United States v. Dwayne Hamilton

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-4837

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DWAYNE LAMONT HAMILTON, a/k/a Michael Givens Gibbons, a/k/a
Dewayne Lamont Hamilton,

Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Beaufort. Solomon Blatt, Jr., Senior
District Judge. (9:07-cr-00716-SB-1)

Submitted: April 27, 2012 Decided: May 10, 2012

Before KING, AGEE, and DAVIS, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.

William L. Runyon, Jr., WILLIAM L. RUNYON, JR. LAW OFFICE,
Charleston, South Carolina, for Appellant. William N. Nettles,
United States Attorney, Nick Bianchi, Assistant United States
Attorney, Charleston, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Dwayne Lamont Hamilton pled guilty to possession of a

firearm and ammunition by a convicted felon, in violation of

18 U.S.C. §§ 922(g)(1), 924(a)(2), (e) (2006), using and

carrying a firearm during and in relation to and possessing the

firearm in furtherance of a drug trafficking crime, in violation

of 18 U.S.C. § 924(c)(1)(A)(i), and possession with the intent

to distribute cocaine and aiding and abetting, in violation of

18 U.S.C. § 2 (2006) and 21 U.S.C.A. § 841(a)(1), (b)(1)(C)

(West 2006 & Supp. 2011). The district court determined that

Hamilton qualified as a career offender under U.S. Sentencing

Guidelines Manual (“USSG”) § 4B1.1 (2009) and imposed a sentence

of 226 months’ imprisonment. On appeal, Hamilton challenges his

sentence. We affirm Hamilton’s convictions, vacate his

sentence, and remand for resentencing.

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). Hamilton did not dispute

in the district court and does not dispute on appeal that his

prior South Carolina state conviction for possession with the

intent to distribute cocaine base constitutes a predicate felony

conviction for a controlled substance offense under USSG

§ 4B1.1(a). Rather, Hamilton challenged below and continues to

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challenge on appeal the district court’s conclusion that his

prior South Carolina state conviction for assault and battery of

a high and aggravated nature (“ABHAN”) constitutes a crime of

violence under USSG § 4B1.1(a).

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). To decide whether a prior conviction

constitutes a crime of violence, the district court generally

must use a categorical approach. United States v. Jenkins,

631 F.3d 680, 684 (4th Cir. 2011). This approach “look[s] only

to the elements of the offense . . . . [and] examin[es] [the

offense] in terms of how the law defines it and not in terms of

how an individual offender might have committed it on a

particular occasion.” Id. (internal quotation marks and

alternation omitted). “For an offense to constitute a crime of

violence under this approach, the offense’s full range of

proscribed conduct, including the least culpable proscribed

conduct, must fall within the applicable Guidelines definition

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of that term.” United States v. King, 673 F.3d 274, 278

(4th Cir. 2012) (internal quotation marks omitted).

However, in a “narrow range of cases” where the

offense defined by the relevant law includes conduct such that

some commissions of the offense constitute crimes of violence

and others do not, the court is to “look beyond the generic

elements of the offense to the specific conduct underlying that

prior offense.” Id. This approach is known as the modified

categorical approach. Id. In applying the modified categorical

approach, the 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.

Employing the categorical approach, the district court

concluded that Hamilton’s conviction for ABHAN was a crime of

violence under USSG § 4B1.1(a). Without expressing an opinion

on whether a conviction for ABHAN so qualifies, we vacate

Hamilton’s sentence and remand this case to the district court

for further proceedings to allow that court to determine if the

modified categorical approach supports the conclusion that

Hamilton’s conviction for ABHAN constitutes a crime of violence

under USSG § 4B1.1(a). See Anderson v. United States, 417 U.S.

211, 218 (1974) (“We think it inadvisable . . . to reach

out . . . to pass on important questions of statutory

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construction when simpler, and more settled, grounds are

available for deciding the case at hand.”). * Hamilton does not

challenge his convictions on appeal, and we therefore affirm

them.

We deny as moot the parties’ motion for remand and

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 IN PART,
VACATED IN PART,
AND REMANDED

*
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
Hamilton’s guilty plea hearing with respect to his conviction
for ABHAN.

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