal statutes, unless Congress clearly specifies otherwise, requires not that a defendant know that his conduct was illegal, but only that he “know the facts that make his conduct illegal.” Staples v. United States, 511 U.S. 600, 605, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994); see also United States v. International Minerals & Chem. Corp., 402 U.S. 558, 559, 562, 91 S.Ct. 1697, 29 L.Ed.2d 178 (1971) (holding that “knowingly violates” means knowledge of the “specific acts or omissions which violate the Act”). See generally United States v. Wilson, 133 F.3d 251, 260-64 (4th Cir.1997).

In this case, Frazier-El may have mistakenly believed that his shot-gun was a “long gun,” exempted from § 922(g). But such ignorance of the law provides no defense to a statute’s violation. See Cheek v. United States, 498 U.S. 192, 199, 111 S.Ct. 604, 112 L.Ed.2d 617 (1991). Section 922(g) prohibits the possession by a felon of all firearms, except an antique. In this case there is no assertion that Frazier-El thought his shotgun was an antique. Because his requested jury instruction might suggest to the jury that Frazier-El had to know that his conduct was illegal, the district court did not err in refusing to give it.

It is reversible error to decline a requested jury instruction only if the requested instruction “(1) was correct; (2) was not substantially covered by the court’s charge to the jury; and (3) dealt with some point in the trial so important, that failure to give the requested instruction seriously impaired the defendant’s ability to conduct his defense.” United States v. Queen, 132 F.3d 991, 1000 (4th Cir.1997) (quoting United States v. Lewis, 53 F.3d 29, 32 (4th Cir.1995)). In this case, if Frazier-El’s requested instruction is interpreted to cover only “knowledge” that the defendant possessed a “firearm,” it was adequately addressed by the court’s instructions. On the other hand, if it is interpreted as a request to require knowledge of a violation, it was properly rejected as a mischaracterization of the law.

IV

Finally, Frazier-El contends that he was improperly sentenced as an armed career criminal under 18 U.S.C. § 924(e). See also U.S.S.G. § 4B1.4. Section 924(e) mandates a 15-year minimum sentence of imprisonment for a person convicted of a § 922(g) weapons offense if that person has “three previous convictions ... for a violent felony or a serious drug offense.” 18 U.S.C. § 924(e)(1). A violent felony is defined as any crime punishable by more than one year imprisonment that

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

18 U.S.C. § 924(e)(2)(B). While Frazier-El concedes that he has two qualifying convictions for assault, he argues that the district court improperly treated his 1984 conviction for violation of Md. Ann.Code art. 27, § 36, as a violent felony.

To determine whether a prior conviction constitutes a violent felony, a sentencing court must determine whether a prior offense involves the necessary force or risk of injury to another by employing a categorical approach that relies on (1) the fact of conviction and (2) the definition of the prior offense. See Taylor v. United States, 495 U.S. 575, 600, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990); United States v. Coleman, 158 F.3d 199, 201-02 (4th Cir.1998) (en banc); cf. United States v. Kirksey, 138 F.3d 120, 124 (4th Cir.) (same analysis for U.S.S.G. § 4B1.1), cert. denied, 525 U.S. 849, 119 S.Ct. 122, 142 L.Ed.2d 98 (1998).

In this case, the 1984 prior conviction that is at issue was for “Deadly Weapon— Int/Injure” in violation of Md. Ann.Code art. 27, § 36, which provides in relevant part:

Every person who shall wear or carry any dirk knife, bowie knife, switchblade knife, star knife, sandclub, metal knuckles, razor, nunehaku, or any other dangerous or deadly weapon of any kind, whatsoever ... concealed upon or about his person, and every person who shall wear or carry any such weapon ... openly with the intent or purpose of injuring any person in any unlawful manner, shall be guilty of a misdemean- or, and upon conviction, shall be fined not more than $1,000 or be imprisoned in jail, or sentenced to the Maryland Department of Correction for not more than three years.

Md. Ann.Code art. 27, § 36(a)(1). By its terms, this provision creates a single offense that “may be committed in two ways: with the weapon carried (1) concealed, or (2) openly with the intent to injure.” Eldridge v. State, 329 Md. 307, 619 A.2d 531, 534 (1993). The district court found that Frazier-El’s conviction was for a violation of the second prong, i.e., carrying a weapon with the intent to injure.^* Frazier-El contends that the evidence relied upon by the district judge was insufficient to make this determination.

To establish that Frazier-El was convicted of openly carrying a weapon with intent to injure, the district court relied on Maryland court records that contained notations describing the 1984 conviction in two separate documents, respectively, as “Deadly Weapon — Int/Injure” and “D/W— Int/Injure.” Frazier-El argues, however, that these notations do not clearly indicate which type of weapon offense was charged. He maintains that the reference to the conviction as “Deadly Weapon — Int/Injure” describes any § 36(a)(1) violation and could refer to either a concealed weapon violation or an open possession with intent to injure violation. He suggests that the first part of the notation, “Deadly Weapon,” refers to the concealment prong of the statute and that the second part, “Int/Injure,” refers to the possession-with-intent-to-injure prong. This argument, however, belies the statutory language. Both prongs of § 36(a)(1) require use of a “dangerous or deadly weapon,” and the distinction between the two prongs turns on whether the weapon is carried concealed or carried openly. If concealment were the basis of the offense, the entry would not include the “intent-to-injure” qualifier. Rather, the comparable entry would read “Deadly Weapon — Concealment.”

Frazier-El also argues that the length of his sentence — 89 days — indicates that the intent-to-injure prong of § 36(a)(1) could not have been the basis of conviction because § 36(a)(2) imposes a three-year mandatory sentence “if it shall appear from the evidence that [the] weapon was carried ... with the deliberate purpose of injuring the person or destroying the life of another.” Independently of § 36(a)(2), § 36(a)(1) criminalizes possession of a deadly weapon with the “intent or purpose of injuring any person.” Section 36(a)(2), which imposes the mandatory three-year sentence, does so only when the weapon was carried “with the deliberate purpose of injuring the person or destroying the life of another.” While the distinction between an “intent or purpose of injuring” and a “deliberate purpose of injuring” may be elusive, it cannot be doubted that the Maryland legislature meant the latter to signify a more culpable level of intent. Cf. Mackall v. State, 283 Md. 100, 387 A.2d 762, 765-66 (1978) (analyzing “legislative scheme” as manifested in “language and structure” of § 36). Frazier-El’s comparatively short sentence could only imply that the aggravating factor of § 36(a)(2) was not found. But this conclusion provides no ground for inferring that the certified records relied upon by the district court misstated the basis for his conviction under § 36(a)(1).

Finally, we note that in connection with the same conduct for which Frazier-El was convicted under § 36(a), he was also found guilty of both assault and theft, the sentences for which ran concurrently with the sentence for the § 36(a) violation. This assault conviction, coupled with the § 36(a) conviction, provides further evidence that Frazier-El’s 1984 conviction had “as an element the use, attempted use, or threatened use of physical force against the person of another,” 18 U.S.C. § 924(e)(2)(B)(i), or involved conduct that “presents a serious potential risk of physical injury to another,” 18 U.S.C. § 924(e)(2)(B)(ii).

Notwithstanding the assault conviction, however, Frazier-El’s § 36(a) conviction would still be a predicate offense for 18 U.S.C. § 924(e) because a § 36(a) violation requires not only the intent to carry a dangerous weapon but also the intent to injure another. See Anderson v. State, 328 Md. 426, 614 A.2d 963, 969 (1992). Indeed, Maryland’s enactment of § 36(a) was prompted by the recognition that such conduct presents a serious risk of injury, not only to a targeted victim, but also to unsuspecting members of the general public. See Anderson, 614 A.2d at 965. We therefore conclude that the district court did not err in sentencing Frazier-El as an armed career criminal under the sentence enhancement provisions of § 924(e).

For the reasons given, we affirm the judgment of the district court.

AFFIRMED

* We do not address whether a conviction under the first prong of § 36(a)(1), for carrying a concealed weapon, would be a qualifying predicate offense for § 924(e) purposes because the parties did not argue the issue and this court has not yet had occasion to consider it. The decisions of other circuits are split on the issue. Compare United States v. Hall, 77 F.3d 398, 401 (11th Cir.1996) (carrying concealed weapon "is conduct that poses serious potential risk of physical injury and, so, falls under the [§ 924(e)(2)(B)] definition of violent felony"), and United States v. Gilbert, 138 F.3d 1371, 1372 (11th Cir.1998) (same conclusion under U.S.S.G. § 4B1.2(1)), cert. denied, - U.S. -, 119 S.Ct. 1754, 143 L.Ed.2d 787 (1999) with United States v. Whitfield, 907 F.2d 798, 800 (8th Cir.1990) (risk to others from carrying concealed weapon "is not so immediate” as to present serious risk of physical injury).