                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4078



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


JASON ROBERT GOFORTH,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Chief District Judge. (CR-03-320)


Submitted:   June 9, 2004                 Decided:   November 2, 2004


Before MOTZ, KING, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Louis C. Allen, III, Federal Public Defender, John A. Dusenbury,
Jr., Assistant Federal Public Defender, Greensboro, North Carolina,
for Appellant. Anna Mills Wagoner, United States Attorney,
Robert M. Hamilton, Assistant United States Attorney, Greensboro,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

            Jason Robert Goforth pled guilty pursuant to a written

plea agreement to one count of bank robbery, 18 U.S.C. § 2113(a)

(2000), and one count of knowingly possessing body armor after

having been convicted of a felony, 18 U.S.C. §§ 931 and 924(a)(7)

(2000).     He was sentenced to 113 months in prison.        Goforth does

not challenge his convictions but appeals the determination of his

sentence.    We affirm.

            In its Presentence Investigation Report (“PSR”), the

probation office recommended that Goforth be sentenced as a “career

offender” under U.S. Sentencing Guidelines Manual § 4B1.1 (2002).

The predicate crimes for this recommendation included Goforth’s

1999 state court conviction for possessing a dangerous weapon while

in prison.     The district court decided to sentence Goforth as a

career offender, holding, over defendant’s objection, that the

state conviction for possessing a dangerous weapon in prison

qualified     as   a   “crime   of    violence”   under   USSG   §   4B1.2.

Specifically, the district court held that possession of a weapon

by an inmate is “categorically” a crime of violence because of the

“danger that is presented by the possession of a weapon in a prison

setting.”

            Under USSG § 4B1.1, a defendant is a “career offender” if

(1) the defendant was at least eighteen years old at the time the

defendant committed the instant offense of conviction; (2) the


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instant offense of conviction is a felony that is either a crime of

violence or a controlled substance offense; and (3) the defendant

has at least two prior felony convictions of either a crime of

violence or a controlled substance offense. In determining whether

a predicate offense is a “crime of violence,” a sentencing court

should   use   a   categorical   approach    and   look   to   the   fact   of

conviction and the statutory definition of the prior offense.               See

United States v. Johnson, 953 F.2d 110, 114-15 (4th Cir. 1991).

The court determines if the statutory or common law definition of

the offense “list[s] as an element ‘the use, attempted use, or

threatened use of physical force.’”         United States v. Wilson, 951

F.2d 586, 588 (4th Cir. 1991).

           If this inquiry is not determinative, the sentencing

court must determine if the crime “‘otherwise involves conduct that

presents a serious potential risk of physical injury to another.’”

United States v. Martin, 215 F.3d 470, 472 (4th Cir. 2000) (quoting

USSG § 4B1.2(a)(2)).     In making this determination, the court must

consider only the facts charged in the indictment, and “[i]f that

effort is unavailing, . . . consider whether the offense of

conviction is a crime of violence in the abstract.”             Id. at 473.

Whether a prior conviction is a crime of violence is a question of

law that this Court reviews de novo.         United States v. Dickerson,

77 F.3d 774, 775 (4th Cir. 1996).




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          We   conclude   the   district   court   did   not   err   in

determining that possession of a dangerous weapon by a prisoner is

a “crime of violence” because of the inherent nature of the crime

and its serious potential risk for physical injury to another. See

United States v. Kenney, 310 F.3d 135, 137 (3rd Cir. 2002); United

States v. Vahovick, 160 F.3d 395, 397-98 (7th Cir. 1998); United

States v. Young, 990 F.2d 469, 472-73 (9th Cir. 1993); see also

United States v. Romero, 122 F.3d 1334, 1340-41 (10th Cir. 1997)

(holding that conveying a weapon in federal prison is a “violent

felony” for purposes of applying the Armed Career Criminal Act).

We therefore affirm Goforth’s 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




     *
      In light of the opinion issued by this Court in United
States v. Hammoud, 381 F.3d 316, 353 (4th Cir. 2004), we hold that
Blakely v. Washington, 124 S. Ct. 2531 (2004), does not impact
Goforth’s sentence.

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