UNPUBLISHED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Affirmed in part, vacated in part, and remanded by unpublished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Unpublished opinions are not binding precedent in this circuit.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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