UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5103
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHRISTOPHER EUGENE BLITCHINGTON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Aiken. Margaret B. Seymour, District Judge.
(1:07-cr-01019-MBS-1)
Submitted: April 29, 2010 Decided: May 21, 2010
Before WILKINSON, MOTZ, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Langdon D. Long, Assistant Federal Public Defender, Columbia,
South Carolina, for Appellant. Stanley Duane Ragsdale, Assistant
United States Attorney, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Christopher Eugene Blitchington pleaded guilty to
being a felon in possession of a firearm and received a
120-month sentence. Counsel has filed an Anders v. California,
386 U.S. 738 (1967), brief stating that he has discerned no
meritorious issues, but raising the issues of whether the plea
was valid under Fed. R. Crim. P. 11, and whether the district
court erred in applying the Armed Career Criminal Act (ACCA)
enhancement to the sentence. The Government declined to file a
brief, and Blitchington has filed a pro se supplemental brief.
Finding no reversible error, we affirm.
Counsel raises the issue of whether the guilty plea
was valid under Rule 11, but ultimately concludes that the court
complied with the requirements of Rule 11 and that the plea was
knowing and voluntary. Because Blitchington did not move in the
district court to withdraw his guilty plea, the Rule 11
proceeding is reviewed for plain error, United States v.
Martinez, 277 F.3d 517, 524-26 (4th Cir. 2002). A review of
Blitchington’s Rule 11 hearing reveals that the district court
complied with Rule 11’s requirements. Blitchington’s plea was
knowingly, voluntarily, and intelligently made, with full
knowledge of the consequences attendant to his guilty plea. We
therefore find that no plain error occurred and affirm
Blitchington’s conviction.
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Counsel next raises the issue of whether, under the
ACCA, Blitchington’s second degree burglary conviction should
not have counted as a violent felony because, under South
Carolina law, it is not considered a violent offense. A
defendant is an armed career criminal when he violates 18 U.S.C.
§ 922(g)(1) (2006) and has three prior convictions for violent
felonies or serious drug offenses. 18 U.S.C. § 924(e)(1)
(2006); USSG § 4B1.4(a). A violent felony is one that “has as
an element the use, attempted use, or threatened use of physical
force against the person of another,” “is burglary, . . . or
otherwise involves conduct that presents a serious potential
risk of physical injury to another.” 18 U.S.C.
§ 924(e)(2)(B)(i)-(ii) (2006).
In reviewing a lower court’s determination that a
defendant is an armed career criminal as defined by the ACCA, we
review factual findings for clear error and legal conclusions de
novo. United States v. Wardrick, 350 F.3d 446, 451 (4th Cir.
2003) (citing United States v. Brandon, 247 F.3d 186, 188 (4th
Cir. 2001)). To determine whether an offense under state law
falls within the definition of a violent felony, this court uses
a categorical approach, which “takes into account only the
definition of the offense and the fact of conviction.” United
States v. Pierce, 278 F.3d 282, 286 (4th Cir. 2002). The
particular label or categorization under state law is not
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controlling. See Taylor v. United States, 495 U.S. 575, 590-91
(1990). For purposes of the ACCA, “a person has been convicted
of burglary . . . if he is convicted of any crime, regardless of
its exact definition or label, having the basic elements of
unlawful or unprivileged entry into, or remaining in, a building
or structure, with intent to commit a crime.” Id. at 599.
While a court normally may look only to the fact of the
conviction and the statutory definition, because some states
broadly define burglary to include places other than buildings,
the categorical approach may “permit the sentencing court to go
beyond the mere fact of conviction.” Id. at 602; Shepard v.
United States, 544 U.S. 13, 16-17 (2005). An offense will
constitute burglary if the jury was required “to find all the
elements of generic burglary in order to convict the defendant,”
and “the indictment or information and jury instructions show
that the defendant was charged only with a burglary of a
building,” so “the jury necessarily had to find an entry of a
building to convict.” Taylor, 495 U.S. at 602.
Blitchington does not contest the facts surrounding
the burglary conviction. Blitchington entered a building,
Peggy’s Minit Shop, in the nighttime, and he took or carried
away personal goods of the shop in excess of $1000 in value.
This crime fits the definition of a generic burglary. See
Taylor, 495 U.S. at 598-99. Therefore, the court did not err in
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counting the conviction toward the three needed for ACCA
purposes.
In 1993, 1995, and 2004, Blitchington was convicted of
failure to stop for a blue light in violation of S.C. Code Ann.
§ 56-6-750. At sentencing, Blitchington objected to the use of
these convictions to enhance his sentence under the ACCA because
they were not violent felonies. The court overruled the
objections. Since the sentencing, this court has squarely
addressed the issue of whether failure to stop for a blue light
is a violent offense and held “that a violation of South
Carolina’s blue light statute, S.C. Code Ann. § 56-5-750(A),
does not qualify as a predicate offense for purposes of the
ACCA.” United States v. Rivers, 595 F.3d 558, 565 (4th Cir.
2010). Although the district court did not have the benefit of
the court’s decision in Rivers, in light of the new decision,
the district court erred in overruling the objection. However,
because Blitchington has three other qualifying convictions, the
error is harmless.
Blitchington filed a pro se supplemental brief and, in
addition to the issues counsel addressed in the Anders brief,
raised the following issues: the 2004 assault and battery
conviction was also non-violent and should not have been used
for ACCA purposes, the district court treated the Sentencing
Guidelines as mandatory, he should have received a greater
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reduction for substantial assistance, his attorney did not
provide effective assistance at sentencing, there was a sentence
disparity between the sentence he received for a firearm
conviction versus the sentences others have received for firearm
offenses, he received ineffective assistance by appellate
counsel, and the Government and Alcohol, Tobacco, and Firearms
(ATF) agents coerced witnesses to testify. We have reviewed
these issues and conclude that they are without merit.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Blitchington’s conviction and sentence.
This court requires that counsel inform Blitchington, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Blitchington requests that
a petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may move in this court for
leave to withdraw from representation. Counsel’s motion must
state that a copy thereof was served on Blitchington.
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
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