US v. Hopeton Gooden, No. 08-4450 (4th Cir. 2009)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4450 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. HOPETON GOODEN, a/k/a Richard Doleson, a/k/a Michael Frank Burke, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at New Bern. Louise W. Flanagan, Chief District Judge. (5:06-cr-00313-FL-1) Submitted: July 31, 2009 Decided: August 14, 2009 Before WILKINSON, KING, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. Thomas P. McNamara, Federal Public Defender, G. Alan DuBois, Assistant Federal Public Defender, Eric J. Brignac, Research and Writing Specialist, Raleigh, North Carolina, for Appellant. George E.B. Holding, United States Attorney, Rudy E. Renfer, Assistant United States Attorney, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Hopeton Gooden was convicted by a jury of three charges: being an unlawful alien in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(5), 924(e)(1) (2006); possessing marijuana with intent to distribute , in violation of 21 U.S.C. § 841(a)(1) (2006), 21 U.S.C.A. § 841(b)(1)(D) (West 1999 & firearm, Supp. 2009); in violation (2006). The and of district being 18 a felon U.S.C. court §§ in possession 922(g)(1), sentenced Gooden of a 924(e)(1) under the provisions of the Armed Career Criminal Act ( ACCA ), § 924(e), imposing a term of 327 months in prison. 1 On appeal, Gooden challenges whether his 1980 federal conviction for conspiracy to commit armed bank robbery and his 1996 New York conviction for criminal possession of a weapon should be counted as violent felonies under 18 U.S.C. § 924(e)(2)(B), in light of the U.S. Supreme Court s decision in United States v. Begay, 128 S. Ct. 1581 (2008). 2 Gooden argues that the particular crimes at issue are not similar to those 1 Gooden received concurrent sentences of 327 months for the two firearm offenses and a concurrent sixty-month sentence for marijuana trafficking. 2 Although Gooden did not make this particular objection at sentencing, we review the claim de novo, since Gooden was sentenced the day before the Supreme Court decided Begay. See United States v. Thornton, 554 F.3d 443, 446 n.4 (4th Cir. 2009) (applying Begay as a new rule of law). 2 enumerated in § 924(e)(2)(B)(ii) purposeful, violent, and the enumerated offenses. and aggressive armed bank first robbery not conduct require the characteristic of We have evaluated Gooden s claims and conclude he is not entitled to relief. Gooden do Therefore, we affirm. argues that his conspiracy to commit conviction does not qualify a violent as felony conviction because a conspirator may only have a loose connection to the object of the conspiracy. After the parties filed their briefs in this appeal, however, we held that the North Carolina offense of conspiracy to commit robbery with a dangerous ACCA. weapon qualified as a predicate offense under the United States v. White, __ F.3d __, 2009 WL 1913232, (4th Cir. July 6, 2009) (No. 08-4492). The offense in White is sufficiently similar to Gooden s conspiracy conviction that we discern no basis for a different outcome here. We also find that Gooden s 1996 New York conviction for second-degree criminal possession of a weapon qualifies as a violent person felony is conviction. guilty of The criminal New York possession statute of a states: weapon in A the second degree when he possesses a machine-gun or loaded firearm with intent to use the same unlawfully against another. Penal Law § 265.03 (1996). N.Y. The U.S. Court of Appeals for the Second Circuit has held that a conviction under this statute qualifies as a violent felony conviction. 3 United States v. Lynch, 518 F.3d 164, 172-73 (2d Cir. 2008). not believe decision. Begay undercuts the We agree, and we do rationale for the Lynch In particular, we believe that this statute, by its very language, requires the type of purposeful, violent, and aggressive conduct that is characteristic of the crimes enumerated in § 924(e)(2)(B)(ii). Gooden has filed a pro se motion requesting permission to file a supplemental brief. Since Gooden is represented by counsel, we deny his motion. For the reasons conviction and sentence. stated above, we affirm Gooden s 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 4
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