United States v. Brown

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 94-5731

WARDELL BROWN,

Defendant-Appellant.

Appeal from the United States District Court

for the District of South Carolina, at Columbia.

Joseph F. Anderson, Jr., District Judge.

(CR-93-277-3)

Submitted: February 7, 1996

Decided: February 29, 1996

Before MURNAGHAN and WILLIAMS, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Allen B. Burnside, Assistant Federal Public Defender, Columbia,

South Carolina, for Appellant. Sean Kittrell, OFFICE OF THE

UNITED STATES ATTORNEY, Columbia, South Carolina, for

Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Wardell Brown appeals from his conviction by a jury for possess-

ing a firearm as a felon, 18 U.S.C.A. §§ 922(g), 924(e) (West Supp.

1995). The district court sentenced Brown as an armed career crimi-

nal under § 924(e) and USSG § 4B1.4. 1 to 262 months' imprisonment.

Counsel has filed a brief pursuant to Anders v. California, 386 U.S.

738 (1967), raising three issues but stating that in his view there exist

no nonfrivolous grounds for appeal. Brown has filed a supplemental

brief raising two additional issues. After a complete review of the

entire record, we affirm.

First, Brown contends that the evidence was insufficient to support

his conviction. The evidence adduced at Brown's trial consisted of the

testimony of the two arresting officers, Jerry Maldonado and Jeffrey

Naylor. According to those officers, they received a radio dispatch to

be on the look-out for an individual by the name of Wardell wearing

a camouflage army jacket and a blue skull cap. Maldonado spotted

Brown walking down Main Street and matching the description

received by the dispatcher. When asked to come to the patrol car,

Brown ran and was seen throwing an object which was retrieved and

turned out to be a .32 caliber handgun. The officers also retrieved six

rounds of matching ammunition on Brown's person. It is undisputed

that Brown has several prior felony convictions. We find this evi-

dence sufficient to support Brown's conviction for being a felon in

possession of a firearm. See Glasser v. United States, 315 U.S. 60, 80

(1942) (conviction must be sustained if, viewing the evidence in the

light most favorable to the Government, there exists substantial evi-

dence to support the verdict).

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1 United States Sentencing Commission, Guidelines Manual (Nov.

1993).

2

Second, Brown contends that the district court abused its discretion

by refusing to define reasonable doubt after requested to do so by the

jury. The jury sent a note requesting a definition of reasonable doubt.

The district court declined the request, but recharged the jury with its

original instruction on reasonable doubt. Because that instruction met

constitutional standards, the district court did not abuse its discretion

in refusing to further define reasonable doubt. See United States v.

Reives, 15 F.3d 42 (4th Cir. 1994) (district court may refuse to give

definition of "reasonable doubt" even when definition is requested by

jury), cert. denied, 62 U.S.L.W. 3825 (U.S. June 13, 1994).

Third, Brown alleges that he was improperly sentenced under

§ 924(e) because the four state convictions (occurring in 1971, 1975,

1981, and 1988) relied upon to sentence him as an armed career crim-

inal were classified as misdemeanors under state law. Section

924(e)(1) establishes a mandatory minimum sentence of fifteen years

without parole for any person who has violated 18 U.S.C. § 922(g)

and who has had at least three prior convictions for, inter alia, a "vio-

lent felony." Section 924(e)(2)(B) defines a"violent felony" to

include "any crime punishable by imprisonment for a term exceeding

one year." Section 921(a)(20) provides that this definition excludes

"any State offense classified by the laws of the State as a misdemea-

nor and punishable by a term of imprisonment of two years or less."

Although South Carolina categorized Brown's offenses (assault

and battery of a high and aggravated nature) as misdemeanors, each

carried a possible ten-year sentence. And Brown received sentences

on those convictions of four years, ten years, ten years, and nine

years, respectively. Therefore, they qualify as felonies for purposes of

§ 924(e).

Brown raises two additional grounds for appeal in his supplemental

brief. First he claims that the district court committed a Batson2 error

by granting the Government's reverse Batson motion during the first

jury selection. However, any such claim was rendered moot because

Brown was allowed to choose a second jury from a different panel

and was allowed to use all ten strikes without objection.

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2 Batson v. Kentucky, 476 U.S. 79 (1986).

3

Second, Brown alleges that the arresting officers failed to obtain a

signed written Miranda3 waiver from him. However, there is no such

requirement under Miranda. See United States v. Sledge, 546 F.2d

1120 (4th Cir.), cert. denied, 430 U.S. 910 (1977) (information on

Miranda rights may be given either in written or oral form).

Accordingly, we affirm the conviction and the sentence imposed by

the district court. In accordance with Anders , we have examined the

entire record in this case and find no meritorious issues for appeal.

This court requires that counsel inform his client, in writing, of his

right to petition the Supreme Court of the United States for further

review. If the client 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. Coun-

sel's motion must state that a copy thereof was served on the client.

We dispense with oral argument because the facts and legal conten-

tions are adequately presented in the record and briefs and oral argu-

ment would not aid the decisional process.

AFFIRMED

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3 Miranda v. Arizona, 384 U.S. 436 (1966).

4