United States v. Candiloro

Apr 14, 2009
08-4585
Versions:322 F. App'x 332

Claude Carpenter, Appellant Pro Se. Robert A. Dybing, Thomas Douglas Lane, Thompson McMullan, PC, Richmond, Virginia, for Appellees.

Before WILKINSON, MOTZ, and AGEE, Circuit Judges.

Affirmed by unpublished PER CURIAM opinion.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Claude Carpenter appeals the district court‘s order dismissing his 42 U.S.C. § 1983 (2006) complaint under 28 U.S.C. § 1915(e)(2)(B) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Carpenter v. Woody, No. 3:08-cv-00143-RLW, 2008 WL 3843444 (E.D.Va. Aug. 14, 2008). 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.

Michael S. Nachmanoff, Federal Public Defender, Paul G. Gill, Assistant Federal Public Defender, Richmond, Virginia, for Appellant. Dana Boente, Acting United States Attorney, Angela Mastandrea-Miller, Assistant United States Attorney, Richmond, Virginia, for Appellee.

Before MOTZ, SHEDD, and AGEE, Circuit Judges.

Affirmed by unpublished PER CURIAM opinion.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Frank Vincent Candiloro pled guilty to being a felon in possession of firearms and ammunition, in violation of 18 U.S.C. §§ 922(g)(1), (g)(9) (2006). At sentencing, the district court determined that an enhancement under the Armed Career Criminal Act (“ACCA“), 18 U.S.C. § 924(e) (2006), was appropriate. The district court sentenced Candiloro to the statutory mandatory minimum sentence of fifteen years’ imprisonment. Candiloro timely noted his appeal.

On appeal, Candiloro argues that the district court erred in applying the ACCA enhancement because his two Virginia convictions for unlawful wounding do not qualify as predicate, violent felony convictions for sentencing under the ACCA. See 18 U.S.C. § 924(e)(2)(B)(i). This court reviews de novo whether a prior conviction qualifies as a predicate conviction for the ACCA. United States v. Williams, 326 F.3d 535, 537 (4th Cir.2003).

Candiloro argues that the plain meaning of the phrase “by any means” in the unlawful wounding statute, Va.Code Ann. § 18.2-51 (2004), encompasses conduct that does not involve the use, attempted use, or threatened use of physical force against the person of another. Although the phrase “by any means” standing alone could possibly be given the broad interpretation Candiloro argues for, the phrase has been narrowed by established Virginia precedent. See Harris v. Commonwealth, 150 Va. 580, 142 S.E. 354, 355 (1928); Harper v. Commonwealth, 196 Va. 723, 85 S.E.2d 249, 255 (1955) (quoting Davis’ Criminal Law 353, 354). Moreover, Candiloro fails to bring to our attention a single Virginia case that would support his interpretation of “by any means.” In light of the authoritative interpretation Virginia courts have given § 18.2-51, the district court did not err in sentencing Candiloro. Accordingly, we affirm the judgment of the district court. We dispense with oral argument as the facts and legal contentions are adequately set forth in the materials before the court and argument would not aid the decisional process.

AFFIRMED.