United States v. Gooden

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 08-4450

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

HOPETON GOODEN, a/k/a Richard Doleson, a/k/a Michael Frank
Burke,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Louise W. Flanagan,
Chief District Judge. (5:06-cr-00313-FL-1)

Submitted: July 31, 2009 Decided: August 14, 2009

Before WILKINSON, KING, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Eric J. Brignac, Research and
Writing Specialist, Raleigh, North Carolina, for Appellant.
George E.B. Holding, United States Attorney, Rudy E. Renfer,
Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Hopeton Gooden was convicted by a jury of three

charges: being an unlawful alien in possession of a firearm, in

violation of 18 U.S.C. §§ 922(g)(5), 924(e)(1) (2006);

possessing marijuana with intent to distribute , in violation of

21 U.S.C. § 841(a)(1) (2006), 21 U.S.C.A. § 841(b)(1)(D) (West

1999 & Supp. 2009); and being a felon in possession of a

firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(e)(1)

(2006). The district court sentenced Gooden under the

provisions of the Armed Career Criminal Act (“ACCA”), § 924(e),

imposing a term of 327 months in prison. 1

On appeal, Gooden challenges whether his 1980 federal

conviction for conspiracy to commit armed bank robbery and his

1996 New York conviction for criminal possession of a weapon

should be counted as violent felonies under 18 U.S.C.

§ 924(e)(2)(B), in light of the U.S. Supreme Court’s decision in

United States v. Begay, 128 S. Ct. 1581 (2008). 2 Gooden argues

that the particular crimes at issue are not similar to those

1
Gooden received concurrent sentences of 327 months for the
two firearm offenses and a concurrent sixty-month sentence for
marijuana trafficking.
2
Although Gooden did not make this particular objection at
sentencing, we review the claim de novo, since Gooden was
sentenced the day before the Supreme Court decided Begay. See
United States v. Thornton, 554 F.3d 443, 446 n.4 (4th Cir. 2009)
(applying Begay as a new rule of law).

2
enumerated in § 924(e)(2)(B)(ii) and do not require the

purposeful, violent, and aggressive conduct characteristic of

the enumerated offenses. We have evaluated Gooden’s claims and

conclude he is not entitled to relief. Therefore, we affirm.

Gooden first argues that his conspiracy to commit

armed bank robbery conviction does not qualify as a violent

felony conviction because a conspirator may only have a loose

connection to the object of the conspiracy. After the parties

filed their briefs in this appeal, however, we held that the

North Carolina offense of conspiracy to commit robbery with a

dangerous weapon qualified as a predicate offense under the

ACCA. United States v. White, __ F.3d __, 2009 WL 1913232, (4th

Cir. July 6, 2009) (No. 08-4492). The offense in White is

sufficiently similar to Gooden’s conspiracy conviction that we

discern no basis for a different outcome here.

We also find that Gooden’s 1996 New York conviction

for second-degree criminal possession of a weapon qualifies as a

violent felony conviction. The New York statute states: “A

person is guilty of criminal possession of a weapon in the

second degree when he possesses a machine-gun or loaded firearm

with intent to use the same unlawfully against another.” N.Y.

Penal Law § 265.03 (1996). The U.S. Court of Appeals for the

Second Circuit has held that a conviction under this statute

qualifies as a violent felony conviction. United States v.

3
Lynch, 518 F.3d 164, 172-73 (2d Cir. 2008). We agree, and we do

not believe Begay undercuts the rationale for the Lynch

decision. In particular, we believe that this statute, by its

very language, requires the type of purposeful, violent, and

aggressive conduct that is characteristic of the crimes

enumerated in § 924(e)(2)(B)(ii).

Gooden has filed a pro se motion requesting permission

to file a supplemental brief. Since Gooden is represented by

counsel, we deny his motion.

For the reasons stated above, we affirm Gooden’s

conviction and sentence. 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.

AFFIRMED