UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4742
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MARCO ANTONIO VELEZ,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(CR-04-93)
Submitted: January 31, 2006 Decided: February 15, 2006
Before WILKINSON, WILLIAMS, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jack B. Swerling, LAW OFFICES OF JACK B. SWERLING, Columbia, South
Carolina, for Appellant. Jonathan S. Gasser, United States
Attorney, Alfred W. Bethea, Jr., Assistant United States Attorney,
Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Marco Antonio Velez pled guilty to using and carrying a
firearm in connection with a drug trafficking offense, in violation
of 18 U.S.C. § 924(c) (2000). He was sentenced as a career
offender to 276 months in prison. Velez now appeals his sentence.
We affirm.
Prior to committing the instant offense, Velez had been
convicted of manslaughter and, in 1999, of three counts of assault
and battery of a high and aggravated nature (ABHAN). Velez was
sentenced to three concurrent three-year terms for the 1999
convictions. His probation officer first determined that Velez had
the requisite prior convictions to qualify him as a career
offender, see U.S. Sentencing Guidelines Manual § 4B1.1(a) (2003),
and that Velez was entitled to a three-level reduction in his
offense level for acceptance of responsibility under USSG § 3E1.1.
Accordingly, the probation officer concluded that Velez’s guideline
range was 262-327 months in prison. See USSG § 4B1.1(c)(1),
(c)(3).
Velez objected under Blakely v. Washington, 542 U.S. 296
(2004), to his treatment as a career offender. The district court
overruled his objection, adopted the Presentence Report, and
imposed a 276-month sentence.
According to the sentencing guidelines, a defendant is a
career offender if, inter alia, he has two prior felony convictions
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for a crime of violence. See USSG § 4B1.1(a). Velez concedes his
convictions for manslaughter and ABHAN. He contends, however, that
he should not have been sentenced as a career criminal because a
conviction for ABHAN does not qualify as a crime of violence.
Velez raised this claim below, and our review is de novo. See
United States v. Mackins, 315 F.3d 399, 405 (4th Cir. 2003).
To determine whether a state-law offense falls within the
sentencing guideline’s definition of a “crime of violence,” we use
the categorical approach, “which takes into account only the
definition of the offense and the fact of conviction.” United
States v. Pierce, 278 F.3d 282, 286 (4th Cir. 2002). Under the
sentencing guidelines, a “crime of violence” is “any offense under
federal or state law, 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 . . . .” USSG § 4B1.2(a). The sentencing guideline’s
application notes further explain that “‘crime of violence’
includes . . . aggravated assault.” USSG § 4B1.2 app.1. Under
South Carolina law, “ABHAN is the unlawful act of violent injury to
another accompanied by circumstances of aggravation” and is
“punishable by up to ten years in prison.” State v. Fennell, 531
S.E.2d 512, 516 (S.C. 2000). Therefore, Velez’s conviction for
ABHAN meets the sentencing guideline’s definition of a crime of
violence because ABHAN is, by definition, aggravated assault.
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We accordingly affirm. We dispense with oral argument
because the facts and legal contentions are adequately presented in
the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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