United States v. Goodman

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5240
RONALD GOODMAN,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
James A. Beaty, Jr., District Judge.
(CR-94-267)
Argued: March 8, 1996
Decided: May 10, 1996
Before ERVIN and NIEMEYER, Circuit Judges, and YOUNG,
Senior United States District Judge for the District of Maryland,
sitting by designation.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: Thomas Norman Cochran, Assistant Federal Public
Defender, Greensboro, North Carolina, for Appellant. Lisa Blue
Boggs, Assistant United States Attorney, Greensboro, North Carolina,
for Appellee. ON BRIEF: Walter C. Holton, Jr., United States Attor-
ney, Timika Shafeek, Assistant United States Attorney, Greensboro,
North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Ronald Goodman pled guilty to robbing a bank in Durham, North
Carolina, on October 28, 1994, in violation of 18 U.S.C. § 2113(a).
The district court sentenced Goodman as a "career offender" to 151
months imprisonment, concluding that his earlier convictions in July
1976 for use of a handgun in the commission of a crime, in violation
of Md. Ann. Code art. 27, § 36B(d), and in July 1981 for bank rob-
bery qualified as "crime[s] of violence" within the meaning of
U.S.S.G. § 4B1.1.
On appeal from his sentence, Goodman argues that the use of a
handgun in the commission of a crime need not be violent and,
because we have adopted a categorical approach in defining crimes
of violence, his 1976 conviction does not qualify as a predicate
offense for purposes of applying the career offender guideline. Analo-
gizing the Maryland statute under which he was convicted to the fed-
eral statute prohibiting firearm possession by convicted felons, see 18
U.S.C. § 922(g)(1), Goodman submits that our decision in United
States v. Johnson, 953 F.2d 110, 115 (4th Cir. 1991) (holding that
possession of firearm by felon does not categorically constitute
"crime of violence"), compels the conclusion that the district court
erred in sentencing him as a career offender. Goodman's argument
fails, however, because his predicate Maryland offense is substan-
tially different from the federal "felon in possession" offense.
Rather than prohibiting mere "possession" of a firearm, the Mary-
land statute under which Goodman was convicted proscribes "use [of]
a handgun . . . in the commission of [a] felony." Md. Ann. Code art.
27, § 36B(d) (emphasis added); see Coates v. Maryland, 436 F. Supp.
226, 232 (D. Md. 1977). Explaining the essence of a§ 36B violation,
the Maryland Court of Appeals has stated that "use of a firearm con-
notes something more than a bare potential for use"; "while there need
2
not be conduct which actually produces harm," the Maryland statute
"requires conduct which produces a fear of harm or force by means
or display of a firearm." Wynn v. State, 546 A.2d 465, 470 (Md. 1988)
(quoting People v. Chambers, 498 P.2d 1024, 1027-28 (Ca. 1972)).
The Maryland statute prohibits precisely the conduct that qualifies a
crime as violent under U.S.S.G. § 4B1.2(1). That provision defines a
"crime of violence" as an offense punishable by more than one year
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 of a dwelling, arson, or extortion, involves
use of explosives, or otherwise involves conduct that pres-
ents a serious potential risk of physical injury to another.
From the decision in Wynn that "use" requires conduct that threatens
harm or the use of force, it is tautological that the Maryland offense
"has as an element the use . . . or threatened use of physical force
against the person of another." Common sense dictates, moreover,
that the crime inherently "involves conduct that presents a serious
potential risk of physical injury to another." Cf. United States v.
Thompson, 891 F.2d 507, 509-11 (4th Cir. 1989) (holding that South
Carolina offense of pointing firearm at person constitutes "crime of
violence"), cert. denied, 945 U.S. 922 (1990).
Accordingly, we hold that Goodman's 1976 conviction under
Maryland law for use of a handgun in the commission of a crime was
for a "crime of violence" within the meaning of the career offender
guideline and affirm the district court's enhancement of Goodman's
sentence.
AFFIRMED
3