UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-4962

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DERRICK LAMONT BRUNSON,

Defendant - Appellant.

Appeal from the United States District Court for the District of

South Carolina, at Florence. Terry L. Wooten, District Judge.

(4:06-cr-00343-TLW)

Submitted: August 27, 2008 Decided: September 11, 2008

Before WILKINSON, MICHAEL, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Michael A. Meetze, Assistant Federal Public Defender, Florence,

South Carolina; Aileen P. Clare, Research and Writing Specialist,

Columbia, South Carolina, for Appellant. Reginald I. Lloyd,

Assistant United States Attorney, Columbia, South Carolina; Rose

Mary Sheppard Parham, Assistant United States Attorney, Florence,

South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Derrick Lamont Brunson appeals his convictions for being

a felon in possession of a firearm and possession with intent to

distribute crack cocaine and marijuana. Brunson’s attorney has

filed a brief pursuant to Anders v. California, 386 U.S. 738

(1967). Although concluding that there are no meritorious issues

for appeal, counsel questions whether the Fed. R. Crim. P. 11

hearing was sufficient; whether the firearm statute exceeded

Congress’s authority under the Commerce Clause; and whether the

district court erred in finding that Brunson’s predicate

convictions were violent offenses, even though Brunson’s plea

agreements for those convictions designated the offenses

non-violent. Brunson filed a pro se supplemental brief, further

discussing these issues and raising two additional claims: whether

the firearm statute violated the Second Amendment and whether the

predicate convictions needed to be proved beyond a reasonable

doubt. The Government declined to file a brief. After a careful

review of the record, we affirm.

I.

Because Brunson did not move in the district court to

withdraw his guilty plea, his Rule 11 hearing is reviewed for plain

error. United States v. Martinez, 277 F.3d 517, 525 (4th Cir.

2002). Before accepting a plea, the district court must ensure
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that the defendant understands the nature of the charges against

him, the mandatory minimum and maximum sentences, and various other

rights, so it is clear the defendant is knowingly and voluntarily

entering his plea. The court also must determine whether there is

a factual basis for the plea. Fed. R. Crim. P. 11(b); United

States v. DeFusco, 949 F.2d 114, 116 (4th Cir. 1991). Brunson does

not allege any specific deficiency, and our review of the plea

hearing transcript reveals that the district court conducted a

thorough Rule 11 colloquy, ensuring that Brunson’s plea was knowing

and voluntary and that there was an independent factual basis for

the plea. 

II.

Brunson asserts that the firearm statute under which he

was convicted, 18 U.S.C. § 922(g)(1) (2000), exceeded Congress’s

authority under the Commerce Clause and violated the Second

Amendment. We have previously considered and rejected a similar

Commerce Clause challenge in United States v. Wells, 98 F.3d 808,

810-11 (4th Cir. 1996). Regarding the Second Amendment, the

Supreme Court has recently upheld the “longstanding prohibition on

the possession of firearms by felons.” District of Columbia v.

Heller, 128 S. Ct. 2783, 2816-17 (2008) (examining the Second

Amendment). Accordingly, Brunson’s constitutional challenges to

the firearm statute are meritless.
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III.

Brunson contended below, and again on appeal, that

certain of his predicate convictions were labelled nonviolent by

South Carolina pursuant to his state plea agreement. Brunson does

not specify to which predicate convictions he refers nor does he

submit the relevant plea agreements.

A defendant is an Armed Career Criminal when he violates

§ 922(g)(1) and has three prior convictions for violent felonies or

serious drug offenses. 18 U.S.C.A. § 924(e)(1) (West Supp. 2008).

A defendant is a Career Offender when the instant offense was a

felony crime of violence or a felony controlled substance offense

and the defendant has at least two prior felony convictions for

crimes of violence or controlled substance offenses. U.S.

Sentencing Guidelines Manual § 4B1.1(a) (2006). For purposes of

both designations, a violent felony is defined as one that “has as

an element the use, attempted use, or threatened use of physical

force against the person of another” or “otherwise involves conduct

that presents a serious potential risk of physical injury to

another.” 18 U.S.C. § 924(e)(2)(B) (2000); USSG § 4B1.2(a)(1).

Brunson’s prior convictions included a 1995 conviction

for resisting arrest with a deadly weapon, a 1995 conviction for

assault and battery of a high and aggravated nature, and 1996

convictions for assault and battery of a high and aggravated nature

and possession with intent to distribute crack cocaine (arising out
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of the same incident). To determine whether a state-law offense

falls within the definition of a violent felony, we use the

categorical approach, which “takes into account only the definition

of the offense and the fact of conviction.” United States v.

Pierce, 278 F.3d 282, 286 (4th Cir. 2002). South Carolina defines

assault and battery of a high and aggravated nature as “the

unlawful act of violent injury to another accompanied by

circumstances of aggravation,” South Carolina v. Fennell, 531

S.E.2d 512, 516 (S.C. 2000), and defines resisting arrest with a

deadly weapon as resisting the lawful efforts of a law enforcement

officer with “the use or threat of use of a deadly weapon,” S.C.

Code Ann. § 16-3-625 (2003). Thus, both crimes are clearly crimes

of violence for the purposes of the designation as an Armed Career

Criminal or a Career Offender.

The only question remaining is whether an alleged state

plea agreement altering that designation can be considered. The

Supreme Court has held that, when making such a determination, the

trial court is required “to look only to the fact of conviction and

the statutory definition of the prior offense,” not to the facts

underlying the conviction. Taylor v. United States, 495 U.S. 575,

602 (1990). The court can look beyond the statute only when the

statute is “categorically overbroad, that is, if the statute covers

some crimes that are ‘crimes of violence’ and others that are not.”

See United States v. Diaz-Ibarra, 522 F.3d 343, 352 (4th Cir.
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2008). Here, Brunson’s prior offenses required a showing of

violence or force for conviction; thus, the district court properly

declined to consider documents or agreements beyond the statutes of

conviction in determining that Brunson’s prior offenses were

violent crimes.

IV.

Brunson contends that he should not have been sentenced

as an Armed Career Criminal because his prior convictions were not

proved beyond a reasonable doubt. However, this argument fails

under controlling precedent. See United States v. Thompson, 421

F.3d 278, 285-87 (4th Cir. 2005) (holding that where facts are

inherent in the convictions themselves, “[n]o finding of fact by a

jury is necessary”); see also United States v. Cheek, 415 F.3d 349,

352-54 (4th Cir. 2005) (holding that prior convictions used as the

basis for an Armed Career Criminal sentence need not be charged in

indictment or proven beyond a reasonable doubt).

V.

We have reviewed the record carefully pursuant to Anders,

and we find no meritorious issues for appeal. Accordingly, we

affirm Brunson’s convictions and sentence. This court requires

that counsel inform his client, in writing, of his right to

petition the Supreme Court of the United States for further review.
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If the client requests that a petition be filed, but counsel

believes that such a petition would be frivolous, then counsel may

move in this court for leave to withdraw from representation.

Counsel’s motion must state that a copy thereof was served on the

client. 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