U.S. v. Coleman, 96-4786

• Decision Date: 14 September 1998
• Docket Number: No. 96-4786,96-4786
• Citation: 158 F.3d 199
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Sidney R. COLEMAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 199

158 F.3d 199

UNITED STATES of America, Plaintiff-Appellee, v. Sidney R. COLEMAN, Defendant-Appellant.

No. 96-4786.

United States Court of Appeals, Fourth Circuit.

Argued May 5, 1998.

Decided Sept. 14, 1998.

ARGUED: James Wyda, 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, Baltimore, Maryland, for Appellee.

Before WILKINSON, Chief Judge, and WIDENER, MURNAGHAN, ERVIN, WILKINS, NIEMEYER, HAMILTON, LUTTIG, WILLIAMS, MICHAEL, and MOTZ, Circuit Judges, sitting en banc.

Affirmed by published opinion. Judge WILKINS wrote the majority opinion, in which Chief Judge WILKINSON and Judges ERVIN, NIEMEYER, HAMILTON, LUTTIG, WILLIAMS, MICHAEL, and MOTZ joined. Judge WIDENER wrote a dissenting opinion, in which Judge MURNAGHAN joined.

OPINION

WILKINS, Circuit Judge:

Sidney R. Coleman appeals the 15-year mandatory minimum sentence of imprisonment imposed by the district court under the Armed Career Criminal Act (ACCA) of 1984. See 18 U.S.C.A. § 924(e) (West Supp.1998). Coleman maintains that the district court erred in concluding that his prior conviction for common-law assault under Maryland law constituted a "violent felony" within the meaning of § 924(e). Finding no error, we affirm. ¹

I.

Coleman pled guilty in 1996 to being a felon in possession of a firearm. See 18 U.S.C.A. § 922(g)(1) (West Supp.1998). The Government filed a notice of intention to seek a sentencing enhancement pursuant to the ACCA, asserting that the requisite three prior convictions were a 1983 Maryland conviction for robbery with a deadly weapon, a 1988 Maryland conviction for assault, and a 1990 Maryland conviction for attempted murder. Coleman conceded that the 1983 and 1990 convictions qualified as predicate felonies under § 924(e), but maintained that the 1988 Maryland conviction for assault did not. The district court concluded that although the Maryland crime of common-law assault did not constitute a crime of violence per se, it was clear from looking to the charging documents that Coleman's offense was a "violent felony" within the meaning of the ACCA. Accordingly, the district court found that Coleman qualified as an armed career criminal and sentenced him to a mandatory 15 years imprisonment.

II.

The ACCA mandates a 15-year minimum sentence of imprisonment for individuals convicted pursuant to 18 U.S.C.A. § 922(g) who have "three previous convictions ... for a violent felony or a serious drug offense, or both, committed on occasions different from one another." 18 U.S.C.A. § 924(e)(1). A "violent felony" is defined as

any crime punishable by imprisonment for a term exceeding one year ... that--

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

(ii) is a burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

Id. § 924(e)(2)(B).

A.

Coleman first contends that a Maryland common-law assault conviction does not qualify as a "violent felony" because it does not have as one of its elements "the use, attempted use, or threatened use of physical force against the person of another." Id. § 924(e)(2)(B)(i). Under Maryland law, a common-law assault consists of "(1) an attempt to commit a battery or (2) an unlawful intentional act which places another in reasonable apprehension of receiving an immediate battery." Lamb v. State, 93 Md.App. 422, 613 A.2d 402, 411 (Md.Ct.Spec.App.1992) (internal quotation marks omitted). A "battery," in turn, "is any unlawful application of force, direct or indirect, to the body of the victim." Id. at 413. Coleman argues that a Maryland common-law assault does not necessarily have as an element of the offense the use, attempted use, or threatened use of physical force against the body of another because the offense encompasses conduct--such as "exposing a helpless person to the inclemency of the weather" or telling a blind person that the way is clear when in fact there is a precipice just ahead--that involves an indirect use of force against the body of another. Id. at 414-15 (internal quotation marks omitted). Coleman maintains that because a Maryland common-law assault does not necessarily require the use, attempted use, or threatened use of physical force against the person of another, it does not satisfy the requirement of § 924(e)(2)(B)(i). In making this argument, however, Coleman confuses two related yet distinct situations.

On the one hand, it is well settled that in determining whether a conviction constitutes a "violent felony" under § 924(e)(2)(B), a court generally must "look only to the fact of conviction and the statutory definition of the prior offense." Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990); see United States v. Cook, 26 F.3d 507, 509 (4th Cir.1994). As a result, an offense that actually may have been committed by the use of physical force against the person of another nevertheless is not considered to be a violent felony if the elements of the offense do not include the use, attempted use, or threatened use of physical force. See Taylor, 495 U.S. at 600-02, 110 S.Ct. 2143; Cook, 26 F.3d at 509. Alternatively, an offense that includes the use, attempted use, or threatened use of physical force as an element of the crime is a violent felony even if the underlying offense actually was committed in a relatively nonviolent way. In such situations, the actual conduct underlying the conviction is irrelevant to the determination of whether the conviction is a violent felony because the critical question is whether the jury was required to find the use, attempted use, or threatened use of physical force as an element of the offense.

On the other hand, it is equally well recognized that in a certain limited number of situations it is appropriate for a court to look beyond the fact of conviction and the elements of the offense in deciding whether an offense constitutes a violent felony. See Taylor, 495 U.S. at 602, 110 S.Ct. 2143. In those narrow circumstances in which an offense could have been committed in two ways, one of which required a finding that physical force was used and the other of which did not, a district court must look past the fact of conviction and the elements of the offense to determine which type of offense supported the defendant's conviction. See Cook, 26 F.3d at 509.

A Maryland conviction for common-law assault presents the unusual situation in which an offense may be committed in one of two ways--one of which requires the use, attempted use, or threatened use of physical force and one of which does not. See United States v. Kirksey, 138 F.3d 120, 125 (4th Cir.1998), cert. denied, --- U.S. ----, 119 S.Ct. 122, --- L.Ed.2d ---- (1998) (No. 97-9400); Lamb, 613 A.2d at 414-15 (explaining that a common-law assault may encompass some conduct that involves an indirect use of force against the body of another). Accordingly, we are unable to conclude that a Maryland conviction for common-law assault is per se a violent felony within the meaning of § 924(e)(2)(B)(i). Cf. Kirksey, 138 F.3d at 125 (noting that it is unclear whether Maryland common-law assault is a crime of violence per se). Nevertheless, because one of the ways in which a Maryland common-law assault can be committed involves the use, attempted use, or threatened use of physical force against another, the district court properly looked beyond the fact of conviction and the elements of the offense to determine whether the particular offense of which Coleman was convicted was a violent felony. ² See id. at 125-26.

B.

Coleman also contends that even if the district court was authorized to look beyond the fact of conviction and the elements of the offense in this situation, the material on which the district court based its decision that Coleman's offense was a violent felony did not provide an appropriate basis for that conclusion. We have recognized previously that in determining whether a conviction is a "violent felony" the court properly may look to the charging papers and the jury instructions. See Cook, 26 F.3d at 509 & n. 3 (citing Taylor, 495 U.S. at 602, 110 S.Ct. 2143).

And, the material relied upon by the district court undoubtedly was proper because, as we recently have held, it was a part of the charging papers under Maryland law. See Kirksey, 138 F.3d at 126.

The district court looked to the charging papers and discovered that Coleman was formally charged with assaulting a police officer. See J.A. 22 (asserting that Coleman "did make an assault on P/O Reedy"). However, the court concluded that this statement of the formal charge was not dispositive because it did not illuminate whether Coleman had committed an assault in a manner in which the use, attempted use, or threatened use of physical force was an element of the offense. The court then turned to the portion of the charging papers containing the statement of charges. See Md. R.Crim. C. 4-201(b) (explaining that an appropriate charging document in district court includes "a statement of charges filed pursuant to section (b) of Rule 4-211"); id. 4-211(b) (requiring a complaining witness or arresting officer to provide "an affidavit containing facts showing probable cause that the defendant committed the offense charged"); see also Kirksey, 138 F.3d at 126 (holding that under Maryland law the affidavit required by Rule 4-211(b) setting forth facts demonstrating probable cause is a part of the charging papers). The district court determined that the affidavit setting forth probable cause revealed that Coleman had pointed a handgun in the direction of the officer. ³ Thus, by reference to the charging...