                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 10-4731


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

          v.

DARRYL HARCUM,

                 Defendant -    Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Richard D. Bennett, District Judge.
(1:06-cr-00434-RDB-1)


Submitted:   October 31, 2011                Decided:   December 15, 2011


Before NIEMEYER, KING, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


James Wyda, Federal Public Defender, Sapna Mirchandani, Staff
Attorney,   Greenbelt,  Maryland,   for   Appellant.     Rod  J.
Rosenstein, United States Attorney, Benjamin M. Block, Assistant
United States Attorney, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                 Darryl        Harcum     was     convicted       in    2007     of        unlawful

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

§ 922(g)(1) (2006), and sentenced as an armed career criminal to

a term of 235 months imprisonment.                          See 18 U.S.C.A. § 924(e)

(West        2000     &    Supp.    2011).         In     Harcum’s      first     appeal,            we

concluded         that      the    district       court    had    properly       applied         the

modified categorical approach to determine that he was an armed

career criminal, 1 but vacated his sentence, and                                remanded for

further proceedings on the ground that the district court erred

in relying on the facts set out in the Statement of Charges

filed in one Maryland court to determine that Harcum’s prior

Maryland second degree assault conviction was a violent felony

when        he   pled      guilty    to    a     criminal    information         filed          in    a

different         Maryland        court    which       contained       no   facts.          United

States v. Harcum, 587 F.3d 219, 224-25 (4th Cir. 2009).

                 On    remand,      the   district        court    conducted      a        de   novo

resentencing,              permitted       the     government          to    introduce           the

transcript of Harcum’s guilty plea to second degree assault, and

determined that the assault conviction qualified as a violent




        1
       See Shepard v. United States, 544 U.S. 13 (2005); United
States v. Simms, 441 F.3d 313 (4th Cir. 2006).



                                                  2
felony.      The court sentenced Harcum to the mandatory minimum

180-month sentence.

             Harcum now appeals his new sentence, contending that

(1) the court erred in conducting a de novo resentencing; (2)

the plea transcript did not prove the assault was a violent

felony; and (3) recent decisions from the Supreme Court and this

court required the court to use a categorical approach rather

than    a   modified    categorical       approach       to     construe       the       second

degree assault conviction.             We affirm.

             Initially, we find no error in the district court’s

decision to conduct a de novo resentencing hearing and to permit

the    government     to    introduce    a       transcript     of     the    guilty      plea

colloquy for Harcum’s second degree assault conviction.                                    Our

direction to the district court on remand left the scope of the

resentencing     to     the     discretion        of   the     court.          See       United

States v. Bell, 5 F.3d 64, 67 (4th Cir. 1993) (“[T]o the extent

that the mandate of the appellate court instructs or permits

reconsideration        of   sentencing       issues     on     remand,       the     district

court may consider the issue de novo, entertaining any relevant

evidence on that issue that it could have heard at the first

hearing.”) (internal quotation marks omitted).

             Next,     Harcum    asserts         for   the     first    time       that    the

guilty plea transcript did not prove that the assault was a

violent     felony    because     he   did       not   adopt    or     admit       the    facts

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proffered    by    the    state     prosecutor.            Generally,      the   issue   of

whether a prior conviction qualifies as a crime of violence is

reviewed de novo. 2           United States v. Donnell, ___ F.3d ___, 2011

WL 5101566, at *2 (4th Cir. Oct. 27, 2011).                               Reviewing this

argument    for       plain    error   because        it     was   not    preserved      for

appeal, United States v. Olano, 507 U.S. 725 (1993), we conclude

that the district court did not err, plainly or otherwise, in

relying on the facts proffered by the government as the factual

basis for the guilty plea to find that Harcum’s second degree

assault conviction was a violent felony.

            Harcum seeks to analogize his situation to that of the

defendant in United States v. Alston, 611 F.3d 219 (4th Cir.

2010),    who   entered        an   Alford 3       plea,   not     admitting     guilt    or

confirming      the    facts    underlying          the    plea,    but   pleading    “for

reasons of self-interest.”               United States v. Taylor, ___ F.3d

___, 2011 WL 5034576, at *7 (4th Cir. Oct. 24, 2011) (rejecting

similar     claim).           Harcum    pled        guilty    pursuant      to    a   plea

agreement.        When asked by the judge whether he was pleading

guilty because he was, in fact, guilty, Harcum responded, “Yes.”



     2
       Cases construing “crime of violence” under the Guidelines
and “violent felony” under § 924(e) are both applicable because
the language is nearly identical. United States v. Knight, 606
F.3d 171, 173 n.1 (4th Cir. 2010).
     3
         North Carolina v. Alford, 400 U.S. 25, 25-26 (1970).



                                               4
When    asked       how   he      pleaded      to       second      degree    assault,     Harcum

responded, “Guilty.”               The factual basis for his guilty plea was

that he punched the victim, who fell backward through a plate

glass window and suffered injuries, including a severed tendon

and artery.           After hearing the facts presented, Harcum agreed

that the state’s witnesses would so testify.                                When asked, before

sentence was imposed, if he wished to say anything to the judge,

Harcum declined to speak.                Harcum’s plea was not analogous to an

Alford       plea    because       he    specifically            admitted        his    guilt   and

raised no objection to the factual basis.                               See Taylor, 2011 WL

5034576, at *8 (refusing “to dress a perfectly ordinary guilty

plea     in        Alford      garb      in     order          to     avoid       [a    § 924(e)]

enhancement.”).

               Last, Harcum contends that the district court erred in

using    a    modified       categorical        approach.             He     asserts     that   the

legal landscape has changed since his first appeal was decided.

Generally, to decide whether a prior conviction constitutes a

violent       felony,       the    district         court      should      use    a    categorical

approach.           James v. United States, 550 U.S. 192, 202 (2007);

Shepard       v.    United     States,        544       U.S.   13,    19-20      (2005);    United

States v. Kirksey, 138 F.3d 120, 124-25 (4th Cir. 1998).                                     Under

this approach, the court may “rel[y] only on (1) the fact of

conviction          and   (2)      the   definition            of     the     prior     offense.”

Kirksey, 138 F.3d at 124.                 In a limited class of cases, however,

                                                    5
where the definition of the underlying crime encompasses both

violent and non-violent conduct, “a sentencing court may use a

modified categorical approach to look beyond the fact of the

conviction and the elements of the offense to determine which

category of behavior underlies the prior conviction.”               Donnell,

2011 WL 5101566, at *2 (citing Johnson v. United States, 130 S.

Ct. 1265, 1273 (2010)).         When the conviction results from a

guilty plea, “a court may look to the statement of factual basis

for the charge shown by a transcript of plea colloquy or by

written plea agreement presented to the court, or by a record of

comparable   findings    of   fact   adopted      by   the   defendant   upon

entering the plea.”       Donnell, 2011 WL 5101566, at *2 (quoting

Shepard, 544 U.S. at 20 (citation omitted)); see also Harcum,

587 F.3d at 223.

           Harcum argues that, after his appeal was decided, the

Supreme Court’s decision in Johnson and this court’s decision in

United States v. Rivers, 595 F.3d 558 (4th Cir. 2010), narrowed

the circumstances in which the modified categorical approach may

be used, and that these decisions as well as decisions from

other   circuits   now   require   use   of   a   categorical   approach   to

analyze a prior Maryland second degree assault conviction.

           However, we have very recently held that, in Maryland,

second degree assault “encompasses several distinct crimes, some

of which qualify as violent felonies and others of which do

                                     6
not,”   and    thus     a    sentencing      court       is     “entitled      to   use      the

modified      categorical         approach       to     determine    whether        a     prior

conviction     for     Maryland      second       degree      assault    is    a    crime     of

violence” or a violent felony.                    Donnell, 2011 WL 5101566, at *3

(quoting Alston, 611 F.3d at 222-23); see Md. Code Ann., Crim.

Law §§ 3-203, -201(b) (LexisNexis 2010).                         Accordingly, contrary

to Harcum’s assertion on appeal, the district court was correct

in using a modified categorical approach.                           Thus, the district

court’s consideration of the transcript of Harcum’s guilty plea

to   second        degree    assault       was     permissible.           Moreover,          the

district court correctly concluded that Harcum’s second degree

assault conviction was a violent felony.

              We    therefore       affirm        the    sentence       imposed      by      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      the

decisional process.

                                                                                    AFFIRMED




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