United States v. Rich ( 1999 )


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  • UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.                                                                      No. 96-4784
    DANA C. RICH,
    Defendant-Appellant.
    Appeal from the United States District Court
    for the District of Maryland, at Baltimore.
    Frederic N. Smalkin, District Judge.
    (CR-95-480-S)
    Submitted: December 15, 1998
    Decided: January 12, 1999
    Before WILKINS, Circuit Judge, and HALL and
    PHILLIPS, Senior Circuit Judges.
    _________________________________________________________________
    Vacated and remanded by unpublished per curiam opinion.
    _________________________________________________________________
    COUNSEL
    James K. Bredar, Federal Public Defender, Denise C. Barrett, Assis-
    tant Federal Public Defender, Baltimore, Maryland, for Appellant.
    Lynne A. Battaglia, United States Attorney, Philip S. Jackson, Assis-
    tant United States Attorney, Baltimore, Maryland, for Appellee.
    _________________________________________________________________
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).
    _________________________________________________________________
    OPINION
    PER CURIAM:
    Appellant Dana Rich appeals his sentence following his conviction
    on one count of unlawful possession of a firearm by a convicted
    felon, in violation of 
    18 U.S.C.A. § 922
    (g)(1) (West Supp. 1998). On
    appeal, the issue is whether the district court erred in sentencing Rich
    as an armed career criminal pursuant to 18 U.S.C.A.§ 924(e) (West
    Supp. 1998), based, in part, on a 1982 Maryland state conviction for
    common law battery. For the reasons that follow, we vacate and
    remand for further proceedings.
    Prior to his § 922(g)(1) conviction, Rich had been convicted in
    Maryland state court for several crimes including a 1981 robbery con-
    viction, a 1982 common law battery conviction, and a 1990 felony
    conviction for drug trafficking. Based on these three Maryland con-
    victions, the district court found that Rich qualified for enhanced sen-
    tencing under § 924(e), and sentenced him to 235 months in prison.
    Without the sentence enhancement, the maximum sentence Rich
    would have faced under § 922(g) was ten years in prison.
    Rich argues that the district court erred in counting his 1982 Mary-
    land common law battery conviction as a predicate"violent felony"
    for the purpose of sentence enhancement under § 924(e)(1). Section
    924(e)(1) establishes a mandatory minimum sentence of fifteen years
    without parole for anyone convicted of violating 
    18 U.S.C.A. § 922
    (g) who has had at least three prior convictions for a "violent
    felony" or a "serious drug offense." A violent felony is defined as
    "any crime punishable for a term exceeding one year . . . ." 
    18 U.S.C.A. § 924
    (e)(2)(B). However, pursuant to 
    18 U.S.C.A. § 921
    (a)(20)(B) (West 1976 & Supp. 1998), the term "crime punish-
    able by imprisonment for a term exceeding one year" does not include
    "any State offense . . . classified by the laws of the State as a misde-
    meanor and punishable by a term of imprisonment of two years or
    less."
    2
    At the time of Rich's 1982 battery conviction, battery under Mary-
    land law was a common law misdemeanor and carried no maximum
    penalty, so long as the sentence did not violate the prohibition against
    cruel and unusual punishment. See State v. Huebner, 
    505 A.2d 1331
    ,
    1335 (Md. 1986). Rich argues, however, that his 1982 Maryland com-
    mon law battery conviction does not qualify as a predicate "violent
    felony" for purposes of § 924(e)(1) enhancement because the state
    court judge applied a rule under which she could sentence him to no
    more than ninety days in prison* and, in fact, he received only a sus-
    pended sentence of sixty days. This court determines whether a defen-
    dant has committed a violent felony for purposes of§ 924(e)(1) based
    on the maximum sentence the defendant could have received rather
    than based on the sentence he actually served. See United States v.
    Coleman, 
    158 F.3d 199
    , 203-04 (4th Cir. 1998). Regardless of the
    actual sentence Rich received or application of a court rule limiting
    the prison term the state judge could impose, the maximum sentence
    Rich could have received exceeded two years in prison. Therefore, his
    common law battery conviction did not fall within the misdemeanor
    exclusion of 
    18 U.S.C.A. § 921
    (a)(20)(B).
    Rich also argues that his battery conviction does not qualify as a
    "violent felony" for purposes of § 924(e)(1)(B). This provision
    defines a "violent felony" as a crime punishable by more than a year
    in prison and that has as one of its elements "the use, attempted use
    or threatened use of physical force against the person of another." In
    determining whether a prior offense qualifies as a prior violent felony
    conviction for purposes of § 924(e), generally the sentencing court
    must "look only to the fact of conviction and statutory definition of
    the prior offense." Taylor v. United States , 
    495 U.S. 575
    , 602 (1990).
    When a prior offense could be committed by violent or non-violent
    means, however, the court must look to the facts of the case. See
    United States v. Cook, 
    26 F.3d 507
    , 509 (4th Cir. 1994).
    _________________________________________________________________
    *This rule, the "Gerstung Rule," formerly codified at Md. Cts. & Jud.
    Proc. § 4-302(d)(ii), authorized state judges to bind themselves to limit-
    ing a defendant's maximum sentence to 90 days, thereby promoting judi-
    cial economy by preventing a defendant from seeking a jury trial. Two
    years after Rich's battery conviction, the Court of Appeals of Maryland
    declared the Gerstung Rule unconstitutional. See Kawamura v. State, 
    473 A.2d 438
    , 443-44 (Md. 1984).
    3
    Maryland case law defines the physical component of common law
    battery as "any unlawful application of force, direct or indirect, to the
    body of the victim." Lamb v. State, 
    613 A.2d 402
    , 413 (Md. App.
    1992). Within this definition, force is broadly defined to include such
    conduct as nonconsensual kissing, ordering a dog to attack, and even
    exposing a helpless person to inclement weather. See United States v.
    Kirksey, 
    138 F.3d 120
    , 125 (4th Cir.), cert. denied, ___ U.S. ___, 
    67 U.S.L.W. 3232
     (U.S. Oct. 5, 1998).
    For the purpose of determining whether a common law battery con-
    viction constitutes a crime of violence for purposes of sentence
    enhancement under U.S. Sentencing Guidelines§ 4B1.2 (1997), this
    court held that "it remains unclear whether we can say categorically
    that the conduct encompassed in the crime of battery constitutes the
    use of physical force against the person of another to the degree
    required to constitute a crime of violence." See Kirksey, 138 F.2d at
    125. Observing that "[a] Maryland conviction for common-law
    assault presents the unusual situation in which an offense may be
    committed in one of two ways--one of which requires the use,
    attempted use, or threatened use of physical force and one which does
    not," this court also held that to determine whether a common law
    assault conviction in Maryland is a violent felony for purposes of
    § 924(e), "the district court properly looked beyond the fact of convic-
    tion and the elements of the offense to determine whether . . . [a prior
    Maryland common law assault conviction] . . . was a violent felony."
    Coleman, 
    158 F.3d at 202
    .
    The record on appeal does not include details of Rich's Maryland
    common law battery conviction. Moreover, the district court did not
    look beyond the fact of the conviction when it concluded that Rich's
    battery conviction constituted a violent felony for purposes of
    § 924(e). We therefore vacate Rich's sentence and remand for resen-
    tencing in light of Kirksey and Coleman . We dispense with oral argu-
    ment because the facts and legal contentions are adequately presented
    in the materials before the court and argument would not aid the deci-
    sional process.
    VACATED AND REMANDED
    4