U.S. v. Kirksey, 97-4189

• Citation: 138 F.3d 120
• Decision Date: 09 March 1998
• Docket Number: No. 97-4189,97-4189
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles Leon KIRKSEY, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 120

138 F.3d 120

UNITED STATES of America, Plaintiff-Appellee, v. Charles Leon KIRKSEY, Defendant-Appellant.

No. 97-4189.

United States Court of Appeals Fourth Circuit.

Argued Dec. 5, 1997.

Decided March 9, 1998.

ARGUED: Denise Charlotte Barrett, Assistant Federal Public Defender, Baltimore, MD, for Appellant. Philip S. Jackson, Assistant United States Attorney, Baltimore, MD, for Appellee. ON BRIEF: James K. Bredar, Federal Public Defender, Baltimore, MD, for Appellant. Lynne A. Battaglia, United States Attorney, Bonnie S. Greenberg, Assistant United States Attorney, Baltimore, MD, for Appellee.

Before NIEMEYER, Circuit Judge, BUTZNER, Senior Circuit Judge, and MICHAEL, Senior United States District Judge for the Western District of Virginia, sitting by designation.

Affirmed by published opinion. Judge NIEMEYER wrote the opinion, in which Senior Judge BUTZNER and Senior Judge MICHAEL joined.

OPINION

NIEMEYER, Circuit Judge:

We are presented with the question of whether convictions in Maryland state courts for common law assault and battery, defined by Maryland law to be "any unlawful force used against the person of another, no matter how slight," qualify as predicate crimes of violence for purpose of career offender status under the United States Sentencing Guidelines § 4B1.1 (enhancing sentences of career offenders). If such convictions are not categorically crimes of violence, then we must decide what portions of the state record may be consulted to determine whether they are. These issues are questions of law which we review de novo. See United States v. Dickerson, 77 F.3d 774, 775 (4th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 126, 136 L.Ed.2d 76 (1996).

I

Following his two-count indictment for two bank robberies in downtown Baltimore, in violation of 18 U.S.C. §§ 2113(a) and (f), Charles Kirksey pled guilty to one of the counts, reserving his right to appeal. Because the district court found that Kirksey had been convicted four previous times in Maryland for crimes of violence, it sentenced him as a career offender under U.S.S.G. § 4B1.1 (requiring two prior crimes of violence) and imposed a 151-month sentence. The court relied on a 1980 conviction for robbery with a deadly weapon, a 1989 conviction for assault, a 1990 conviction for battery, and a 1991 conviction for battery. To find one of the two required crimes of violence, the court categorically used the 1980 conviction for robbery with a deadly weapon. Because the other three convictions were for common law assault or common law battery, crimes requiring only an unconsented touching under Maryland law, the district court determined that the 1989, 1990, and 1991 convictions were not categorically crimes of violence. It therefore concluded that it should review certain documents beyond the state charging documents to determine whether the three crimes were violent:

I think that when one cannot categorically tell from the elements of the offense, common law elements such as we have here, that it is [a crime of violence, one] should be permitted to look at the charging documents, including statements of probable cause and so forth that are all contained in these initial charging documents which I think we have here.

And if I am permitted to do that, if I am correct in that determination, I think clearly all three, the '89 and '90 and '91 assault and two battery convictions qualify as crimes of violence and place Mr. Kirksey in the career offender category.

Official state records showed that the 1989 eight-count criminal information charged Kirksey with robbing $40 from Brently Mason by pointing a gun at him. While most of the counts of the information described the violent use of a deadly weapon to rob the victim, the court found Kirksey guilty of one count alleging common law assault, one count alleging a handgun violation, and one count alleging theft under $300, none of which expressly alleged acts of violence. It sentenced Kirksey to seven years' imprisonment for the assault and to lesser, concurrent sentences on the other counts. The assault count, without recounting any facts, charged that Kirksey "unlawfully did make an assault upon, and did then and there beat the aforesaid Complainant; against the peace, government and dignity of the State." As Kirksey argues, the term "beat" as used in the count is the common law verb for a battery. See Lamb v. State, 93 Md.App. 422, 428-29, 613 A.2d 402 (Md.Ct.Spec.App.1992). Thus, the language of this count is conclusory and failed to reveal the fact that the assault actually involved violence. The facts of the assault, which are described in other counts on which Kirksey was not convicted and in court records underlying the criminal information, however, reveal the violent nature of the conduct. The "Application for Statement of Charges/Statement of Probable Cause," signed by the investigating officer under oath before a magistrate, stated that the victim was walking along a street when Kirksey "pulled up to him and displayed a large dark colored revolver. [Kirksey] demanded, 'give me your money,' while pointing the gun at him. Mr. Mason being in fear for his life complied with the demand, giving the suspect $40 in U.S. currency." At the time that this "Application for Statement of Charges/Statement for Probable Cause" was signed by the officer, the magistrate issued an "Arrest Warrant on Charging Document" and a handwritten "Statement of Charges," charging Kirksey in the District Court of Maryland for the "primary charge" of robbery with a deadly weapon. That statement of charges, however, was superseded by the criminal information filed in the Circuit Court for Baltimore City, on which Kirksey was tried and convicted.

In connection with the 1990 battery, official state records show that Kirksey was charged with assault and battery by the following language: "Upon the facts contained in the application of Madry, Teresa Michelle, it is formally charged that Kirksey, Charles Leroy ... did make an assault upon and did batter Teresa Michelle Madry. Against the Peace, Government, and Dignity of the State." The incorporated facts contained in the "Application for Statement of Charges/Statement of Probable Cause" signed under oath by Madry reveal that Kirksey visited Madry, an old acquaintance, and, while at her apartment, stated that he wanted to have sex with her. Kirksey said, "I'm going to do what I have to do to get what I want from you. I['ve] been watching you for over a year now, and I want you." The victim refused, and Kirksey started choking her with his hands, telling her to take her pants off. When the victim escaped and ran to a neighbor, the incident ended. Kirksey was tried on a statement of facts and found guilty, and the judge sentenced him to three years' imprisonment, with 18 months suspended.

Official records revealed with respect to the 1991 conviction that Kirksey was charged on a charging document which alleged: "Upon the facts contained in the application of Mitzel, Paul C., Jr., it is formally charged that Smith, Cedrick [Kirksey]" committed "robbery-general: att," "deadly weapon-conceal," and "battery." Incorporated facts contained in the "Application for Statement of Charges/Statement of Probable Cause," signed under oath by Mitzel, revealed that Kirksey tried to steal $200 from the upper shirt pocket of the victim. When Kirksey grabbed for the bills, the victim said "get away from me, I'm a cop." Kirksey then "kicked the victim several times in the legs." The victim stated that he feared that Kirksey was armed. When Kirksey was apprehended a short time later, he was found with a knife in the open position for which he gave no explanation other than that "he likes to clean his fingernails." The court found Kirksey guilty of common law battery and sentenced him to one year imprisonment.

With respect to all three of these assault and battery convictions, Kirksey took the position before the district court that, under Maryland law, assault and battery are not categorically crimes of violence and the court was not entitled to look behind the charging document to determine whether violence was involved because to do so would violate the categorical approach for reviewing past convictions articulated in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Even though the district court agreed with Kirksey that the common law offenses were not categorically violent crimes, it determined that his convictions involved crimes of violence because it could properly review the underlying "Applications for Statements of Charges/Statements of Probable Cause." Neither party disputes the fact that these underlying records are official and authentic and reveal that Kirksey committed crimes of violence.

Kirksey now appeals the district court's ruling.

II

Under the mandate of 28 U.S.C. § 994(h) (directing the United States Sentencing Commission to establish imprisonment terms "at or near the maximum" for specified categories of defendants such as career offenders), § 4B1.1 of the Sentencing Guidelines directs that career offenders be sentenced at enhanced offense levels and at criminal history Category VI. A career offender is defined as any defendant who (1) is at least 18 years old, (2) is convicted of a felony that is either a crime of violence or controlled substance offense, and (3) has at least "two prior felony convictions of either a crime of violence or a controlled substance offense." U.S.S.G. § 4B1.1. A crime of violence is defined to include any federal or state offense punishable by imprisonment for a term exceeding one year that "has as an element the use, attempted use, or threatened use of physical force against the person of another, or ... involves conduct that presents a serious potential risk of physical injury to another." U.S.S.G. § 4B1.2(1). Application notes explain that in determining whether offenses are crimes of...