UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-4613

UNITED STATES OF AMERICA,

Plaintiff – Appellant,

v.

LORENZO KENYON MASON,

Defendant – Appellee.

Appeal from the United States District Court for the Western 

District of North Carolina, at Asheville. Lacy H. Thornburg, 

District Judge. (1:08-cr-00103-LHT-1)

Submitted: August 11, 2010 Decided: August 23, 2010

Before WILKINSON, KING, and AGEE, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Edward R. Ryan, United States Attorney, Charlotte, North 

Carolina, Amy E. Ray, Assistant United States Attorney, 

Asheville, North Carolina, for Appellant. Randolph M. Lee, 

Charlotte, North Carolina, for Appellee. 

Unpublished opinions are not binding precedent in this circuit.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

Lorenzo Kenyon Mason pled guilty pursuant to a plea 

agreement to one count of unlawful use of a firearm during and 

in relation to a drug trafficking crime, in violation of 

18 U.S.C. § 924(c)(1) (2006), and was sentenced to sixty months 

in prison. Mason objected to his presentence investigation 

report (“PSR”) insofar as it relied upon an earlier North 

Carolina conviction for conspiracy to discharge a weapon into 

occupied property as a predicate “crime of violence” in 

recommending that he be sentenced as a career offender under the 

Sentencing Guidelines. The district court sustained Mason’s 

objection and sentenced him without employing the career 

offender enhancement. The Government has appealed, arguing that 

the district court erred when it disregarded the North Carolina 

conviction as a career offender predicate offense. Because we 

agree, we vacate Mason’s sentence and remand for resentencing.

After United States v. Booker, 543 U.S. 220 (2005), we 

review a sentence for reasonableness. Gall v. United States, 

552 U.S. 38, 51 (2007). The first step in this review requires 

the court to ensure that the district court committed no 

significant procedural error. United States v. Evans, 526 F.3d 

155, 161 (4th Cir. 2008). Procedural errors include “failing to 

calculate (or improperly calculating) the Guidelines range, 

treating the Guidelines as mandatory, failing to consider the 
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[18 U.S.C.] § 3553(a) [(2006)] factors, selecting a sentence 

based on clearly erroneous facts, or failing to adequately 

explain the chosen sentence-including an explanation for any 

deviation from the Guidelines range.” Gall, 552 U.S. at 51. 

If, and only if, this court finds the sentence 

procedurally reasonable can we consider the substantive 

reasonableness of the sentence imposed. United States v. 

Carter, 564 F.3d 325, 328 (4th Cir. 2009). We review the 

district court's refusal to classify Mason as a career offender 

de novo. United States v. Farrior, 535 F.3d 210, 223 (4th Cir. 

2008). 

In this case, the Government presented the district 

court with a North Carolina judgment of conviction, which 

indicated that Mason was convicted of conspiracy to discharge a 

weapon into occupied property. Because the substantive offense 

of discharging a weapon into occupied property is a Class E 

felony, see N.C. Gen. Stat. § 14-34.1 (2009), Mason’s criminal 

judgment appropriately referred to his conspiracy conviction as 

a Class F felony, in accordance with N.C. Gen. Stat. § 14-2.4

(2009). 

Mason does not deny that discharging a weapon into 

occupied property is a crime of violence, but instead suggests 

that conspiracy to discharge a weapon into occupied property is 

not a crime of violence in this instance. In this regard, the 
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Sentencing Commission has determined that “crimes of violence” 

for purposes of a sentencing enhancement “include the offenses 

of aiding and abetting, conspiring, and attempting to commit 

such offenses.” U.S. Sentencing Guidelines Manual (“USSG”) 

§ 4B1.2 cmt. n.1 (2008) (emphasis added). The Commission's 

judgment, as the Supreme Court has explained, was premised on 

its analysis of “empirical sentencing data and presumably 

reflects an assessment that [aiding and abetting, conspiracy, 

and attempt offenses] often pose a similar risk of injury as 

completed offenses.” James v. United States, 550 U.S. 192, 206

(2007). 

Moreover, we have rejected the notion that a North 

Carolina conviction for conspiracy to commit a violent felony 

under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(b) 

(2006), required an overt act element before the conspiracy 

conviction could serve as a predicate conviction under the 

ACCA’s residual provision.*

 * Because the language defining a violent felony in § 924(e) 

is nearly identical to and materially indistinguishable from the 

language defining a crime of violence in USSG § 4B1.2, we look 

to case law interpreting both sections when examining whether a 

prior crime falls within these sections. See United States v. 

Johnson, 246 F.3d 330, 333 & n.5 (4th Cir. 2001). 

 See United States v. White, 571 F.3d 

365, 370-71 (4th Cir. 2009), cert. denied, 130 S. Ct. 1140 

(2010). Rather, Mason’s previous conspiracy conviction 
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establishes that he and his co-conspirator specifically intended 

their agreement to discharge a weapon into occupied property to 

be carried out. See id. at 371 (citing to N.C.P.I.-Crim. 202.80 

(2001)). Because a North Carolina conspiracy conviction 

“presents an immediate, serious, and foreseeable physical risk 

that arises concurrently with the formation of the conspiracy[, 

w]hen conspirators have formed a partnership in crime to achieve 

a violent objective, and when they intend to achieve that 

object, they have substantially increased the risk that their 

actions will result in serious physical harm to others[,]” id.

at 371, or, as in this instance, that their actions will result 

in “serious potential risk of physical injury to another.” USSG 

§ 4B1.2(a)(2). 

It is of no event that Mason’s criminal judgment 

referred to N.C. Gen. Stat. § 14-34.1—the substantive offense—as 

the statute under which Mason was convicted. Because a 

conspiracy offense in North Carolina “originated with, and is 

defined by, the common law[,]” White, 571 F.3d at 367 (citations 

omitted), the North Carolina conspiracy statute provides only 

for the punishment to be imposed when an individual is convicted 

of conspiring to commit a felony. See N.C. Gen. Stat. § 14-2.4

(“[A] person who is convicted of a conspiracy to commit a felony 

is guilty of a felony that is one class lower than the felony he 

or she conspired to commit[.]”). We discern no ambiguity in 
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Mason’s judgment of conviction that would prevent the conviction 

contained therein from serving as a career offender predicate 

offense. 

Based on the foregoing, we find that the district 

court erred when it sustained Mason’s objection to his career 

offender classification. Accordingly, without commenting on the 

propriety of the calculations in the PSR or the factual findings 

contained therein, we vacate and remand to the district court 

for a new resentencing hearing to be conducted consistent with 

this opinion. We also express no opinion on the substantive 

appropriateness of the sentence to be imposed on remand. 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.

VACATED AND REMANDED