US v. Darryl Johnson, No. 12-4549 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4549 UNITED STATES OF AMERICA, Plaintiff Appellee, v. DARRYL LEE JOHNSON, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Charleston. David C. Norton, District Judge. (2:08-cr-00930-DCN-7) Submitted: January 29, 2013 Before MOTZ and Circuit Judge. SHEDD, Circuit Decided: Judges, and February 6, 2013 HAMILTON, Senior Affirmed by unpublished per curiam opinion. N. Elliott Barnwell, Charleston, South Carolina, for Appellant. Sean Kittrell, Peter Thomas Phillips, Assistant United States Attorneys, Charleston, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Darryl possess with Lee intent Johnson to pleaded distribute guilty and to conspiracy distribute heroin, to in violation of 21 U.S.C. §§ 841(a), 841(b)(1)(C), 846 (2006); and three counts of possession with intent to distribute and distribution of heroin, in violation of 21 U.S.C. §§ 841(a), (b)(1)(C) (2006). The district court sentenced Johnson to 151 months of imprisonment, following its finding that Johnson was a career offender based on his prior South Carolina convictions for possession with intent to distribute marijuana and assault and battery of a high and aggravated nature ( ABHAN ). appealed, and we district court to vacated the determine, sentence under and the remanded modified Johnson for the categorical approach, whether Johnson s prior ABHAN conviction qualified as a predicate offense for purposes enhancement under the Guidelines. of the career offender United States v. Johnson, 475 F. App x 494 (4th Cir. 2012) (unpublished). On remand, the district court again concluded that Johnson was a career offender, and resentenced him to 151 months of imprisonment. Johnson now appeals. Appellate counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), questioning whether the district court erred in finding that Johnson s violence. ABHAN conviction qualified as a crime of Although Johnson was informed of the right to file a 2 supplemental pro se brief, he has not done so. For the reasons that follow, we affirm. We review the district court s conclusion that Johnson s prior offense was a crime of violence for sentencing enhancement purposes de novo. See United States v. Gomez, 690 F.3d 194, 197 (4th Cir. 2012). Under the Sentencing Guidelines, a defendant eighteen is years conviction, the classified old at the offense of as a career time he offender committed conviction is a the if he was offense felony crime of of violence or controlled substance offense, and he has sustained at least two prior felony convictions for crimes of violence or controlled substance offenses. U.S. Manual ( USSG ) § 4B1.1(a) (2012). Sentencing Guidelines A crime of violence is an offense punishable by a term exceeding one year of imprisonment that (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(a). Under the modified categorical approach, applied only when a statute prohibits different types of behavior such that it can be construed to enumerate separate crimes, a district court must determine which part 3 of the statute at issue a defendant violated, without recourse to whether the specific conduct of the defendant constituted a purposeful, violent, and aggressive act. Gomez, 690 marks and citation omitted). guilty plea, the court F.3d at 198 (internal quotation In so doing, in the context of a may review the terms of the plea agreement, the transcript of the plea colloquy and the factual basis for determine the plea, whether a or other prior felony or crime of violence. 1 comparable conviction judicial constituted records a to violent See Shepard v. United States, 544 U.S. 13, 26 (2005). Under offense that South Carolina requires an law, unlawful ABHAN act is of accompanied by circumstances of aggravation. a common violent law injury State v. White, 605 S.E.2d 540, 543 (S.C. 2004) (internal quotation marks and citation omitted). 2 The circumstances of aggravation include the use of a deadly weapon, the intent to commit a felony, infliction of serious bodily injury, great disparity in the ages 1 The determination of whether an offense is a violent offense under the Armed Career Criminal Act is the same as the determination of whether an offense qualifies under the career offender provisions of the Guidelines. See Gomez, 690 F.3d at 197. 2 Johnson was convicted of ABHAN in 2008, prior to the codification of that offense in South Carolina. See State v. Green, 724 S.E.2d 664, 674 n.9 (S.C. 2012) (citing S.C. Code Ann. § 16-3-600 (Supp. 2011)). 4 or physical conditions of the parties, a difference in gender, the purposeful infliction of shame and disgrace, taking indecent liberties or familiarities lawful authority. with a female, and resistance to Id. (internal quotation marks and citation omitted); see also Johnson v. United States, 130 S. Ct. 1265, 1269 (2010) (federal courts are bound by the state supreme court s interpretation of state law, including determination of the elements of the offense). Here, the district court correctly concluded, as Johnson concedes, that the transcript of Johnson s guilty plea demonstrates that the offense of conviction involved the aggravating circumstance of infliction of serious bodily injury. We conclude that this offense has as an element the use, attempted use, or threatened use of physical force against the person of another. See USSG § 4B1.2(a)(1); see also United States v. Wright, 594 F.3d 259, 263 (4th Cir. 2010) (conviction for aggravated assault and battery is violent felony because it has as an element the use, attempted use, or threatened use of physical force against person of another). We therefore further conclude that the district court did not err in determining that Johnson s prior conviction for ABHAN qualified as a crime of violence under the modified categorical therefore a career offender. 5 approach and he was We have examined the entire record in accordance with the requirements of Anders and have found no meritorious issues for appeal. Accordingly, we affirm the judgment of the district court. This court requires that counsel inform Johnson, in writing, of the right to petition United States for further review. the Supreme Court of the If Johnson 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 Johnson. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 6

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