United States v. Royal

• Decision Date: 01 October 2013
• Docket Number: No. 10–5296.,10–5296.
• Citation: 731 F.3d 333
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Thomas ROYAL, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

731 F.3d 333

UNITED STATES of America, Plaintiff–Appellee,

v.Thomas ROYAL, Defendant–Appellant.

No. 10–5296.

United States Court of Appeals,Fourth Circuit.

Argued: Oct. 26, 2012.

Decided: Oct. 1, 2013.

ARGUED:James Christopher Fraser, Venable, LLP, Baltimore, Maryland, for Appellant. John Walter Sippel, Jr., Office of the United States Attorney, Baltimore, Maryland, for Appellee. ON BRIEF:James Wyda, Federal Public Defender, Baltimore, Maryland, Paresh S. Patel, Office of the Federal Public Defender, Greenbelt, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, Baltimore, Maryland, for Appellee.

Before TRAXLER, Chief Judge, DIAZ, Circuit Judge, and CATHERINE C. EAGLES, United States District Judge for the Middle District of North Carolina, sitting by designation.

DIAZ, Circuit Judge:

Thomas Royal was convicted by a jury of unlawfully possessing ammunition after being previously convicted of a crime punishable by imprisonment for a term exceeding one year, in violation of 18 U.S.C. § 922(g)(1). At sentencing, the district court determined that Royal was an armed career criminal under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), triggering a fifteen-year mandatory minimum sentence. The court sentenced him to 188 months' imprisonment.

Royal advances three arguments on appeal. First, he contends the government failed to present sufficient evidence to convict him of knowingly possessing “ammunition,” arguing that since the rounds he possessed were loaded in an antique firearm, the government had a burden to show that the rounds were actually designed for use in a non-antique firearm. Second, Royal asserts that the district court committed plain error when it instructed the jury that the phrase “knowingly possessed ammunition” meant that Royal knew the rounds were “ammunition as we commonly use the word.” Finally, Royal argues that the district court reversibly erred by using the modified categorical approach to determine that his prior conviction under Maryland's second-degree assault statute constituted a predicate conviction under the ACCA. We conclude that sufficient evidence supported the jury's verdict and that the district court did not err in its jury instructions. However, in light of the Supreme Court's recent holding in Descamps v. United States, ––– U.S. ––––, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), we sustain Royal's challenge to the district court's application of the modified categorical approach and its imposition of the ACCA sentencing enhancement. Accordingly, we affirm in part, vacate in part, and remand for resentencing.

I.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the government. United States v. Herder, 594 F.3d 352, 358 (4th Cir.2010).

A.

On January 8, 2009, Sergeant Jones and Detective Rayam of the Baltimore, Maryland Police Department stopped Thomas Royal for driving with an expired registration plate. During the stop, Detective Rayam observed Royal place his hand in his front left jacket pocket, where Rayam noticed a bulge. Suspecting criminal activity, the officers asked if they could search the car. After initially consenting to the search, Royal grew agitated and attempted to push his way past Detective Rayam. Sergeant Jones used his Taser device to subdue him, and a subsequent search of Royal's person revealed an antique Iver Johnson revolver loaded with five .32 caliber rounds.

Since Royal had previously been convicted of second-degree assault, “a crime punishable by imprisonment for a term exceeding one year,” the federal Gun Control Act (“GCA”) prohibited him from knowingly possessing “any firearm or ammunition” that has traveled in interstate commerce. 18 U.S.C. § 922(g)(1). “Firearm” and “ammunition” are defined terms under the GCA. As is relevant here, the term “firearm” explicitly “does not include an antique firearm,” which is any firearm “manufactured in or before 1898.” Id. § 921(a)(3), (a)(16)(A). “The term ‘ammunition’ means ammunition ... designed for use in any firearm.” Id. § 921(a)(17)(A).

Royal was charged in a one-count indictment for possession of ammunition by a prohibited person, in violation of GCA § 922(g)(1). At trial, the government called Special Agent David Collier of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) as “an expert in identification of firearms and ammunition” and the “interstate nexus of firearms and ammunition.”

Collier testified that Royal's revolver had been manufactured in 1895 and therefore, for the purposes of the GCA, was an “antique firearm,” which is not a “firearm.” Collier also testified that the rounds had been manufactured outside Maryland and had traveled in interstate commerce. He gave no testimony about whether Royal's rounds had been “designed for use in any firearm” such that they technically fell within the statute's definition of “ammunition,” but conceded on cross-examination that he did not know the dates of the rounds' manufacture.

The evidence showed that the rounds were .32 caliber, and manufactured by the arms companies Remington and Winchester. The rounds themselves were also entered into evidence and published to the jury. The government presented no specific evidence as to the rounds' design. Nor, aside from cross-examining Collier about the rounds' manufacture dates, did Royal himself raise any issues concerning the design of the ammunition.

At the close of the government's case, Royal moved under Fed.R.Crim.P. 29 for a judgment of acquittal, arguing that the government had presented insufficient evidence to support a guilty verdict. The district court denied the motion. Royal advanced no defense but renewed his Rule 29 motion, which the court again denied.

After closing arguments, the district court instructed the jury that the government needed to prove that Royal knowingly possessed one or more pieces of ammunition. It read them the GCA's statutory definition of ammunition: “ ‘Ammunition’ is ammunition or cartridge cases, primers, bullets, or propellant powder designed for use in any firearm,” J.A. 148. With respect to the mens rea component, the district court instructed the jury, without objection from Royal, that “whether the defendant acted knowingly ... means [whether] he knew that the ammunition was ammunition as we commonly use the word.” The jury returned a guilty verdict on the sole count.

A conviction for being a felon in possession of a firearm or ammunition normally carries a maximum penalty of ten years in prison. 18 U.S.C. § 924(a)(2). However, at Royal's sentencing, the government argued that he was subject to a fifteen-year mandatory minimum sentence because he had three prior convictions “for a violent felony or serious drug offense,” id. § 924(e)(1), including a 2007 guilty plea to Maryland second-degree assault. Royal argued that under the categorical approach, this conviction did not qualify as a “violent felony” because “violent force” is not categorically required for a conviction under Maryland's second-degree assault statute. The district court rejected this argument and, following our decision in United States v. Alston, 611 F.3d 219 (4th Cir.2010), applied the so-called modified categorical approach to conclude that, based on facts admitted in his plea colloquy, Royal's 2007 second-degree assault conviction was indeed a violent felony. The district court thus applied the ACCA § 924(e)(1) enhancement and sentenced Royal to fifteen years and eight months in prison. Royal timely appealed. Following oral argument, we placed the case in abeyance pending the Supreme Court's decision in Descamps, which issued in June 2013.

II.

The issues before us are (1) whether Royal was entitled to a Rule 29 judgment of acquittal due to insufficient evidence; (2) whether the district court committed plain error when it instructed the jury that the phrase “knowingly possessed ammunition” meant “[Royal] knew the ammunition was ammunition as we commonly use the word”; and (3) whether the district court erred in applying the modified categorical approach to determine that Royal's 2007 Maryland second-degree assault conviction qualified as a predicate “violent felony” under the ACCA.

A.

We first consider Royal's argument that he was entitled to a judgment of acquittal because the government offered insufficient evidence to support his conviction. We review de novo the district court's decision to deny a defendant's Rule 29 motion for judgment of acquittal. United States v. Smith, 451 F.3d 209, 216 (4th Cir.2006). On an appeal challenging the sufficiency of evidence, we assess the evidence in the light most favorable to the government, and the jury's verdict must stand unless we determine that no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Young, 609 F.3d 348, 355 (4th Cir.2010).

In order to prove that Royal possessed ammunition in violation of the GCA, the government was required to prove beyond a reasonable doubt that (1) Royal was a convicted felon; (2) he knowingly possessed ammunition; and (3) the ammunition had traveled in interstate commerce. See United States v. Moye, 454 F.3d 390, 395 (4th Cir.2006). Royal challenges the sufficiency of the government's evidence as to only the second prong, insisting that the government failed to show that the five rounds found in his revolver were “ammunition” within the statute's definition. Specifically, he argues that the government never met its burden of proving beyond a reasonable doubt that the rounds were “designed for use in any firearm”; that is, the government never showed that the rounds were designed for use in any non-antique firearm. One of our sister circuits has helpfully articulated this distinction:

Bullets are “ammunition” if they are “designed for use in any firearm.” 18 U.S.C. § 921(a)(17)( [A] ) (emphasis added). If these bullets had been designed exclusively...