UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 08-4450

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

 v. 

HOPETON GOODEN, a/k/a Richard Doleson, a/k/a Michael Frank 

Burke, 

 Defendant - Appellant. 

Appeal from the United States District Court for the Eastern 

District of North Carolina, at New Bern. Louise W. Flanagan, 

Chief District Judge. (5:06-cr-00313-FL-1) 

Submitted: July 31, 2009 Decided: August 14, 2009 

Before WILKINSON, KING, and SHEDD, Circuit Judges. 

Affirmed by unpublished per curiam opinion. 

Thomas P. McNamara, Federal Public Defender, G. Alan DuBois, 

Assistant Federal Public Defender, Eric J. Brignac, Research and 

Writing Specialist, Raleigh, North Carolina, for Appellant. 

George E.B. Holding, United States Attorney, Rudy E. Renfer, 

Assistant United States Attorney, Raleigh, North Carolina, for 

Appellee.

Unpublished opinions are not binding precedent in this circuit.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

 Hopeton Gooden was convicted by a jury of three 

charges: being an unlawful alien in possession of a firearm, in 

violation of 18 U.S.C. §§ 922(g)(5), 924(e)(1) (2006); 

possessing marijuana with intent to distribute , in violation of 

21 U.S.C. § 841(a)(1) (2006), 21 U.S.C.A. § 841(b)(1)(D) (West 

1999 & Supp. 2009); and being a felon in possession of a 

firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(e)(1) 

(2006). The district court sentenced Gooden under the 

provisions of the Armed Career Criminal Act (“ACCA”), § 924(e), 

imposing a term of 327 months in prison.1

 On appeal, Gooden challenges whether his 1980 federal 

conviction for conspiracy to commit armed bank robbery and his 

1996 New York conviction for criminal possession of a weapon 

should be counted as violent felonies under 18 U.S.C. 

§ 924(e)(2)(B), in light of the U.S. Supreme Court’s decision in 

United States v. Begay, 128 S. Ct. 1581 (2008).2 Gooden argues 

that the particular crimes at issue are not similar to those 

 1

 Gooden received concurrent sentences of 327 months for the 

two firearm offenses and a concurrent sixty-month sentence for 

marijuana trafficking. 

2

 Although Gooden did not make this particular objection at 

sentencing, we review the claim de novo, since Gooden was 

sentenced the day before the Supreme Court decided Begay. See

United States v. Thornton, 554 F.3d 443, 446 n.4 (4th Cir. 2009) 

(applying Begay as a new rule of law). 

2 
enumerated in § 924(e)(2)(B)(ii) and do not require the 

purposeful, violent, and aggressive conduct characteristic of 

the enumerated offenses. We have evaluated Gooden’s claims and 

conclude he is not entitled to relief. Therefore, we affirm. 

 Gooden first argues that his conspiracy to commit 

armed bank robbery conviction does not qualify as a violent 

felony conviction because a conspirator may only have a loose 

connection to the object of the conspiracy. After the parties 

filed their briefs in this appeal, however, we held that the 

North Carolina offense of conspiracy to commit robbery with a 

dangerous weapon qualified as a predicate offense under the 

ACCA. United States v. White, __ F.3d __, 2009 WL 1913232, (4th 

Cir. July 6, 2009) (No. 08-4492). The offense in White is 

sufficiently similar to Gooden’s conspiracy conviction that we 

discern no basis for a different outcome here. 

 We also find that Gooden’s 1996 New York conviction 

for second-degree criminal possession of a weapon qualifies as a 

violent felony conviction. The New York statute states: “A 

person is guilty of criminal possession of a weapon in the 

second degree when he possesses a machine-gun or loaded firearm 

with intent to use the same unlawfully against another.” N.Y. 

Penal Law § 265.03 (1996). The U.S. Court of Appeals for the 

Second Circuit has held that a conviction under this statute 

qualifies as a violent felony conviction. United States v. 

3 
4 

Lynch, 518 F.3d 164, 172-73 (2d Cir. 2008). We agree, and we do 

not believe Begay undercuts the rationale for the Lynch

decision. In particular, we believe that this statute, by its 

very language, requires the type of purposeful, violent, and 

aggressive conduct that is characteristic of the crimes 

enumerated in § 924(e)(2)(B)(ii). 

 Gooden has filed a pro se motion requesting permission 

to file a supplemental brief. Since Gooden is represented by 

counsel, we deny his motion. 

 For the reasons stated above, we affirm Gooden’s 

conviction and sentence. 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