UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT 

No. 15-4218

UNITED STATES OF AMERICA, 

Plaintiff - Appellee, 

v.

LEE THOMAS SMITH, 

Defendant - Appellant. 

Appeal from the United States District Court for the Middle 

District of North Carolina, at Greensboro. Thomas D. Schroeder, 

District Judge. (1:14-cr-00291-TDS-1) 

Submitted: November 30, 2015 Decided: January 26, 2016 

Before SHEDD and HARRIS, Circuit Judges, and HAMILTON, Senior 

Circuit Judge. 

Affirmed by unpublished per curiam opinion. 

Louis C. Allen, Federal Public Defender, Tiffany T. Jefferson, 

Assistant Federal Public Defender, Greensboro, North Carolina, for 

Appellant. Ripley Rand, United States Attorney, Clifton T. 

Barrett, Assistant United States Attorney, Greensboro, North 

Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Lee Thomas Smith was convicted by a jury of possession of 

ammunition by a felon, in violation of 18 U.S.C. § 922(g)(1)

(2012). On appeal, Smith argues that he did not have three prior 

qualifying convictions justifying application of enhanced 

sentencing under the Armed Career Criminal Act (ACCA). In 

addition, he argues that there was insufficient evidence to support 

his conviction. We affirm.

Smith argues that his prior convictions no longer qualify as 

“violent felonies” under the ACCA, relying on Johnson v. United 

States (Johnson I), 135 S. Ct. 2551 (2015), for support. Smith 

did not properly preserve this issue for appeal; we therefore 

review it for plain error. Puckett v. United States, 556 U.S. 

129, 134 (2009).

Convicted felons are not permitted to possess ammunition. 18 

U.S.C. § 922(g) (2012). Persons who violate § 922(g) are subject 

to an enhanced sentence under the ACCA of 15 years to life in 

prison if they have three or more serious drug offenses or violent 

felonies. Id. § 924(e)(1) (2012). A “violent felony” is defined 

as

any crime punishable by imprisonment for a term 

exceeding one year . . . that—

(i) has as an element the use, attempted use, or 

threatened use of physical force against the 

person of another; or
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(ii) is burglary, arson, or extortion, involves use 

of explosives, or otherwise involves conduct 

that presents a serious potential risk of 

physical injury to another . . . .

Id. § 924(e)(2)(B) (2012) (emphasis added).

The underlined clause has become known as the ACCA’s “residual 

clause.” Johnson I, 135 S. Ct. at 2556. In Johnson I, the Supreme 

Court held that the ACCA’s residual clause is unconstitutionally 

vague and violates due process. Id. at 2557. However, Johnson I

did “not call into question application of the [ACCA] to the four 

enumerated offenses” in § 924(e)(2)(B)(ii), or to “the remainder 

of the [ACCA’s] definition of a violent felony.” Id. at 2563. 

Thus, prior convictions that fall under the “force clause” in 

§ 924(e)(2)(B)(i) are unaffected by Johnson I.

The term “physical force” within the force clause is not 

statutorily defined. Johnson v. United States (Johnson II), 559 

U.S. 133, 138 (2010). Giving the phrase “its ordinary meaning,” 

the Supreme Court determined that “in the context of a statutory 

definition of ‘violent felony,’ the phrase ‘physical force’ means 

violent force—that is, force capable of causing physical pain or 

injury to another person.” Id. at 138, 140 (emphasis omitted).

Smith’s three predicate felonies for application of the ACCA 

are North Carolina convictions, one for felony robbery with a 

dangerous weapon and two for malicious assault in a secret manner. 

(J.A. 142, 146, 151). In determining whether these felonies 
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qualify as “violent felon[ies]” under the ACCA, courts generally 

use the “categorical approach” set forth in Taylor v. United 

States, 495 U.S. 575, 600-02 (1990), and recently clarified in 

Descamps v. United States, 133 S. Ct. 2276, 2281 (2013). See

United States v. McLeod, ___ F.3d ___, ___, No. 14-4766, 2015 WL 

6575673, at *3 (4th Cir. Oct. 30, 2015); United States v. ParralDominguez, 794 F.3d 440, 444 (4th Cir. 2015). Under the 

categorical approach, a court may consult only “the fact of 

conviction and the statutory definition of the prior offense” to 

determine whether a state crime is a “violent felony.” United 

States v. Aparicio-Soria, 740 F.3d 152, 154 (4th Cir. 2014) (en 

banc) (quoting Taylor, 495 U.S. at 603); see Descamps, 133 S. Ct. 

at 2281.

Here, under North Carolina law, robbery with a dangerous 

weapon consists of the following elements: “(1) the unlawful taking 

or an attempt to take personal property from the person or in the 

presence of another (2) by use or threatened use of a firearm or 

other dangerous weapon (3) whereby the life of a person is 

endangered or threatened.” State v. Small, 400 S.E.2d 413, 416 

(N.C. 1991) (internal quotation marks omitted); accord N.C. Gen. 

Stat. § 14-87 (2013). Because the “use or threatened use of a 

firearm or other dangerous weapon . . . whereby the life of a 

person is endangered or threatened,” Small, 400 S.E.2d at 416,

entails “force capable of causing physical pain or injury to 
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another person,” Johnson II, 559 U.S. at 140, robbery with a 

dangerous weapon involves “the use, attempted use, or threatened 

use of physical force,” § 924(c)(2)(B)(i) and therefore qualifies 

as a “violent felony” under the force clause. 

Smith’s other two predicate felonies are state convictions 

for malicious assault in a secret manner. Under North Carolina 

law, malicious assault in a secret manner consists of the following 

elements: “(1) secret manner;* (2) malice; (3) assault and battery; 

(4) deadly weapon; and (5) intent to kill.” State v. Hill, 214 

S.E.2d 67, 74 (N.C. 1975); accord N.C. Gen. Stat. § 14-31 (2013). 

Because the use of a “deadly weapon” with “intent to kill,” Hill, 

214 S.E.2d at 79, entails “force capable of causing physical pain 

or injury to another person,” Johnson II, 559 U.S. at 140, 

malicious assault in a secret manner involves “the use, attempted 

use, or threatened use of physical force,” § 924(e)(2)(B)(i), and 

therefore qualifies as a “violent felony” under the force clause. 

Smith cites the abrogation of United States v. White, 571 

F.3d 365 (4th Cir. 2009), by Johnson I in support of his argument 

that felony robbery with a dangerous weapon is not a “violent 

felony” under the ACCA. However, White dealt not with robbery 

 * The “secret manner” element can be satisfied if either the 

assailant is lying in wait to assault the victim or the victim is 

aware of the assailant’s presence, but not of his purpose. See

State v. Holcombe, 691 S.E.2d 740, 744-46 (N.C. Ct. App. 2010).
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with a dangerous weapon, but with conspiracy to commit robbery 

with a dangerous weapon, see White, 571 F.3d at 367, and is 

therefore inapposite.

Thus, we conclude that Smith has three predicate offenses 

under the ACCA and was properly sentenced by the district court.

Smith next argues that the evidence is insufficient to support 

his conviction. We review de novo the sufficiency of the evidence, 

United States v. Barefoot, 754 F.3d 226, 233 (4th Cir. 2014), but 

we may not “reweigh the evidence or the credibility of witnesses,” 

United States v. Roe, 606 F.3d 180, 186 (4th Cir. 2010). To 

convict a defendant under § 922(g)(1), the Government must show 

that (1) the defendant was previously convicted of a crime 

punishable by a prison term exceeding one year; (2) the defendant 

knowingly possessed a firearm or ammunition; and (3) “the 

possession was in or affecting commerce” because the firearm or 

ammunition “had travelled in interstate or foreign commerce at 

some point.” United States v. Gilbert, 430 F.3d 215, 218 (4th 

Cir. 2005).

Here, the Government introduced evidence of four shotgun 

shells found on Smith’s person. The deputy who arrested Smith 

testified that two shells fell out of Smith’s pocket during the 

arrest, and two shells were later found in Smith’s back pocket as 

he was being processed at the local jail. Given that the other 

elements of 18 U.S.C. § 922(g)(1) were stipulated to by the 
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parties, the only element in dispute is whether Smith possessed 

ammunition.

Smith, though acknowledging the prohibition against 

reweighing the credibility of witnesses, argues that 

inconsistencies in the deputy’s testimony rendered it incredible. 

We must assume that any alleged contradictions in a witness’

testimony were resolved in favor of the Government, Roe, 606 F.3d 

at 186, and we conclude that a reasonable jury could find the 

evidence sufficient beyond a reasonable doubt to convict Smith. 

See United States v. Cornell, 780 F.3d 616, 630 (4th Cir. 2015) 

(defining substantial evidence).

Accordingly, we affirm the judgment of the district court. 

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