                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-4019


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

CHI ANTONIO RAY,

                  Defendant – Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore. Andre M. Davis, District Judge. (1:08-
cr-00117-AMD-1)


Submitted:    September 30, 2009            Decided:   October 16, 2009


Before KING and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


James Wyda, Federal Public Defender, Paresh S. Patel, Staff
Attorney, Michael T. Citaramanis, Assistant Federal Public
Defender,   Greenbelt,   Maryland,   for  Appellant.    Rod   J.
Rosenstein,   United   States  Attorney,  Bonnie   S. Greenberg,
Assistant United States Attorney, Nick Lyon, Third Year Law
Student, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Chi Antonio Ray pled guilty to bank robbery, 18 U.S.C.

§ 2113(a), (d), (f) (2006) (Count One), and use of a firearm

during a crime of violence, 18 U.S.C. § 924(c) (2006) (Count

Two).    The court determined that Ray was a career offender, but

sentenced him below the guideline range applicable pursuant to

U.S.    Sentencing     Guidelines      Manual    § 4B1.1      (2007),    imposing      a

term    of    156   months    imprisonment      for    the    bank    robbery    and    a

consecutive eighty-four-month term for the firearm offense.                         Ray

appeals his sentence, contending that the court erred in finding

that he was a career offender.           We affirm.

              A defendant is a career offender if: (1) the defendant

was at least eighteen years old at the time of the instant

offense; (2) the instant offense is a felony crime of violence

or controlled substance offense; and (3) “the defendant has at

least two prior felony convictions of either a crime of violence

or a controlled substance offense.”                   USSG § 4B1.1(a).          A crime

of violence is an offense punishable by a term of imprisonment

greater than one year that “has as an element the use, attempted

use, or threatened use of physical force against the person of

another.”       USSG § 4B1.2(a).        Ray had previously been convicted

in Maryland, in a bench trial, of second degree assault.                               He

argued at sentencing that the conviction did not qualify as a

crime    of    violence      because   the   Maryland        common   law   crime      of

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assault    includes          both      violent       and    non-violent          offenses,     and

neither     a       trial    transcript         nor        the     court’s       findings    were

available.

               To     decide          whether    earlier           convictions       constitute

crimes     of       violence,         the    sentencing          court     should     employ     a

“categorical approach.”                    Taylor v. United States, 495 U.S. 575,

600 (1990); United States v. Kirksey, 138 F.3d 120, 124 (4th

Cir. 1998).         Under this approach, the court may look only to the

fact of conviction and the statutory definition of the prior

offense.        Taylor, 495 U.S. at 602.                     “Neither Congress nor the

Sentencing Commission intended to permit sentencing courts to

retry    the     facts      of    prior       offenses       to    determine       whether     the

defendant’s conduct presents a serious risk of physical injury

to others.”         Kirksey, 138 F.3d at 124.

               However,       in       a    limited        class     of    cases     where     the

definition of the underlying crime encompasses both violent and

non-violent conduct, the sentencing court may look beyond the

statutory definition.                  See Kirksey, 138 F.3d at 124.                   In such

cases, courts may look primarily to any facts contained in the

charging        document         on     which    the       defendant       was      necessarily

convicted, or to jury instructions when applicable.                                    Id.      In

Maryland, the charging document includes both the statement of

charges    and       an     incorporated        application          for     a    statement     of



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charges containing an affidavit from the complaining witness.

Id at 126.

                The   sentencing      court           may   also       consider    other       items

from the record of a prior conviction, such as “a bench-trial

judge’s    formal         rulings    of     law       and   findings       of     fact,       and    in

pleaded    cases      . . .    the        statement         of    factual       basis     for       the

charge.”        Shepard v. United States, 544 U.S. 13, 20 (2005).                                   The

court may not consider any items from the prior record that were

not conclusively validated in the earlier proceeding.                                         Id. at

20-23.     Otherwise, the court may risk making a finding about the

prior conviction that falls outside the exception in Apprendi v.

New Jersey, 530 U.S. 466, 490 (2000), which permits statutory

sentence    enhancements            based    solely         on     “the    fact    of     a    prior

conviction,” and thus violate the Sixth Amendment under United

States     v.    Booker,      543     U.S.        220,      244       (2005).       See       United

States v. Collins, 412 F.3d 515, 521-22 (4th Cir. 2005).

                In    Maryland,       the     common             law     crime     of     assault

encompasses “the crimes of assault, battery, and assault and

battery,    which         retain    their     judicially              determined     meanings.”

Md. Code Ann., Crim. Law § 3-201(b) (LexisNexis Supp. 2008).

Maryland case law defines assault as “an attempted battery or an

intentional placing of a victim in reasonable apprehension of an

imminent battery.            A battery . . . includes any unlawful force

used     against      a    person     of     another,            no    matter     how     slight.”

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Kirksey, 138 F.3d at 125 (internal quotation marks and citations

omitted).          Further, “[t]he common law offense of battery thus

embraces      a     wide    range     of    conduct,         including     kissing      without

consent, touching or tapping, jostling, and throwing water upon

another.”          Id. (internal quotation marks and citations omitted).

We noted in Kirksey that, “under the definition of assault and

battery       in    Maryland,       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.”          Id.    In Ray’s case, the statement of charges stated

that     he    “did        assault       Patrick        Quinn.”          The     incorporated

application for a statement of charges contained Quinn’s sworn

statement describing the incident.

               Ray contends that, in the absence of specific fact

findings      from       the    state     court       that   convicted        him,    the    facts

alleged in the charging documents “do not reflect that the state

court necessarily convicted Mr. Ray of using physical force,

attempted force, or [the] threat of physical force [but] leave

open the possibility that the state court convicted Mr. Ray of

creating       apprehension           in     the       complainant        of     an    imminent

non-violent         battery       (an      unconsented         touching)       that    did     not

equate    to       attempted      force      or       threat      of   force     necessary      to

qualify as a ‘crime of violence.’”                           In other words, he posits

                                                  5
that he might have been convicted of an assault that involved

threatening Quinn with a non-violent touching, but acquitted of

the actual attack that left Quinn with broken bones in his face

which required surgery and three days in the hospital.

            We have held, post-Shepard, that, in a case where the

defendant did not plead guilty and the state statute proscribes

both violent and non-violent conduct, the district court may

look to jury instructions or the charging documents to determine

whether a prior conviction was for a crime of violence.                               See,

e.g., United States v. Roseboro, 551 F.3d 226, 230 n.3 (4th Cir.

2009); United States v. Diaz-Ibarra, 522 F.3d 343, 348 (4th Cir.

2008).      Ray    was    convicted     in       a   bench    trial;    therefore,        the

district    court        acted   properly            in   consulting        the   charging

document    to    determine      that   he       was      convicted    of    a    crime    of

violence.

            In support of his argument that the charging document

was insufficient under Shepard, Ray relies on In re Sealed Case,

548 F.3d 1085 (D.C. Cir. 2008), which held that a guilty plea to

a   District      of   Columbia    robbery           charge    was     insufficient        to

establish a prior crime of violence because the statute could

have been violated by mere snatching.                         Id. at 1089-93.             The

court observed that it was required under Shepard to “decide not

whether appellant in fact pled guilty to nonviolent robbery, but

whether he could have under the information.”                         Id. at 1092; see

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also United States v. Ventura, 565 F.3d 870 (D.C. Cir. 2009)

(holding    prior    guilty      plea   to   Virginia       felonious      abduction

insufficient to establish crime of violence on similar grounds).

However, in both In re Sealed Case and Ventura, the charging

document did not incorporate a statement of facts, as it did in

Ray’s case.         In re Sealed Case, 548 F.3d at 1090; Ventura,

565 F.3d at 878.

            Ray emphasizes that, under Shepard, the question is

what he was necessarily convicted of, not what he was probably

convicted of.       Shepard, 125 S. Ct. at 1263; In re Sealed Case,

548 F.3d at 1091.          Ray is correct that it is possible, although

unlikely,   that     the    state    court   found    someone    other     than   him

responsible for Quinn’s injuries, or found that Quinn was not

injured at all, and that Ray’s assault conviction was based only

on Quinn’s claim that Ray initially “got in [his] face,” yelled

obscenities    at    him,    and    placed   him     in   fear   of   an    imminent

attack.

            However,       Ray     incorrectly     claims     that    the     latter

allegation leaves open the possibility that he was convicted of

threatening Quinn with a non-violent touching.                   On the contrary,

Quinn stated that in the beginning he was afraid Ray was about

to attack him, not that Ray was threatening a non-violent form

of touching.    The charge against Ray was unquestionably that his

conduct first caused Quinn to feel threatened with violence,

                                         7
that    Quinn    pushed   him   away,    a    fight    ensued     and,   when    Quinn

withdrew, Ray followed him and ended by giving Quinn a beating

which produced serious injuries.              Had Ray been convicted only of

assault by putting Quinn in fear of a non-violent touching, he

would have been convicted on completely different facts from

those    charged.       Consequently,        we   conclude     that    the    district

court    did     not    err   in   deciding       that    Ray’s       prior    assault

conviction was a crime of violence, and that he was a career

offender.

            We therefore affirm the district court’s judgment.                      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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