                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 06-4433



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

          versus


JEROME HENDERSON,

                                               Defendant - Appellant.


Appeal from the United States District Court for the District of
Maryland, at Baltimore. Marvin J. Garbis, Senior District Judge.
(1:03-cr-00109-MJG)


Submitted:   August 8, 2007                 Decided:   August 24, 2007


Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


James Wyda, Federal Public Defender, Sarah S. Gannett, Staff
Attorney, Joanna Silver, Assistant Federal Public Defender,
Baltimore, Maryland, for Appellant.    Rod J. Rosenstein, United
States Attorney, Michael J. Leotta, Harry M. Gruber, Assistant
United States Attorneys, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Jerome Henderson was convicted by a jury of one count of

possession of a firearm by a felon, in violation of 18 U.S.C.

§ 922(g)(1) (2000).        The district court determined the statutory

conditions set forth in the Armed Career Criminal Act (“ACCA”) were

satisfied, and sentenced Henderson to 184 months’ imprisonment.

Finding no error, we affirm.

           On    appeal,    Henderson   initially       contends     that   the

Government’s closing argument, as it pertained to an alleged

attempted armed robbery, was improper.              We review a claim of

prosecutorial misconduct “to determine whether the conduct so

infected   the    trial   with   unfairness   as   to   make   the   resulting

conviction a denial of due process.” United States v. Scheetz, 293

F.3d 175, 185 (4th Cir. 2002) (internal quotation marks omitted).

“The   test     for   reversible   prosecutorial        misconduct    has   two

components; first, the defendant must show that the prosecutor’s

remarks or conduct were improper and, second, the defendant must

show that such remarks or conduct prejudicially affected his

substantial rights so as to deprive him of a fair trial.”                   Id.

Relevant factors in the determination of prejudice include:

           (1) the degree to which the prosecutor’s
           remarks had a tendency to mislead the jury and
           to prejudice the defendant; (2) whether the
           remarks were isolated or extensive; (3) absent
           the remarks, the strength of competent proof
           introduced to establish the guilt of the
           defendant; (4) whether the comments were
           deliberately placed before the jury to divert

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            attention to extraneous matters; (5) whether
            the prosecutor’s remarks were invited by
            improper conduct of defense counsel; and
            (6) whether curative instructions were given
            to the jury.

Id. at 185-86.

            Testimony regarding an alleged attempted armed robbery

was introduced at trial to establish why law enforcement officers

initially approached Henderson.          In accordance with the parties’

agreement, a limiting instruction addressing this testimony was

given by the court after the testimony was first presented and once

again during the court’s final jury instructions.          The agreed to

instruction stated:

            You have heard evidence that the police
            approached Mr. Henderson in connection with
            their investigation of an attempted armed
            robbery. That information has been presented
            to explain why the police approached Mr.
            Henderson. You are not to consider it for any
            other purpose.    That is, you are not to
            consider whether there in fact was an
            attempted robbery, whether a gun was used, or
            whether Mr. Henderson was involved, in
            deciding whether the government has sustained
            its burden of proof in this case.

            As evidence of the § 922(g)(1) violation, the Government

presented the testimony of law enforcement officers who responded

to   the   alleged   attempted   armed   robbery.   When   Henderson    was

approached by officers, he fled.            Officer John Gorman of the

Baltimore City Police Department stated that he saw Henderson

clutching the right side of his jacket as he ran away.                 Soon

thereafter, Officer Gorman witnessed Henderson withdraw a firearm

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from his jacket.      Officer Gorman consequently tackled Henderson.

In   the   process,   Henderson   dropped   the   firearm   and   it   “flew

forward.”     Officer Gorman instructed the other officers on the

scene as to the firearm’s location, and it was quickly recovered.

Though the firearm was in poor condition, it was determined to be

operable.    Henderson stipulated that the firearm had traveled in

interstate commerce and that he was a convicted felon.

            During its closing argument, the Government stated:

            We’re here today because on November 3rd,
            2002,   this  man,   the   defendant,   Jerome
            Henderson, was caught red-handed with a gun on
            Eutaw Place in Baltimore, Maryland.     Caught
            red-handed with this gun.     The police had
            stopped Mr. Henderson because they had
            received a tip that he matched the exact
            description of a person who tried to rob this
            victim with a gun.

The Government additionally argued:

            And let me also talk about the condition of
            this gun because there’s been a lot of talk
            about the gun.    You know, it’s a rusty old
            gun. It’s covered in rust. It’s corroded. I
            don’t know how long it must take to get this
            rusty.   Probably months.    But that doesn’t
            have anything to do with whether the defendant
            possessed it on the night in question.     You
            can rob somebody with a rusty gun.

            Throughout the opening statements, trial, and closing

arguments, both the Government and the defense addressed the issue

of the alleged attempted armed robbery.       The remarks challenged by

the defense are not inconsistent with the manner in which the issue

was addressed during the course of the trial.               Moreover, the


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remarks at issue comprise only a fraction of the Government’s

lengthy closing and rebuttal arguments.        Even if the remarks could

be said to have prejudiced Henderson by misleading the jury or

diverting its attention, such prejudice was minimal when compared

to the compelling evidence introduced to establish Henderson’s

guilt.     Furthermore, any prejudice suffered by Henderson was cured

by the district court’s limiting instruction given several times

during the course of the trial.      See United States v. Francisco, 35

F.3d 116, 119-20 (4th Cir. 1994) (per curiam) (stating this court

generally follows the presumption that the jury obeyed the district

court’s instructions).       Thus, we conclude Henderson has failed to

establish     that   the   Government’s   remarks   constitute   reversible

error.

              Henderson also contends that the district court erred in

its application of the ACCA.        He argues that it was improper for

the district court to rely on United States v. Wardrick, 350 F.3d

446,       455-56 (4th Cir. 2003), in finding his resisting arrest

conviction categorically qualifies as a violent felony under the

residual provision of clause (ii)1, as such an approach requires

impermissible judicial fact-finding in violation of Shepard v.

United States, 544 U.S. 13 (2005).


       1
      The term “violent felony” is defined by the residual
provision of clause (ii) to include crimes that “otherwise
involve[] conduct that presents a serious potential risk of
physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii) (“clause
(ii)”).

                                    - 5 -
           However, the Supreme Court has determined that the use of

such a “categorical approach” does not run afoul of Shepard as it

“look[s]   only   to   the   fact   of    conviction   and   the   statutory

definition of the prior offense, and [does] not generally consider

the particular facts disclosed by the record of conviction.” James

v. United States, 127 S. Ct. 1586, 1594 (2007) (internal quotation

marks omitted). Thus, the approach taken by this court in Wardrick

survives post-Shepard scrutiny.          The district court’s application

of the ACCA was therefore proper.2

           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 the

court and argument would not aid in the decisional process.



                                                                    AFFIRMED




     2
      As Henderson has the requisite number of convictions for
enhancement under the ACCA, we need not address the Government’s
alternative argument that Henderson’s subsequently vacated
convictions likewise support enhancement. Therefore, we deny as
moot Henderson’s motion to strike those portions of the
Government’s brief addressing this argument.

                                    - 6 -
