                              UNPUBLISHED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Affirmed in part, vacated in part, and remanded by unpublished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Unpublished opinions are not binding precedent in this circuit.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

                                               4
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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