UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4218
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LEE THOMAS SMITH,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:14-cr-00291-TDS-1)
Submitted: November 30, 2015 Decided: January 26, 2016
Before SHEDD and HARRIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, Tiffany T. Jefferson,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Ripley Rand, United States Attorney, Clifton T.
Barrett, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lee Thomas Smith was convicted by a jury of possession of
ammunition by a felon, in violation of 18 U.S.C. § 922(g)(1)
(2012). On appeal, Smith argues that he did not have three prior
qualifying convictions justifying application of enhanced
sentencing under the Armed Career Criminal Act (ACCA). In
addition, he argues that there was insufficient evidence to support
his conviction. We affirm.
Smith argues that his prior convictions no longer qualify as
“violent felonies” under the ACCA, relying on Johnson v. United
States (Johnson I), 135 S. Ct. 2551 (2015), for support. Smith
did not properly preserve this issue for appeal; we therefore
review it for plain error. Puckett v. United States, 556 U.S.
129, 134 (2009).
Convicted felons are not permitted to possess ammunition. 18
U.S.C. § 922(g) (2012). Persons who violate § 922(g) are subject
to an enhanced sentence under the ACCA of 15 years to life in
prison if they have three or more serious drug offenses or violent
felonies. Id. § 924(e)(1) (2012). A “violent felony” is defined
as
any crime punishable by imprisonment for a term
exceeding one year . . . that—
(i) has as an element the use, attempted use, or
threatened use of physical force against the
person of another; or
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(ii) is burglary, arson, or extortion, involves use
of explosives, or otherwise involves conduct
that presents a serious potential risk of
physical injury to another . . . .
Id. § 924(e)(2)(B) (2012) (emphasis added).
The underlined clause has become known as the ACCA’s “residual
clause.” Johnson I, 135 S. Ct. at 2556. In Johnson I, the Supreme
Court held that the ACCA’s residual clause is unconstitutionally
vague and violates due process. Id. at 2557. However, Johnson I
did “not call into question application of the [ACCA] to the four
enumerated offenses” in § 924(e)(2)(B)(ii), or to “the remainder
of the [ACCA’s] definition of a violent felony.” Id. at 2563.
Thus, prior convictions that fall under the “force clause” in
§ 924(e)(2)(B)(i) are unaffected by Johnson I.
The term “physical force” within the force clause is not
statutorily defined. Johnson v. United States (Johnson II), 559
U.S. 133, 138 (2010). Giving the phrase “its ordinary meaning,”
the Supreme Court determined that “in the context of a statutory
definition of ‘violent felony,’ the phrase ‘physical force’ means
violent force—that is, force capable of causing physical pain or
injury to another person.” Id. at 138, 140 (emphasis omitted).
Smith’s three predicate felonies for application of the ACCA
are North Carolina convictions, one for felony robbery with a
dangerous weapon and two for malicious assault in a secret manner.
(J.A. 142, 146, 151). In determining whether these felonies
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qualify as “violent felon[ies]” under the ACCA, courts generally
use the “categorical approach” set forth in Taylor v. United
States, 495 U.S. 575, 600-02 (1990), and recently clarified in
Descamps v. United States, 133 S. Ct. 2276, 2281 (2013). See
United States v. McLeod, ___ F.3d ___, ___, No. 14-4766, 2015 WL
6575673, at *3 (4th Cir. Oct. 30, 2015); United States v. Parral-
Dominguez, 794 F.3d 440, 444 (4th Cir. 2015). Under the
categorical approach, a court may consult only “the fact of
conviction and the statutory definition of the prior offense” to
determine whether a state crime is a “violent felony.” United
States v. Aparicio-Soria, 740 F.3d 152, 154 (4th Cir. 2014) (en
banc) (quoting Taylor, 495 U.S. at 603); see Descamps, 133 S. Ct.
at 2281.
Here, under North Carolina law, robbery with a dangerous
weapon consists of the following elements: “(1) the unlawful taking
or an attempt to take personal property from the person or in the
presence of another (2) by use or threatened use of a firearm or
other dangerous weapon (3) whereby the life of a person is
endangered or threatened.” State v. Small, 400 S.E.2d 413, 416
(N.C. 1991) (internal quotation marks omitted); accord N.C. Gen.
Stat. § 14-87 (2013). Because the “use or threatened use of a
firearm or other dangerous weapon . . . whereby the life of a
person is endangered or threatened,” Small, 400 S.E.2d at 416,
entails “force capable of causing physical pain or injury to
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another person,” Johnson II, 559 U.S. at 140, robbery with a
dangerous weapon involves “the use, attempted use, or threatened
use of physical force,” § 924(c)(2)(B)(i) and therefore qualifies
as a “violent felony” under the force clause.
Smith’s other two predicate felonies are state convictions
for malicious assault in a secret manner. Under North Carolina
law, malicious assault in a secret manner consists of the following
elements: “(1) secret manner; * (2) malice; (3) assault and battery;
(4) deadly weapon; and (5) intent to kill.” State v. Hill, 214
S.E.2d 67, 74 (N.C. 1975); accord N.C. Gen. Stat. § 14-31 (2013).
Because the use of a “deadly weapon” with “intent to kill,” Hill,
214 S.E.2d at 79, entails “force capable of causing physical pain
or injury to another person,” Johnson II, 559 U.S. at 140,
malicious assault in a secret manner involves “the use, attempted
use, or threatened use of physical force,” § 924(e)(2)(B)(i), and
therefore qualifies as a “violent felony” under the force clause.
Smith cites the abrogation of United States v. White, 571
F.3d 365 (4th Cir. 2009), by Johnson I in support of his argument
that felony robbery with a dangerous weapon is not a “violent
felony” under the ACCA. However, White dealt not with robbery
*The “secret manner” element can be satisfied if either the
assailant is lying in wait to assault the victim or the victim is
aware of the assailant’s presence, but not of his purpose. See
State v. Holcombe, 691 S.E.2d 740, 744-46 (N.C. Ct. App. 2010).
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with a dangerous weapon, but with conspiracy to commit robbery
with a dangerous weapon, see White, 571 F.3d at 367, and is
therefore inapposite.
Thus, we conclude that Smith has three predicate offenses
under the ACCA and was properly sentenced by the district court.
Smith next argues that the evidence is insufficient to support
his conviction. We review de novo the sufficiency of the evidence,
United States v. Barefoot, 754 F.3d 226, 233 (4th Cir. 2014), but
we may not “reweigh the evidence or the credibility of witnesses,”
United States v. Roe, 606 F.3d 180, 186 (4th Cir. 2010). To
convict a defendant under § 922(g)(1), the Government must show
that (1) the defendant was previously convicted of a crime
punishable by a prison term exceeding one year; (2) the defendant
knowingly possessed a firearm or ammunition; and (3) “the
possession was in or affecting commerce” because the firearm or
ammunition “had travelled in interstate or foreign commerce at
some point.” United States v. Gilbert, 430 F.3d 215, 218 (4th
Cir. 2005).
Here, the Government introduced evidence of four shotgun
shells found on Smith’s person. The deputy who arrested Smith
testified that two shells fell out of Smith’s pocket during the
arrest, and two shells were later found in Smith’s back pocket as
he was being processed at the local jail. Given that the other
elements of 18 U.S.C. § 922(g)(1) were stipulated to by the
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parties, the only element in dispute is whether Smith possessed
ammunition.
Smith, though acknowledging the prohibition against
reweighing the credibility of witnesses, argues that
inconsistencies in the deputy’s testimony rendered it incredible.
We must assume that any alleged contradictions in a witness’
testimony were resolved in favor of the Government, Roe, 606 F.3d
at 186, and we conclude that a reasonable jury could find the
evidence sufficient beyond a reasonable doubt to convict Smith.
See United States v. Cornell, 780 F.3d 616, 630 (4th Cir. 2015)
(defining substantial evidence).
Accordingly, we affirm the judgment of the district court.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before this
court and argument would not aid the decisional process.
AFFIRMED
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