UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4093
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DEANGELO SYLVESTER RIVERS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(2:07-cr-00304-DCN-1)
Submitted: January 28, 2009 Decided: February 9, 2009
Before WILKINSON, MICHAEL, and TRAXLER, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Mary Gordon Baker, Assistant Federal Public Defender, Charleston,
South Carolina, for Appellant. Kevin F. McDonald, Acting United
States Attorney, John C. Duane, Assistant United States Attorney,
Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Deangelo Sylvester Rivers pled guilty to possessing a
firearm and ammunition after being convicted of a felony, in
violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) and (e) (2006).
Rivers was found to be an armed career criminal under 18 U.S.C.
§ 924(e) (2006) and U.S. Sentencing Guidelines Manual (“USSG”)
§ 4B1.1, and was sentenced to 188 months in prison.
Pursuant to USSG § 4B1.4(a), an individual subject to an
enhanced sentence under 18 U.S.C. § 924(e) is an armed career
criminal. Section 924(e) provides that persons who violate
§ 922(g) and have three previous convictions for either a violent
felony or a serious drug offense committed on different occasions,
will be subject to no less than fifteen years in prison.
Rivers contends that the district court erred when it
found by a preponderance of the evidence that he had three violent
offenses qualifying as predicate offenses, thereby subjecting him
to enhanced penalties as an armed career criminal. Specifically,
Rivers argues that one state conviction for burglary in the third
degree and one state conviction for failure to stop for a blue
light were improperly found to be offenses that fall into the
category of “violent” offenses for purposes of § 924(e).
Burglary is specifically listed in the statutory
definition of § 924(e)(2)(B)(ii) as a violent felony. In Taylor v.
United States, 495 U.S. 575, 598-99 (1990), the Supreme Court held
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that “burglary,” for purposes of § 924(e), is limited to “generic”
burglary, that is, the “unlawful or unprivileged entry into, or
remaining in, a building or structure with intent to commit a
crime.” When the issue is contested, and the district court must
determine whether a prior conviction constitutes a violent felony,
the court must “look only to the fact of conviction and the
statutory definition of the prior offense.” Id. at 602. Taylor
held that a court normally may look only to the fact of the
conviction and the statutory definition, but because some states
define burglary broadly, to include entry into boats and cars, the
district court in such cases was authorized to examine the
indictment or information and the jury instructions to determine
whether the defendant was charged with entry of a building and the
jury had to so find in order to convict. Shepard v. United States,
544 U.S. 12, 16-17 (2005).
South Carolina law defines a “building” for purposes of
the burglary statutes, S.C. §§ 16-11-311 to 16-11-313, as “any
structure, vehicle, watercraft, or aircraft.” S.C. Code Ann. § 16-
11-310(1) (1976 & Supp. 2007). Because South Carolina broadly
defines burglary, the district court needed to look to prior
charging documents. Here, Rivers argues that a conviction for
burglary in the third degree, pursuant to S.C. Code Ann. § 16-11-
313, is not “generic burglary” as required by § 924(e), and that
the district court improperly looked to the indictment and an
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affidavit for the arrest warrant in its determination that the
burglary was of an actual building or structure. The district
court first looked to the burglary indictment, which stated that
Rivers did “willfully, unlawfully, and feloniously enter the
building of Lukes Kawasaki, located at 7001 Rivers Avenue, North
Charleston, South Carolina.”* Because the plain language of the
indictment clearly sets forth that Rivers burglarized a physical
structure with a defined street address, that is, a building, we
conclude the district court properly found that Rivers’ prior
conviction for burglary in the third degree qualified as a
predicate offense for purposes of the armed career offender
statute.
Next, Rivers argues that the district court improperly
found that his prior conviction for failing to stop for a blue
light qualifies as a violent felony for § 924(e).
While this appeal was pending, we reexamined our decision
in United States v. James, 337 F.3d 387 (4th Cir. 2003), and
determined its holding — that a failure to stop for a blue light
conviction is a violent felony — does not survive the Supreme
Court’s decision Begay v. United States, 128 S. Ct. 1581 (2008).
See United States v. Roseboro, F.3d , 2009 WL 19136 (4th Cir.
*
While the indictment charged Rivers with burglary in the
second degree, in violation of S.C. § 16-11-312, Rivers
subsequently pled to third-degree burglary. This does not affect
the type of “building” Rivers burglarized.
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Jan. 5, 2009). Instead, we concluded that the South Carolina
statute was “categorically overbroad” because it allowed conviction
for both intentional and unintentional conduct. Id. at *8.
Because it was not clear from the record on appeal whether
Roseboro’s convictions for failure to stop for a blue light
involved intentional or unintentional conduct, we found that remand
was appropriate “to allow for the district court to consult such
additional materials as may be appropriate . . . and determine from
those materials whether these convictions involved intentional
violations of [the statute].” Id. We directed that: “[I]n the
event the consultation of these additional materials establishes
Roseboro’s convictions involved intentional violations of [the
statute], the district court would be free to conclude that the
convictions are violent felonies under § 924(e)(2)(B)(ii).” Id.
We reaffirmed that even post-Begay, “[t]he intentional act of
disobeying a law enforcement officer by refusing to stop for his
blue light signal, without justification, is inherently an
aggressive and violent act, and therefore, a violent felony under
the ACCA.” Id.
As in Roseboro, it is unclear from the record in this
appeal whether Rivers’ 2001 conviction for failure to stop for a
blue light involved intentional conduct. Accordingly, we vacate
the district court’s judgment and remand for further proceedings in
accordance with this court’s directives in Roseboro.
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We 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.
VACATED AND REMANDED
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