UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5087
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KEVIN BATTLE,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Ellen L. Hollander, District Judge.
(1:11-cr-00110-ELH-1)
Submitted: June 22, 2012 Decided: October 4, 2012
Before TRAXLER, Chief Judge, and SHEDD and DUNCAN, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
James Wyda, Federal Public Defender, Martin G. Bahl, Staff
Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Baltimore,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, Michael C. Hanlon, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kevin Battle pleaded guilty to being a felon in
possession of a firearm and ammunition. See 18 U.S.C. §
922(g)(1). The district court concluded that Battle’s prior
convictions required him to be sentenced under the Armed Career
Criminal Act (“ACCA”), see 18 U.S.C. § 924(e), and the court
sentenced Battle to 180 months’ imprisonment, the minimum
sentence permissible under the Act. Battle appeals, challenging
his designation as an armed career criminal.
A defendant who violates § 922(g) qualifies as an
armed career criminal if he has three prior convictions for
violent felonies or serious drug offenses. See id. § 924(e)(1).
The district court held that Battle had two prior convictions
that qualified as serious drug offenses under the Act, and
Battle does not challenge that conclusion on appeal. Instead,
Battle argues that the district court erred by concluding that
his 1991 Maryland conviction for assault with intent to murder
categorically qualifies as a violent felony. We disagree.
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,” id. § 924(e)(2)(B)(i), or “is burglary,
arson, or extortion, involves use of explosives, or otherwise
involves conduct that presents a serious potential risk of
physical injury to another,” id. § 924(e)(2)(B)(ii). As used in
2
§ 924(e)(2)(B)(i), “physical force means violent force -- that
is, force capable of causing physical pain or injury to another
person.” Johnson v. United States, 130 S. Ct. 1265, 1271
(2010). Whether a prior conviction constitutes a violent felony
generally is determined categorically, “looking only to the
statutory definitions of the prior offenses, and not to the
particular facts underlying those convictions.” Taylor v.
United States, 495 U.S. 575, 600 (1990).
At the time of Battle’s conviction, assault with
intent to commit murder required proof of an assault coupled
with a specific intent to kill. See Abernathy v. State, 675
A.2d 115, 120 (Md. Ct. Spec. App. 1996). Common-law assault
under Maryland law is an attempted battery or the intentional
placing of a victim in reasonable apprehension of an imminent
battery, while battery “‘is any unlawful application of force,
direct or indirect, to the body of the victim.’” 1 United States
v. Coleman, 158 F.3d 199, 201 (4th Cir. 1998) (en banc) (quoting
Lamb v. State, 613 A.2d 402, 413 (Md. Ct. Spec. App. 1992)).
Thus, under Maryland law, an assault conviction may be based on
a wide range of conduct, including conduct involving only slight
1
In 1996, the Maryland General Assembly enacted assault
statutes that “subsum[ed] and combin[ed] all statutory offenses
of assault then existent as well as all common law forms of
assault and battery into a single and comprehensive statutory
scheme.” Robinson v. State, 728 A.2d 698, 703-04 (Md. 1999).
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force and conduct involving “indirect applications of force such
as directing a dog to attack or exposing a helpless person to
the inclemency of the weather.” United States v. Kirksey, 138
F.3d 120, 125 (4th Cir. 1998) (internal quotation marks
omitted).
Because assault as defined by Maryland law thus
“encompasses several distinct crimes, some of which qualify as
violent felonies and others of which do not,” United States v.
Alston, 611 F.3d 219, 223 (4th Cir. 2010), this court has
repeatedly held that a Maryland assault conviction is not
categorically a violent felony, see, e.g., id. at 222-23; United
States v. Harcum, 587 F.3d 219, 224 (4th Cir. 2009); Coleman,
158 F.3d at 204. The district court in this case, however,
concluded that although common-law assault is not categorically
a violent felony, assault with intent to murder is a violent
felony under Taylor’s categorical approach, because “Maryland
courts consistently require evidence of the use or threat of
deadly force by the defendant comparable to the violent felony
defined in Johnson.” J.A. 79.
Battle challenges that ruling on appeal, arguing that
assault with intent to murder does not require the use of
violent force, as required by Johnson. Battle contends that
assault with intent to murder can be committed without the use
of violent force – for example, by “tak[ing] hold of a victim’s
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arm and lead[ing] him outside in below-freezing temperatures
with the intent that he freeze to death.” Brief of Appellant at
14. Battle thus argues that the use or threatened use of
violent force is not an element of assault with intent to murder
and that the district court therefore erred by concluding that
his Maryland conviction was categorically a crime of violence.
There is no need for us resolve that issue in this
case. After concluding that assault with intent to murder was a
violent felony under 18 U.S.C. § 924(e)(2)(B)(i), the district
court also concluded that the offense was a violent felony under
§ 924(e)(2)(B)(ii), the ACCA’s residual clause:
Even if assault with intent to murder does not include
as an element the use or attempted use of violent
force, it plainly involves great potential risk [of]
physical injury to a victim, because the perpetrator,
by definition, must intend to kill or at least
seriously injure the victim and must assault the
victim with that intention.
J.A. 83.
Battle does not dispute the court’s conclusion that
assault with intent to murder “involves conduct that presents a
serious potential risk of physical injury to another,” as
required by § 924(e)(2)(B)(ii). Instead, Battle argues on
appeal that because the residual clause itself is unclear and
the cases struggling to define its scope are “fatally flawed and
hopelessly confused,” Brief of Appellant at 28, the residual
clause must be struck down as unconstitutionally vague.
5
The Supreme Court, however, has rejected vagueness
challenges to the residual clause. See James v. United States,
550 U.S. 192, 210 n.6 (2007) (“While ACCA requires judges to
make sometimes difficult evaluations of the risks posed by
different offenses, we are not persuaded by Justice Scalia’s
suggestion . . . that the residual provision is
unconstitutionally vague.”); accord Sykes v. United States, 131
S. Ct. 2267, 2277 (2011) (Although the “general and qualitative”
approach of the residual clause “may at times be . . . difficult
for courts to implement,” the residual clause “states an
intelligible principle and provides guidance that allows a
person to conform his or her conduct to the law.” (internal
quotation marks omitted)). And while Battle contends that the
Supreme Court’s pronouncements on the issue are non-binding
dicta, this court has held otherwise. See United States v.
Mobley, ___ F.3d ___, ___, 2012 WL 2866678, at *6 n.7 (4th Cir.
July 13, 2012) 2 (rejecting vagueness challenge to residual clause
of U.S.S.G. § 4B1.2 because “the Supreme Court has already
determined that the residual clause falls ‘within congressional
2
“The ACCA defines ‘violent felony’ in a manner
substantively identical to the definition of a ‘crime of
violence’ in § 4B1.2. We have therefore held that precedents
evaluating the ACCA apply with equal force to U.S.S.G. § 4B1.2.”
United States v. Jarmon, 596 F.3d 228, 231 n.* (4th Cir. 2010)
(citations omitted).
6
power to enact’ and constitutes ‘an intelligible principle
[that] provides guidance that allows a person to ‘conform his or
her conduct to the law.’” (quoting Sykes, 131 S. Ct. at 2277));
United States v. Hudson, 673 F.3d 263, 268-69 (4th Cir. 2012)
(rejecting vagueness challenge because it was not raised in the
defendant’s opening brief and because “the Supreme Court has
consistently declined to find the residual clause void for
vagueness”).
Because the residual clause is not unconstitutionally
vague, the district court committed no error by concluding that
Battle’s conviction for assault with intent to murder amounted
to a “violent felony” under 18 U.S.C. § 924(e)(2)(B)(ii), and
we affirm Battle’s sentence. 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.
AFFIRMED
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