United States v. Ray , 347 F. App'x 919 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4019
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
CHI ANTONIO RAY,
Defendant – Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Andre M. Davis, District Judge. (1:08-
cr-00117-AMD-1)
Submitted: September 30, 2009 Decided: October 16, 2009
Before KING and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
James Wyda, Federal Public Defender, Paresh S. Patel, Staff
Attorney, Michael T. Citaramanis, Assistant Federal Public
Defender, Greenbelt, Maryland, for Appellant. Rod J.
Rosenstein, United States Attorney, Bonnie S. Greenberg,
Assistant United States Attorney, Nick Lyon, Third Year Law
Student, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Chi Antonio Ray pled guilty to bank robbery, 18 U.S.C.
§ 2113(a), (d), (f) (2006) (Count One), and use of a firearm
during a crime of violence, 18 U.S.C. § 924(c) (2006) (Count
Two). The court determined that Ray was a career offender, but
sentenced him below the guideline range applicable pursuant to
U.S. Sentencing Guidelines Manual § 4B1.1 (2007), imposing a
term of 156 months imprisonment for the bank robbery and a
consecutive eighty-four-month term for the firearm offense. Ray
appeals his sentence, contending that the court erred in finding
that he was a career offender. We affirm.
A defendant is a career offender if: (1) the defendant
was at least eighteen years old at the time of the instant
offense; (2) the instant offense is a felony crime of violence
or controlled substance offense; and (3) “the defendant has at
least two prior felony convictions of either a crime of violence
or a controlled substance offense.” USSG § 4B1.1(a). A crime
of violence is an offense punishable by a term of imprisonment
greater than one year that “has as an element the use, attempted
use, or threatened use of physical force against the person of
another.” USSG § 4B1.2(a). Ray had previously been convicted
in Maryland, in a bench trial, of second degree assault. He
argued at sentencing that the conviction did not qualify as a
crime of violence because the Maryland common law crime of
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assault includes both violent and non-violent offenses, and
neither a trial transcript nor the court’s findings were
available.
To decide whether earlier convictions constitute
crimes of violence, the sentencing court should employ a
“categorical approach.” Taylor v. United States, 495 U.S. 575,
600 (1990); United States v. Kirksey, 138 F.3d 120, 124 (4th
Cir. 1998). Under this approach, the court may look only to the
fact of conviction and the statutory definition of the prior
offense. Taylor, 495 U.S. at 602. “Neither Congress nor the
Sentencing Commission intended to permit sentencing courts to
retry the facts of prior offenses to determine whether the
defendant’s conduct presents a serious risk of physical injury
to others.” Kirksey, 138 F.3d at 124.
However, in a limited class of cases where the
definition of the underlying crime encompasses both violent and
non-violent conduct, the sentencing court may look beyond the
statutory definition. See Kirksey, 138 F.3d at 124. In such
cases, courts may look primarily to any facts contained in the
charging document on which the defendant was necessarily
convicted, or to jury instructions when applicable. Id. In
Maryland, the charging document includes both the statement of
charges and an incorporated application for a statement of
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charges containing an affidavit from the complaining witness.
Id at 126.
The sentencing court may also consider other items
from the record of a prior conviction, such as “a bench-trial
judge’s formal rulings of law and findings of fact, and in
pleaded cases . . . the statement of factual basis for the
charge.” Shepard v. United States, 544 U.S. 13, 20 (2005). The
court may not consider any items from the prior record that were
not conclusively validated in the earlier proceeding. Id. at
20-23. Otherwise, the court may risk making a finding about the
prior conviction that falls outside the exception in Apprendi v.
New Jersey, 530 U.S. 466, 490 (2000), which permits statutory
sentence enhancements based solely on “the fact of a prior
conviction,” and thus violate the Sixth Amendment under United
States v. Booker, 543 U.S. 220, 244 (2005). See United
States v. Collins, 412 F.3d 515, 521-22 (4th Cir. 2005).
In Maryland, the common law crime of assault
encompasses “the crimes of assault, battery, and assault and
battery, which retain their judicially determined meanings.”
Md. Code Ann., Crim. Law § 3-201(b) (LexisNexis Supp. 2008).
Maryland case law defines assault as “an attempted battery or an
intentional placing of a victim in reasonable apprehension of an
imminent battery. A battery . . . includes any unlawful force
used against a person of another, no matter how slight.”
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Kirksey, 138 F.3d at 125 (internal quotation marks and citations
omitted). 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.” Id. (internal quotation marks and citations omitted).
We noted in Kirksey that, “under the definition of assault and
battery in Maryland, it remains unclear whether we can say
categorically that the conduct encompassed in the crime of
battery constitutes the use of physical force against the person
of another to the degree required to constitute a crime of
violence.” Id. In Ray’s case, the statement of charges stated
that he “did assault Patrick Quinn.” The incorporated
application for a statement of charges contained Quinn’s sworn
statement describing the incident.
Ray contends that, in the absence of specific fact
findings from the state court that convicted him, the facts
alleged in the charging documents “do not reflect that the state
court necessarily convicted Mr. Ray of using physical force,
attempted force, or [the] threat of physical force [but] leave
open the possibility that the state court convicted Mr. Ray of
creating apprehension in the complainant of an imminent
non-violent battery (an unconsented touching) that did not
equate to attempted force or threat of force necessary to
qualify as a ‘crime of violence.’” In other words, he posits
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that he might have been convicted of an assault that involved
threatening Quinn with a non-violent touching, but acquitted of
the actual attack that left Quinn with broken bones in his face
which required surgery and three days in the hospital.
We have held, post-Shepard, that, in a case where the
defendant did not plead guilty and the state statute proscribes
both violent and non-violent conduct, the district court may
look to jury instructions or the charging documents to determine
whether a prior conviction was for a crime of violence. See,
e.g., United States v. Roseboro, 551 F.3d 226, 230 n.3 (4th Cir.
2009); United States v. Diaz-Ibarra, 522 F.3d 343, 348 (4th Cir.
2008). Ray was convicted in a bench trial; therefore, the
district court acted properly in consulting the charging
document to determine that he was convicted of a crime of
violence.
In support of his argument that the charging document
was insufficient under Shepard, Ray relies on In re Sealed Case,
548 F.3d 1085 (D.C. Cir. 2008), which held that a guilty plea to
a District of Columbia robbery charge was insufficient to
establish a prior crime of violence because the statute could
have been violated by mere snatching. Id. at 1089-93. The
court observed that it was required under Shepard to “decide not
whether appellant in fact pled guilty to nonviolent robbery, but
whether he could have under the information.” Id. at 1092; see
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also United States v. Ventura, 565 F.3d 870 (D.C. Cir. 2009)
(holding prior guilty plea to Virginia felonious abduction
insufficient to establish crime of violence on similar grounds).
However, in both In re Sealed Case and Ventura, the charging
document did not incorporate a statement of facts, as it did in
Ray’s case. In re Sealed Case, 548 F.3d at 1090; Ventura,
565 F.3d at 878.
Ray emphasizes that, under Shepard, the question is
what he was necessarily convicted of, not what he was probably
convicted of. Shepard, 125 S. Ct. at 1263; In re Sealed Case,
548 F.3d at 1091. Ray is correct that it is possible, although
unlikely, that the state court found someone other than him
responsible for Quinn’s injuries, or found that Quinn was not
injured at all, and that Ray’s assault conviction was based only
on Quinn’s claim that Ray initially “got in [his] face,” yelled
obscenities at him, and placed him in fear of an imminent
attack.
However, Ray incorrectly claims that the latter
allegation leaves open the possibility that he was convicted of
threatening Quinn with a non-violent touching. On the contrary,
Quinn stated that in the beginning he was afraid Ray was about
to attack him, not that Ray was threatening a non-violent form
of touching. The charge against Ray was unquestionably that his
conduct first caused Quinn to feel threatened with violence,
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that Quinn pushed him away, a fight ensued and, when Quinn
withdrew, Ray followed him and ended by giving Quinn a beating
which produced serious injuries. Had Ray been convicted only of
assault by putting Quinn in fear of a non-violent touching, he
would have been convicted on completely different facts from
those charged. Consequently, we conclude that the district
court did not err in deciding that Ray’s prior assault
conviction was a crime of violence, and that he was a career
offender.
We therefore affirm the district court’s judgment. 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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