United States of America v.  Ivander James, Jr.

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 02-4742 
IVANDER JAMES, JR.,
Defendant-Appellant. 
Appeal from the United States District Court
for the District of South Carolina, at Florence.
C. Weston Houck, District Judge.
(CR-01-965)
Argued: June 4, 2003
Decided: July 21, 2003
Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges.
Affirmed by published opinion. Judge Shedd wrote the opinion, in
which Judge Niemeyer and Judge Gregory joined.
COUNSEL
ARGUED: William Fletcher Nettles, IV, Assistant Federal Public
Defender, Florence, South Carolina, for Appellant. Alfred William
Walker Bethea, Assistant United States Attorney, Florence, South
Carolina, for Appellee. ON BRIEF: J. Strom Thurmond, Jr., United
States Attorney, Florence, South Carolina, for Appellee.

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OPINION
SHEDD, Circuit Judge:
Ivander James, Jr. appeals his conviction by a jury for possession
of a firearm after having previously been convicted of a felony in vio-
lation of 18 U.S.C. § 922(g)(1) and the enhancement of his sentence
as an armed career criminal pursuant to § 924(e).1 In a supplemental
pro se brief, James also argued that his lawyer was ineffective for
failing to raise several constitutional arguments regarding the armed
career criminal enhancement. We affirm.2
I.
James’s challenge to the sufficiency of the evidence lacks all merit.
See United States v. Lomax, 293 F.3d 701 (4th Cir. 2002). The gov-
ernment adduced substantial evidence at trial that James possessed the
firearm that the police found in his vehicle after a high-speed chase.
There was also sufficient evidence establishing the interstate com-
merce nexus. See United States v. Nathan, 202 F.3d 230 (4th Cir.
2000).
1James’s appellate counsel initially filed an Anders brief. After the
court ordered additional briefing, James’s counsel filed a reply brief
making a substantive argument regarding whether failure to stop for a
blue light constitutes a violent felony. Because the court requested the
additional briefing, this case is not governed by our rule that arguments
not raised in the appellant’s opening brief are typically deemed aban-
doned on appeal. See, e.g., Edwards v. City of Goldsboro, 178 F.3d 231
(4th Cir. 1999).
2We have examined the entire record in this case in accordance with
the requirements of Anders and find no meritorious issues for appeal.
This court requires that counsel inform the client, in writing, of his right
to petition the Supreme Court of the United States for further review. 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.
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II.
James next argues that the district court erred by determining that
his 1995 conviction for failure to stop for a blue light, S.C. Code Ann.
§ 56-5-750, constitutes a "violent felony" for purposes of the armed
career criminal enhancement.
The armed career criminal statute at 18 U.S.C. § 924(e)(1) pro-
vides:
A person who violates section 922(g) [felon in possession
of a firearm] of this title and has three previous convictions
. . . for a violent felony . . . committed on occasions different
from one another, such person shall be . . . imprisoned not
less than fifteen years . . . . (emphasis added).
The term "violent felony" is defined at § 924(e)(2)(B) as:
Any crime punishable by imprisonment for a term exceed-
ing one year . . . that —
(i) has as an element the use, attempted use, or threatened
use of physical force against the person of another; or
(ii is burglary, arson, or extortion, involves use of explo-
sives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another. . . .
(emphasis added).
The first step in determining whether the crime of failure to stop
for a blue light constitutes a "violent felony" under the armed career
criminal statute is to establish whether it is a "crime punishable by
imprisonment for a term exceeding one year." See § 924(e)(2)(B).
This phrase excludes "any State offense classified by the laws of the
State as a misdemeanor and punishable by a term of imprisonment of
two years or less." 18 U.S.C. § 921(a)(20)(B). Under South Carolina
law, the crime of failure to stop for a blue light is punishable, for a
first offense, by imprisonment for up to three years, so the first
requirement of the definition of "violent felony" is met. See S.C. Code
§ 56-5-750(B)(1).
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Next, we determine whether failure to stop for a blue light has any
of the elements described in subsection (i) of § 924(e)(2)(B). The
crime of failure to stop for a blue light has four elements: (1) that the
defendant was driving a motor vehicle; (2) that he was driving it on
a road, street, or highway of the State; (3) that he was signaled to stop
by a law enforcement vehicle by means of a siren or flashing light;
and (4) that he did not stop. State v. Hoffman, 257 S.C. 461 (1972).
Subsection (i) does not apply here because failure to stop for a blue
light does not have as an element "the use, attempted use, or threat-
ened use of physical force against the person of another."3
We determine next whether failure to stop is one of the specific
crimes listed under the first part of subsection (ii) of § 924(e)(2)(B).
It is not. That part includes only "burglary, arson, [ ]extortion, [or a
crime that] involves use of explosives."
Because the crime of failure to stop for a blue light does not fall
under either subsection (i) or the first part of subsection (ii), it consti-
tutes a "violent felony" only if it falls under the second part of subsec-
tion (ii), i.e., the crime "otherwise involves conduct that presents a
serious potential risk of physical injury to another." Whether a con-
viction satisfies this "otherwise clause" is "determined by a categori-
cal approach, whereby the court looks only at the fact of conviction
and the statutory definition of the offense, and not to the underlying
facts of a specific conviction." United States v. Thomas, 2 F.3d 79,
80 (4th Cir. 1993). Under this categorical approach, we must make
"common-sense judgments about whether a given offense proscribes
generic conduct with the potential for serious physical injury to
3When the elements of an offense indicate that it can be committed in
two alternative ways, one that requires a finding that physical force was
used, attempted, or threatened and the other that does not, the court may
look beyond the fact of conviction and the elements of the offense to the
charging papers (e.g., the indictment) and jury instructions to decide
whether the crime the defendant was convicted of fits within the defini-
tion of "violent felony." See United States v. Coleman, 158 F.3d 199 (4th
Cir. 1998) (determining that the defendant’s prior conviction was a "vio-
lent felony" because he pled guilty to the type of assault that necessarily
involved the use, attempted use, or threatened use of physical force as an
element).
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another." United States v. Custis, 988 F.2d 1355, 1363 (4th Cir.
1993).
We conclude that the crime of failure to stop for a blue light consti-
tutes a "violent felony" for purposes of the armed career criminal
enhancement. Applying the categorical approach, we find that failing
to stop for a blue light generally proscribes conduct that poses the
potential for serious injury to another.
Most cases of failing to stop for a blue light involve the deliberate
choice by the driver to disobey the police officer’s signal. This dis-
obedience poses the threat of a direct confrontation between the
police officer and the occupants of the vehicle, which, in turn, creates
a potential for serious physical injury to the officer, other occupants
of the vehicle, and even bystanders.4
III.
James also argues that the district court erred by counting both of
his 1988 burglary convictions as predicate offenses for purposes of
the armed career criminal enhancement. He contends that the two
crimes were not committed on occasions different from one another.
James burglarized two different stores in Bamberg, South Carolina,
on the same day. The two stores were located across the street from
one another.
To be subject to the armed career criminal enhancement, a felon in
possession of a firearm must have three previous convictions for a
violent felony "committed on occasions different from one another."
18 U.S.C. § 924(e)(1). The test for determining whether two convic-
tions can be counted for purposes of the enhancement is whether each
of the prior convictions arose out of a separate and distinct criminal
episode. United States v. Hobbs, 136 F.3d 384, 387 (4th Cir. 1998);
United States v. Letterlough, 63 F.3d 332, 334 (4th Cir. 1995).
4We find the potential for injury in this crime analogous to the poten-
tial for injury presented in the crimes of escape, see United States v.
Hairston, 71 F.3d 115 (4th Cir. 1995), and pickpocketing, see United
States v. Mobley, 40 F.3d 688 (4th Cir. 1994).
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Even though James committed the two burglaries on the same day,
his two convictions clearly arose out of separate and distinct criminal
episodes. The first burglary was completed before the second started,
each burglary occurred at a different location, and each involved a
different victim. See Letterlough, 63 F.3d at 336-37. Thus, the district
court properly applied the armed career criminal enhancement to
James’s sentence.
IV.
In his supplemental pro se brief, James argues that his trial counsel
was ineffective for failing to raise several constitutional attacks
against the armed career criminal statute. Ineffective assistance claims
are not cognizable on direct appeal unless counsel’s ineffectiveness
conclusively appears on the record. United States v. King, 119 F.3d
290 (4th Cir. 1997). We reject this claim.
V.
For the foregoing reasons, the judgment of the district court is
affirmed.
AFFIRMED
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