                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4450


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

HOPETON GOODEN, a/k/a Richard Doleson, a/k/a Michael Frank
Burke,

                  Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern.   Louise W. Flanagan,
Chief District Judge. (5:06-cr-00313-FL-1)


Submitted:    July 31, 2009                 Decided:   August 14, 2009


Before WILKINSON, KING, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Eric J. Brignac, Research and
Writing Specialist, Raleigh, North Carolina, for Appellant.
George E.B. Holding, United States Attorney, Rudy E. Renfer,
Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                Hopeton         Gooden       was    convicted         by     a    jury    of     three

charges: being an unlawful alien in possession of a firearm, in

violation           of     18     U.S.C.       §§       922(g)(5),         924(e)(1)           (2006);

possessing marijuana with intent to distribute , in violation of

21 U.S.C. § 841(a)(1) (2006), 21 U.S.C.A. § 841(b)(1)(D) (West

1999       &   Supp.      2009);     and      being      a    felon     in       possession      of   a

firearm,        in       violation      of    18    U.S.C.      §§     922(g)(1),         924(e)(1)

(2006).             The     district         court       sentenced         Gooden        under     the

provisions of the Armed Career Criminal Act (“ACCA”), § 924(e),

imposing a term of 327 months in prison. 1

                On appeal, Gooden challenges whether his 1980 federal

conviction for conspiracy to commit armed bank robbery and his

1996 New York conviction for criminal possession of a weapon

should         be    counted       as        violent         felonies        under       18     U.S.C.

§ 924(e)(2)(B), in light of the U.S. Supreme Court’s decision in

United States v. Begay, 128 S. Ct. 1581 (2008). 2                                   Gooden argues

that the particular crimes at issue are not similar to those

       1
       Gooden received concurrent sentences of 327 months for the
two firearm offenses and a concurrent sixty-month sentence for
marijuana trafficking.
       2
       Although Gooden did not make this particular objection at
sentencing, we review the claim de novo, since Gooden was
sentenced the day before the Supreme Court decided Begay. See
United States v. Thornton, 554 F.3d 443, 446 n.4 (4th Cir. 2009)
(applying Begay as a new rule of law).



                                                    2
enumerated       in      § 924(e)(2)(B)(ii)           and        do     not    require         the

purposeful,      violent,       and    aggressive          conduct      characteristic         of

the enumerated offenses.               We have evaluated Gooden’s claims and

conclude he is not entitled to relief.                      Therefore, we affirm.

               Gooden     first    argues      that        his   conspiracy         to    commit

armed    bank    robbery     conviction        does    not       qualify       as   a    violent

felony conviction because a conspirator may only have a loose

connection to the           object of the conspiracy.                    After the parties

filed their briefs in this appeal, however, we held that the

North Carolina offense of conspiracy to commit robbery with a

dangerous       weapon     qualified     as    a     predicate          offense     under     the

ACCA.     United States v. White, __ F.3d __, 2009 WL 1913232, (4th

Cir. July 6, 2009) (No. 08-4492).                           The offense in White is

sufficiently similar to Gooden’s conspiracy conviction that we

discern no basis for a different outcome here.

               We also find that Gooden’s 1996 New York conviction

for second-degree criminal possession of a weapon qualifies as a

violent    felony        conviction.       The       New    York      statute       states:    “A

person    is    guilty     of   criminal       possession          of    a    weapon     in   the

second degree when he possesses a machine-gun or loaded firearm

with intent to use the same unlawfully against another.”                                      N.Y.

Penal Law § 265.03 (1996).                The U.S. Court of Appeals for the

Second Circuit has held that a conviction under this statute

qualifies       as   a   violent      felony       conviction.           United      States    v.

                                               3
Lynch, 518 F.3d 164, 172-73 (2d Cir. 2008).                 We agree, and we do

not   believe     Begay    undercuts         the    rationale    for    the     Lynch

decision.    In particular, we believe that this statute, by its

very language, requires the type of purposeful, violent, and

aggressive      conduct       that    is     characteristic      of    the     crimes

enumerated in § 924(e)(2)(B)(ii).

            Gooden has filed a pro se motion requesting permission

to file a supplemental brief.                   Since Gooden is represented by

counsel, we deny his motion.

            For   the     reasons      stated      above,   we   affirm      Gooden’s

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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