UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4450
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
4