UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4941
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DARRYL LEE JOHNSON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, Chief District
Judge. (2:08-cr-00930-DCN-7)
Submitted: March 16, 2012 Decided: April 12, 2012
Before MOTZ and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
N. Elliott Barnwell, Charleston, South Carolina, for Appellant.
William N. Nettles, United States Attorney, Columbia, South
Carolina, Peter T. Phillips, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Darryl Lee Johnson pled guilty to conspiracy to possess
with intent to distribute and to distribute a quantity of heroin
and three counts of possession with intent to distribute and
distribution of a quantity of heroin. The district court
concluded that Johnson qualified as a Career Offender under
United States Sentencing Guideline (USSG) § 4B1.1 and imposed a
sentence of 151 months’ imprisonment. On appeal, Johnson
challenges his sentence. As explained below, we vacate
Johnson’s sentence and remand for further proceedings consistent
with this opinion.
To qualify as a Career Offender under USSG § 4B1.1, inter
alia, a defendant must have “at least two prior felony
convictions of either a crime of violence or a controlled
substance offense.” USSG § 4B1.1(a). Johnson did not dispute
below and does not dispute on appeal that his 2004 conviction,
pursuant to a guilty plea in South Carolina state court, for
possession with intent to distribute marijuana qualifies as a
prior felony conviction for a controlled substance offense under
USSG § 4B1.1(a). However, Johnson challenged below and
continues to challenge on appeal the district court’s conclusion
that his 2008 conviction, pursuant to a guilty plea in South
Carolina state court, for assault and battery of a high and
aggravated nature (ABHAN) under South Carolina’s common law
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constitutes a “crime of violence” under USSG § 4B1.1(a). This
is the sole issue on appeal.
A “crime of violence” is defined by the Guidelines as an
offense that is punishable by imprisonment for more than one
year and “(1) has as an element the use, attempted use, or
threatened use of physical force against the person of another,
or (2) is burglary of a dwelling, arson, or extortion, involves
use of explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another.” USSG
§ 4B1.2(a). In deciding whether a prior conviction qualifies as
a crime of violence under the Guidelines’ Career Offender
provision, the sentencing court normally employs a categorical
approach. United States v. Peterson, 629 F.3d 432, 435 (4th
Cir. 2011). Under this approach, the district court considers
the offense as defined by the relevant law, rather than
considering the facts of the underlying specific crime. Sykes
v. United States, 131 S. Ct. 2267, 2272 (2011). “For an offense
to constitute a ‘crime of violence’ under th[e categorical]
approach, the offense’s full range of proscribed conduct,
including the least culpable proscribed conduct, must fall
within the applicable Guidelines definition of that term.”
United States v. King, 2012 WL 745535, at *2 (4th Cir. March 8,
2012). However, if the offense as defined by the relevant law
includes conduct such that some commissions of the offense
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constitute crimes of violence and others do not, “we look beyond
the generic elements of the offense to the specific conduct
underlying that prior offense.” Id. at *3. This is known as
the modified categorical approach. In applying the modified
categorical approach to a prior conviction based upon a guilty
plea such is at issue here, the sentencing court is limited to
considering “the record of conviction, which includes the
charging document, the plea agreement, and the transcript of the
plea colloquy, and any explicit factual findings made by the
trial court.” Id.
Here, employing the categorical approach, the district
court concluded that South Carolina’s common law offense of
ABHAN constitutes a crime of violence under USSG § 4B1.1(a).
Having so concluded, the district court did not go on to analyze
the conviction under the modified categorical approach. Without
expressing an opinion on whether the offense of ABHAN under
South Carolina’s common law categorically constitutes a crime of
violence under USSG § 4B1.1(a), we have decided the prudent
course under the circumstances is to vacate Johnson’s sentence
and remand this case to the district court for further
proceedings in order to allow the district court to determine if
the modified categorical approach supports the conclusion that
Johnson’s conviction for ABHAN under South Carolina common law
constitutes a crime of violence under USSG § 4B1.1(a). See
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Anderson v. United States, 417 U.S. 211, 218 (1974) (“We think
it inadvisable . . . to reach out . . . to pass on important
questions of statutory construction when simpler, and more
settled, grounds are available for deciding the case at hand.”).
On this issue, the district court should permit the parties to
present evidence. For example, the government is free on remand
to present a transcript of the plea colloquy from Johnson’s
guilty plea hearing with respect to his 2008 conviction for
ABHAN under South Carolina’s common law.
Based on the foregoing, we vacate Johnson’s sentence and
remand for further proceedings consistent with this opinion. 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.
VACATED AND REMANDED
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