United States v. Hutchinson

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 04-5093

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ANTHONY RANIER HUTCHINSON,

Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Rock Hill. Matthew J. Perry, Jr., Senior
District Judge. (CR-04-358)

Submitted: August 31, 2005 Decided: September 28, 2005

Before LUTTIG, KING, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion.

James Shadd, III, JOHNSON, TOAL & BATTISTE, P.A., Columbia, South
Carolina, for Appellant. Jonathan S. Gasser, Acting United States
Attorney, Christopher Todd Hagins, Assistant United States
Attorney, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

Anthony Ranier Hutchinson pled guilty to possession of a

firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1)

(2000). Hutchinson argues on appeal that the district court erred

in sentencing him to 180 months imprisonment as an armed career

criminal,* 18 U.S.C.A. § 924(e) (West 2000 & Supp. 2005), because

he did not have the requisite number of prior convictions for a

“violent felony.” In so asserting, he argues that his convictions

for common law robbery and breaking and entering under North

Carolina law were not violent felonies under § 924(e)(2), and that

his convictions for two counts each of robbery with a dangerous

weapon and kidnaping should be treated as only one predicate

offense. Finding no reversible error, we affirm.

A “violent felony” is a “crime punishable by imprisonment

for a term exceeding one year . . . that (i) has as an element the

use, attempted use, or threatened use of physical force against the

person of another; or (ii) is burglary, arson, or extortion,

involves the use of explosives, or otherwise involves conduct that

presents a serious potential risk of physical injury to another.”

18 U.S.C.A. § 924(e)(2); see United States v. Letterlough, 63 F.3d

332 (4th Cir. 1995).

*
A fifteen-year minimum sentence applies to armed career
criminals. 18 U.S.C.A. § 924(e)(1). A person is an armed career
criminal if he had three previous convictions for a violent felony
or a serious drug offense or both, committed on occasions different
from one another. Id.

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 Hutchinson first argues that his conviction of common law

robbery was not a violent felony. In determining whether a

conviction is for a violent felony, the courts look to the offense

of conviction and the statutory definition and not the underlying

conduct. United States v. Coleman, 158 F.3d 199, 201-02 (4th Cir.

1998). North Carolina defines common law robbery as the felonious

nonconsensual taking of personal property or money from the person

or presence of another by means of force or placing in fear. North

Carolina v. Delk, 604 S.E.2d 368 (N.C. App. 2004). Hutchinson

argues that, because the elements of the crime did not involve the

use, attempted use, or threatened use of physical force, as

required under § 924(e)(2), this prior felony offense was not a

predicate violent felony conviction under the armed career criminal

provision. We have found that Virginia’s nearly-identical

definition of “robbery” qualifies as a violent felony. United

States v. Presley, 52 F.3d 64, 69 (4th Cir. 1995) (holding that

conviction under the Virginia robbery statute constituted a violent

felony conviction under § 924(e)(2), even though definition did not

include “physical” as a qualifier to force or violence); see North

Carolina v. Herring, 370 S.E.2d 363, 368 (N.C. 1988) (“[C]ommon law

robbery plainly, ‘has as an element the use, attempted use or

threatened use of physical force against the person of another.’”)

(citations omitted); United States v. Bowden, 975 F.2d 1080, 1082

(4th Cir. 1992) (noting that parties stipulated that North Carolina

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conviction for common law robbery was a violent offense under

§ 924(e)). Accordingly, we agree that Hutchinson’s common law

robbery conviction qualifies as a violent felony under § 924(e)(1).

Hutchinson also argues that the district court erred in

finding that his North Carolina conviction for breaking and

entering qualified as generic burglary under § 924(e)(2), because

it allows for a conviction for breaking or entering a building. We

addressed this issue in Bowden and concluded that the argument was

unavailing. Bowden, 975 F.2d at 1084-85; see Taylor v. United

States, 495 U.S. 575, 598-99 (1990).

Hutchinson’s final argument is that his convictions for

two counts of kidnaping and two counts of robbery with a dangerous

weapon should count as only one, rather than two or more violent

felony convictions, because the offense conduct resulting in the

four convictions occurred on the same occasion. We need not

resolve this issue because, even assuming Hutchinson is correct, he

has the requisite three qualifying prior convictions for armed

career criminal status: (1) common law robbery, (2) breaking and

entering, and (3) kidnaping and robbery with a dangerous weapon.

Because Hutchinson had “three previous convictions . . .

for a violent felony or a serious drug offense, or both, committed

on occasions different from one another,” he was properly found to

be an armed career criminal. See 18 U.S.C.A. § 924(e)(1).

Accordingly, we affirm Hutchinson’s 180-month sentence. We

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dispense with oral argument because the facts and legal contentions

are adequately presented in the materials before the court and

argument would not aid the decisional process.

AFFIRMED

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