United States v. Rogers

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4517
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WILLIAM THURMAN ROGERS, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Walter D. Kelley, Jr.,
District Judge. (4:06-cr-00139-WDK)
Submitted: November 28, 2007 Decided: January 7, 2008
Before MOTZ and TRAXLER, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Gretchen L. Taylor,
Assistant Federal Public Defender, Sapna Mirchandani, Research and
Writing Attorney, Norfolk, Virginia, for Appellant. Chuck
Rosenberg, United States Attorney, Jessica M. Norris, Special
Assistant United States Attorney, Newport News, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
William Thurman Rogers, Jr., pled guilty to unlawful
possession of a firearm and ammunition by a convicted felon and was
sentenced as an armed career criminal to a term of 180 months
imprisonment. 18 U.S.C.A. §§ 922(g)(1), 924(e) (West 2000 & Supp.
2007). Rogers appeals his sentence, contending that the district
court erred in following United States v. Smith, 359 F.3d 662 (4th
Cir. 2004), to determine that he was an armed career criminal; that
Smith was incorrectly decided; and that his prior Virginia
conviction for grand larceny from a person was not a violent felony
within the meaning of § 924(e)(2)(B)(ii). We affirm.
A defendant is an armed career criminal under § 924(e)(1)
if he has three previous convictions for violent felonies that
occurred on separate occasions. A “violent felony” is defined in
§ 924(e)(2)(B) as one 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, involved use of
explosives, or otherwise involves conduct that presents
a serious potential risk of physical injury to another.
Rogers had prior Virginia felony convictions for grand
larceny from a person* in 1988, for robbery in 1990, and for
maiming in 1994. In the district court, Rogers conceded that his
*
Rogers was initially charged with robbery, but was convicted
in a bench trial of grand larceny from a person in violation of Va.
Code Ann. § 18.2-95 (2004).
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prior maiming and robbery convictions were violent felonies, but
argued that a conviction for grand larceny from a person does not
involve a serious potential risk of injury to another, and that the
district court should not rely on Smith because Smith dealt with a
career offender sentence. The district court concluded that Smith
was not directly on point, but “close enough that its reasoning
needs to be followed.” We agree.
Whether Rogers’ Virginia conviction for grand larceny
from a person qualifies as a violent felony under § 924(e) is a
legal issue which we review de novo. United States v. Thompson,
421 F.3d 278, 283 (4th Cir. 2005), cert. denied, 547 U.S. 1005
(2006). In Smith, we held that larceny from a person is a crime of
violence because it “involves conduct that presents a serious
potential risk of physical injury to another.” 359 F.3d at 664
(internal quotation omitted). We observed that “[t]he offense
recognizes an enhanced societal concern for conduct that implicates
at least a potential for personal assault, conduct that involves
the person of the victim and jeopardizes his personal security.”
Id. at 665 (quoting Garland v. Commonwealth, 446 S.E.2d 628, 630
(1994)). Although Smith interpreted the “otherwise” clause in U.S.
Sentencing Guidelines Manual § 4B1.2(a)(2) (2002), because the
language at issue in Smith is identical to the pertinent language
in § 924(e)(2)(B)(ii), the district court correctly followed Smith.
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Rogers argues that Smith was wrongly decided. However,
Smith is contolling law in this circuit because “a decision of a
panel of this court becomes the law of the circuit and is binding
on other panels unless it is overruled by a subsequent en banc
opinion of this court or a superseding contrary decision of the
Supreme Court.” United States v. Simms, 441 F.3d 313, 318 (4th
Cir.) (internal quotation omitted), cert. denied, 127 S. Ct. 2333
(2006). Consequently, we affirm the sentence imposed by the
district court. 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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