UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4731
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DARRYL HARCUM,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:06-cr-00434-RDB-1)
Submitted: October 31, 2011 Decided: December 15, 2011
Before NIEMEYER, KING, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James Wyda, Federal Public Defender, Sapna Mirchandani, Staff
Attorney, Greenbelt, Maryland, for Appellant. Rod J.
Rosenstein, United States Attorney, Benjamin M. Block, Assistant
United States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Darryl Harcum was convicted in 2007 of unlawful
possession of a firearm by a convicted felon, 18 U.S.C.
§ 922(g)(1) (2006), and sentenced as an armed career criminal to
a term of 235 months imprisonment. See 18 U.S.C.A. § 924(e)
(West 2000 & Supp. 2011). In Harcum’s first appeal, we
concluded that the district court had properly applied the
modified categorical approach to determine that he was an armed
career criminal, 1 but vacated his sentence, and remanded for
further proceedings on the ground that the district court erred
in relying on the facts set out in the Statement of Charges
filed in one Maryland court to determine that Harcum’s prior
Maryland second degree assault conviction was a violent felony
when he pled guilty to a criminal information filed in a
different Maryland court which contained no facts. United
States v. Harcum, 587 F.3d 219, 224-25 (4th Cir. 2009).
On remand, the district court conducted a de novo
resentencing, permitted the government to introduce the
transcript of Harcum’s guilty plea to second degree assault, and
determined that the assault conviction qualified as a violent
1
See Shepard v. United States, 544 U.S. 13 (2005); United
States v. Simms, 441 F.3d 313 (4th Cir. 2006).
2
felony. The court sentenced Harcum to the mandatory minimum
180-month sentence.
Harcum now appeals his new sentence, contending that
(1) the court erred in conducting a de novo resentencing; (2)
the plea transcript did not prove the assault was a violent
felony; and (3) recent decisions from the Supreme Court and this
court required the court to use a categorical approach rather
than a modified categorical approach to construe the second
degree assault conviction. We affirm.
Initially, we find no error in the district court’s
decision to conduct a de novo resentencing hearing and to permit
the government to introduce a transcript of the guilty plea
colloquy for Harcum’s second degree assault conviction. Our
direction to the district court on remand left the scope of the
resentencing to the discretion of the court. See United
States v. Bell, 5 F.3d 64, 67 (4th Cir. 1993) (“[T]o the extent
that the mandate of the appellate court instructs or permits
reconsideration of sentencing issues on remand, the district
court may consider the issue de novo, entertaining any relevant
evidence on that issue that it could have heard at the first
hearing.”) (internal quotation marks omitted).
Next, Harcum asserts for the first time that the
guilty plea transcript did not prove that the assault was a
violent felony because he did not adopt or admit the facts
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proffered by the state prosecutor. Generally, the issue of
whether a prior conviction qualifies as a crime of violence is
reviewed de novo. 2 United States v. Donnell, ___ F.3d ___, 2011
WL 5101566, at *2 (4th Cir. Oct. 27, 2011). Reviewing this
argument for plain error because it was not preserved for
appeal, United States v. Olano, 507 U.S. 725 (1993), we conclude
that the district court did not err, plainly or otherwise, in
relying on the facts proffered by the government as the factual
basis for the guilty plea to find that Harcum’s second degree
assault conviction was a violent felony.
Harcum seeks to analogize his situation to that of the
defendant in United States v. Alston, 611 F.3d 219 (4th Cir.
2010), who entered an Alford 3 plea, not admitting guilt or
confirming the facts underlying the plea, but pleading “for
reasons of self-interest.” United States v. Taylor, ___ F.3d
___, 2011 WL 5034576, at *7 (4th Cir. Oct. 24, 2011) (rejecting
similar claim). Harcum pled guilty pursuant to a plea
agreement. When asked by the judge whether he was pleading
guilty because he was, in fact, guilty, Harcum responded, “Yes.”
2
Cases construing “crime of violence” under the Guidelines
and “violent felony” under § 924(e) are both applicable because
the language is nearly identical. United States v. Knight, 606
F.3d 171, 173 n.1 (4th Cir. 2010).
3
North Carolina v. Alford, 400 U.S. 25, 25-26 (1970).
4
When asked how he pleaded to second degree assault, Harcum
responded, “Guilty.” The factual basis for his guilty plea was
that he punched the victim, who fell backward through a plate
glass window and suffered injuries, including a severed tendon
and artery. After hearing the facts presented, Harcum agreed
that the state’s witnesses would so testify. When asked, before
sentence was imposed, if he wished to say anything to the judge,
Harcum declined to speak. Harcum’s plea was not analogous to an
Alford plea because he specifically admitted his guilt and
raised no objection to the factual basis. See Taylor, 2011 WL
5034576, at *8 (refusing “to dress a perfectly ordinary guilty
plea in Alford garb in order to avoid [a § 924(e)]
enhancement.”).
Last, Harcum contends that the district court erred in
using a modified categorical approach. He asserts that the
legal landscape has changed since his first appeal was decided.
Generally, to decide whether a prior conviction constitutes a
violent felony, the district court should use a categorical
approach. James v. United States, 550 U.S. 192, 202 (2007);
Shepard v. United States, 544 U.S. 13, 19-20 (2005); United
States v. Kirksey, 138 F.3d 120, 124-25 (4th Cir. 1998). Under
this approach, the court may “rel[y] only on (1) the fact of
conviction and (2) the definition of the prior offense.”
Kirksey, 138 F.3d at 124. In a limited class of cases, however,
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where the definition of the underlying crime encompasses both
violent and non-violent conduct, “a sentencing court may use a
modified categorical approach to look beyond the fact of the
conviction and the elements of the offense to determine which
category of behavior underlies the prior conviction.” Donnell,
2011 WL 5101566, at *2 (citing Johnson v. United States, 130 S.
Ct. 1265, 1273 (2010)). When the conviction results from a
guilty plea, “a court may look to the statement of factual basis
for the charge shown by a transcript of plea colloquy or by
written plea agreement presented to the court, or by a record of
comparable findings of fact adopted by the defendant upon
entering the plea.” Donnell, 2011 WL 5101566, at *2 (quoting
Shepard, 544 U.S. at 20 (citation omitted)); see also Harcum,
587 F.3d at 223.
Harcum argues that, after his appeal was decided, the
Supreme Court’s decision in Johnson and this court’s decision in
United States v. Rivers, 595 F.3d 558 (4th Cir. 2010), narrowed
the circumstances in which the modified categorical approach may
be used, and that these decisions as well as decisions from
other circuits now require use of a categorical approach to
analyze a prior Maryland second degree assault conviction.
However, we have very recently held that, in Maryland,
second degree assault “encompasses several distinct crimes, some
of which qualify as violent felonies and others of which do
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not,” and thus a sentencing court is “entitled to use the
modified categorical approach to determine whether a prior
conviction for Maryland second degree assault is a crime of
violence” or a violent felony. Donnell, 2011 WL 5101566, at *3
(quoting Alston, 611 F.3d at 222-23); see Md. Code Ann., Crim.
Law §§ 3-203, -201(b) (LexisNexis 2010). Accordingly, contrary
to Harcum’s assertion on appeal, the district court was correct
in using a modified categorical approach. Thus, the district
court’s consideration of the transcript of Harcum’s guilty plea
to second degree assault was permissible. Moreover, the
district court correctly concluded that Harcum’s second degree
assault conviction was a violent felony.
We therefore affirm the sentence imposed by the
district court. 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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