United States v. Derrick Lee

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4081
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DERRICK DESHAWN LEE, a/k/a Derrick Deshaune Lee,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., Chief District Judge. (1:14-cr-00196-WO-1)
Submitted: August 31, 2015 Decided: August 11, 2016
Before GREGORY, Chief Judge, and AGEE and KEENAN, Circuit
Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Louis C. Allen, Federal Public Defender, Kathleen A. Gleason,
Assistant Federal Public Defender, Greensboro, North Carolina,
for Appellant. Ripley Rand, United States Attorney, Kyle D.
Pousson, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Derrick Deshawn Lee appeals his conviction and 200–month
sentence for being a felon in possession of ammunition, in
violation of 18 U.S.C. § 922(g)(1) (2012). Lee argues that the
district court constructively amended the indictment in its
instructions to the jury and that it was required to submit to
the jury the question of whether he had three prior violent
felonies under the Armed Career Criminal Act (ACCA), 18 U.S.C.
§ 924(e) (2012). We ordered supplemental briefing regarding the
effect of Johnson v. United States, 135 S. Ct. 2551, 2563 (2015)
(invalidating ACCA’s residual clause), on Lee’s ACCA
enhancement. We affirm Lee’s conviction, vacate Lee’s sentence,
and remand for resentencing without the ACCA enhancement.
We first address Lee’s claim that the district court
constructively amended the indictment. The indictment charged
Lee with possessing “approximately ten rounds” of ammunition.
Three of these rounds were found in Lee’s pocket while the rest
were found in a nearby firearm. During deliberations, the
jurors inquired whether they could convict Lee of possessing
only three rounds. Over Lee’s objection, the district court
answered that they could, as long as they unanimously agreed
regarding which rounds Lee possessed. Lee contends that this
instruction constructively amended the indictment.
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“We review the correctness of a jury instruction regarding
the elements of an offense,” including claims that the
challenged instruction constructively amended the indictment,
“de novo, as a question of law.” United States v. Ali, 735 F.3d
176, 186 (4th Cir. 2013). A district court constructively
amends an indictment when it, “through its instructions to the
jury, . . . broadens the bases for conviction beyond those
charged in the indictment.” United States v. Allmendinger, 706
F.3d 330, 339 (4th Cir. 2013). However, when the indictment
alleges multiple facts that could each independently establish
an element of the offense, the jury may properly convict based
on any of those facts. United States v. Robinson, 627 F.3d 941,
958 (4th Cir. 2010).
The indictment alleged that Lee possessed approximately ten
rounds of ammunition. Because a finding that he possessed any
of these rounds could independently establish that he possessed
ammunition, we conclude that the jury was permitted to convict
based on its unanimous finding that he possessed the three
rounds that were recovered from his pocket. Cf. Allmendinger,
706 F.3d at 339-40 (finding no constructive amendment where
Government “proved a more narrow conspiracy than was charged”).
Accordingly, we affirm Lee’s conviction.
We next consider whether the district court erred by
applying the ACCA. Because Lee did not argue in the district
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court that his prior convictions were not violent felonies, we
review this issue for plain error. United States v. Fuertes,
805 F.3d 485, 497 (4th Cir. 2015), cert. denied, 136 S. Ct. 1220
(2016). To demonstrate plain error, Lee “must show: (1) there
was an error; (2) the error was . . . [plain]; [and] (3) the
error affected [his] substantial rights.” Id. (internal
quotation marks omitted). “An error is plain if the settled law
of the Supreme Court or this circuit establishes that an error
has occurred.” United States v. Carthorne, 726 F.3d 503, 516
(4th Cir. 2013). In determining whether an error is plain, we
examine the state of the law at the time of our review, not at
the time of the district court’s decision. Id.
The ACCA applies only if the defendant “has three previous
convictions . . . for a violent felony or a serious drug
offense, or both.” 18 U.S.C. § 924(e)(1). Under Johnson, a
felony is considered “violent” only if it “has as an element the
use, attempted use, or threatened use of physical force against
the person of another” or “is burglary, arson, or extortion,
[or] involves use of explosives.” 18 U.S.C. § 924(e)(2)(B); see
Johnson, 135 S. Ct. at 2563. The district court applied the
ACCA based upon three prior North Carolina felony convictions:
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(1) second-degree murder, (2) voluntary manslaughter, and (3)
attempted second-degree arson. 1
Under North Carolina law, “[t]he elements of an attempt to
commit any crime are: (1) the intent to commit the substantive
offense, and (2) an overt act done for that purpose which goes
beyond mere preparation, but (3) falls short of the completed
offense.” State v. Miller, 477 S.E.2d 915, 921 (N.C. 1996).
“The elements of [North Carolina] second-degree arson are: (1)
the willful and malicious burning (2) of the dwelling (i.e.,
inhabited) house of another; (3) which is unoccupied at the time
of the burning.” State v. Scott, 564 S.E.2d 285, 293 (N.C. Ct.
App. 2002). Because attempted second-degree arson does not
require that the defendant commit the offense of arson, but
instead requires that that offense not be completed, we conclude
that it does not constitute generic arson under the ACCA. Cf.
James v. United States, 550 U.S. 192, 197 (2007) (holding that
attempted burglary under Florida law did not constitute generic
burglary because Florida attempt statute required that attempt
1
Lee also has a prior North Carolina conviction for felony
common-law robbery. The Government argues that this conviction
provides another ACCA predicate. However, after the Government
filed its supplemental brief, we held in United States v.
Gardner, __ F.3d __, No. 14-4533, 2016 WL 2893881, at *5-8 (4th
Cir. May 18, 2016), that North Carolina common-law robbery is
not a valid ACCA predicate under Johnson. Accordingly, Gardner
precludes the use of Lee’s robbery conviction as an ACCA
predicate.
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not succeed), abrogated on other grounds by Johnson, 135 S. Ct.
at 2563. Nor does attempted second-degree arson require the
use, attempted use, or threatened use of physical force against
the person of another. Accordingly, we conclude that the
district court plainly erred under Johnson in relying on Lee’s
attempted second-degree arson conviction as an ACCA predicate.
We need not decide whether the district court plainly erred in
relying on Lee’s murder and manslaughter convictions as ACCA
predicates because even if these predicates are not implicated
by Johnson, they provide only two of the three violent felonies
required for an enhancement under the ACCA. 2
Although the district court correctly applied the ACCA
under the law that existed at the time of sentencing, this
decision is plainly erroneous in light of Johnson and its
progeny. This error affected Lee’s substantial rights by
increasing his statutory term of imprisonment from a maximum of
10 years to a minimum of 15 years. See 18 U.S.C. § 924(a)(2),
(e) (2012). Accordingly, we affirm Lee’s conviction, vacate
Lee’s sentence, and remand for resentencing without the ACCA
enhancement. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials
2Because we hold that the ACCA is inapplicable, we do not
reach Lee’s argument that the district court erred by failing to
submit his prior convictions to the jury.
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before this court and argument would not aid the decisional
process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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