UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4499
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MARCUS JAMES BYRD,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Henry F. Floyd, District Judge.
(7:08-cr-00665-HFF-1)
Submitted: August 5, 2010 Decided: November 4, 2010
Before GREGORY, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Scarlet B. Moore, Greenville, South Carolina, for Appellant.
William N. Nettles, United States Attorney, William J. Watkins,
Jr., Maxwell Cauthen, Assistant United States Attorneys,
Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
After pleading guilty to one count of being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1)
(2006), Marcus Byrd was sentenced to seventy months in prison.
Challenging his sentence on appeal, Byrd contends that: (i) his
prior felony South Carolina convictions for pointing and
presenting a firearm at another person, in violation of
S.C. Code Ann. § 16-23-410 (2003), were not “crime[s] of
violence” justifying an enhanced offense level under U.S.
Sentencing Guidelines Manual (“USSG”) § 2K2.1(a)(2) (2008); and
(ii) the district court committed reversible error when it
imposed Byrd’s sentence without an individualized assessment, in
violation of United States v. Carter, 564 F.3d 325 (4th Cir.
2009). After determining that no reversible error occurred, we
affirm the district court’s judgment.
Considering Byrd’s claims in reverse order, we first
hold that the district court committed no reversible error when
it failed to place individualized support for Byrd’s sentence on
the record. Byrd did not properly preserve his objection to the
adequacy of the district court’s sentencing procedure by asking
the district court to depart from the correctly calculated
Guidelines range based on consideration of the relevant 18
U.S.C. § 3553 (2006) factors. Thus, we review the district
2
court’s explanation behind Byrd’s sentence for plain error. See
United States v. Lynn, 592 F.3d 572, 580 (4th Cir. 2010).
To require vacatur of his sentence, Byrd must show
that an error: (i) was made; (ii) was plain (i.e., clear or
obvious); and (iii) affected his substantial rights, see United
States v. Massenburg, 564 F.3d 337, 342-43 (4th Cir. 2009). In
other words, even if this court assumed that the district
court’s cursory explanation in support of Byrd’s sentence
constituted an obvious error in violation of Carter, Fed. R.
Crim. P. 52(b) requires Byrd to also show that the district
court’s lack of explanation had a prejudicial effect on the
sentence imposed. See Puckett v. United States, 129 S. Ct.
1423, 1433 n.4 (2009). Byrd has made no such showing.
We discern no reversible error in the district court’s
calculation of Byrd’s Guidelines range. Section 2K2.1(a)(2) of
the Sentencing Guidelines provides for a base offense level of
twenty-four for an unlawful possession of a firearm conviction
if “the defendant committed any part of the instant offense
subsequent to sustaining at least two felony convictions of
either a crime of violence or a controlled substance offense.”
A “crime of violence” is defined in USSG § 4B1.2(a) as:
any offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that –
3
(1) has as an element the use, attempted use, or
threatened use of physical force against the person of
another, or
(2) is burglary of a dwelling, arson, or extortion,
involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of
physical injury to another.
USSG § 4B1.2 (2008).
To determine whether prior convictions constitute
crimes of violence, we employ a “categorical approach.”
Taylor v. United States, 495 U.S. 575, 600 (1990); United
States v. Kirksey, 138 F.3d 120, 124 (4th Cir. 1998). Under
this approach, the court may look only to the fact of conviction
and the statutory definition of the prior offense. * Taylor,
495 U.S. at 602. Thus, the court should consider the offense
“generically” — i.e., “in terms of how the law defines the
offense and not in terms of how an individual offender might
*
In a “narrow range of cases,” resort to the statute of
offense and fact of conviction will not confirm the predicate
nature of the state crime. Taylor, 495 U.S. at 602. In those
cases where it is evident from the statutory definition of the
state crime that some violations of the statute are “crimes of
violence” and others are not, this court applies a “modified”
categorical approach. Soliman v. Gonzales, 419 F.3d 276, 285
(4th Cir. 2005). Because the statute at issue on this appeal
criminalizes only one type of conduct, the use of a modified
categorical approach would be inappropriate in this case. See
United States v. Rivers, 595 F.3d 558, 563 (4th Cir. 2010)
(“[O]nly when a statute prohibits different types of behavior
such that it can be construed to enumerate separate crimes can a
court modify the categorical approach to determine ACCA
eligibility.”).
4
have committed it on a particular occasion.” Begay v. United
States, 553 U.S. 137, 141 (2008) (citations omitted).
This court has previously held that a violation of
§ 16-23-410 qualifies as a predicate offense under a former
version of § 4B1.2(a)(2), as well as under the Armed Career
Criminal Act (“ACCA”), 18 U.S.C. § 924(e) (2006). See United
States v. Thompson, 891 F.2d 507, 509 (4th Cir. 1989) (holding
that a conviction under the South Carolina statute qualifies as
a crime of violence under a former version of § 4B1.2(a)(2),
while declining to determine whether it would qualify as a crime
of violence under § 4B1.2(a)(1)); United States v. Hemingway,
38 F. App’x 142, 147 (4th Cir. March 29, 2002) (No. 01-4211)
(unpublished after argument) (holding that a conviction under
§ 16-23-410 qualifies as a violent felony under the ACCA, which
defines “violent felony” the same as “crime of violence” in
§ 4B1.2, because pointing or presenting a firearm at another
“presents a serious potential risk of physical injury to
another”) (internal quotation marks and citation omitted).
After these holdings, however, the Supreme Court
decided Begay v. United States, in which it held that a “violent
felony” under the residual clause of the ACCA must “typically
involve purposeful, violent, and aggressive” conduct. See 553
U.S. at 144-45. This holding is applicable to the definition of
a “crime of violence” under § 4B1.2(a)(2). United States v.
5
Seay, 553 F.3d 732, 738-39 (4th Cir.), cert. denied, 130 S. Ct.
127 (2009). Accordingly, Byrd argued at sentencing that his
§ 16-23-410 convictions were not “crimes of violence” under USSG
§ 4B1.2(a)(1) because such a crime does not have as an element
“the use, attempted use, or threatened use of physical force
against the person of another,” and that Begay undercut this
court’s holdings in Hemingway and Thompson.
In overruling Byrd’s objection to his Guidelines range
calculation, the district court declined to conduct a Begay-type
analysis and instead found a violation of § 16-23-410 to be a
“crime of violence” under USSG § 4B1.2(a)(1). We find that the
district court correctly recognized that a person violates
§ 16-23-410 if he: (i) points or presents; (ii) a loaded or
unloaded firearm; (iii) at another person. State v. Burton,
589 S.E.2d 6, 8 (S.C. 2003). However, the articulated elements
of the crime cover a wide range of fact patterns and the only
stated exceptions to the statute’s coverage are when a firearm
is pointed at another in self defense or when a firearm is
pointed at or presented to another person as part of a
theatrical or like performance. See S.C. Code Ann. § 16-23-410
(2003). Thus, although the act of pointing or presenting a
firearm at another may inherently be dangerous and almost always
will be “accompanied by the use of physical force,” Thompson,
891 F.2d at 509, it is simply not an articulated element of the
6
offense that physical force be used, attempted or threatened
before a violation will occur. Accordingly, we conclude that a
§ 16-23-410 conviction does not constitute a crime of violence
under USSG § 4B1.2(a)(1).
Despite the foregoing, the South Carolina Court of
Appeals recently construed the phrase “to present” in § 16-23-
410 as “offer[ing] to view in a threatening manner, or to show
in a threatening manner.” In re Spencer R., 692 S.E.2d 569, 572
(S.C. Ct. App. 2010). In so construing, the court recognized
that § 16-23-410 was not “perfectly analogous” to other states’
firearm brandishing statutes — which prohibit brandishing a
firearm in “a rude, angry, or threatening manner,” Cal. Penal
Code § 417(a)(2) (West 2009), “in an angry or threatening
manner[,]” Mo. Ann. Stat. § 571.030(1)(4) (West 2010), or “in
such a manner as to reasonably induce fear in the mind of
another[,]” Va. Code Ann. § 18.2-282(A) (2009) — but nonetheless
concluded that a violation of the statute will occur so long as
an individual “intend[s] to specifically threaten” another
individual. See In re Spencer R., 692 S.E.2d at 573. Thus,
according to the highest South Carolina state court to have
spoken on the issue, a violation of § 16-23-410 necessarily
involves “purposeful, violent, and aggressive” conduct and,
accordingly, still constitutes a “crime of violence” under
§ 4B1.2(a)(2), even after Begay.
7
Because this court may affirm the district court’s
judgment on any grounds apparent from the record, see United
States v. Smith, 395 F.3d 516, 518-19 (4th Cir. 2005), we hold
that a § 16-23-410 violation still constitutes a “crime of
violence” under USSG § 4B1.2(a)(2) and affirm the district
court’s judgment. 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
8