                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 09-4499


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

MARCUS JAMES BYRD,

                Defendant – Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Henry F. Floyd, District Judge.
(7:08-cr-00665-HFF-1)


Submitted:   August 5, 2010                 Decided:   November 4, 2010


Before GREGORY, SHEDD, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Scarlet B. Moore, Greenville, South Carolina, for Appellant.
William N. Nettles, United States Attorney, William J. Watkins,
Jr.,   Maxwell  Cauthen, Assistant    United States  Attorneys,
Greenville, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              After pleading guilty to one count of being a felon in

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

(2006), Marcus Byrd was sentenced to seventy months in prison.

Challenging his sentence on appeal, Byrd contends that: (i) his

prior    felony       South     Carolina          convictions        for    pointing      and

presenting      a     firearm       at     another       person,      in     violation     of

S.C. Code      Ann.    §     16-23-410        (2003),       were     not     “crime[s]     of

violence”      justifying       an       enhanced        offense     level     under     U.S.

Sentencing Guidelines Manual (“USSG”) § 2K2.1(a)(2) (2008); and

(ii)    the   district        court      committed       reversible        error   when   it

imposed Byrd’s sentence without an individualized assessment, in

violation of United States v. Carter, 564 F.3d 325 (4th Cir.

2009).    After determining that no reversible error occurred, we

affirm the district court’s judgment.

              Considering Byrd’s claims in reverse order, we first

hold that the district court committed no reversible error when

it failed to place individualized support for Byrd’s sentence on

the record.         Byrd did not properly preserve his objection to the

adequacy of the district court’s sentencing procedure by asking

the    district      court     to    depart       from    the   correctly       calculated

Guidelines     range       based      on   consideration        of    the     relevant     18

U.S.C. § 3553 (2006) factors.                      Thus, we review the district



                                              2
court’s explanation behind Byrd’s sentence for plain error.                          See

United States v. Lynn, 592 F.3d 572, 580 (4th Cir. 2010).

             To require vacatur of his sentence, Byrd must show

that an error: (i) was made; (ii) was plain (i.e., clear or

obvious); and (iii) affected his substantial rights, see United

States v. Massenburg, 564 F.3d 337, 342-43 (4th Cir. 2009).                           In

other   words,      even   if     this   court     assumed     that     the    district

court’s     cursory      explanation      in     support      of    Byrd’s     sentence

constituted an obvious error in violation of Carter, Fed. R.

Crim. P. 52(b) requires Byrd to also show that the district

court’s     lack    of   explanation     had   a   prejudicial        effect    on   the

sentence     imposed.       See    Puckett v.      United     States,    129    S.   Ct.

1423, 1433 n.4 (2009).          Byrd has made no such showing.

             We discern no reversible error in the district court’s

calculation of Byrd’s Guidelines range.                    Section 2K2.1(a)(2) of

the Sentencing Guidelines provides for a base offense level of

twenty-four for an unlawful possession of a firearm conviction

if   “the   defendant      committed     any   part      of   the   instant    offense

subsequent     to    sustaining     at   least     two    felony      convictions    of

either a crime of violence or a controlled substance offense.”

A “crime of violence” is defined in USSG § 4B1.2(a) as:

      any offense under federal or state law, punishable by
      imprisonment for a term exceeding one year, that –




                                          3
     (1) has as an element the use, attempted use, or
     threatened use of physical force against the person of
     another, or

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

USSG § 4B1.2 (2008).

            To    determine     whether        prior    convictions        constitute

crimes   of      violence,     we    employ       a    “categorical        approach.”

Taylor v.     United    States,      495   U.S.       575,    600    (1990);    United

States v. Kirksey, 138 F.3d 120, 124 (4th Cir. 1998).                            Under

this approach, the court may look only to the fact of conviction

and the statutory definition of the prior offense. *                           Taylor,

495 U.S. at 602.         Thus, the court should consider the offense

“generically”     —    i.e.,   “in   terms     of     how    the    law   defines   the

offense and not in terms of how an individual offender might


     *
       In a “narrow range of cases,” resort to the statute of
offense and fact of conviction will not confirm the predicate
nature of the state crime. Taylor, 495 U.S. at 602. In those
cases where it is evident from the statutory definition of the
state crime that some violations of the statute are “crimes of
violence” and others are not, this court applies a “modified”
categorical approach.   Soliman v. Gonzales, 419 F.3d 276, 285
(4th Cir. 2005).   Because the statute at issue on this appeal
criminalizes only one type of conduct, the use of a modified
categorical approach would be inappropriate in this case.    See
United States v. Rivers, 595 F.3d 558, 563 (4th Cir. 2010)
(“[O]nly when a statute prohibits different types of behavior
such that it can be construed to enumerate separate crimes can a
court modify the categorical approach to determine ACCA
eligibility.”).



                                           4
have committed it on a particular occasion.”                    Begay v. United

States, 553 U.S. 137, 141 (2008) (citations omitted).

            This court has previously held that a violation of

§ 16-23-410       qualifies   as   a   predicate     offense    under    a    former

version of § 4B1.2(a)(2), as well as under the Armed Career

Criminal Act (“ACCA”), 18 U.S.C. § 924(e) (2006).                       See United

States v. Thompson, 891 F.2d 507, 509 (4th Cir. 1989) (holding

that a conviction under the South Carolina statute qualifies as

a crime of violence under a former version of § 4B1.2(a)(2),

while declining to determine whether it would qualify as a crime

of violence under § 4B1.2(a)(1)); United States v. Hemingway,

38 F. App’x 142, 147 (4th Cir. March 29, 2002) (No. 01-4211)

(unpublished after argument) (holding that a conviction under

§ 16-23-410 qualifies as a violent felony under the ACCA, which

defines   “violent     felony”     the   same   as   “crime    of    violence”    in

§ 4B1.2, because pointing or presenting a firearm at another

“presents     a    serious    potential      risk    of   physical      injury    to

another”) (internal quotation marks and citation omitted).

            After     these   holdings,      however,     the       Supreme    Court

decided Begay v. United States, in which it held that a “violent

felony” under the residual clause of the ACCA must “typically

involve purposeful, violent, and aggressive” conduct.                        See 553

U.S. at 144-45.       This holding is applicable to the definition of

a “crime of violence” under § 4B1.2(a)(2).                     United States v.

                                         5
Seay, 553 F.3d 732, 738-39 (4th Cir.), cert. denied, 130 S. Ct.

127 (2009).      Accordingly, Byrd argued at sentencing that his

§ 16-23-410 convictions were not “crimes of violence” under USSG

§ 4B1.2(a)(1) because such a crime does not have as an element

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

against the person of another,” and that Begay undercut this

court’s holdings in Hemingway and Thompson.

           In overruling Byrd’s objection to his Guidelines range

calculation, the district court declined to conduct a Begay-type

analysis and instead found a violation of § 16-23-410 to be a

“crime of violence” under USSG § 4B1.2(a)(1).               We find that the

district   court     correctly   recognized      that   a    person   violates

§ 16-23-410 if he: (i) points or presents; (ii) a loaded or

unloaded firearm; (iii) at another person.                  State v. Burton,

589 S.E.2d 6, 8 (S.C. 2003).          However, the articulated elements

of the crime cover a wide range of fact patterns and the only

stated exceptions to the statute’s coverage are when a firearm

is pointed at another in self defense or when a firearm is

pointed    at   or   presented   to    another    person     as   part   of   a

theatrical or like performance.           See S.C. Code Ann. § 16-23-410

(2003).     Thus, although the act of pointing or presenting a

firearm at another may inherently be dangerous and almost always

will be “accompanied by the use of physical force,”                   Thompson,

891 F.2d at 509, it is simply not an articulated element of the

                                      6
offense that physical force be used, attempted or threatened

before a violation will occur.                        Accordingly, we conclude that a

§ 16-23-410 conviction does not constitute a crime of violence

under USSG § 4B1.2(a)(1).

                 Despite     the   foregoing,             the    South    Carolina         Court    of

Appeals recently construed the phrase “to present” in § 16-23-

410 as “offer[ing] to view in a threatening manner, or to show

in a threatening manner.”                  In re Spencer R., 692 S.E.2d 569, 572

(S.C. Ct. App. 2010).                    In so construing, the court recognized

that § 16-23-410 was not “perfectly analogous” to other states’

firearm      brandishing        statutes         —     which         prohibit      brandishing       a

firearm in “a rude, angry, or threatening manner,” Cal. Penal

Code    § 417(a)(2)          (West       2009),       “in       an    angry     or    threatening

manner[,]” Mo. Ann. Stat. § 571.030(1)(4) (West 2010), or “in

such    a   manner      as    to   reasonably             induce      fear    in     the   mind     of

another[,]” Va. Code Ann. § 18.2-282(A) (2009) — but nonetheless

concluded that a violation of the statute will occur so long as

an     individual       “intend[s]          to       specifically         threaten”         another

individual.           See In re Spencer R., 692 S.E.2d at 573.                                   Thus,

according        to   the     highest      South       Carolina        state    court       to    have

spoken      on    the   issue,       a    violation         of       § 16-23-410      necessarily

involves         “purposeful,        violent,         and       aggressive”        conduct        and,

accordingly,          still     constitutes           a    “crime        of   violence”          under

§ 4B1.2(a)(2), even after Begay.

                                                  7
              Because   this   court   may   affirm     the   district     court’s

judgment on any grounds apparent from the record, see United

States v. Smith, 395 F.3d 516, 518-19 (4th Cir. 2005), we hold

that    a   § 16-23-410    violation    still   constitutes       a     “crime   of

violence”      under    USSG   § 4B1.2(a)(2)    and     affirm    the     district

court’s judgment.         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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