United States v. Mark Randolph , 444 F. App'x 682 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5224
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARK LINN RANDOLPH,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge.
(1:09-cr-00244-CCB-8)
Submitted: August 24, 2011 Decided: August 30, 2011
Before WILKINSON, KEENAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Gary A. Ticknor, Elkridge, Maryland, for Appellant. Rod J.
Rosenstein, United States Attorney, Michael C. Hanlon, Assistant
United States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mark Linn Randolph appeals his conviction and 108-
month sentence for one count of distribution and possession with
intent to distribute cocaine base and aiding and abetting in
violation of 21 U.S.C. § 841(a)(1) (2006) and 18 U.S.C. § 2(2006). Randolph, who pled guilty to the offense, argues on
appeal that his prior convictions for Maryland second degree
assault should not be considered predicate offenses for a career
offender enhancement. We affirm.
We review de novo whether a prior conviction qualifies
as a “crime of violence” for purposes of a sentencing
enhancement. See United States v. Jenkins, 631 F.3d 680, 682
(4th Cir. 2011). In addition to certain enumerated offenses not
relevant here, a “crime of violence” for purposes of U.S.
Sentencing Guidelines Manual 4B1.1 (2009), is “any other offense
under federal, state, or local law that has as an element the
use, attempted use, or threatened use of physical force against
the person of another.” USSG § 4B1.2(a). To decide whether a
prior conviction constitutes a crime of violence, the sentencing
court normally should employ a “categorical approach.”
Taylor v. United States, 495 U.S. 575, 600 (1990); United
States v. Kirksey, 138 F.3d 120, 124-25 (4th Cir. 1998). Under
this approach, the court may “look only to the fact of
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conviction and the statutory definition of the prior offense.”
Taylor, 495 U.S. at 602. In a limited class of cases, however,
where the definition of the underlying crime encompasses both
violent and non-violent conduct, a sentencing court may look
beyond the statutory definition. Kirksey, 138 F.3d at 124. In
such cases, “the modified categorical approach . . . permits a
court to determine which statutory phrase was the basis for the
conviction by consulting the trial record—including charging
documents, plea agreements, [and] transcripts of plea
colloquies[.]” Johnson v. United States, 130 S. Ct. 1265, 1273
(2010) (internal quotation marks omitted); see United States v.
Harcum, 587 F.3d 219, 223 (4th Cir. 2009).
In Maryland, the common-law crime of assault
encompasses “‘the crimes of assault, battery, and assault and
battery, which retain their judicially determined meanings.’”
United States v. Alston, 611 F.3d 219, 222 (4th Cir. 2010)
(quoting Md. Code Ann., Crim. Law § 3-201(b) (LexisNexis Supp.
2010)). Maryland case law defines assault as “1. [a]
consummated battery . . . ; 2. [a]n attempted battery; and 3.
[a] placing of a victim in reasonable apprehension of an
imminent battery. A battery . . . include[s] any unlawful force
used against the person of another, no matter how slight.”
Alston, 611 F.3d at 222 (internal quotation marks omitted);
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Kirksey, 138 F.3d at 125. Further, “[t]he common law offense of
battery thus embraces a wide range of conduct, including kissing
without consent, touching or tapping, jostling, and throwing
water upon another. . . . At the other end of the spectrum, a
battery includes a fatal shooting or stabbing of a victim.” Id.
at 223 (internal quotation marks omitted).
Randolph argues that the categorical approach should
be applied in analyzing Maryland’s second degree assault
statute. Our opinions in Harcum and Kirksey are clear that
where, as here, the issue is whether a conviction for second
degree assault in Maryland is a “crime of violence,” the
modified categorical approach is appropriate. Thus, Randolph’s
argument is foreclosed by this Court’s published authority.
Applying the modified categorical approach to the
facts of this case, it is clear that the district court did not
err in concluding that Randolph’s convictions were for crimes of
violence. In 2001, Randolph pled guilty to second degree
assault and admitted during his plea colloquy that he struck his
girlfriend in the face with an open palm, causing swelling and
redness. With respect to a different second degree assault
charge, Randolph admitted in a 2002 plea colloquy that he struck
a man in the face, caused a laceration, and stole money from the
man. We conclude that these are crimes of violence because they
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involve “use, attempted use, or threatened use of physical force
against the person of another.” We thus find no error in the
district court’s decision to sentence Randolph as a career
offender.
We therefore affirm the judgment of the district
court. 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
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