UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4115
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DWAYNE RODERICK ROSS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Cameron McGowan Currie, District
Judge. (3:09-cr-00714-CMC-1)
Submitted: February 4, 2011 Decided: March 16, 2011
Before WILKINSON, NIEMEYER, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Timothy W. Murphy, THE LAW OFFICES OF WADE S. KOLB, JR., Sumter,
South Carolina, for Appellant. William N. Nettles, United
States Attorney, James C. Leventis, Jr., Assistant United States
Attorney, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dwayne Roderick Ross was convicted, following a jury
trial, of conspiracy to distribute cocaine and cocaine base.
The district court determined that Ross had two or more prior
qualifying convictions and therefore qualified as a career
offender. The court sentenced Ross to 344 months’ imprisonment.
On appeal, he challenges his career offender designation based
on the determination that two of his prior convictions qualified
as crimes of violence. We affirm.
To be sentenced as a career offender, a defendant
must be at least eighteen years of age at the time of the
instant offense of conviction, the instant offense must be for a
felony that is either a crime of violence or a controlled
substance offense, and the defendant must have at least two
qualifying predicate offenses for either a controlled substance
offense or a crime of violence. U.S. Sentencing Guidelines
Manual § 4B1.1(a) (2009). The only issue in contention is
whether Ross had the necessary predicate offenses.
Ross contends that his prior South Carolina conviction
for possession of a sawed-off shotgun does not constitute a
“crime of violence” and therefore does not qualify as a
predicate offense for the career offender classification. We
have recently addressed this very issue in the context of a
North Carolina conviction for possession of a sawed-off shotgun
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and concluded that, while possession of a sawed-off shotgun is
not a “violent felony” for purposes of the Armed Career Criminal
Act (“ACCA”), the authoritative Guidelines commentary for Career
Offender provides that it is a “crime of violence” under that
provision. United States v. Hood, F.3d , 2010 WL 5383895
(4th Cir. Dec. 29, 2010); see United States v. Hawkins, 554 F.3d
615 (6th Cir.) (acknowledging Sixth Circuit precedent that
possession of a sawed-off shotgun was not a “violent felony”
under the ACCA, but following the Guidelines commentary to
conclude that it was a “crime of violence” for purposes of the
career offender guideline), cert. denied, 129 S. Ct. 2817
(2009). We therefore agree with the district court’s
determination that this prior conviction qualifies as a
predicate crime of violence for purposes of the career offender
classification.
Next, Ross argues that his prior conviction for
discharging a firearm into a dwelling did not qualify as a crime
of violence for the career offender classification. A “crime of
violence” is defined as an offense punishable by imprisonment
for more than one year and that “has an element of use,
attempted use, or threatened use of physical force against the
person of another, or [] is burglary of a dwelling, arson, or
extortion, involves use of explosives, or otherwise involves
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conduct that presents a serious potential risk of physical
injury to another.” USSG § 4B1.2(a).
The South Carolina statute underlying Ross’s
conviction prohibits the “discharge [of] firearms at or into a
dwelling house . . . regularly occupied by persons.” S.C. Code
Ann. § 16-23-440(A) (2003). By its terms, the statute “involves
conduct that presents a serious potential risk of physical
injury to another,” and therefore meets the definition of a
“crime of violence” set forth in USSG § 4B1.2(a)(2).
Additionally, the commentary to the guidelines provides that a
“‘[c]rime of violence’ includes murder, manslaughter,
kidnapping, aggravated assault, . . . .” We agree with the
district court that discharging a firearm into a dwelling is
similar to aggravated assault, and therefore constitutes a crime
of violence.
Because Ross did, in fact, have at least two prior
convictions for crimes of violence or controlled substance
offenses when he committed the instant drug conspiracy offense,
the district court correctly determined that the career offender
guideline applied. We deny Ross’s motions for leave to file a
supplemental appendix and a pro se supplemental brief and affirm
his sentence. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials
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before the court and argument would not aid the decisional
process.
AFFIRMED
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