UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5134
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID DAMONT WARD, a/k/a Damont,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:09-cr-00855-TLW-7)
Submitted: June 14, 2011 Decided: July 18, 2011
Before TRAXLER, Chief Judge, SHEDD, Circuit Judge, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Tynika A. Claxton, CLAXTON LAW FIRM, Blythewood, South Carolina,
for Appellant. William N. Nettles, United States Attorney,
Columbia, South Carolina, Alfred W. Bethea, Jr., Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David Damont Ward pled guilty to conspiracy to possess
with intent to distribute 50 grams or more of cocaine base, a
quantity of cocaine, and a quantity of marijuana. The district
court concluded that Ward qualified as a career offender under
the United States Sentencing Guidelines (“U.S.S.G.”) § 4B1.1 and
imposed a sentence of 288 months. On appeal, Ward challenges
his sentence. We affirm.
To qualify as a Career Offender under U.S.S.G.
§ 4B1.1(a), a defendant must have “at least two prior felony
convictions of either a crime of violence or a controlled
substance offense.” The only issue on appeal is whether Ward
had the necessary predicate offenses. Ward does not dispute
that his prior South Carolina conviction for attempted robbery
qualifies as a predicate offense. Ward challenges the district
court’s conclusion, however, that Ward had two other prior South
Carolina convictions that constituted “crime[s] of violence”
under the career offender guideline. U.S.S.G. § 4B1.1(a).
Specifically, Ward contends that his South Carolina
conviction for assault and battery of a high and aggravated
nature (ABHAN) does not constitute a “crime of violence” and
therefore does not qualify as a predicate offense for the career
offender classification. A “crime of violence” is defined by
the guidelines as an offense that is punishable by imprisonment
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for more than one year and “has as an element the use, attempted
use, or threatened use of physical force against the person of
another.” U.S.S.G. § 4B1.2(a)(1). At the time of Ward’s
conviction, ABHAN was a common-law crime in South Carolina
defined as “the unlawful act of violent injury to another
accompanied by circumstances of aggravation.” State v. Fennell,
531 S.E.2d 512, 516 (S.C. 2000). Ward argues (1) that ABHAN is
not per se a “crime of violence” because it applies to both
intentional and reckless conduct, see United States v. McFalls,
592 F.3d 707, 716 (6th Cir. 2010) (holding that an ABHAN offense
under South Carolina law does not require proof of any
particular state of mind and therefore is not categorically a
crime of violence), and (2) that the charging documents fail to
show whether his particular conviction involved intentional,
“purposeful” conduct, United States v. Peterson, 629 F.3d 432,
439 (4th Cir. 2011) (recognizing that “a qualifying predicate
offense under § 4B1.2(a) must . . . be purposeful, violent, and
aggressive” and cannot include “unintentional” conduct).
Although we generally “employ a categorical approach
in determining whether a prior conviction will lead to a
sentence enhancement under the Sentencing Guidelines,” id. at
435, the district court determined that a South Carolina ABHAN
conviction required application of the modified categorical
approach. The court therefore considered both the indictment
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and the transcript of Ward’s plea colloquy to determine whether
Ward’s ABHAN conviction constituted a “crime of violence.” In
relevant part, the ABHAN indictment charged that Ward
committed assault and battery upon the victim . . .
constituting an unlawful act, a violent injury to the
person of said [victim], accompanied by circumstances
of aggravation; to wit: That the said defendant did
strike the victim in the face with a blunt object,
causing sever[e] damage[] to his upper lip and several
teeth were knocked out. . . .
J.A. 74.
The plea colloquy provided additional details:
On October 29th, 2007, at 9:00 in the evening . . . in
the parking lot of . . . a convenience store, there
was a fight between two other individuals. The
victim, [B.F.], was watching this particular fight
when he was approached by the defendant and suddenly
struck for no apparent reason violently. He did have
surgeries on his face and his teeth. I believe he
lost one or two teeth as a result of being struck by
this blunt object by the defendant.
J.A. 71. Based on its examination of the record of conviction,
the district court concluded that Ward’s prior conviction for
ABHAN involved intentional rather than inadvertent or reckless
conduct and therefore qualified as a predicate offense for
purposes of the career offender guideline.
Assuming without deciding that ABHAN is not a crime of
violence per se, and that inquiry into the purposefulness of
Ward’s conduct remains appropriate, see Sykes v. United States,
__ U.S. __, 2011 WL 2224437 at *9 (June 9, 2011), we affirm
based on the district court’s conclusion, using the modified
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categorical approach, that the record of Ward’s ABHAN conviction
reflects intentional, violent conduct in this instance. * 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.
The sentence imposed by the district court is
therefore
AFFIRMED.
*
Because we affirm the district court’s determination that
Ward’s ABHAN conviction qualifies as a predicate offense under
U.S.S.G. § 4B1.1, we need not address Ward’s argument that his
five prior South Carolina convictions for second degree burglary
did not also constitute a predicate offense under U.S.S.G. §
4B1.1.
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