631 F.3d 680 (4th Cir. 2011), 09-4400, United States v. Jenkins

Docket Nº:09-4400.
Citation:631 F.3d 680
Opinion Judge:KING, Circuit Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Rodney JENKINS, a/k/a Hot Rod, a/k/a JR, a/k/a Clifton Howard, a/k/a RJ, a/k/a Robney Jenkins, Defendant-Appellant.
Attorney:Joseph Murtha, Miller, Murtha & Psoras, LLC, Lutherville, Maryland, for Appellant. Christopher John Romano, Office of the United States Attorney, Baltimore, Maryland, for Appellee. Rod J. Rosenstein, United States Attorney, Baltimore, Maryland, for Appellee.
Judge Panel:Before WILKINSON, KING, and AGEE, Circuit Judges. Affirmed by published opinion. Judge KING wrote the opinion, in which Judge WILKINSON and Judge AGEE joined.
Case Date:January 31, 2011
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 680

631 F.3d 680 (4th Cir. 2011)

UNITED STATES of America, Plaintiff-Appellee,

v.

Rodney JENKINS, a/k/a Hot Rod, a/k/a JR, a/k/a Clifton Howard, a/k/a RJ, a/k/a Robney Jenkins, Defendant-Appellant.

No. 09-4400.

United States Court of Appeals, Fourth Circuit.

January 31, 2011

Argued: Oct. 29, 2010.

ARGUED:

Joseph Murtha, Miller, Murtha & Psoras, LLC, Lutherville, Maryland,

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for Appellant.

Christopher John Romano, Office of the United States Attorney, Baltimore, Maryland, for Appellee.

ON BRIEF:

Rod J. Rosenstein, United States Attorney, Baltimore, Maryland, for Appellee.

Before WILKINSON, KING, and AGEE, Circuit Judges.

Affirmed by published opinion. Judge KING wrote the opinion, in which Judge WILKINSON and Judge AGEE joined.

OPINION

KING, Circuit Judge:

Appellant Rodney Jenkins pleaded guilty in the District of Maryland to distribution of crack cocaine, in contravention of 21 U.S.C. § 841(a), and being a felon in possession of a firearm, in contravention of 18 U.S.C. § 922(g)(1). The district court enhanced Jenkins's sentence by finding him to be a " career offender" under section 4B1.1 of the Sentencing Guidelines (the " Career Offender Enhancement" ), imposing a 188-month term of imprisonment. 1 Jenkins's sole contention on appeal is that one of his two prior felony offenses of conviction-the common law offense of resisting arrest in Maryland-is not a " crime of violence" for purposes of the Career Offender Enhancement. As explained below, we affirm.

I.

On January 30, 2009, Jenkins was convicted in the district court for distribution of crack cocaine and being a felon in possession of a firearm. On April 2, 2009, the probation officer filed the presentence report (the " PSR" ) with the court, recommending that Jenkins be deemed a career offender under the Career Offender Enhancement of the Guidelines. One of the two felony convictions underlying the PSR's career offender recommendation was Jenkins's 1998 conviction of the Maryland common law offense of resisting arrest (the " Resisting Arrest Offense" ).2 According to the PSR, the applicable advisory Guidelines range was 188 to 235 months of imprisonment.

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On April 20, 2009, Jenkins submitted a sentencing memorandum to the district court and objected to the Resisting Arrest Offense being used to designate him as a career offender. On April 22, 2009, the court conducted a sentencing hearing in which it rejected Jenkins's contention, relying on our unpublished decision in United States v. Mullen, 311 Fed.Appx. 621, 623-24 (4th Cir.2009) (concluding that Resisting Arrest Offense was " crime of violence" for purposes of Career Offender Enhancement). In so ruling, the court explained: " Unless I missed something about [ Mullen ] , it establishes at least within the boundaries of the Fourth Circuit that the crime of resisting arrest is a crime of violence for guideline purposes." J.A. 44. 3 The court then adopted the PSR and sentenced Jenkins to 188 months in prison.4

Jenkins has filed a timely notice of appeal, and we possess jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.

II.

Jenkins's sole appellate contention is that the Resisting Arrest Offense is not a " crime of violence" for purposes of the Career Offender Enhancement of the Guidelines. This contention presents a legal issue that we review de novo. See United States v. Allen, 446 F.3d 522, 527 (4th Cir.2006).

A.

Our resolution of this appeal turns on whether our decision in United States v. Wardrick, 350 F.3d 446 (4th Cir.2003), has been undercut by the Supreme Court's subsequent decisions in Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), and Chambers v. United States, 555 U.S. 122, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009). Before assessing Jenkins's contention that the Resisting Arrest Offense is not a crime of violence, we briefly review the principles and requirements of the Guidelines with respect to crimes of violence and career offender status.

1.

For purposes of the Career Offender Enhancement, the Guidelines define a " crime of violence," in pertinent part, as

any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that-

....

(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)(2) (2008). Because " resisting arrest" is not one of the offenses specifically enumerated in section 4B1.2(a)(2) of the Guidelines, the Resisting Arrest Offense can be a " crime of violence" only if it falls within the " otherwise involves" clause of that subsection.5 In our Wardrick decision in 2003, we explained

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that the Resisting Arrest Offense " poses a threat of direct confrontation...

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