                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 08-5251


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

GEBRONT MAZAUNTI GADDY, a/k/a T, a/k/a JB,

                  Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:08-cr-00050-JPB-DJJ-1)


Submitted:    July 7, 2009                    Decided:     July 24, 2009


Before MOTZ and      SHEDD,   Circuit   Judges,   and   HAMILTON,   Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


John J. Pizzuti, MCCAMIC, SACCO, PIZZUTI & MCCOID, PLLC,
Wheeling, West Virginia, for Appellant. Sharon L. Potter, United
States Attorney, Paul T. Camilletti, Assistant United States
Attorney, Martinsburg, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Gebront      M.   Gaddy      timely        appeals    from    the     100-month

sentence    imposed      following        his      guilty       plea,    pursuant       to    a

written plea agreement, to one count of distribution of cocaine

base within 1,000 feet of a school, in violation of 21 U.S.C.

§§ 841(a)(1), (b)(1)(C), 860 (2006).                        Gaddy’s counsel filed a

brief pursuant to Anders v. California, 386 U.S. 738 (1967),

asserting that there are no meritorious grounds for appeal, but

questioning       whether     Gaddy     received        ineffective       assistance         of

counsel    and    whether     the      district        court    erred    in     designating

Gaddy a career offender under the Sentencing Guidelines.                                Gaddy

has not filed a pro se brief, though he was informed of his

right to do so.        Finding no reversible error, we affirm.



                                           I.

            A     defendant       may     raise         a      claim    of      ineffective

assistance       of   counsel    “on     direct        appeal    if     and   only   if      it

conclusively appears from the record that his counsel did not

provide effective assistance.”                    United States v. Martinez, 136

F.3d 972, 979 (4th Cir. 1998).                    To prove ineffective assistance

the   defendant       must      show    two       things:       (1)     “that     counsel’s

representation         fell       below           an     objective           standard        of

reasonableness” and (2) “that there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the

                                              2
proceeding             would       have       been       different.”          Strickland        v.

Washington, 466 U.S. 668, 688, 694 (1984).                             In the context of a

guilty plea, “the defendant must show that there is a reasonable

probability that, but for counsel’s errors, he would not have

pleaded       guilty         and    would      have      insisted    on   going      to   trial.”

Hill v. Lockhart, 474 U.S. 52, 59 (1985).                                 Our review of the

record reveals no conclusive evidence that Gaddy’s counsel did

not provide effective assistance.                           Therefore, Gaddy’s claim is

not cognizable on direct appeal.



                                                    II.

               In       the    plea       agreement,       Gaddy     waived    his     right    to

appeal a sentence imposed “within the maximum provided in the

statute of conviction or the manner in which that sentence was

determined.”              However,           the   Government       failed    to     assert    the

waiver    as       a    bar    to       the    appeal.      Therefore,        this    court    may

undertake an Anders review.                          United States v. Poindexter, 492

F.3d 263, 271 (4th Cir. 2007).

               A       defendant         is     designated      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.”        U.S.

                                                     3
Sentencing         Guidelines      Manual      (“USSG”)   § 4B1.1(a)       (2008).      A

crime       of    violence    is    an     offense     punishable    by    a    term   of

imprisonment greater than one year 1 that “has as an element the

use, attempted use, or threatened use of physical force against

the person of another.”             USSG § 4B1.2(a).

                 To    determine        whether    a    prior     felony       conviction

constitutes a crime of violence, a sentencing court “must use a

categorical approach, relying only on (1) the fact of conviction

and (2) the definition of the prior offense.”                       United States v.

Kirksey, 138 F.3d 120, 124 (1998).                 However,

        when the definition of the prior crime of conviction
        is ambiguous and will not necessarily provide an
        answer to whether the prior conviction was for a crime
        of violence, [the court] look[s] beyond the definition
        of the crime to examine the facts contained in the
        charging   document  on   which   the  defendant   was
        convicted.

Id.     We have also stated that the district court may rely on the

information           contained    in    the   Presentence      Investigation     Report

(“PSR”)          regarding   prior       convictions,     “because    it    bears      the

earmarks of derivation from Shepard[ 2 ]-approved sources such as

the indictments and state-court judgments.”                         United States v.

Thompson, 421 F.3d 278, 285 (4th Cir. 2005).                       In reviewing such

        1
        This definition applies “regardless of                         whether such
offense is specifically designated as a felony.”                       USSG § 4B1.2,
comment. (n.1).
        2
            Shepard v. United States, 544 U.S. 13, 25 (2005).



                                               4
information, the court is required to “focus only on the facts

necessarily decided by the prior conviction.”                                  Kirksey, 138 F.3d

at 125.

                  There is no question that Gaddy’s 2005 conviction for

possession            with    intent       to    distribute        cocaine          is   a    predicate

offense for purposes of USSG § 4B1.1.                              However, Gaddy contends

that       his    2000       conviction         for    second     degree       assault            does   not

qualify          as   a    crime      of    violence        and    so    is        not   a    predicate

offense.              In   Maryland,         one      who   violates          Annotated           Code   of

Maryland, Criminal Law § 3-203(a) (LexisNexis Supp. 2008) 3 “is

guilty of the misdemeanor of assault in the second degree and on

conviction is subject to imprisonment not exceeding 10 years.”

Md.    Code       Ann.,       Crim.    Law      § 3-203(b).             The    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).                              Maryland case law further

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.                                       Kirksey, 138

F.3d at 125 (internal quotation marks and citation omitted).


       3
       Pursuant to the Annotated Code of Maryland, Criminal Law
§ 3-203(a), “[a] person may not commit an assault.”



                                                      5
This court has observed 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.

              Thus, since there is ambiguity as to whether second

degree assault in Maryland constitutes a crime of violence, the

district      court    was   required     to   look        beyond    the      elements      of

assault.       See Kirksey, 138 F.3d at 124; Thompson, 421 F.3d at

285.     There is no evidence in the record that any charging

documents were presented directly to the district court from

which the court could determine that the conviction involved the

degree   of    physical      force    required    to        constitute        a     crime   of

violence.      However, the PSR, which was accepted by the district

court,     reveals      that,      according     to        the    criminal         complaint

underlying Gaddy’s second degree assault conviction, a witness

“saw several individuals beating on [the victim], one of the

persons was identified as [Gaddy].”                   Gaddy does not dispute the

facts underlying the conviction.                 Thus, it is clear that the

second   degree        assault     conviction    was        based      on     a    crime    of

violence.       Further,      it    was   punishable         by   up     to       ten   years’

imprisonment.         Md. Code Ann., Crim. Law § 3-203(b).                        Therefore,

we find that the district court did not err in finding that the

                                           6
second-degree      assault      conviction         was     a     predicate     offense

qualifying Gaddy for the career offender enhancement.

              In accordance with Anders, we have reviewed the record

in this case and have found no other meritorious issues for

appeal.     We therefore affirm the judgment of the district court.

This court requires that counsel inform Gaddy, in writing, of

his right to petition the Supreme Court of the United States for

further review.        If Gaddy requests that a petition be filed, but

counsel     believes    that    such    a       petition    would      be   frivolous,

counsel   may    move    in    this    court     for     leave   to    withdraw     from

representation.        Counsel’s motion must state that a copy thereof

was served on Gaddy.          We dispense with oral argument because the

facts   and    legal    conclusions      are     adequately       presented    in    the

materials     before    the    court    and      argument      would    not   aid   the

decisional process.

                                                                              AFFIRMED




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