                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 15-4218


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

LEE THOMAS SMITH,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:14-cr-00291-TDS-1)


Submitted:   November 30, 2015             Decided:   January 26, 2016


Before SHEDD and HARRIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Louis C. Allen, Federal Public Defender, Tiffany T. Jefferson,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant.    Ripley Rand, United States Attorney, Clifton T.
Barrett, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Lee Thomas Smith was convicted by a jury of possession of

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

(2012).   On appeal, Smith argues that he did not have three prior

qualifying    convictions      justifying     application      of    enhanced

sentencing    under    the   Armed   Career   Criminal   Act   (ACCA).        In

addition, he argues that there was insufficient evidence to support

his conviction.       We affirm.

     Smith argues that his prior convictions no longer qualify as

“violent felonies” under the ACCA, relying on Johnson v. United

States (Johnson I), 135 S. Ct. 2551 (2015), for support.                   Smith

did not properly preserve this issue for appeal; we therefore

review it for plain error.           Puckett v. United States, 556 U.S.

129, 134 (2009).

     Convicted felons are not permitted to possess ammunition.               18

U.S.C. § 922(g) (2012).       Persons who violate § 922(g) are subject

to an enhanced sentence under the ACCA of 15 years to life in

prison if they have three or more serious drug offenses or violent

felonies.    Id. § 924(e)(1) (2012).       A “violent felony” is defined

as

     any crime punishable by imprisonment                for   a    term
     exceeding one year . . . that—

            (i)   has as an element the use, attempted use, or
                  threatened use of physical force against the
                  person of another; or


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           (ii) is burglary, arson, or extortion, involves use
                of explosives, or otherwise involves conduct
                that presents a serious potential risk of
                physical injury to another . . . .

Id. § 924(e)(2)(B) (2012) (emphasis added).

     The underlined clause has become known as the ACCA’s “residual

clause.”   Johnson I, 135 S. Ct. at 2556.   In Johnson I, the Supreme

Court held that the ACCA’s residual clause is unconstitutionally

vague and violates due process.   Id. at 2557.    However, Johnson I

did “not call into question application of the [ACCA] to the four

enumerated offenses” in § 924(e)(2)(B)(ii), or to “the remainder

of the [ACCA’s] definition of a violent felony.”        Id. at 2563.

Thus, prior convictions that fall under the “force clause” in

§ 924(e)(2)(B)(i) are unaffected by Johnson I.

     The term “physical force” within the force clause is not

statutorily defined.    Johnson v. United States (Johnson II), 559

U.S. 133, 138 (2010).    Giving the phrase “its ordinary meaning,”

the Supreme Court determined 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.”   Id. at 138, 140 (emphasis omitted).

     Smith’s three predicate felonies for application of the ACCA

are North Carolina convictions, one for felony robbery with a

dangerous weapon and two for malicious assault in a secret manner.

(J.A. 142, 146, 151).      In determining whether these felonies


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qualify as “violent felon[ies]” under the ACCA, courts generally

use the “categorical approach” set forth in Taylor v. United

States, 495 U.S. 575, 600-02 (1990), and recently clarified in

Descamps v. United States, 133 S. Ct. 2276, 2281 (2013).                              See

United States v. McLeod, ___ F.3d ___, ___, No. 14-4766, 2015 WL

6575673, at *3 (4th Cir. Oct. 30, 2015); United States v. Parral-

Dominguez,    794   F.3d   440,      444       (4th   Cir.    2015).        Under     the

categorical   approach,    a   court       may    consult     only      “the   fact   of

conviction and the statutory definition of the prior offense” to

determine whether a state crime is a “violent felony.”                          United

States v. Aparicio-Soria, 740 F.3d 152, 154 (4th Cir. 2014) (en

banc) (quoting Taylor, 495 U.S. at 603); see Descamps, 133 S. Ct.

at 2281.

     Here, under North Carolina law, robbery with a dangerous

weapon consists of the following elements: “(1) the unlawful taking

or an attempt to take personal property from the person or in the

presence of another (2) by use or threatened use of a firearm or

other   dangerous   weapon     (3)    whereby         the   life   of   a   person     is

endangered or threatened.”           State v. Small, 400 S.E.2d 413, 416

(N.C. 1991) (internal quotation marks omitted); accord N.C. Gen.

Stat. § 14-87 (2013).        Because the “use or threatened use of a

firearm or other dangerous weapon . . . whereby the life of a

person is endangered or threatened,” Small, 400 S.E.2d at 416,

entails “force capable of causing physical pain or injury to

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another person,” Johnson II, 559 U.S. at 140, robbery with a

dangerous weapon involves “the use, attempted use, or threatened

use of physical force,” § 924(c)(2)(B)(i) and therefore qualifies

as a “violent felony” under the force clause.

      Smith’s other two predicate felonies are state convictions

for malicious assault in a secret manner.               Under North Carolina

law, malicious assault in a secret manner consists of the following

elements: “(1) secret manner; * (2) malice; (3) assault and battery;

(4) deadly weapon; and (5) intent to kill.”                 State v. Hill, 214

S.E.2d 67, 74 (N.C. 1975); accord N.C. Gen. Stat. § 14-31 (2013).

Because the use of a “deadly weapon” with “intent to kill,” Hill,

214 S.E.2d at 79, entails “force capable of causing physical pain

or   injury   to   another   person,”       Johnson   II,   559   U.S.   at   140,

malicious assault in a secret manner involves “the use, attempted

use, or threatened use of physical force,” § 924(e)(2)(B)(i), and

therefore qualifies as a “violent felony” under the force clause.

      Smith cites the abrogation of United States v. White, 571

F.3d 365 (4th Cir. 2009), by Johnson I in support of his argument

that felony robbery with a dangerous weapon is not a “violent

felony” under the ACCA.        However, White dealt not with robbery




      *The “secret manner” element can be satisfied               if either the
assailant is lying in wait to assault the victim or               the victim is
aware of the assailant’s presence, but not of his                 purpose. See
State v. Holcombe, 691 S.E.2d 740, 744-46 (N.C. Ct.               App. 2010).

                                        5
with a dangerous weapon, but with conspiracy to commit robbery

with a dangerous weapon, see White, 571 F.3d at 367, and is

therefore inapposite.

       Thus, we conclude that Smith has three predicate offenses

under the ACCA and was properly sentenced by the district court.

       Smith next argues that the evidence is insufficient to support

his conviction. We review de novo the sufficiency of the evidence,

United States v. Barefoot, 754 F.3d 226, 233 (4th Cir. 2014), but

we may not “reweigh the evidence or the credibility of witnesses,”

United States v. Roe, 606 F.3d 180, 186 (4th Cir. 2010).                  To

convict a defendant under § 922(g)(1), the Government must show

that   (1)   the   defendant   was   previously   convicted    of   a   crime

punishable by a prison term exceeding one year; (2) the defendant

knowingly     possessed   a    firearm    or   ammunition;    and   (3) “the

possession was in or affecting commerce” because the firearm or

ammunition “had travelled in interstate or foreign commerce at

some point.”       United States v. Gilbert, 430 F.3d 215, 218 (4th

Cir. 2005).

       Here, the Government introduced evidence of four shotgun

shells found on Smith’s person.           The deputy who arrested Smith

testified that two shells fell out of Smith’s pocket during the

arrest, and two shells were later found in Smith’s back pocket as

he was being processed at the local jail.           Given that the other

elements of 18 U.S.C. § 922(g)(1) were stipulated to by the

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parties, the only element in dispute is whether Smith possessed

ammunition.

      Smith,    though    acknowledging       the   prohibition       against

reweighing      the    credibility       of   witnesses,     argues      that

inconsistencies in the deputy’s testimony rendered it incredible.

We must assume that any alleged contradictions in a witness’

testimony were resolved in favor of the Government, Roe, 606 F.3d

at 186, and we conclude that a reasonable jury could find the

evidence sufficient beyond a reasonable doubt to convict Smith.

See United States v. Cornell, 780 F.3d 616, 630 (4th Cir. 2015)

(defining substantial evidence).

      Accordingly, we affirm the judgment of the district court.

We   dispense   with   oral   argument    because   the   facts   and   legal

contentions are adequately presented in the materials before this

court and argument would not aid the decisional process.

                                                                   AFFIRMED




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