United States v. Jones

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4387
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES ERIC JONES,
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-01238-TLW-1)
Submitted: January 29, 2009 Decided: February 20, 2009
Before NIEMEYER, MICHAEL, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Steven M. Hisker, HISKER LAW FIRM, PC, Duncan, South Carolina,
for Appellant. Alfred William Walker Bethea, Jr., Assistant
United States Attorney, Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James Eric Jones was convicted by a jury of possession
of a firearm by a felon, in violation of 18 U.S.C. §§ 922(g)(1),
924(a)(2), (e) (2006). Finding that Jones was an armed career
criminal under 18 U.S.C. § 924(e) (2006), the district court
sentenced him to 520 months’ imprisonment, which was
subsequently amended to 456 months’ imprisonment pursuant to
Fed. R. Crim. P. 35(a).
Jones’s attorney has filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), challenging Jones’s
designation as an armed career criminal. Counsel states,
however, that he has found no meritorious grounds for appeal.
Jones has filed a pro se supplemental brief raising several
issues. We affirm.
Jones’s prior convictions include South Carolina
convictions for second degree burglary, attempted burglary, two
convictions for strong arm robbery, and two convictions for
assault and battery of a high and aggravated nature incident to
the respective robberies. A defendant is an armed career
criminal when he violates 18 U.S.C. § 922(g)(1) and has three
prior convictions for violent felonies or serious drug offenses.
18 U.S.C. § 924(e)(1). A violent felony is one that “has as an
element the use, attempted use, or threatened use of physical
force against the person of another” or “otherwise involves
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conduct that presents a serious potential risk of physical
injury to another.” 18 U.S.C. § 924(e)(2)(B); U.S. Sentencing
Guidelines Manual § 4B1.2(a)(1) (2007). This definition
specifically includes burglary. 18 U.S.C. § 924(e)(2)(B)(ii).
To determine whether a state offense falls within the
definition of a violent felony, we use a 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). The particular label or categorization
under state law is not controlling. See Taylor v. United
States, 495 U.S. 575, 590-91 (1990). South Carolina defines
strong arm robbery as “the felonious or unlawful taking of
money, goods, or other personal property of any value from the
person of another or in his presence by violence or by putting
such person in fear.” State v. Gourdine, 472 S.E.2d 241, 241
(S.C. 1996) (internal quotation marks and citation omitted).
Assault and battery of a high and aggravated nature is defined
as “the unlawful act of violent injury to another accompanied by
circumstances of aggravation.” State v. Fennell, 531 S.E.2d
512, 516 (S.C. 2000). “A person is guilty of burglary in the
second degree if the person enters a dwelling without consent
and with intent to commit a crime therein.” S.C. Code Ann.
§ 16-11-312 (2005). As these prior convictions are all violent
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crimes under 18 U.S.C. § 924(e)(1), we find that the district
court did not err in designating Jones an armed career criminal.
We have also reviewed the arguments raised in Jones’s
pro se supplemental brief and find them to be without merit.
Although Jones alleges that his trial counsel was ineffective,
claims of ineffective counsel generally are not cognizable on
appeal. United States v. King, 119 F.3d 290, 295 (4th Cir.
1997). Jones can pursue this claim in a motion under 28 U.S.C.
§ 2255 (West Supp. 2008).
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
Accordingly, we affirm Jones’s conviction and sentence. This
court requires that counsel inform Jones, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Jones 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 Jones. 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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