UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5251
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GEBRONT MAZAUNTI GADDY, a/k/a T, a/k/a JB,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:08-cr-00050-JPB-DJJ-1)
Submitted: July 7, 2009 Decided: July 24, 2009
Before MOTZ and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
John J. Pizzuti, MCCAMIC, SACCO, PIZZUTI & MCCOID, PLLC,
Wheeling, West Virginia, for Appellant. Sharon L. Potter, United
States Attorney, Paul T. Camilletti, Assistant United States
Attorney, Martinsburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gebront M. Gaddy timely appeals from the 100-month
sentence imposed following his guilty plea, pursuant to a
written plea agreement, to one count of distribution of cocaine
base within 1,000 feet of a school, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(C), 860 (2006). Gaddy’s counsel filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967),
asserting that there are no meritorious grounds for appeal, but
questioning whether Gaddy received ineffective assistance of
counsel and whether the district court erred in designating
Gaddy a career offender under the Sentencing Guidelines. Gaddy
has not filed a pro se brief, though he was informed of his
right to do so. Finding no reversible error, we affirm.
I.
A defendant may raise a claim of ineffective
assistance of counsel “on direct appeal if and only if it
conclusively appears from the record that his counsel did not
provide effective assistance.” United States v. Martinez, 136
F.3d 972, 979 (4th Cir. 1998). To prove ineffective assistance
the defendant must show two things: (1) “that counsel’s
representation fell below an objective standard of
reasonableness” and (2) “that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the
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proceeding would have been different.” Strickland v.
Washington, 466 U.S. 668, 688, 694 (1984). In the context of a
guilty plea, “the defendant must show that there is a reasonable
probability that, but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.”
Hill v. Lockhart, 474 U.S. 52, 59 (1985). Our review of the
record reveals no conclusive evidence that Gaddy’s counsel did
not provide effective assistance. Therefore, Gaddy’s claim is
not cognizable on direct appeal.
II.
In the plea agreement, Gaddy waived his right to
appeal a sentence imposed “within the maximum provided in the
statute of conviction or the manner in which that sentence was
determined.” However, the Government failed to assert the
waiver as a bar to the appeal. Therefore, this court may
undertake an Anders review. United States v. Poindexter, 492
F.3d 263, 271 (4th Cir. 2007).
A defendant is designated a career offender if:
(1) the defendant was at least eighteen years old at the time of
the instant offense; (2) the instant offense is a felony crime
of violence or controlled substance offense; and (3) “the
defendant has at least two prior felony convictions of either a
crime of violence or a controlled substance offense.” U.S.
3
Sentencing Guidelines Manual (“USSG”) § 4B1.1(a) (2008). A
crime of violence is an offense punishable by a term of
imprisonment greater than one year 1 that “has as an element the
use, attempted use, or threatened use of physical force against
the person of another.” USSG § 4B1.2(a).
To determine whether a prior felony conviction
constitutes a crime of violence, a sentencing court “must use a
categorical approach, relying only on (1) the fact of conviction
and (2) the definition of the prior offense.” United States v.
Kirksey, 138 F.3d 120, 124 (1998). However,
when the definition of the prior crime of conviction
is ambiguous and will not necessarily provide an
answer to whether the prior conviction was for a crime
of violence, [the court] look[s] beyond the definition
of the crime to examine the facts contained in the
charging document on which the defendant was
convicted.
Id. We have also stated that the district court may rely on the
information contained in the Presentence Investigation Report
(“PSR”) regarding prior convictions, “because it bears the
earmarks of derivation from Shepard[ 2 ]-approved sources such as
the indictments and state-court judgments.” United States v.
Thompson, 421 F.3d 278, 285 (4th Cir. 2005). In reviewing such
1
This definition applies “regardless of whether such
offense is specifically designated as a felony.” USSG § 4B1.2,
comment. (n.1).
2
Shepard v. United States, 544 U.S. 13, 25 (2005).
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information, the court is required to “focus only on the facts
necessarily decided by the prior conviction.” Kirksey, 138 F.3d
at 125.
There is no question that Gaddy’s 2005 conviction for
possession with intent to distribute cocaine is a predicate
offense for purposes of USSG § 4B1.1. However, Gaddy contends
that his 2000 conviction for second degree assault does not
qualify as a crime of violence and so is not a predicate
offense. In Maryland, one who violates Annotated Code of
Maryland, Criminal Law § 3-203(a) (LexisNexis Supp. 2008) 3 “is
guilty of the misdemeanor of assault in the second degree and on
conviction is subject to imprisonment not exceeding 10 years.”
Md. Code Ann., Crim. Law § 3-203(b). The crime of assault
encompasses “the crimes of assault, battery, and assault and
battery, which retain their judicially determined meanings.”
Md. Code Ann., Crim. Law § 3-201(b). Maryland case law further
defines assault as “an attempted battery or an intentional
placing of a victim in reasonable apprehension of an imminent
battery. . . . A battery . . . includes any unlawful force used
against a person of another, no matter how slight. Kirksey, 138
F.3d at 125 (internal quotation marks and citation omitted).
3
Pursuant to the Annotated Code of Maryland, Criminal Law
§ 3-203(a), “[a] person may not commit an assault.”
5
This court has observed that, “under the definition of assault
and battery in Maryland, it remains unclear whether we can say
categorically that the conduct encompassed in the crime of
battery constitutes the use of physical force against the person
of another to the degree required to constitute a crime of
violence.” Id.
Thus, since there is ambiguity as to whether second
degree assault in Maryland constitutes a crime of violence, the
district court was required to look beyond the elements of
assault. See Kirksey, 138 F.3d at 124; Thompson, 421 F.3d at
285. There is no evidence in the record that any charging
documents were presented directly to the district court from
which the court could determine that the conviction involved the
degree of physical force required to constitute a crime of
violence. However, the PSR, which was accepted by the district
court, reveals that, according to the criminal complaint
underlying Gaddy’s second degree assault conviction, a witness
“saw several individuals beating on [the victim], one of the
persons was identified as [Gaddy].” Gaddy does not dispute the
facts underlying the conviction. Thus, it is clear that the
second degree assault conviction was based on a crime of
violence. Further, it was punishable by up to ten years’
imprisonment. Md. Code Ann., Crim. Law § 3-203(b). Therefore,
we find that the district court did not err in finding that the
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second-degree assault conviction was a predicate offense
qualifying Gaddy for the career offender enhancement.
In accordance with Anders, we have reviewed the record
in this case and have found no other meritorious issues for
appeal. We therefore affirm the judgment of the district court.
This court requires that counsel inform Gaddy, in writing, of
his right to petition the Supreme Court of the United States for
further review. If Gaddy requests that a petition be filed, but
counsel believes that such a petition would be frivolous,
counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Gaddy. We dispense with oral argument because the
facts and legal conclusions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
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