setting forth documents on which courts may modified categorical approach
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- setting forth documents on which courts may modified categorical approach
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The opinion
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4452
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
THURMAN DOMINICK BROWN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William M. Nickerson, Senior District
Judge. (1:07-cr-00479-WMN-1)
Submitted: September 2, 2010 Decided: September 17, 2010
Before KING, DUNCAN, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Gary E. Proctor, THE LAW OFFICES OF GARY E. PROCTOR, Baltimore,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, Rachel M. Yasser, Assistant United States Attorney,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Thurman Dominick Brown appeals the 180-month sentence
imposed following his conviction by a jury of possession of a
firearm by a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1) (2006). On appeal, Brown argues that his 2003
second degree assault conviction was not a violent felony * and,
therefore, that the district court erred in designating him an
armed career criminal under the Armed Career Criminal Act
(“ACCA”). Finding no reversible error, we affirm.
Under the ACCA, a violent felony is any crime
punishable by more than one year of imprisonment that “has as an
element the use, attempted use, or threatened use of physical
force against the person of another.” 18 U.S.C.A.
§ 924(e)(2)(B)(i) (West 2000 & Supp. 2010). When determining
whether a conviction qualifies as a violent felony, “we use the
required categorical approach, which takes into account only the
definition of the offense and the fact of conviction.” United
States v. Pierce, 278 F.3d 282, 286 (4th Cir. 2002). We have
recognized, however, that a conviction for second degree assault
in Maryland is not per se a violent felony for purposes of the
ACCA. United States v. Harcum, 587 F.3d 219, 224 (4th Cir.
*
Brown does not dispute that his two 2004 drug convictions
are predicate offenses under the ACCA.
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2009). Thus, we must use a modified categorical approach and
“look beyond the definition of the crime to examine the facts
contained in the charging document on which the defendant was
convicted.” United States v. Kirksey, 138 F.3d 120, 124 (4th
Cir. 1998); see Shepard v. United States, 544 U.S. 13, 26 (2005)
(setting forth documents on which courts may rely in using
modified categorical approach); see also United States v. Simms,
441 F.3d 313, 315-18 (4th Cir. 2006) (using Kirksey analysis of
Maryland assault statute in ACCA analysis).
With these standards in mind, we have reviewed the
record on appeal and conclude that Brown’s second degree assault
conviction constitutes a violent felony for purposes of the
ACCA. Thus, the district court did not err in designating Brown
an armed career criminal. Accordingly, we affirm the judgment
of the district court.
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
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