US v. Marcus Byrd, No. 09-4499 (4th Cir. 2010)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4499 UNITED STATES OF AMERICA, Plaintiff Appellee, v. MARCUS JAMES BYRD, Defendant Appellant. Appeal from the United States District Court for the District of South Carolina, at Spartanburg. Henry F. Floyd, District Judge. (7:08-cr-00665-HFF-1) Submitted: August 5, 2010 Decided: November 4, 2010 Before GREGORY, SHEDD, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Scarlet B. Moore, Greenville, South Carolina, for Appellant. William N. Nettles, United States Attorney, William J. Watkins, Jr., Maxwell Cauthen, Assistant United States Attorneys, Greenville, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: After pleading guilty to one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) (2006), Marcus Byrd was sentenced to seventy months in prison. Challenging his sentence on appeal, Byrd contends that: (i) his prior felony South Carolina presenting a firearm S.C. Code Ann. violence justifying § at another 16-23-410 an convictions person, (2003), enhanced for were offense pointing and in violation of not crime[s] of level under U.S. Sentencing Guidelines Manual ( USSG ) § 2K2.1(a)(2) (2008); and (ii) the district court committed reversible error when it imposed Byrd s sentence without an individualized assessment, in violation of United States v. Carter, 564 F.3d 325 (4th Cir. 2009). After determining that no reversible error occurred, we affirm the district court s judgment. Considering Byrd s claims in reverse order, we first hold that the district court committed no reversible error when it failed to place individualized support for Byrd s sentence on the record. Byrd did not properly preserve his objection to the adequacy of the district court s sentencing procedure by asking the district Guidelines court range to based depart on from the consideration U.S.C. § 3553 (2006) factors. correctly of the calculated relevant 18 Thus, we review the district 2 court s explanation behind Byrd s sentence for plain error. See United States v. Lynn, 592 F.3d 572, 580 (4th Cir. 2010). To require vacatur of his sentence, Byrd must show that an error: (i) was made; (ii) was plain (i.e., clear or obvious); and (iii) affected his substantial rights, see United States v. Massenburg, 564 F.3d 337, 342-43 (4th Cir. 2009). other words, court s even cursory if this explanation court in assumed support that of In the district Byrd s sentence constituted an obvious error in violation of Carter, Fed. R. Crim. P. 52(b) requires Byrd to also show that the district court s sentence lack of explanation imposed. See 1423, 1433 n.4 (2009). had a Puckett v. prejudicial United effect States, 129 on the S. Ct. Byrd has made no such showing. We discern no reversible error in the district court s calculation of Byrd s Guidelines range. Section 2K2.1(a)(2) of the Sentencing Guidelines provides for a base offense level of twenty-four for an unlawful possession of a firearm conviction if the defendant subsequent to committed sustaining at any part least two of the felony instant offense convictions of either a crime of violence or a controlled substance offense. A crime of violence is defined in USSG § 4B1.2(a) as: any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that 3 (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. USSG § 4B1.2 (2008). To crimes of determine violence, whether we prior employ categorical approach. United States v. Kirksey, 138 F.3d 120, 124 (4th Cir. 1998). Under United States, U.S. constitute (1990); Taylor v. 495 a convictions 575, 600 this approach, the court may look only to the fact of conviction and the statutory definition of the prior offense. * 495 U.S. at 602. generically Taylor, Thus, the court should consider the offense i.e., in terms of how the law defines the offense and not in terms of how an individual offender might * In a narrow range of cases, resort to the statute of offense and fact of conviction will not confirm the predicate nature of the state crime. Taylor, 495 U.S. at 602. In those cases where it is evident from the statutory definition of the state crime that some violations of the statute are crimes of violence and others are not, this court applies a modified categorical approach. Soliman v. Gonzales, 419 F.3d 276, 285 (4th Cir. 2005). Because the statute at issue on this appeal criminalizes only one type of conduct, the use of a modified categorical approach would be inappropriate in this case. See United States v. Rivers, 595 F.3d 558, 563 (4th Cir. 2010) ( [O]nly when a statute prohibits different types of behavior such that it can be construed to enumerate separate crimes can a court modify the categorical approach to determine ACCA eligibility. ). 4 have committed it on a particular occasion. Begay v. United States, 553 U.S. 137, 141 (2008) (citations omitted). This court has previously held that a violation of § 16-23-410 qualifies as a predicate offense under a former version of § 4B1.2(a)(2), as well as under the Armed Career See United Criminal Act ( ACCA ), 18 U.S.C. § 924(e) (2006). States v. Thompson, 891 F.2d 507, 509 (4th Cir. 1989) (holding that a conviction under the South Carolina statute qualifies as a crime of violence under a former version of § 4B1.2(a)(2), while declining to determine whether it would qualify as a crime of violence under § 4B1.2(a)(1)); United States v. Hemingway, 38 F. App x 142, 147 (4th Cir. March 29, 2002) (No. 01-4211) (unpublished after argument) (holding that a conviction under § 16-23-410 qualifies as a violent felony under the ACCA, which defines violent felony the same as crime of violence in § 4B1.2, because pointing or presenting a firearm at another presents a serious potential risk of physical injury to another ) (internal quotation marks and citation omitted). After these holdings, however, the Supreme Court decided Begay v. United States, in which it held that a violent felony under the residual clause of the ACCA must typically involve purposeful, violent, and aggressive conduct. U.S. at 144-45. See 553 This holding is applicable to the definition of a crime of violence under § 4B1.2(a)(2). 5 United States v. Seay, 553 F.3d 732, 738-39 (4th Cir.), cert. denied, 130 S. Ct. 127 (2009). Accordingly, Byrd argued at sentencing that his § 16-23-410 convictions were not crimes of violence under USSG § 4B1.2(a)(1) because such a crime does not have as an element the use, attempted use, or threatened use of physical force against the person of another, and that Begay undercut this court s holdings in Hemingway and Thompson. In overruling Byrd s objection to his Guidelines range calculation, the district court declined to conduct a Begay-type analysis and instead found a violation of § 16-23-410 to be a crime of violence under USSG § 4B1.2(a)(1). district court correctly recognized that We find that the a person violates § 16-23-410 if he: (i) points or presents; (ii) a loaded or unloaded firearm; (iii) at another person. 589 S.E.2d 6, 8 (S.C. 2003). State v. Burton, However, the articulated elements of the crime cover a wide range of fact patterns and the only stated exceptions to the statute s coverage are when a firearm is pointed at another in self defense or when a firearm is pointed at or presented to another as part of a See S.C. Code Ann. § 16-23-410 theatrical or like performance. (2003). person Thus, although the act of pointing or presenting a firearm at another may inherently be dangerous and almost always will be accompanied by the use of physical force, Thompson, 891 F.2d at 509, it is simply not an articulated element of the 6 offense that physical force be used, attempted or threatened before a violation will occur. Accordingly, we conclude that a § 16-23-410 conviction does not constitute a crime of violence under USSG § 4B1.2(a)(1). Despite the foregoing, the South Carolina Court of Appeals recently construed the phrase to present in § 16-23410 as offer[ing] to view in a threatening manner, or to show in a threatening manner. (S.C. Ct. App. 2010). In re Spencer R., 692 S.E.2d 569, 572 In so construing, the court recognized that § 16-23-410 was not perfectly analogous to other states firearm brandishing statutes which prohibit brandishing a firearm in a rude, angry, or threatening manner, Cal. Penal Code § 417(a)(2) (West 2009), in an angry or threatening manner[,] Mo. Ann. Stat. § 571.030(1)(4) (West 2010), or in such a manner as to reasonably induce fear in the mind of another[,] Va. Code Ann. § 18.2-282(A) (2009) but nonetheless concluded that a violation of the statute will occur so long as an individual intend[s] to specifically threaten individual. See In re Spencer R., 692 S.E.2d at 573. according the another spoken on involves to the highest issue, purposeful, accordingly, still a South Carolina violation violent, and of constitutes a § 4B1.2(a)(2), even after Begay. 7 state court § 16-23-410 aggressive crime of Thus, to have necessarily conduct violence and, under Because this court may affirm the district court s judgment on any grounds apparent from the record, see United States v. Smith, 395 F.3d 516, 518-19 (4th Cir. 2005), we hold that a § 16-23-410 violence under USSG court s judgment. facts and materials legal before violation still § 4B1.2(a)(2) constitutes a and the affirm crime of district We dispense with oral argument because the contentions are adequately the and argument court presented would not in the aid the decisional process. AFFIRMED 8

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