United States v. Terickus Asbury

• Court: Court of Appeals for the Fourth Circuit
• Decided: June 26, 2023
• Docket: 21-4622
• Status: Unpublished

Opinion

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UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-4622

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

TERICKUS J. ASBURY,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, District Judge. (3:20-cr-00280-FDW-DSC-2)

Submitted: March 10, 2023 Decided: June 26, 2023

Before GREGORY, Chief Judge, AGEE, Circuit Judge, and KEENAN, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

ON BRIEF: D. Baker McIntyre, III, Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee.

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PER CURIAM:

Terickus J. Asbury appeals his conviction and the 151-month sentence imposed

following his guilty plea to distribution of cocaine base, in violation of 21 U.S.C.

§ 841(a)(1), (b)(1)(C). On appeal, Asbury’s counsel has filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), asserting that there are no meritorious grounds for appeal

but questioning whether the district court properly applied the career offender enhancement

under U.S. Sentencing Guidelines Manual § 4B1.1 (2018). Asbury has filed a pro se

supplemental brief likewise challenging his career offender designation. For the reasons

that follow, we affirm.

Generally, we review a defendant’s sentence “under a deferential abuse-of-

discretion standard.” Gall v. United States, 552 U.S. 38, 41 (2007). However, when

“determining whether a district court properly applied the advisory [Sentencing]

Guidelines, including application of any sentencing enhancements, we review the district

court’s legal conclusions de novo and its factual findings for clear error.” United States v.

Morehouse, 34 F.4th 381, 387 (4th Cir. 2022) (cleaned up).

The district court sentenced Asbury as a career offender based on two prior

convictions for North Carolina common law robbery. In challenging the enhancement,

Asbury’s counsel broadly questions whether this offense counts as a crime of violence

under USSG § 4B1.2(a). Asbury, meanwhile, more pointedly contends that North Carolina

common law robbery is not a valid career offender predicate because it can be committed

recklessly. See Borden v. United States, 141 S. Ct. 1817, 1834 (2021) (“Offenses with a

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mens rea of recklessness do not qualify as violent felonies under [the Armed Career

Criminal Act].”). 1

We have previously held that “North Carolina common law robbery categorically

qualifies as ‘robbery,’ as that term is used within [USSG] § 4B1.2(a)(2).” United States v.

Gattis, 877 F.3d 150, 156 (4th Cir. 2017). But Asbury insists that Borden, which issued

after Gattis, compels a different conclusion. We disagree. Under North Carolina law,

“common law robbery requires a taking with the felonious intent on the part of the taker to

deprive the owner of his property permanently and to convert it to the use of the taker.”

State v. Herring, 370 S.E.2d 363, 368 (N.C. 1988) (internal quotation marks omitted).

Based on Herring, we conclude that North Carolina common law robbery requires more

than mere recklessness and, therefore, that Borden did not disturb our holding in Gattis.

Thus, the district court was correct in determining that North Carolina common law

robbery qualifies as a career offender predicate.

Next, noting that one of the robbery convictions resulted from an Alford plea, 2

Asbury’s counsel questions whether this conviction is countable as a career offender

predicate given that Asbury never admitted the elements of the offense. In support, counsel

1 “[T]his Court applies precedents interpreting ‘violent felony’ under the [Armed Career Criminal Act] and ‘crime of violence’ under the Guidelines interchangeably.” United States v. Covington, 880 F.3d 129, 133 (4th Cir. 2018) (some internal quotation marks omitted). 2 North Carolina v. Alford, 400 U.S. 25 (1970); see United States v. Mastrapa, 509 F.3d 652, 659 (4th Cir. 2007) (“An Alford plea refers to a plea in which the defendant consents to a prison sentence even though he is unwilling or unable to admit his participation in the acts constituting the crime.” (internal quotation marks omitted)).

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relies on United States v. Alston, 611 F.3d 219 (4th Cir. 2010), abrogated in part by United

States v. Royal, 731 F.3d 333, 340-42 (4th Cir. 2013), in which this court held that an

Alford-based conviction could not serve as an armed career criminal predicate where: the

statute of the prior conviction was divisible; some of the crimes proscribed by the statute

were not valid predicates; and, by virtue of the Alford plea, the court could not exclude the

possibility that the defendant had been convicted of a non-predicate offense. Id. at 221-28.

But here, unlike in Alston, the absence of factual admissions is irrelevant since, again, the

offense at issue categorically qualifies as a career offender predicate. See Gattis, 877 F.3d

at 156. We therefore reject this argument.

In accordance with Anders, we have reviewed the entire record in this case and have

found no meritorious grounds for appeal. We therefore affirm the district court’s judgment.

This court requires that counsel inform Asbury, in writing, of the right to petition the

Supreme Court of the United States for further review. If Asbury 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 Asbury.

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