                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 10-4021


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

          v.

LEROY SCRIVNER,

                  Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Richard D. Bennett, District Judge.
(1:09-cr-00077-RDB-1)


Submitted:   June 29, 2012                  Decided:   August 6, 2012


Before KING, DUNCAN, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


James Wyda, Federal Public Defender, Paresh S. Patel, Staff
Attorney,   Greenbelt,  Maryland,   for   Appellant.     Rod J.
Rosenstein, United States Attorney, Mushtaq Z. Gunja, Assistant
United States Attorney, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Leroy Scrivner plead guilty to one count of being a

felon in possession of a firearm, in violation of 18 U.S.C.

§ 922(g)(1) (2006).        On appeal, Scrivner challenges the finding

that he was a career offender under U.S. Sentencing Guidelines

Manual § 2K2.1(a)(2) because he does not have the required two

qualifying convictions.        We affirm.

            Scrivner was found to be a career offender under the

Guidelines because he had a prior conviction for a controlled

substance offense and a December 3, 1999 conviction for a crime

of violence.       Scrivner concedes that the controlled substance

offense was a qualifying conviction.               He challenges the district

court’s decision to refer to the statement of probable cause to

find that his December 3, 1999 Maryland conviction for second

degree assault was a crime of violence.

            This    appeal     was     placed      in    abeyance       for   United

States v. Donnell, 661 F.3d 890 (4th Cir. 2011), which held that

the   district     court   erred      by    relying     on    the   unincorporated

statement   of     probable   cause        to   find   that   the   second    degree

assault     conviction        could        be     considered        a    crime   of

violence.     Id., at 896-97.          Accordingly, we conclude, and the

Government concedes, that the district court erred by referring

to the unincorporated statement of probable cause and finding

that Scrivner’s assault conviction was a crime of violence.

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           Nevertheless,          we        conclude         the    error       is   harmless.

Under the harmless error standard, we will reverse unless the

Government bears its burden of showing that the error affects

Scrivner’s substantial rights.                     United States v. Rodriguez, 433

F.3d 411, 415-16 (4th Cir. 2006).                           The Government notes that

Scrivner also stood convicted of resisting arrest, which was as

a result of the same incident that led to the second degree

assault conviction.            In United States v. Jenkins, 631 F.3d 680,

685 (4th Cir. 2011), decided while this appeal was in abeyance

for Donnell, the court held that Maryland’s common law offense

of resisting arrest is categorically a crime of violence under

the residual clause of USSG § 4B1.2(a)(2).

           Because Scrivner’s conviction for resisting arrest is

categorically       a     crime        of        violence,        the     district     court’s

procedural    error       at    sentencing            was   harmless.           We   note   that

Scrivner’s argument that the Government waived arguing that the

resisting arrest conviction is a crime of violence is without

merit.       We     may       affirm        on     any      grounds       apparent     on   the

record.    United States v. Smith, 395 F.3d 516, 519 (4th Cir.

2005).     Also,        the    Government             did   not    take    an     inconsistent

position      at     sentencing             regarding         the       resisting       arrest

conviction.        In addition, there is no need for any additional

factfinding.        Furthermore, we reject Scrivner’s argument that

the   residual       clause       of        USSG        § 4B1.2(a)(2)        is      void   for

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vagueness.      See United States v. Hudson, 673 F.3d 263, 268-69

(4th Cir. 2012), petition for cert. filed, No. 11-10743 (June 5,

2012)   (citing     Sykes v. United         States,    131     S.    Ct.    2277

(2011)); see also United States v. Hart, 674 F.3d 33, 41 n.3

(1st Cir. 2012) (citing James v. United States, 550 U.S. 192,

210 n.6 (2007)); United States v. Gore, 636 F.3d 728, 742 (5th

Cir. 2011) (same).

           Accordingly,       we   affirm   the   conviction   and   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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