U.S. v. Roseboro, 07-4348.

• Decision Date: 05 January 2009
• Docket Number: No. 07-4348.,07-4348.
• Citation: 551 F.3d 226
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ralph Anthony ROSEBORO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

551 F.3d 226

UNITED STATES of America, Plaintiff-Appellee, v. Ralph Anthony ROSEBORO, Defendant-Appellant.

No. 07-4348.

United States Court of Appeals, Fourth Circuit.

Argued: September 23, 2008.

Decided: January 5, 2009.

ARGUED: Ross Hall Richardson, Federal Defenders of Western North Carolina, Inc., Charlotte, North Carolina, for Appellant. Adam Christopher Morris, Office of the United States Attorney, Charlotte, North Carolina, for Appellee. ON BRIEF: Claire J. Rauscher, Executive Director, Kevin A. Tate, Federal Defenders of Western North Carolina, Inc., Charlotte, North Carolina, for Appellant. Gretchen C.F. Shappert, United States Attorney, Charlotte, North Carolina, for Appellee.

Before NIEMEYER, Circuit Judge, HAMILTON, Senior Circuit Judge, and T.S. ELLIS, III, Senior United States District Judge for the Eastern District of Virginia, sitting by designation.

Vacated and remanded by published opinion. Senior Judge HAMILTON wrote the opinion, in which Senior Judge ELLIS joined. Judge NIEMEYER wrote a dissenting opinion.

OPINION

HAMILTON, Senior Circuit Judge:

The Armed Career Criminal Act (ACCA) imposes a mandatory minimum fifteen-year sentence on felons who unlawfully possess, among other things, firearms, and who also have three or more previous convictions for committing certain drug crimes or "violent felon[ies]." 18 U.S.C. § 924(e)(1). In United States v. James, this court held that a South Carolina failure to stop for a blue light violation, S.C.Code Ann. § 56-5-750(A), constitutes a violent felony under the ACCA. 337 F.3d 387, 390-91 (4th Cir.2003). The principal issue presented in this appeal is whether the test we applied in James for determining when a crime constitutes a violent felony under the ACCA survives the United States Supreme Court's decision in Begay v. United States, ___ U.S. ___, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008). We conclude that it does not.

I

The relevant facts of this case are not in dispute. On January 23, 2006, a federal grand jury sitting in the Western District of North Carolina charged Ralph Roseboro with violating 18 U.S.C. § 922(g)(1), which prohibits felons from possessing, among other things, firearms. On June 29, 2006, a jury convicted Roseboro of this offense.

In preparation for sentencing, a probation officer prepared a presentence investigation report (PSR). The probation officer calculated Roseboro's Base Offense Level to be 14, United States Sentencing Commission, Guidelines Manual (USSG), § 2K2.1(a)(6). Two levels were added because the firearm Roseboro possessed was stolen. Id. § 2K2.1(b)(4). Because Roseboro possessed the firearm in connection with another felony offense, namely, burglary, Roseboro's Offense Level was increased by four more levels. Id. § 2K2.1(b)(5). Finally, because the probation officer determined that Roseboro obstructed justice, Roseboro's Offense Level was increased by two more levels, id. § 3C1.1, resulting in a Total Offense Level of 22. The Total Offense Level of 22, when coupled with a Criminal History Category VI, produced a sentencing range of 84 to 105 months' imprisonment.

Both the government and Roseboro filed objections to the PSR. The government objected to the PSR on the basis that it did not reflect that Roseboro was an Armed Career Criminal under the ACCA. Section 924(e)(1) provides:

[A] person who violates section 922(g) of this title and has three previous convictions . . . for a violent felony . . . committed on occasions different from one another, such person shall be . . . imprisoned not less than fifteen years.

18 U.S.C. § 924(e)(1). The term "violent felony" is defined as any crime punishable by imprisonment for a term exceeding one year that either "has as an element the use, attempted use, or threatened use of physical force against the person of another," id. § 924(e)(2)(B)(i), or "is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." Id. § 924(e)(2)(B)(ii). According to the government Roseboro's three prior South Carolina failure to stop for a blue light convictions were violent felonies because each of those convictions involved conduct that presented a serious potential risk of physical injury to another.¹

Roseboro objected to the PSR on the basis that the § 2K2.1(b)(4) and § 2K2.1(b)(5) enhancements were not warranted. Consequently, Roseboro urged the probation officer to reduce his Total Offense Level by 6 levels, resulting in a Total Offense Level of 16, which when coupled with a Criminal History Category VI, resulted in a sentencing range of 46 to 57 months' imprisonment.

Roseboro also objected to the government's suggestion that he was an Armed Career Criminal. According to Roseboro, under the categorical approach, he was not eligible for any of the career offender enhancements (Armed Career Criminal or Career Offender) because none of his South Carolina failure to stop for a blue light violations were either a crime of violence or a violent felony.²

The probation officer sided with the government and concluded that Roseboro was an Armed Career Criminal based on his conclusion that Roseboro's three South Carolina failure to stop for a blue light convictions were violent felonies. The effect of this conclusion had a significant impact on Roseboro's sentencing range. The PSR's recommended sentencing range moved from 84 to 105 months' imprisonment (Total Offense Level of 22/Criminal History Category VI) to 262 to 327 months' imprisonment (Total Offense Level of 34/Criminal History Category VI).

In preparation for sentencing, both the government and Roseboro filed sentencing memorandums. Roseboro argued, among other things, that his three prior South Carolina failure to stop for a blue light convictions were not violent felonies because the offenses did not "categorically meet the definition of a violent felony as defined in 18 U.S.C. § 924(e)." In response, the government contended that the issue was controlled by our decision in James, where we held that a South Carolina failure to stop for a blue light violation was a violent felony because the offense involved "the potential for serious injury to another." 337 F.3d at 391.

At sentencing, in arguing against the conclusion that he was an Armed Career Criminal, Roseboro rested on his pleadings and made a variety of arguments to the district court, all of which were rejected. Agreeing with both the probation officer and the government that Roseboro was an Armed Career Criminal, the district court calculated Roseboro's sentencing range to be 262 to 327 months' imprisonment. In sentencing Roseboro, the district court expressly considered the factors in 18 U.S.C. § 3553(a) and sentenced Roseboro to the low end of the sentencing range, 262 months' imprisonment.

Roseboro noted a timely appeal.

II

A

In James, we addressed the question of whether a South Carolina failure to stop for a blue light violation was a violent felony under the ACCA. In resolving this question, we first determined that, under South Carolina law, a failure to stop for a blue light violation was a crime punishable by a term of imprisonment exceeding one year. 337 F.3d at 390 (noting that a violation of § 56-5-750(A), first offense, is punishable by a term of imprisonment of up to three years). After examining the elements of a South Carolina failure to stop for a blue light violation, we determined that the offense did not have as an element the use, attempted use, or threatened use of physical force against another person. Id. Consequently, we turned to whether a South Carolina failure to stop for a blue light violation otherwise involved conduct that presented a serious potential risk of physical injury to another person. Id. In assessing this question, we applied a "`categorical approach, whereby the court looks only at the fact of conviction and the statutory definition of the offense, and not to the underlying facts of a specific conviction.'" Id. (quoting United States v. Thomas, 2 F.3d 79, 80 (4th Cir.1993)).<sup>3</sup> Under this approach, we asked whether the statute at issue "`proscribe[d] generic conduct with the potential for serious physical injury to another.'" Id. (quoting United States v. Custis, 988 F.2d 1355, 1363 (4th Cir.1993)); see also United States v. Hairston, 71 F.3d 115, 118 (4th Cir.1995) (holding that any escape, even an escape by stealth, created a serious potential risk of physical injury to another and, therefore, an escape offense, however effected, is a violent felony under § 924(e)(1)(B)(ii)). In concluding that a South Carolina failure to stop for a blue light violation posed a potential for serious physical injury to another, we stated:

Applying the categorical approach, we find that failing to stop for a blue light generally proscribes conduct that poses the potential for serious injury to another.

Most cases of failing to stop for a blue light involve the deliberate choice by the driver to disobey the police officer's signal. This disobedience poses the threat of a direct confrontation between the police officer and the occupants of the vehicle, which, in turn, creates a potential for serious physical injury to the officer, other occupants of the vehicle, and even bystanders.

James, 337 F.3d at 390-91.

If the analysis set forth in James is controlling, the outcome of this case is straightforward. Unquestionably, under James, Roseboro's three prior South Carolina failure to stop for a blue light violations are violent felonies. The question we must address is whether the Supreme Court's decision in Begay fundamentally altered the § 924(e)(2)(B)(ii) inquiry such that the test applied in James does not control the outcome of this case. To answer this question, we need to turn to the Supreme Court's decision in Begay.

In Begay, the Supreme Court addressed whether the offense of driving under the influence of alcohol (DUI) was a...