US v. Edward Light, Jr., No. 11-5138 (4th Cir. 2012)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-5138 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. EDWARD HARDY LIGHT, JR., Defendant - Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Martinsburg. John Preston Bailey, Chief District Judge. (3:11-cr-00017-JPB-DJJ-1) Submitted: August 14, 2012 Decided: November 29, 2012 Before WILKINSON, MOTZ, and THACKER, Circuit Judges. Affirmed by unpublished per curiam opinion. William T. Rice, Martinsburg, West Virginia, for Appellant. William J. Ihlenfeld, II, United States Attorney, Paul T. Camilletti, Assistant United States Attorney, Martinsburg, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Edward Hardy sentence imposed firearms in violation counsel Light, following furtherance of 18 for U.S.C. Light his of § Jr., a appeals guilty drug a brief to plea 262-month possessing trafficking 924(c)(1)(A) filed the offense, (2006). pursuant On to in appeal, Anders v. California, 386 U.S. 738 (1967), certifying that there were no nonfrivolous issues, but asking this court to review the district court s determination that Light had the requisite two prior felony convictions for crimes of violence such that he qualified for sentencing as a career offender. See Sentencing Guidelines Manual ( USSG ) § 4B1.1 (2010). U.S. Although advised of his right to do so, Light did not file a pro se supplemental brief. The Government did not file a response. During our initial Anders review, we discerned three nonfrivolous issues related to the career offender designation including whether, in light of our recent opinion in United States v. Gomez, 690 F.3d 194 (4th Cir. 2012), the district court erred approach. in its application of the modified categorical We directed the parties to submit merits briefs on these points. Light s attorney submitted a comprehensive brief, asking us to vacate the sentence and to remand this case for resentencing. The Government, in its brief, concedes that the district court s use of the modified categorical approach in 2 this case runs nonetheless afoul affirm of Gomez, because the but argues error is that we harmless. should For the reasons that follow, we affirm. We review de novo whether a prior conviction qualifies as a crime of enhancement. violence for purposes of a sentencing United States v. King, 673 F.3d 274, 278 (4th Cir.), cert. denied, 81 U.S.L.W. 3164 (U.S. Oct. 1, 2012) (No. 11-10786). To determine if a state conviction qualifies as a crime of violence, two interpretive methods the categorical approach and the modified potentially applicable. 966 (4th Cir. 2010). may look only to categorical 575, 602 are United States v. Clay, 627 F.3d 959, Under the categorical approach, the court the fact of conviction definition of the prior offense. U.S. approach (1990). The and the statutory Taylor v. United States, 495 categorical approach should be utilized unless the statute broadly criminalizes conduct that could be generally committed in multiple ways, some violent and some not. omitted); stated, Clay, 627 F.3d at 966 (internal quotation marks see the categorical Taylor, 495 sentencing approach only U.S. at court when may the divisible on the use-of-force element. The Government 600-02. contends As utilize statute of we the recently modified conviction is Gomez, 690 F.3d at 200. that Light s 1989 Virginia conviction for throwing a missile at an occupied vehicle, in 3 violation of Va. Code Ann. § 18.2-154 (2009), qualifies as a categorical crime designation should agree. include of violence be such affirmed that despite his the career Gomez offender error. We See USSG § 4B1.2(a)(1) (defining crime of violence to those offenses that have as an element the use, attempted use, or threatened use of physical force against the person of another ); Begay v. United States, 553 U.S. 137, 144 46 (2008) (explaining that a predicate conviction under the residual clause of 18 U.S.C. § 924(e)(2)(B) * must reflect the same type of purposeful, violent, and aggressive conduct as the specifically enumerated crimes); see also Sykes v. United States, 131 S. Ct. 2267, 2275-76 (2011) (reaffirming that sentencing courts must consider the [s]erious and substantial risks of physical injury inherent in a crime when determining whether a prior conviction qualifies as a violent felony). Although Light asserts no other challenge to the reasonableness of his sentence, because this appeal is taken pursuant to Anders, we have reviewed the sentence and conclude * We of course rely on precedents evaluating whether an offense constitutes a crime of violence under the Guidelines interchangeably with precedents evaluating whether an offense constitutes a violent felony under the [Armed Career Criminal Act], because the two terms have been defined in a manner that is substantively identical. King, 673 F.3d at 279 n.3 (quoting United States v. Jarmon, 596 F.3d 228, 231 n.* (4th Cir. 2010)). 4 that it is otherwise procedurally and substantively reasonable. The sentence is procedurally reasonable inasmuch as the district court properly calculated the applicable Guidelines range and appropriately explained the sentence in the relevant 18 U.S.C. § 3553(a) (2006) factors. States, 552 U.S. 38, 51 (2007). sentence is presumptively context of the See Gall v. United Further, the within-Guidelines substantively reasonable, discern no basis to rebut that presumption. and we United States v. Abu Ali, 528 F.3d 210, 261 (4th Cir. 2008); see Rita v. United States, 551 U.S. 338, 347 (2007). Finally, in fulfilling our duty under Anders, we next review Light s conviction. Because Light has not challenged the validity of his guilty plea in the district court, we review only for plain error. 524 27 (4th Cir. 2002). United States v. Martinez, 277 F.3d 517, Our review of the record reveals that the district court fully complied with the dictates of Fed. R. Crim. P. 11 and committed no error warranting correction on plain error review. In accordance with Anders, we have reviewed the entire record in this case and have meritorious issues for appeal. of the district court. found no other potentially We therefore affirm the judgment This court requires that counsel inform Light, in writing, of the right to petition the Supreme Court of the United States for further review. 5 If Light requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel s motion must state that a copy thereof was served on Light. We dispense with oral legal contentions are before this and argument adequately because presented in the the facts and materials court argument would not aid the decisional process. AFFIRMED 6

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