US v. Chi Ray

Filing 920091016

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT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. (1:08cr-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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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. term Sentencing of 156 Guidelines Manual § 4B1.1 for the (2007), bank imposing and a a

months

imprisonment

robbery

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 He

in Maryland, in a bench trial, of second degree assault.

argued at sentencing that the conviction did not qualify as a crime of violence because the 2 Maryland common law crime of

assault neither

includes a trial

both

violent

and

non-violent the court's

offenses, findings

and were

transcript

nor

available. To crimes of decide violence, whether the earlier convictions court should constitute employ a

sentencing

"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. in a limited class of cases where the

However,

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 Id. In

convicted, or to jury instructions when applicable.

Maryland, the charging document includes both the statement of charges and an incorporated application for a statement of

3

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 pleaded charge." formal cases rulings . . . of law and findings of of fact, basis and for in the The

the

statement

factual

Shepard v. United States, 544 U.S. 13, 20 (2005).

court may not consider any items from the prior record that were not conclusively validated in the earlier proceeding. 20-23. Id. at

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. used against a A battery . . . includes any unlawful force person of another, 4 no matter how slight."

Kirksey, 138 F.3d at 125 (internal quotation marks and citations omitted). embraces a Further, "[t]he common law offense of battery thus 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, that it remains conduct unclear whether in we can crime say of

categorically

the

encompassed

the

battery constitutes the use of physical force against the person of another to Id. "did the degree required to constitute a crime of

violence." that he

In Ray's case, the statement of charges stated 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 battery attempted in the complainant of an that imminent did not to

non-violent equate to

(an

unconsented or threat

touching) of force

force

necessary

qualify as a `crime of violence.'" 5

In other words, he posits

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). district document 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 Ray was convicted acted in a bench in was trial; therefore, the of a the

court to

properly that he

consulting convicted

charging crime of

determine

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." 6 Id. at 1092; see

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, Ray is correct that it is possible, although state court found someone other than him

548 F.3d at 1091. unlikely, that the

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 attack. However, Ray incorrectly claims that the latter at him, and placed him in fear of an imminent

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, 7

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 court charged. did not Consequently, err in we conclude that that the prior district assault

deciding

Ray's

conviction was a crime of violence, and that he was a career offender. We therefore affirm the district court's judgment. dispense with oral argument because the facts and We

legal

contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

AFFIRMED

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