United States v. Faison ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4212
JERMAINE FAISON,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Catherine C. Blake, District Judge.
(CR-00-296-CCB)
Submitted: September 6, 2001
Decided: September 27, 2001
Before WIDENER, WILKINS, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
William B. Purpura, Baltimore, Maryland, for Appellant. Stephen M.
Schenning, United States Attorney, Bonnie S. Greenberg, Assistant
United States Attorney, Stacy Harden Baran, Third-Year Law Stu-
dent, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. FAISON
OPINION
PER CURIAM:
Jermaine Faison pled guilty to one count of bank robbery in viola-
tion of 18 U.S.C.A. § 2113(a) (West 2000) (Count 1), and one count
of use of a weapon during a crime of violence in violation of 18
U.S.C.A. § 924(c) (West 1998) (Count 3) on December 6, 2000. Sen-
tencing took place on March 8, 2001. The district court determined
that Faison was a career offender as defined by United States Sen-
tencing Guideline § 4B1.1 (1998) ("USSG"), and sentenced Faison to
one hundred and eighty-eight months imprisonment for the bank rob-
bery count followed by a mandatory consecutive sentence of eighty-
four months imprisonment for the firearm count. Four remaining
counts were dismissed on the motion of the government.
Faison challenges his sentence, arguing that he does not warrant
career offender status because the district court improperly counted a
1995 second degree assault conviction in Maryland as a predicate
offense under USSG § 4B1.1. Faison claims the district court errone-
ously reviewed a complaining witness’ affidavit describing Faison’s
assault that was incorporated into the state’s charging documents to
evaluate whether Faison’s underlying assault conviction was a crime
of violence as defined in USSG § 4B1.2, comment. (n.1). Faison
argues that the affidavit lacked sufficient safeguards of reliability
because the complaining witness wrote it rather than a police officer.
This issue presents a question of law that we review de novo. See
United States v. Dickerson, 77 F.3d 774, 775 (4th Cir. 1996), cert.
denied, 519 U.S. 843 (1996).
Normally, the district court must confine its inquiry to the fact of
the conviction and the definition of the prior offense in determining
whether past felony convictions are crimes of violence. See United
States v. Kirksey, 138 F.3d 120, 124 (4th Cir. 1998), cert. denied, 525
U.S. 849 (1998); United States v. Wilson, 951 F.2d 586, 588 (4th Cir.
1991). However, we have held that for purposes of determining career
offender status, the district court may review the charging documents
from an assault or battery conviction to determine whether "the facts
necessarily decided by the prior conviction" entail a crime of vio-
lence. Kirksey, 138 F.3d at 124. See also United States v. Coleman,
UNITED STATES v. FAISON 3
158 F.3d 199, 202 (4th Cir. 1998) (reaching the same conclusion for
purposes of determining whether a Maryland common law assault is
a "violent felony" pursuant to the Armed Career Criminal Act of
1984, 18 U.S.C.A. § 924(e) (West Supp. 1998)).
Faison argues that the district court erred by failing to evaluate the
reliability of the complaining witness’ affidavit in the statement of
charges. We disagree. A district court must not delve into the reliabil-
ity of the complaining witness’ statement because such inquiry would
"permit sentencing courts to retry the facts of prior offenses." Kirksey,
138 F.3d at 124. The district court must only use the complaining wit-
ness’ statement of charges to discover the facts underlying the convic-
tion, not to alter or supplant them. Gauging the reliability of the
complaining witness would impermissibly place the district court in
the role of the fact-finder.
Accordingly, we affirm the judgment of the district court sentenc-
ing Faison as a career offender. 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