*80 OPINION
Bruce Thomas was convicted of violating 18 U.S.C. § 922(g)(1), making it unlawful for a person previously convicted of a crime punishable by morе than one year in prison to possess a firearm. The district court sentenced Thomas to 280 months imprisonment as an armed career criminal under 18 U.S.C. § 924(e) because it found Thomas had three previous violent felony convictions. Four predicate convictions, purportedly for violent felonies, were identified during sentencing: two for burglary, one for attempted burglary, and one for aggravated assault, all under the statutes of New Jersey. On appeal Thomas contends that neither the conviction for attempted burglary nor the conviction for aggravated assault qualifies as a violent felony under the federal definition. He also argues that the court erred in refusing to credit him with acceptance of responsibility when calculating the appropriate offense level under the Sentencing Guidelines. For the reasons that follow, we affirm.
Thomas first contends that his conviction for attempted burglary under N.J.Stat. Ann. §§ 2C:18-2 and 2C:5-1(a) does not constitute a violent felony. Under 18 U.S.C. § 924(e)(2)(B)(ii) a “violent felony” is а crime punishable by imprisonment for a term greater than one year that “is burglary, arson, or extortion, involves use of explоsives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” Whether a cоnviction meets this definition is determined by a categorical 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.
See Taylor v. United States,
In
Taylor,
the Court held that “burglary” means any state crime the elements of which include “unlawful or unprivileged еntry into, or remaining in, a building or structure, with intent to commit a crime.”
Id.
at 599,
While we note that Thomas is correct that attempted burglary under New Jersey law does not contain the elements required for “burglary” as that term is used in § 924(e), we disagree that attempted burglary does not otherwise involve conduct presenting a serious potential risk of physical injury. In
United States v. Custis,
Thomas also contends that his conviction for aggravated assault for shooting a *81 person in the leg in viоlation of N.J.StatAnn. §2C:12-1(b)(3) does not constitute a violent felony under § 924(e). An offense “classified by the laws of the State as a misdemeаnor and punishable by a term of imprisonment of two years or less” is excluded by definition from the class of violent felonies that are predicates for sentencing under 18 U.S.C. § 924(e) because such an offense is not a “crime punishable by imprisonment for a tеrm exceeding one year,” as defined by 18 U.S.C. § 921(a)(20)(B). Thomas argues that although New Jersey classifies the offense of which he was convicted as a “crime of the fourth degree,” this category is analogous to the common law category of misdemеanors.
New Jersey formerly classified crimes as felonies, high misdemeanors, misdemeanors, and disorderly persons offenses. With а rewrite of its criminal code in 1979, the state abandoned those classifications and redefined all non-capital offеnses as either “crimes” or “disorderly persons offenses.” See N.J.Stat. Ann. § 2C:1-4(a) & (b). The category “crimes” was further subdivided into degrees, from the first degreе (the most aggravated) to the fourth degree (the least aggravated). A “crime” of any degree is not necessarily equivalent to a misdemeanor, as this is the more serious of the two classifications of offenses in New Jersey’s system. Moreover, assаult is broken down by New Jersey statute into simple and aggravated assault. While the former is a disorderly persons offense, it is the latter, a crime of the fourth degree, of which Thomas was convicted. Finally, when a person uses or possesses a firearm in thе course of committing an aggravated assault, he is subject to a mandatory minimum 18 months imprisonment without parole. Id. § 2C:43-6(c). Thomas wаs sentenced under this special penalty provision.
Because New Jersey has classified aggravated assault as а “crime,” distinguishing it from a less serious “disorderly person offense,” we cannot say that it has been classified a misdemeanor by the stаte. Without that classification, we are left with the inevitable conclusion that an aggravated assault under New Jersey law is а violent felony as defined by federal law. See 18 U.S.C. § 924(e)(2)(B)© (defining violent felonies to include any crime punishable by imprisonment for a term exceeding one year that has as an element the use, attempted use, or threatened use of physical forcе).
In summary, we hold that the prior convictions of Thomas under New Jersey law for attempted burglary and aggravated assault arе predicate offenses for purposes of enhanced punishment under 18 U.S.C. § 924(e).
Finally, after having reviewed the record carefully, we do not find that the district court’s decision in refusing to credit Thomas with acceptance of responsibility under U.S.S.G. § 3E1.1 is clearly erroneous.
See United States v. Harriott,
AFFIRMED.