United States v. Battle, 061119 FED4, 18-6754

Docket Nº:18-6754
Opinion Judge:QUATTLEBAUM, CIRCUIT JUDGE
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KEVIN BATTLE, Defendant-Appellant.
Attorney:Paresh S. Patel, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland, for Appellant. Elizabeth G. Wright, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee. James Wyda, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for Appellant....
Judge Panel:Before NIEMEYER and QUATTLEBAUM, Circuit Judges, and SHEDD, Senior Circuit Judge.
Case Date:June 11, 2019
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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UNITED STATES OF AMERICA, Plaintiff - Appellee,

v.

KEVIN BATTLE, Defendant-Appellant.

No. 18-6754

United States Court of Appeals, Fourth Circuit

June 11, 2019

Argued: March 19, 2019

Appeal from the United States District Court for the District of Maryland, at Baltimore. Ellen L. Hollander, District Judge. (1:11-cr-00110-ELH; 1:15-cv-03814-ELH)

ARGUED:

Paresh S. Patel, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland, for Appellant.

Elizabeth G. Wright, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee.

ON BRIEF:

James Wyda, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for Appellant.

Robert K. Hur, United States Attorney, Baltimore, Maryland, David I. Salem, Assistant United States Attorney, Ellen Cobb, Special Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee.

Before NIEMEYER and QUATTLEBAUM, Circuit Judges, and SHEDD, Senior Circuit Judge.

QUATTLEBAUM, CIRCUIT JUDGE

Kevin Battle appeals from the district court's denial of his motion to vacate his sentence under 28 U.S.C. § 2255. Battle had been sentenced as an armed career criminal under 18 U.S.C. § 924(e) after he pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). In his petition, Battle argues that, in light of Johnson v. United States, 559 U.S. 133 (2015), he is not an armed career criminal because his 1991 Maryland conviction for assault with intent to murder ("AWIM") is no longer a "violent felony" under the Armed Career Criminal Act ("ACCA"). For the reasons set forth below, we affirm the district court and find that Maryland AWIM is a violent felony under the ACCA.

I.

On August 8, 2011, Battle pleaded guilty to being a felon in possession of a firearm under 18 U.S.C. § 922(g). The district court adopted the factual findings and advisory guidelines in the Presentence Report ("PSR"). After finding that he had three prior qualifying convictions, the court concluded that Battle was an armed career criminal under the ACCA. Specifically, the PSR referenced a 1991 Maryland conviction for AWIM as a violent felony and two Maryland convictions from 1998 and 2006 for possession with intent to distribute cocaine which qualified as serious drug offenses under § 924(e)(1). Accordingly, the court sentenced Battle on November 8, 2011, to a mandatory minimum term of imprisonment of fifteen years under the ACCA.

Battle directly appealed to this Court on November 9, 2011, challenging his designation as an armed career criminal and specifically arguing that his prior conviction for Maryland AWIM failed to qualify as a violent felony under the ACCA. This Court affirmed the sentence in an unpublished per curiam opinion dated October 4, 2012, concluding that the offense was a violent felony under the ACCA's residual clause. Battle filed his first 28 U.S.C. § 2255 petition on November 25, 2013, which the district court denied.

After the Supreme Court's decision in Johnson, which invalidated the ACCA's residual clause as vague, and Welch v. United States, 136 S.Ct. 1257 (2016), which made Johnson retroactive, Battle moved to file a successive § 2255 petition. This Court granted that motion on June 1, 2016, finding that Battle made the prima facie showing required for successive § 2255 petitions. In the petition before the district court, Battle argued that he no longer has the requisite number of prior convictions to qualify as an armed career criminal post-Johnson because the 1991 AWIM conviction no longer qualifies under the ACCA's residual clause. The district court denied his petition, finding AWIM involves violent force sufficient to satisfy the ACCA force clause, regardless of the ruling about the ACCA's residual clause. Despite the court's finding, it granted a certificate of appealability. This Court has jurisdiction over the appeal based on 28 U.S.C. § 2253(a) and 28 U.S.C. § 1291.

II.

The central issue for us on appeal is whether Maryland's AWIM offense qualifies as a violent felony under the ACCA.1 The ACCA requires a mandatory fifteen-year statutory minimum sentence for a defendant convicted of possession of a firearm after three prior convictions "for a violent felony or a serious drug offense or both." 18 U.S.C. § 924(e)(1). To frame the issue, we initially review several pertinent definitions. In defining the term "violent felony," the ACCA provides a list of offenses, as well as what is known as the "force clause," to define the scope of a predicate violent felony. Applicable here, under the force clause, "violent felony" means any crime 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." 18 U.S.C. § 924(e)(2)(B)(i). The phrase "physical force," as referenced in 18 U.S.C. § 924(e)(2)(B)(i), means "violent force-that is, force capable of causing physical pain or injury to another person." Johnson, 559 U.S. at 140 (emphasis in original). The meaning of "physical force" is a question of federal law, not state law. Id. at 138.

Our inquiry is whether AWIM has as an "element the use, attempted use, or threatened use of physical force against the person of another." 18 U.S.C. § 924(e)(2)(B)(i). To determine whether Battle's AWIM conviction qualifies under the ACCA as a violent predicate felony, we apply the categorical approach originally set forth in the Supreme Court's decision of Taylor v. United States, 495 U.S. 575 (1990).[2]Under the categorical approach, we look to the statutory definition of the state crime to determine whether the conduct criminalized by the statute falls within the ACCA's definition of a violent felony. In other words, we look to the elements of the state law crime, rather than the conduct underlying Battle's particular offense. United States v. Diaz-Ibarra, 522 F.3d 343, 348 (4th Cir. 2008). In doing so, however, we are "bound by the interpretation of such offense articulated by that state's courts." United States v. Winston, 850 F.3d 677, 684 (4th Cir. 2017).

In conducting this analysis, "we focus on the minimum conduct required to sustain a conviction for the state crime." United States v. Doctor, 842 F.3d 306...

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