UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4277
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
HARRY MOULTRIE,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Aiken. Margaret B. Seymour, District Judge.
(1:10-cr-00523-MBS-1)
Submitted: August 8, 2011 Decided: September 6, 2011
Before NIEMEYER, SHEDD, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James P. Rogers, Assistant Federal Public Defender, Columbia,
South Carolina, for Appellant. William N. Nettles., United
States Attorney, Jeffrey Mikell Johnson, Robert F. Daley, Jr.,
Assistant United States Attorneys, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Harry Moultrie pled guilty to possession of a firearm
by a convicted felon, 18 U.S.C. § 922(g)(1) (2006), and was
sentenced as an armed career criminal, 18 U.S.C. § 924(e)(1)
(2006), to 180 months in prison. Moultrie now appeals his
sentence, claiming that two South Carolina state convictions for
assault and battery of a high and aggravated nature (“ABHAN”)
should not have been counted as predicate felonies for armed
career criminal purposes. We affirm.
A defendant is an armed career criminal when he
violates § 922(g)(1) and has three prior convictions for violent
felonies or serious drug offenses. 18 U.S.C. § 924(e)(1). A
violent felony is one “that has as an element the use, attempted
use, or threatened use of physical force against the person of
another . . . or otherwise involves conduct that presents a
serious potential risk of physical injury to another.” 18
U.S.C. § 924(e)(2)(B); U.S. Sentencing Guidelines Manual
§ 4B1.2(a) (2010).
To determine whether a state offense qualifies as a
violent felony, we use a “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). The characterization of an offense under state law
is not controlling. See Taylor v. United States, 495 U.S. 575,
2
590-91 (1990). ABHAN, which is punishable by up to ten years in
prison, is 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).
Under the above authorities, Moultrie’s ABHAN
convictions were properly treated as predicate felonies for
armed career criminal purposes. Accordingly, we affirm. We
dispense with oral argument because the facts and legal
contentions are adequately addressed in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
3