                                     UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                       No. 19-4540


UNITED STATES OF AMERICA,

             Plaintiff - Appellee,

v.

JAMES ARTHUR JUDD,

             Defendant - Appellant.



Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. Terrence W. Boyle, Chief District Judge. (5:18-cr-00119-BO-1)


Submitted: March 12, 2020                                         Decided: March 27, 2020


Before WILKINSON, WYNN, and RICHARDSON, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Matthew Nis Leerberg, Troy D. Shelton, FOX ROTHSCHILD LLP, Raleigh, North
Carolina, for Appellant. Robert J. Higdon, Jr., United States Attorney, Jennifer P.
May-Parker, Assistant United States Attorney, Kristine L. Fritz, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       James Arthur Judd appeals from a 180-month sentence imposed following his guilty

plea to one count of possession of a firearm by a convicted felon. Judd’s sentence was

driven by his status as an armed career criminal under the Armed Career Criminal Act, 18

U.S.C. 924(e) (2018) (ACCA). On appeal, Judd asserts that the district court did not make

sufficient findings to satisfy the statute’s requirement that Judd have three qualifying

predicate convictions. We affirm.

       Before a court may impose the fifteen-year mandatory minimum sentence under the

ACCA, the Government must establish, by a preponderance of the evidence, that a

defendant has three prior convictions for violent felonies or serious drug offenses which

“were committed on different occasions from one another.” United States v. Archie, 771

F.3d 217, 223 (4th Cir. 2014); see 18 U.S.C. § 924(e)(2)(B). In Judd’s case, the presentence

report (PSR) suggested four possible predicate offenses: breaking and entering on June 12,

2002, described in paragraph 18 of the PSR; breaking and entering on June 24, 2002

(paragraph 19); breaking and entering on June 26, 2002 (also paragraph 19); and an

October 11, 2005 assault with a deadly weapon with intent to kill, inflicting serious injury

(paragraph 22). Though the PSR did not designate it as a predicate offense, the PSR also

described a fifth potential predicate: a September 29, 2005 common law robbery

(paragraph 23). 1 Relying on the two predicate convictions in paragraph 19, the predicate


       1
        The probation officer did not designate the offense in paragraph 23 as a predicate
because at the time the PSR was finalized in April 2019, there were questions as to whether
North Carolina common law robbery constituted an ACCA predicate offense. A few

                                             2
in paragraph 22, and—as a “fail safe”—the predicate in paragraph 23, the district court

sentenced Judd under the ACCA’s mandatory minimum. J.A. 53. 2

       Judd first challenges the use of his conviction described in paragraph 22 of the PSR

because, he contends, “[t]he record is . . . devoid of any evidence that the district court

counted th[at] . . . offense as an ACCA predicate.” Opening Br. at 14. Judd admits that he

failed to object to the inclusion of the conviction as an ACCA predicate; however, he

asserts that the district court never explicitly stated that it was relying on the conviction

and that its silence is insufficient to show that it adopted the PSR’s designation of the

conviction as a predicate. We disagree.

       At sentencing, the Government stated that it was relying on the two breaking and

entering convictions in paragraph 19 and the assault conviction in paragraph 22 to satisfy

the ACCA. 3 Judd did not object to reliance on the assault conviction described in

paragraph 22; in fact, he admitted that the paragraph 22 conviction was a proper predicate. 4



months later, this Court clarified that it did. United States v. Dinkins, 928 F.3d 349, 352
(4th Cir. 2019). But the mandate in Dinkins did not issue until after Judd’s sentencing, and
Dinkins was not raised at sentencing.
       2
           Citations to “J.A. __” refer to the Joint Appendix filed by the parties in this appeal.
       3
        “[T]he Government must identify all convictions it wishes to use to support a
defendant’s ACCA sentence enhancement at the time of sentencing.” United States v.
Hodge, 902 F.3d 420, 430 (4th Cir. 2018). We decline to address Judd’s argument that
Hodge forecloses reliance on the potential predicate convictions presented at paragraphs
18 and 23 of the PSR because it is unnecessary to do so to resolve this appeal.
       4
        Judd’s concession was mandated by our precedent. “North Carolina [assault with
a deadly weapon with intent to kill inflicting serious injury] is categorically a violent felony
under the ACCA.” United States v. Townsend, 886 F.3d 441, 448 (4th Cir. 2018).

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Thus, the district court was not required to resolve any issues as to that conviction. Instead,

the court overruled the objections to paragraph 19 and found that Judd had enough

predicate convictions for the ACCA to apply.

       While the court’s statements could have been clearer, given the context, we find that

the court adequately specified the convictions relied upon to support the ACCA ruling. In

expressly overruling Judd’s objections to the PSR, the court implicitly adopted both the

controverted and uncontroverted convictions relied upon by the Government and described

in the PSR. See United States v. Williams, 152 F.3d 294, 301 (4th Cir. 1998) (recognizing

appropriateness of implicit adoption of PSR); United States v. Walker, 29 F.3d 908, 912-13

(4th Cir. 1994) (finding that overruling objections and then sentencing the defendant

consistently with the PSR’s recommendations satisfied Fed. R. Crim. P. 32 and sufficiently

showed adoption of the PSR). Moreover, the district court’s designation of the paragraph

23 offense as a “fail safe” necessarily implies that the district court had found at least three

other predicates—in this case, the two in paragraph 19 and the one in paragraph 22—and

therefore was citing paragraph 23 only as a precaution. J.A. 53. 5




       5
         The Government argues that the district court described paragraph 23 as a failsafe
in the event that neither conviction in paragraph 19 could serve as a predicate, and therefore
that the court necessarily adopted both paragraphs 18 and 22 as predicates. However, Judd
objected to counting the two potential predicates in paragraph 19 as separate convictions.
Moreover, neither the Government nor the court discussed paragraph 18 at sentencing.
Thus, perhaps the more plausible inference is that the court was stating that, if the
convictions in paragraph 19 should only count as one conviction, and counting paragraph
22, paragraph 23 would provide the necessary third predicate conviction. In any event, for
present purposes, the point is that the district court was clearly relying on paragraph 22.

                                               4
       Next, Judd asserts that the court improperly found the two breaking and entering

convictions in paragraph 19 to be predicate convictions because, although the Government

purported to proffer certified copies of the convictions, the court never admitted the

exhibits or even indicated that it considered them. Thus, Judd asserts that the Government

failed to meet its burden of proof.

       However, at sentencing, Judd did not object to the existence or validity of these

convictions, nor did he make any showing that the description of the convictions was

incorrect. 6 In fact, Judd explicitly declined to attack the validity of the convictions in

paragraph 19. See J.A. 48 (defense counsel noting that Judd was “not attempting to

collaterally attack those [convictions] here today”). The sentencing transcript reveals that

the Government handed exhibits to the clerk, consisting of the state judgments, which have

been provided to this Court in the parties’ Joint Appendix.

       “When a defendant fails to object to the PSR’s factual findings, the district court

may rely on them without engaging in further inquiry.” United States v. Dennings, 922

F.3d 232, 237 n.3 (4th Cir. 2019), as amended (Apr. 25, 2019). While a sentencing court

“may permit the parties to introduce evidence” regarding objections to the PSR, Fed. R.

Crim. P. 32(i)(2) (emphasis added), the court is not compelled to do so, and


       6
         Rather, Judd argued to the district court that the breaking and entering convictions
were not “generic burglar[ies].” J.A. 49. However, Judd acknowledged that this argument
was foreclosed by precedent. See United States v. Mungro, 754 F.3d 268, 270 (4th Cir.
2014) (holding that North Carolina breaking and entering is “within the generic definition
of burglary”). He further argued that the burglaries were “all one action” (despite taking
place on different days) which occurred when Judd was a minor (despite the undisputed
fact that he was tried as an adult). J.A. 48. He does not renew those arguments on appeal.

                                             5
“the Rules of Evidence do not apply to sentencing,” United States v. Slager, 912 F.3d 224,

235 n.4 (4th Cir.), cert. denied, 139 S. Ct. 2679 (2019). Moreover, we may take judicial

notice of court records. See United States v. Townsend, 886 F.3d 441, 444 (4th Cir. 2018).

Given Judd’s failure to object to the PSR’s description of his prior convictions, the

Government’s undisputed proffer of certified convictions, and Judd’s failure to produce

any evidence to suggest that the information in the PSR was inaccurate or that the certified

documents were erroneous, the Government met its burden of proof to show that Judd had

three proper ACCA predicate offenses.

       Accordingly, we affirm. 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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