UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
2

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

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 

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). 

 1 See Shepard v. United States, 544 U.S. 13 (2005); United 

States v. Simms, 441 F.3d 313 (4th Cir. 2006).
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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

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

 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. 

3

 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).

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.” 

3 North Carolina v. Alford, 400 U.S. 25, 25-26 (1970).
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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, 
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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 
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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