                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-4452


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

THURMAN DOMINICK BROWN,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.   William M. Nickerson, Senior District
Judge. (1:07-cr-00479-WMN-1)


Submitted:   September 2, 2010          Decided:   September 17, 2010


Before KING, DUNCAN, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Gary E. Proctor, THE LAW OFFICES OF GARY E. PROCTOR, Baltimore,
Maryland, for Appellant.     Rod J. Rosenstein, United States
Attorney, Rachel M. Yasser, Assistant United States Attorney,
Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Thurman Dominick Brown appeals the 180-month sentence

imposed following his conviction by a jury of possession of a

firearm       by     a    convicted      felon,        in   violation      of    18     U.S.C.

§ 922(g)(1)        (2006).          On   appeal,       Brown    argues    that    his     2003

second degree assault conviction was not a violent felony * and,

therefore, that the district court erred in designating him an

armed       career       criminal    under       the    Armed    Career     Criminal      Act

(“ACCA”).       Finding no reversible error, we affirm.

               Under       the   ACCA,       a   violent        felony    is     any     crime

punishable by more than one year of imprisonment that “has as an

element the use, attempted use, or threatened use of physical

force       against        the      person       of     another.”           18        U.S.C.A.

§ 924(e)(2)(B)(i) (West 2000 & Supp. 2010).                              When determining

whether a conviction qualifies as a violent felony, “we use the

required categorical approach, which takes into account only the

definition of the offense and the fact of conviction.”                                  United

States v. Pierce, 278 F.3d 282, 286 (4th Cir. 2002).                                  We have

recognized, however, that a conviction for second degree assault

in Maryland is not per se a violent felony for purposes of the

ACCA.        United States v. Harcum, 587 F.3d 219, 224 (4th Cir.


        *
       Brown does not dispute that his two 2004 drug convictions
are predicate offenses under the ACCA.



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2009).     Thus, we must use a modified categorical approach and

“look beyond the definition of the crime to examine the facts

contained in the charging document on which the defendant was

convicted.”      United States v. Kirksey, 138 F.3d 120, 124 (4th

Cir. 1998); see Shepard v. United States, 544 U.S. 13, 26 (2005)

(setting   forth   documents     on   which    courts     may      rely    in    using

modified categorical approach); see also United States v. Simms,

441 F.3d 313, 315-18 (4th Cir. 2006) (using Kirksey analysis of

Maryland assault statute in ACCA analysis).

            With these standards in mind, we have reviewed the

record on appeal and conclude that Brown’s second degree assault

conviction     constitutes   a   violent    felony      for     purposes        of   the

ACCA.    Thus, the district court did not err in designating Brown

an armed career criminal.         Accordingly, we affirm the judgment

of the district court.

            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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