UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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.
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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
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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
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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
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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).
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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
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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.
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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,
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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
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