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United States v. Candiloro, 08-4585 (2009)

Court: Court of Appeals for the Fourth Circuit Number: 08-4585 Visitors: 4
Filed: Apr. 14, 2009
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4585 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. FRANK VINCENT CANDILORO, Defendant – Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Henry E. Hudson, District Judge. (3:07-cr-00444-HEH-1) Submitted: March 30, 2009 Decided: April 14, 2009 Before MOTZ, SHEDD, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Michael S. Nachmanoff, Federal P
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                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 08-4585


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

FRANK VINCENT CANDILORO,

                  Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.  Henry E. Hudson, District
Judge. (3:07-cr-00444-HEH-1)


Submitted:    March 30, 2009                 Decided:   April 14, 2009


Before MOTZ, SHEDD, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


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.


Unpublished opinions are not binding precedent in this circuit.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

                                          2
established Virginia precedent.        See Harris v. Commonwealth, 
142 S.E. 354
, 355 (1928); Harper v. Commonwealth, 
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




                                   3

Source:  CourtListener

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