United States v. Grimsley

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4702
BRADLEY KEVIN GRIMSLEY,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Florence.
C. Weston Houck, District Judge.
(CR-00-874)
Submitted: September 19, 2002
Decided: October 9, 2002
Before TRAXLER, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Henry M. Anderson, Jr., ANDERSON LAW FIRM, P.A., Florence,
South Carolina, for Appellant. J. Strom Thurmond, Jr., United States
Attorney, Alfred W. Bethea, Jr., Assistant United States Attorney,
Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. GRIMSLEY
OPINION
PER CURIAM:
Bradley Kevin Grimsley pled guilty to being a felon in possession
of ammunition in violation of 18 U.S.C. § 922(g) (2000), and was
sentenced to a term of forty-six months imprisonment. Grimsley
appeals his sentence, arguing that the district court plainly erred in
calculating his base offense level at 24 under U.S. Sentencing Guide-
lines Manual § 2K2.1(a)(2) (2000). We affirm.
On November 7, 2000, Grimsley accompanied William Satterfield
to the post office in Florence, South Carolina, where Satterfield
picked up a package in which postal authorities had discovered 42.5
milliliters of LSD. Grimsley and Satterfield were both arrested and
Grimsley’s truck was searched. In the truck, agents found 104.14
grams of marijuana in four plastic bags, seven .30 caliber bullets, and
a box of 9 mm bullets. Grimsley was charged with federal drug and
firearms offenses; he pled guilty to being a felon in possession of
ammunition.
In sentencing Grimsley, the district court applied USSG
§ 2K2.1(a)(2), which provides a base offense level of 24 where the
defendant has two prior felony convictions for either a controlled sub-
stance offense or a crime of violence. The term "crime of violence"
as used in § 2K2.1 is defined in USSG § 4B1.2(a) and Application
Note 1 to USSG § 4B1.2. See USSG § 2K2.1, comment. (n.5). Grims-
ley had a 1992 conviction for attempted burglary for which he
received a sentence of four years suspended to three years probation.
He also had a 1999 conviction for pointing and presenting a firearm
for which he was given a three-year sentence suspended to three years
probation. Grimsley asserted at sentencing that the correct base
offense level was 17 because the two qualifying convictions were
both non-violent offenses and because the attempted burglary was a
misdemeanor under state law, but he withdrew his objection. The dis-
trict court sentenced him to the minimum term of imprisonment under
the guideline range.
On appeal, Grimsley argues that the district court erred in finding
that he had two felony convictions for crimes of violence that quali-
UNITED STATES v. GRIMSLEY 3
fied him for a base offense level of 24 under § 2K2.1(a)(2). Because
Grimsley withdrew his objection to the guideline calculation in the
district court, we review the issue for plain error. United States v.
Olano, 507 U.S. 725, 731-32 (1993). A crime of violence is defined
in § 4B1.2(a) as:
[A]ny offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that —
(1) has as an element the use, attempted use, or threatened
use of physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves
use of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to
another.
Application Note 1 to § 4B1.2 defines a "prior felony conviction"
as "a prior adult federal or state conviction for an offense punishable
by death or imprisonment for a term exceeding one year, regardless
of whether such offense is specifically designated as a felony and
regardless of the actual sentence imposed."
Grimsley contends that he had only one prior conviction for a
crime of violence because the 1992 attempted burglary conviction
was really a misdemeanor conviction for entering a house without
breaking with intent to steal under S.C. Code Ann. § 16-13-70 (Law.
Co-op. 1976). Even assuming the truth of this assertion (for which
Grimsley provides no documentation), the district court did not
plainly err in treating the offense as a crime of violence. First, it
involved a substantial risk of physical injury to another. See United
States v. Raynor, 939 F.2d 191, 196 (4th Cir. 1991) (breaking and
entering of temporarily unoccupied house is crime of violence).
Moreover, Grimsley’s 1992 offense was punishable by more than
a year of imprisonment. His offense was punishable "in the discretion
of the court" when Grimsley was sentenced in 1992.1 At that time, the
1
The South Carolina sentencing scheme was revised in 1994.
4 UNITED STATES v. GRIMSLEY
South Carolina Code provided a maximum penalty of ten years
imprisonment for felonies for which no specific punishment was
directed. S. C. Code Ann. § 17-25-20 (Law. Co-op. 1976) (formerly
§ 17-552). For all other offenses where no punishment was provided,
the court was to impose "such sentence as is conformable to the com-
mon usage and practice in this State, according to the nature of the
offense, and not repugnant to the Constitution." S. C. Code Ann. § 17-
25-30 (Law. Co-op. 1976). This section, formerly § 17-553, was
interpreted by the South Carolina Supreme Court to permit a sentence
of up to ten years for non-felony offenses for which no specific pun-
ishment is provided. State v. Fogle, 181 S.E.2d 483, 484-85 (S.C.
1971); State v. Hill, 175 S.E.2d 227, 231-32 (S.C. 1970); see also
Wood v. State, 483 F.2d 149, 150 (4th Cir. 1973) (maximum sentence
permitted "in the discretion of the court" for South Carolina misde-
meanor offense of making obscene phone calls was ten years). Thus
Grimsley’s 1992 offense, whether characterized as attempted burglary
or entering with intent to steal, was a crime of violence as defined in
§ 4B1.2.
Grimsley also argues that, because the 1992 conviction was for a
misdemeanor offense, he retained his right to possess a firearm and
ammunition under state law.2 Grimsley further argues that state law
should control the definition of "crime of violence" because 18 U.S.C.
§ 921(a)(20) (2000), defines a "crime punishable by imprisonment for
a term exceeding one year" to exclude "any State offense classified
by the laws of the State as a misdemeanor and punishable by a term
of imprisonment of two years or less." Here Grimsley confuses the
requirements for a "crime of violence" as used and defined in the sen-
tencing guidelines with the definition of a "violent felony" as used in
18 U.S.C. § 924(e)(2)(B) (2000) (providing aggravated sentence for
armed career criminal). As explained above, Grimsley’s 1992 convic-
tion was a crime of violence as defined in § 4B1.2 and, consequently,
the district court did not plainly err in using base offense level 24
under § 2K2.1.
We therefore affirm the sentence imposed by the district court. We
dispense with oral argument because the facts and legal contentions
2
The government contests this assertion.
UNITED STATES v. GRIMSLEY 5
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED