United States v. King

• Citation: 673 F.3d 274
• Decision Date: 08 March 2012
• Docket Number: No. 10–5054.,10–5054.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Rashad Latron KING, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

673 F.3d 274

UNITED STATES of America, Plaintiff–Appellee,

v.Rashad Latron KING, Defendant–Appellant.

No. 10–5054.

United States Court of Appeals, Fourth Circuit.

Argued: Dec. 9, 2011.Decided: March 8, 2012.

ARGUED: Ann Briks Walsh, Office of the Federal Public Defender, Charleston, South Carolina, for Appellant. Sean Kittrell, Office of the United States Attorney, Charleston, South Carolina, for Appellee. ON BRIEF: William N. Nettles, United States Attorney, Columbia, South Carolina, for Appellee.

Before AGEE, DAVIS, and KEENAN, Circuit Judges.

Affirmed by published opinion. Judge KEENAN wrote the opinion, in which Judge AGEE and Judge DAVIS joined.

OPINION

BARBARA MILANO KEENAN, Circuit Judge:

Rashad Latron King was convicted after pleading guilty to one count of unlawful possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e)(1). On appeal, King contends that the district court committed three errors at sentencing: 1) concluding that King's prior felony conviction under South Carolina law for pointing and presenting a firearm qualified as a “crime of violence;” 2) determining that a sentence imposed upon a plea entered in accordance with North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), was a “prior sentence” for purposes of the Sentencing Guidelines; and 3) failing to provide an adequate explanation for the sentence imposed. Upon our review, we affirm the sentence imposed by the district court.

I.

In August 2006, police officers in Charleston, South Carolina, responded to a report of an ongoing domestic dispute that involved a physical assault. After arriving at the scene of the dispute, the officers observed King engaged in an argument with a female, Kenya Wigfall. The officers investigated the dispute, and conducted a “records check” of both individuals to determine whether there were any outstanding warrants for their arrest. When the officers discovered that there was an outstanding warrant for King's arrest for probation violations, King attempted to flee but was quickly apprehended. After King was arrested, the officers conducted a search of King's person and found a loaded .357 caliber revolver in his pocket.

In September 2006, a federal grand jury indicted King on one count of unlawful possession of a firearm by a convicted felon. In August 2007, King pleaded guilty to the charge, without the benefit of a plea agreement.¹

In September 2010, after King was convicted of the present offense, a probation officer prepared a final amended presentence report (PSR), which made recommendations to the district court regarding the advisory United States Sentencing Guidelines (Guidelines) calculations and several contested sentencing issues. King's extensive criminal record contained several prior convictions relevant to this appeal. This criminal record reflected that in July 2005, King was convicted of pointing and presenting a firearm at another and placing the victim in fear of her life, in violation of South Carolina Code § 16–23–410. King's record also revealed that in January 2007, he was arrested for murder after firing a gun during an altercation in which one person was killed. In April 2009, King entered an Alford plea to involuntary manslaughter based on this alleged conduct, and was sentenced to a term of 28 months' imprisonment.

The PSR recommended that King's 2005 conviction for pointing and presenting a firearm qualified as a predicate “crime of violence” under U.S.S.G. § 2K2.1(a)(4)(A), thereby resulting in a base offense level of 20. The PSR also recommended that three points be assigned to King's criminal history score on the basis of his Alford plea to the crime of involuntary manslaughter.

King objected to both recommendations. He argued that the pointing and presenting offense did not constitute a “crime of violence.” King also asserted that a conviction upon an Alford plea is not an “adjudication of guilt,” as set forth in U.S.S.G. § 4A1.2(a)(1), and thus could not have added points to his criminal history score. Before sentencing, the government filed a motion for an upward variance or an upward departure, contending that King was a recidivist offender, and that the purposes of 18 U.S.C. § 3553(a) would be served only by the imposition of a sentence above the advisory Guidelines range.

At sentencing, the district court overruled King's objections to the PSR, adopted the PSR in all respects, and determined that King's advisory Guidelines range was 46 to 57 months' imprisonment. The district court granted the government's motion for an upward variance on the basis of King's criminal history, as well as the district court's conclusion that King demonstrated a pattern of “increasing violence.” The district court imposed a sentence of 96 months' imprisonment. King appeals.

II.

King first argues that his prior South Carolina conviction for pointing and presenting a firearm does not satisfy the definition of a “crime of violence” under either of the two relevant clauses of the Guidelines, U.S.S.G. § 4B1.2(a)(1) and (2). He contends that, therefore, the district court erred in increasing his base offense level from 14 to 20. According to King, the pointing and presenting offense does not contain an element involving “the use, attempted use, or threatened use of physical force against the person of another,” as stated in the first clause of this Guidelines provision. U.S.S.G. § 4B1.2(a)(1). King further maintains that the pointing and presenting offense does not involve “conduct that presents a serious potential risk of physical injury to another,” as provided in the second clause of the Guidelines provision, because pointing and presenting a firearm is not similar to the listed examples of such crimes in that Guidelines clause. U.S.S.G. § 4B1.2(a)(2).

A.

We review de novo the issue whether a prior conviction qualifies as a “crime of violence” under the Guidelines for purposes of a sentencing enhancement. United States v. Jenkins, 631 F.3d 680, 682 (4th Cir.2011). The term “crime of violence” is defined in the Guidelines as any state or federal offense punishable by imprisonment for a term exceeding one year, that

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or

(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.

U.S.S.G. § 4B1.2(a).

We typically employ the “categorical approach” to determine whether a prior offense qualifies as a “crime of violence” under either clause of U.S.S.G. § 4B1.2(a). United States v. Seay, 553 F.3d 732, 737 (4th Cir.2009). Under the categorical approach, we consider the fact of conviction and the offense “generically,” that is, “in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion.” Begay v. United States, 553 U.S. 137, 141, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008); see also United States v. Kirksey, 138 F.3d 120, 124 (4th Cir.1998). For an offense to constitute a “crime of violence” under this approach, the offense's full range of proscribed conduct, including the least culpable proscribed conduct, must fall within the applicable Guidelines definition of that term. United States v. Chacon, 533 F.3d 250, 254–55 (4th Cir.2008).

In a “narrow range of cases” when it is “evident from the statutory definition of the state crime that some violations of the statute are ‘crimes of violence’ and others are not,” we look beyond the generic elements of the offense to the specific conduct underlying that prior offense. United States v. Diaz–Ibarra, 522 F.3d 343, 348 (4th Cir.2008). We apply this “modified categorical approach” in those narrow circumstances to ascertain whether the defendant's specific conduct qualifies as a “crime of violence.” In making this determination, we may consider only the record of conviction, which includes the charging document, the plea agreement, and the transcript of the plea colloquy, and any explicit factual findings made by the trial court. See United States v. Spence, 661 F.3d 194, 198 (4th Cir.2011) (citing Shepard v. United States, 544 U.S. 13, 20, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005)).

In determining whether King's 2005 conviction for pointing and presenting a firearm is a “crime of violence,” within the meaning of the Guidelines, we consider whether the statute under which he was convicted, South Carolina Code § 16–23–410 (Section 16–23–410), prohibits only one type of conduct or whether the statute may be violated by different types of conduct. The statute provides:

It is unlawful for a person to present or point at another person a loaded or unloaded firearm.

A person who violates the provisions of this section is guilty of a felony and, upon conviction, must be fined in the discretion of the court or imprisoned not more than five years. This section must not be construed to abridge the right of self-defense or to apply to theatricals or like performances.

Id. (emphasis added). The parties contend, and we agree, that the plain language of Section 16–23–410 proscribes only one type of conduct, namely, pointing or presenting a firearm at another.² This conclusion is supported further by the fact that a conviction under the statute is uniformly classified as a felony, with an attendant single range of punishment of imprisonment up to five years or a fine imposed by the court. See Chambers v. United States, 555 U.S. 122, 127, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009) (considering whether statute provided different offense levels and ranges of punishment in determining whether categorical or modified categorical approach should be employed). Accordingly, we apply a categorical approach to determine whether the offense of pointing and presenting a firearm qualifies as a “crime of...