                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 08-5168


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

          v.

GARFIELD REDD,

                 Defendant - Appellant.


Appeal from the United States District Court for the District of
Maryland, at Baltimore.     Williams D. Quarles, Jr., District
Judge. (1:07-cr-00470-WDQ-1)


Submitted:   March 4, 2010                 Decided:   March 30, 2010


Before NIEMEYER, KING, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


James Wyda, Federal Public Defender, Meghan S. Skelton,
Assistant Federal Public Defender, Greenbelt, Maryland, for
Appellant.   Rod J. Rosenstein, United States Attorney, George
J. Hazel, Assistant United States Attorney, Baltimore, Maryland,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Garfield Redd pled guilty to possession of a firearm

by a convicted felon, in violation of 18 U.S.C. §§                          922(g)(1),

924(a)(2) (2006).         Redd was sentenced under the Armed Career

Criminal Act (“ACCA”), 18 U.S.C. § 924(e) (2006), to 240 months‟

imprisonment.      Redd appeals, arguing that the district court

erred in finding that he had the requisite number of qualifying

predicate convictions       under the ACCA.                 Finding no error, we

affirm.

            In   considering     whether       the   district       court    properly

designated Redd as an armed career criminal, this court reviews

the   district    court‟s   legal     determinations           de    novo    and     its

factual findings for clear error.                 United States v. Wardrick,

350 F.3d 446, 451 (4th Cir. 2003).                   A defendant is an armed

career    criminal,    subject   to   a       minimum   fifteen-year        sentence,

when he violates § 922(g)(1) and has three prior convictions for

violent felonies or serious drug offenses that were committed on

different    occasions.     18    U.S.C.        § 924(e)(1);        U.S.    Sentencing

Guidelines    Manual    § 4B1.4(a)    (2007).           A    “violent      felony”    is

defined by the ACCA as any crime punishable by imprisonment for

a term exceeding one year that “has as an element the use,

attempted use, or threatened use of physical force against the

person of another.”       18 U.S.C. § 924(e)(2)(B)(i).                  To determine

whether an offense under state law falls within the definition

                                          2
of a violent felony, this Court uses a categorical approach,

which “takes into account only the definition of the offense and

the fact of conviction.”           United States v. Pierce, 278 F.3d 282,

286 (4th Cir. 2002).            The particular label or categorization

under state law is not controlling.                        Taylor v. United States,

495   U.S.   575,    590-91     (1990).          We    find     the    district       court

properly determined that Redd had the three necessary qualifying

predicate    convictions      to    warrant       the        armed    career   criminal

designation.

             Redd first argues on appeal his prior conviction for

distribution    of    cocaine      could   not        be    considered    a    predicate

offense because he was only sixteen years old at the time of the

offense and seventeen years old at the time of conviction.                              The

statutory definition of a “serious drug offense” includes “an

offense under State law, involving manufacturing, distributing,

or    possessing     with   intent    to       manufacture       or    distribute,       a

controlled     substance      (as     defined         in     section     102    of     the

Controlled Substances Act (21 U.S.C. 802)), for which a maximum

term of imprisonment of ten years or more is prescribed by law.”

18 U.S.C. § 924(e)(2)(A)(ii).                  In the presentence report, the

probation    officer     noted      that       Redd    pled     guilty    to    and    was

convicted of possession with intent to distribute cocaine in

Maryland state court in March 1988.                        He was sentenced to ten

years‟ imprisonment.          Redd‟s conviction was for a serious drug

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offense and constitutes the first predicate offense for armed

career criminal status.          See Taylor, 495 U.S. at 600 (noting

that, to determine whether a prior conviction may be counted

under the ACCA, the court looks to the statutory definition of

the prior offense and not to the particular facts underlying

that conviction); United States v. Wright, ___ F.3d __, 2010 WL

376549, at *5 (4th Cir. Feb. 3, 2010) (finding no error in

district   court‟s    reliance    on   prior    juvenile       convictions    to

enhance sentence under ACCA).

           The district court also properly found that Redd‟s two

Maryland   convictions    for     first-degree       assault    qualified     as

predicate offenses under the ACCA.          Under Maryland law, a person

is guilty of first-degree assault if he “intentionally cause[s]

or attempt[s] to cause serious physical injury to another.”                  Md.

Code Ann. Crim., Law § 3-202 (LexisNexis Supp. 2008).                  Because

the   elements   of    first-degree        assault     under    Maryland     law

encompass the use or attempted use of physical force, these two

offenses   categorically    qualify        as   ACCA     predicates.         See

Johnson v. United States, ___ S. Ct. ___, 2010 WL 693687, at *6

(U.S. Mar. 2, 2010) (“We think it clear that in the context of a

statutory definition of „violent felony,‟ the phrase “physical

force” means violent force-that is, force capable of causing

physical pain or injury to another person.”); but see United

States v. Coleman, 158 F.3d 199, 204 (4th Cir. 1998) (holding

                                       4
Maryland common law assault is not per se violent felony within

the meaning of ACCA); United States v. Kirksey, 138 F.3d 120,

125 (4th Cir. 1998) (describing common law assault in Maryland to

include, inter alia, “any unlawful force used against a person

of another, no matter how slight”).

              Because       all      three     prior        convictions        qualify        as

categorical predicate offenses under the ACCA, Redd‟s reliance

on   Taylor    and    Shepard        v.    United    States,       544    U.S.    13    (2005)

(holding      that    a     court‟s        inquiry     as    to    disputed          facts    in

connection with a prior conviction is limited to the terms of

the charging document, a plea agreement, a transcript of the

plea colloquy, or a comparable judicial record), is misplaced.

While a sentencing court is not permitted to resolve disputed

facts about a prior conviction that are not evident from “the

conclusive significance of a prior judicial record,” Shepard,

544 U.S. at 25, a determination that a defendant is eligible for

sentencing         under    the      ACCA     may      be     based       on     a     judge‟s

determination        that    the     predicate       convictions         are   for     violent

felonies or drug trafficking crimes if the qualifying facts are

inherent      in    the    predicate       convictions       and    the    court       is    not

required      to     perform      additional         fact    finding.            See    United

States v. Thompson, 421 F.3d 278, 282-83 (4th Cir. 2005).

              In his reply brief, Redd argues that, even if these

prior    convictions           are        categorically        considered            predicate

                                              5
offenses under the ACCA, the Government failed to carry its

burden of establishing the fact of these convictions and was not

entitled to rely solely on the presentence report.                          Contrary to

Redd‟s    argument,       we    have   held       that    a    sentencing       court   is

entitled to rely on “the conclusive significance” of the record,

see Shepard, 544 U.S. at 25, as set out in the presentence

report.     Thompson, 421 F.3d at 285 (sentencing court entitled to

rely on the presentence report because it “bears the earmarks of

derivation from Shepard-approved sources”); see generally United

States    v.    Love,    134    F.3d   595,      606   (4th     Cir.    1998)   (quoting

United States v. Terry, 916 F.2d 157, 162 (4th Cir. 1990)) (“A

mere objection to the finding in the presentence report is not

sufficient. . . . Without an affirmative showing the information

is inaccurate, the court is „free to adopt the findings of the

[presentence          report]     without         more    specific          inquiry     or

explanation.‟”).

               We therefore find that the district court did not err

in determining that Redd had the requisite number of qualifying

predicate      convictions       to    warrant      the   armed        career   criminal

designation.*         Accordingly,      we       affirm   Redd‟s       sentence.        We

dispense       with     oral    argument      because         the   facts    and   legal

     *
       Because Redd has three prior convictions that qualify as
predicate offenses under the ACCA, we need not address his
arguments as to the fourth prior conviction for assault.


                                             6
contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.


                                                           AFFIRMED




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