138 F.3d 120 (4th Cir. 1998), 97-4189, United States v. Kirksey

Docket Nº:97-4189.
Citation:138 F.3d 120
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Charles Leon KIRKSEY, Defendant-Appellant.
Case Date:March 09, 1998
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 120

138 F.3d 120 (4th Cir. 1998)

UNITED STATES of America, Plaintiff-Appellee,

v.

Charles Leon KIRKSEY, Defendant-Appellant.

No. 97-4189.

United States Court of Appeals, Fourth Circuit

March 9, 1998

Argued Dec. 5, 1997.

Page 121

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.

Page 122

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...

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