                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 06-5198



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


THOMAS ROBERT CRAIG,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Samuel G. Wilson, District
Judge. (5:06-cr-00030-SGW)


Submitted:   April 30, 2007                   Decided:   June 4, 2007


Before NIEMEYER, MOTZ, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


W. Kent Bowers, Harrisonburg, Virginia, for Appellant. John L.
Brownlee, United States Attorney, Anthony P. Giorno, Assistant
United States Attorney, Roanoke, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Thomas Robert Craig appeals the 180-month sentence he

received following his conviction for possession of a firearm by a

convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2000). The

district court determined that Craig had been previously convicted

of three serious drug offenses or violent felonies and therefore

qualified as an armed career criminal under 18 U.S.C. § 924(e)

(2000). On appeal, Craig contends that the district court erred in

determining that his Virginia conviction for burning a motor

vehicle with intent to defraud, pursuant to Va. Code Ann. § 18.2-81

(Michie 2004),1 qualified as “arson” for the purposes of § 924(e).

Finding no error, we affirm.

             Under 18 U.S.C. § 924(e)(1), “[i]n the case of a person

who violates section 922(g) . . . and has three prior convictions

. . . for a violent felony or a serious drug offense, or both,

committed on occasions different from one another, such person

shall be . . . imprisoned not less than fifteen years.”              Under 18

U.S.C.   §   924(e)(2)(B),   a   violent   felony   is   a   crime   that   is


     1
      Under Va. Code Ann. § 18.2-81, it is a Class 4 felony for an
individual to “maliciously, or with intent to defraud an insurance
company or other person, set fire to or burn or destroy by any
explosive device or substance, or cause to be burned, or destroyed
by any explosive device or substance, or aid, counsel, or procure
the burning or destroying by any explosive device or substance, of
any personal property, standing grain or other crop . . . if the
thing burnt or destroyed, be of the value of $200 or more.” A
Class 4 felony in Virginia is punishable by a term of imprisonment
of not less than two years nor more than 10 years. See Va. Code
Ann. § 18.2-10(d) (Michie 2004).

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punishable by more than a year in prison and that has as one of its

elements “the use, attempted use, or threatened use of physical

force against the person of another . . . or is burglary, arson, or

extortion,    involves   use   of   explosives,     or   otherwise    involves

conduct that presents a serious potential risk of physical injury

to another.”    Whether a defendant’s prior conviction qualifies as

a predicate offense for purposes of § 924(e) is a legal question

reviewed de novo.    United States v. Haynes, 961 F.2d 50, 51 (4th

Cir. 1992).

          In applying the armed career criminal statute, this court

uses a formal “categorical approach,” looking only to the statutory

definition of the predicate offense and not to the particular

circumstances    underlying    the    conviction.        United   States    v.

Hairston, 71 F.3d 115, 117 (4th Cir. 1995); see generally James v.

United States, 127 S. Ct. 1586, 1593-94 (2007).             Pursuant to the

Supreme Court’s decision in Taylor v. United States, 495 U.S. 575,

598 (1990), the term “arson” is applied in “the generic sense in

which the term is now used in the criminal codes of most states.”

Therefore, the relevant issue is whether the crime of burning or

destroying    personal   property     under   Va.   Code   Ann.   §    18.2-81

corresponds to a modern generic definition of arson.

          Craig contends that under Virginia law, arson is limited

to the malicious burning of a dwelling house; however, Craig’s

support for this proposition is based on the common law definition


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of the crime in Virginia, which is not controlling on this issue.2

See Taylor, 495 U.S. at 594 (rejecting the use of common law

definitions for defining terms under 924(e)).        Rather, for the

armed career criminal enhancement to apply, the Virginia statute

must substantially correspond to the generic definition of arson as

it is currently used and understood.   Id. at 598.   We find that the

burning of personal property with intent to defraud as defined

under Va. Code Ann. § 18.2-81 substantially corresponds to the

generic definition of arson for the purposes of § 924(e).        See

United States v. Hathaway, 949 F.2d 609, 610 (2d Cir. 1991)

(holding that Vermont conviction for third-degree arson, defined as

the willful and malicious burning of personal property, qualified

as “arson” under 924(e)).3      Therefore, we conclude that the


     2
      The common law definition of arson is embodied in Va. Code
Ann. § 18.2-77 (Michie 2004), which makes it a felony to burn a
“dwelling house” or other building where “persons usually dwell or
lodge.” However, pursuant to § 18.2-81, Virginia has expanded the
definition of the crime of arson to also include the burning of
personal property. See Schwartz v. Commonwealth, 594 S.E.2d 925,
927 (Va. 2004) (“In separate statutes, the legislature has
criminalized the arson of an occupied dwelling, on the one hand,
and the arson of personal property, on the other.”).
     3
      Craig notes that in Hathaway, the Vermont statute defined
third-degree arson as the “malicious” burning of personal property,
but that Va. Code Ann. § 18.2-81 does not necessarily require
malice, as a conviction can also be for “intent to defraud.”
However, the Virginia courts have held that “malice” is defined as
a purposeful intent to do a wrongful act; therefore, in the case of
arson, malice can be inferred from the fact that a person
intentionally burned property to defraud an insurance carrier.
Hamm v. Commonwealth, 428 S.E.2d 517, 520 (Va. App. 1993) (“The
fact that Code § 18.2-81 includes a separate provision for ‘burning
with intent to defraud an insurance company’ does not exclude that

                              - 4 -
district court did not err in finding that Craig’s conviction under

Va. Code Ann. § 18.2-81 qualified as a predicate conviction for

purposes of the Armed Career Criminal Act.

           Accordingly, we affirm Craig’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




wrongful act as being an act of malicious burning.”).

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