UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5263
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DIFANKH ASAR, a/k/a James Walter Gist,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. G. Ross Anderson, Jr., Senior
District Judge. (7:10-cr-00429-GRA-1)
Submitted: April 30, 2012 Decided: May 8, 2012
Before KING and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Andrew J. Johnston, Spartanburg, South Carolina, for Appellant.
William N. Nettles, United States Attorney, William J. Watkins,
Jr., Maxwell B. Cauthen, III, Assistant United States Attorneys,
Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Difankh Asar pled guilty to one count of possession of
a firearm by a person previously convicted of a felony offense.
The district court determined that Asar had three prior
convictions for violent felony offenses and sentenced him under
the armed career criminal provisions to 180 months imprisonment.
Asar appeals, contending that he had only two qualifying violent
felonies, and that the district court erred in determining that
his prior convictions for pointing or presenting a firearm and
for assault and battery of a high and aggravated nature were
qualifying violent felonies. We affirm.
A defendant qualifies as an armed career criminal if
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). 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 . . . or otherwise involves
conduct that presents a serious potential risk of physical
injury to another.” 18 U.S.C. § 924(e)(2)(B); U.S. Sentencing
Guidelines Manual § 4B1.2(a) (2009). This court reviews de novo
the district court’s determination that a prior conviction
qualifies as a “violent felony.” See United States v. Green,
436 F.3d 449, 456 (4th Cir. 2006).
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Asar challenges the district court’s determination
that his two convictions for pointing a firearm, S.C. Code Ann.
§ 16-23-410, constituted “crime[s] of violence” under
§ 4B1.2(a)(1). The statute in question criminalizes:
(i) pointing or presenting; (ii) a loaded or unloaded firearm;
(iii) at another person. State v. Burton, 589 S.E.2d 6, 8 (S.C.
2003).
This court has held that pointing a firearm is a crime
of violence under § 4B1.2(a)(2), the career offender provision.
United States v. Byrd, 400 F. App’x 718, 720-21 (4th Cir. 2010),
cert. denied, 131 S. Ct. 1835 (2011); United States v. Thompson,
891 F.2d 507, 509-10 (4th Cir. 1989). The Guideline defining
“crime of violence” under the career offender provision mirrors
the definition of “violent felony” under the armed career
criminal provisions, and therefore the court “rel[ies] upon
precedents evaluating whether an offense constitutes a violent
felony under the Armed Career Criminal Act [ ] interchangeably
with precedents evaluating whether an offense constitutes a
crime of violence under USSG § 4B1.2(a).” United States v.
Clay, 627 F.3d 959, 965 (4th Cir. 2010).
We conclude, therefore, that the district court
correctly determined that Asar’s two offenses of pointing a
firearm at another constituted violent felonies and were
properly found to be predicate offenses for the armed career
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criminal sentencing enhancement. See Byrd, 400 F. App’x at 721
(holding that pointing or presenting a firearm under S.C. Code
Ann. § 16–23–410, “constitutes a ‘crime of violence’ under
§ 4B1.2(a)(2), even after Begay [v. United States, 553 U.S. 137
(2008)]”).
In light of this determination and because Asar
conceded that he had two other predicate violent felonies — for
burglary and armed robbery — he had three predicate violent
felony convictions and thus qualified for armed career criminal
status. We therefore need not address Asar’s challenge to the
district court’s determination that the assault and battery of a
high and aggravated nature conviction also qualified as a
predicate violent felony.
Accordingly, because the district court correctly
determined that Asar had at least three prior convictions for
violent felonies and thus qualified to be sentenced as an armed
career criminal, we affirm Asar’s 180-month sentence. 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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