United States v. Baldwin

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 08-5226

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

TAMAR BALDWIN, a/k/a James Baldwin,

Defendant – Appellant.

Appeal from the United States District Court for the District of
Maryland, at Baltimore. Andre M. Davis, District Judge. (1:08-
cr-00117-AMD-2)

Submitted: September 30, 2009 Decided: October 16, 2009

Before KING and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Michael D. Montemarano, MICHAEL D. MONTEMARANO, P.A., Elkridge,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, Bonnie S. Greenberg, Assistant United States Attorney,
Nick Lyon, Third Year Law Student, Baltimore, Maryland, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Tamar Baldwin pled guilty to bank robbery, 18 U.S.C.

§ 2113(a), (d) (2006) (Count One), and use of a firearm during a

crime of violence, 18 U.S.C. §§ 924(c), 2 (2006) (Count Two).

The district court sentenced him as a career offender, U.S.

Sentencing Guidelines Manual § 4B1.1 (2008), to a term of 156

months imprisonment for the bank robbery and a consecutive

seven-year sentence for aiding and abetting his co-defendant’s

brandishing of a firearm during the robbery. 18 U.S.C.

§ 924(c)(1)(A)(ii). Baldwin appeals his sentence, contending

that (1) the district court erred in giving him an enhanced

sentence for the § 924(c) offense based on his co-defendant’s

brandishing of a firearm, (2) he was not a career offender, and

(3) the sentence was unreasonable. We affirm.

Baldwin stipulated as part of his plea agreement that

he and co-defendant Chi Antonio Ray robbed a bank in

Reiserstown, Maryland. Baldwin carried a crowbar into the bank

and Ray carried a gun. Baldwin remained at the door while Ray

ordered the tellers and customers to the floor, ordered two

tellers to open cash drawers at gunpoint and took money, then

returned to the first teller, kicked him in the head, and

ordered him to get more money. A third cash drawer was opened

and Ray obtained money from it, after which he and Baldwin left

the bank and were apprehended a short time later.

2
 In the presentence report, the probation officer

recommended that Baldwin qualified for sentencing as a career

offender because he had prior convictions for a drug offense and

second degree assault. The probation officer also recommended a

seven-year sentence under § 924(c)(1)(A)(ii), which applies if a

firearm was brandished during and in relation to a crime of

violence. Baldwin objected to the seven-year sentence for

brandishing, alleging that he had not admitted participating in

or condoning Ray’s brandishing. He also objected that his prior

Maryland assault conviction was categorically a crime of

violence and thus not a predicate for career offender status.

At sentencing, the district court overruled both objections.

The court determined that Baldwin was a career offender, but

imposed a sentence below the career offender guideline range, to

be followed by a consecutive eighty-four-month sentence for the

§ 924(c) conviction.

On appeal, Baldwin first challenges the enhanced

sentence for brandishing. “To be liable for aiding and

abetting, a defendant must (1) willfully associate himself with

the criminal venture, and (2) seek to make the venture succeed

through some action of his own.” United States v. Bowen,

527 F.3d 1065, 1078 (10th Cir. 2008); see also United States v.

Wilson, 135 F.3d 291, 305 (4th Cir. 1998) (aiding and abetting

in § 924(c) context does not require participation in every

3
stage of crime, only knowing participation at some stage and

intent to achieve common goal). Most circuits require that the

defendant “intentionally facilitate or encourage another’s use

of a gun,” but “[l]ittle is required to satisfy the element of

facilitation.” Bowen, 527 F.3d at 1079 (noting that the Tenth

Circuit requires only that the aider and abettor know of

another’s use of a gun in a crime of violence and knowingly and

actively participate in the crime) (citations omitted).

Baldwin does not dispute that he aided and abetted the

bank robbery and knew a firearm would be “used,” but he contends

that “there was no evidence either that [he] knew the firearm

would be brandished, or that he condoned the brandishing when it

took place.” He seeks support from the Supreme Court’s

discussion, in Dean v. United States, 129 S. Ct. 1849, 1853-54

(2009), of the requirement in § 924(c)(4) that “[t]he defendant

must have intended to brandish the firearm” for a specific

purpose, which the Court distinguished from subsection

(c)(1)(A)(iii), which requires no proof of intent for an

enhanced sentence when a firearm is discharged in the course of

a violent or drug trafficking crime. Id. at 1856. However,

Dean does not advance Baldwin’s argument.

As defined in § 924(c)(4), to “brandish” a firearm

means “to display all or part of the firearm, or otherwise make

the presence of the firearm known to another person, in order to

4
intimidate that person, regardless of whether the firearm is

directly visible to that person.” Brandishing a firearm is one

type of active use of a firearm, Wilson, 135 F.3d at 304, and is

arguably the most obvious and likely use to be anticipated in an

armed robbery. Baldwin stood guard at the door of the bank,

armed with a crowbar, while Ray obtained money by brandishing a

gun, presumably in full view of Baldwin, and then left with Ray

and the proceeds of the robbery. We conclude that the evidence

was sufficient for the district court to determine that Baldwin

intentionally aided and abetted Ray’s brandishing of the

firearm, and that Baldwin was subject to a consecutive

seven-year sentence for the § 924(c) conviction.

Next, Baldwin contests his career offender status. A

defendant is a career offender if he was at least eighteen years

old when the instant offense was committed, the instant offense

is a felony and is either a crime of violence or a drug offense,

and he has at least two prior felony convictions for crimes of

violence or drug offenses. See USSG § 4B1.1. A “crime of

violence” is any federal or state offense 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, or . . . involves conduct

that presents a serious potential risk of physical injury to

another.” USSG § 4B1.2(a). In deciding whether convictions

5
constitute crimes of violence, the sentencing court should

employ a “categorical approach.” Taylor v. United States,

495 U.S. 575, 600 (1990); United States v. Kirksey, 138 F.3d

120, 124 (4th Cir. 1998). Under this approach, the court may

look only to the fact of conviction and the statutory definition

of the prior offense. Taylor, 495 U.S. at 602.

However, in a limited number of cases, such as this

one, where the definition of the predicate crime is ambiguous

because it describes both violent and non-violent offenses, the

sentencing court may “examine the facts contained in the

charging document on which the defendant was convicted[,]” with

the aim “that we focus only on the facts necessarily decided by

the prior conviction.” Kirksey, 138 F.3d at 124-25. In

addition, the sentencing court may consider other items from the

record of a prior conviction, such as “a bench-trial judge’s

formal rulings of law and findings of fact, and in pleaded cases

. . . the statement of factual basis for the charge,” but may

not consider any items from the prior record that were not

conclusively validated in the earlier proceeding. Shepard v.

United States, 544 U.S. 13, 20-23 (2005).

In Maryland, the common law 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) (LexisNexis Supp. 2008).

6
Maryland case law 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.”

Further, “[t]he common law offense of battery thus embraces a

wide range of conduct, including kissing without consent,

touching or tapping, jostling, and throwing water upon another.”

Kirksey, 138 F.3d at 125 (internal quotation marks and citations

omitted). Thus, we observed in Kirksey 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. In this case,

the court properly considered the charging document.

Baldwin argues that, because the government failed to

produce the bench-trial judge’s factual findings and legal

rulings, the government failed to prove that he was actually

convicted of the violent assault charged when he could

conceivably have been convicted of a non-violent assault if the

evidence was insufficient to prove the charged violent assault.

He also contends that the district court improperly considered

the statement of probable cause because it was not “linked to

[the statement of charges] by any language demonstrating such

7
relation or incorporation[.]” The latter claim is baseless. *

The statement of facts states, “Upon the facts contained in the

application of Joseph, Burl it is formally charged that . . . .”

The statement of probable cause contains Officer Joseph’s

description of Baldwin’s offense. Both were filed on the same

day in the Baltimore County district court and have the same

case number. These facts establish that the statement of

probable cause was incorporated into the charging document, and

was properly considered by the district court. Kirksey, 138

F.3d at 126.

With respect to the adequacy of the proof of a violent

assault, we have held, post-Shepard, that, in a case where the

defendant did not plead guilty and the state statute proscribes

both violent and non-violent conduct, the district court may

look to jury instructions or the charging documents to determine

whether a prior conviction was for a crime of violence. See,

e.g., United States v. Roseboro, 551 F.3d 226, 230 n.3 (4th Cir.

2009); United States v. Diaz-Ibarra, 522 F.3d 343, 348 (4th Cir.

2008). Baldwin was convicted in a bench trial; therefore, the

district court acted properly in consulting the charging

*
Baldwin acknowledges that he did not object to
consideration of the statement of probable cause on this ground,
only on relevance grounds.

8
document and determining from it that Baldwin was convicted of a

violent assault.

As support for his argument that the charging document

was inadequate under Shepard, Baldwin relies on In re Sealed

Case, 548 F.3d 1085 (D.C. Cir. 2008), which held that a guilty

plea to a District of Columbia robbery charge was insufficient

to establish a prior crime of violence because the statute could

have been violated by mere snatching. Id. at 1089-93; see also

United States v. Ventura, 565 F.3d 870 (D.C. Cir. 2009) (holding

prior guilty plea to Virginia felonious abduction insufficient

to establish crime of violence on similar grounds). However, in

both In re Sealed Case and Ventura, the charging document did

not incorporate a statement of facts, as it did in Baldwin’s

case. In re Sealed Case, 548 F.3d at 1090; Ventura, 565 F.3d at

878.

Last, Baldwin argues that his sentence was

unreasonable. We review a sentence for reasonableness under an

abuse of discretion standard. Gall v. United States, 552 U.S.

38, ___, 128 S. Ct. 586, 597 (2007). This review requires

appellate consideration of both the procedural and substantive

reasonableness of a sentence. Id. After determining whether

the district court properly calculated the defendant’s advisory

guidelines range, this court must consider whether the district

court considered the 18 U.S.C. § 3553(a) (2006) factors,

9
analyzed any arguments presented by the parties, and

sufficiently explained the selected sentence. Id. at 596-97;

see United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009).

Finally, we review the substantive reasonableness of the

sentence, “taking into account the totality of the

circumstances, including the extent of any variance from the

Guidelines range.” United States v. Pauley, 511 F.3d 468, 473

(4th Cir. 2007) (internal quotation marks and citation omitted).

Applying these standards, we have thoroughly reviewed the record

on appeal and conclude that the sentence was reasonable.

We therefore affirm the sentence imposed by the

district court. 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

10