                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 11-5087


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

KEVIN BATTLE,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Ellen L. Hollander, District Judge.
(1:11-cr-00110-ELH-1)


Submitted:   June 22, 2012                 Decided:    October 4, 2012


Before TRAXLER,   Chief   Judge,   and   SHEDD   and   DUNCAN,   Circuit
Judges.


Affirmed by unpublished per curiam opinion.


James Wyda, Federal Public Defender, Martin G. Bahl, Staff
Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Baltimore,
Maryland, for Appellant.    Rod J. Rosenstein, United States
Attorney, Michael C. Hanlon, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Kevin         Battle    pleaded        guilty        to    being    a     felon    in

possession      of    a     firearm      and    ammunition.             See    18     U.S.C.    §

922(g)(1).        The district court concluded that Battle’s prior

convictions required him to be sentenced under the Armed Career

Criminal Act (“ACCA”), see 18 U.S.C. § 924(e), and the court

sentenced       Battle      to     180    months’         imprisonment,         the     minimum

sentence permissible under the Act.                       Battle appeals, challenging

his designation as an armed career criminal.

            A    defendant         who   violates          §   922(g)    qualifies       as    an

armed   career       criminal      if    he    has       three   prior    convictions         for

violent felonies or serious drug offenses.                            See id. § 924(e)(1).

The district court held that Battle had two prior convictions

that    qualified      as    serious      drug       offenses         under    the    Act,    and

Battle does not challenge that conclusion on appeal.                                   Instead,

Battle argues that the district court erred by concluding that

his 1991 Maryland conviction for assault with intent to murder

categorically qualifies as a violent felony.                           We disagree.

            A violent felony is one that “has as an element the

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

the person of another,” id. § 924(e)(2)(B)(i), or “is burglary,

arson, or extortion, involves use of explosives, or otherwise

involves    conduct         that    presents         a    serious      potential       risk    of

physical injury to another,” id. § 924(e)(2)(B)(ii).                                 As used in

                                               2
§ 924(e)(2)(B)(i), “physical force means violent force -- that

is, force capable of causing physical pain or injury to another

person.”      Johnson     v.    United      States,    130   S.   Ct.    1265,      1271

(2010).     Whether a prior conviction constitutes a violent felony

generally    is    determined        categorically,      “looking       only   to   the

statutory    definitions        of   the   prior     offenses,    and    not   to    the

particular       facts   underlying        those    convictions.”         Taylor      v.

United States, 495 U.S. 575, 600 (1990).

            At     the   time    of    Battle’s      conviction,     assault        with

intent to commit murder required proof of an assault coupled

with a specific intent to kill.                    See Abernathy v. State, 675

A.2d 115, 120 (Md. Ct. Spec. App. 1996).                     Common-law assault

under Maryland law is an attempted battery or the intentional

placing of a victim in reasonable apprehension of an imminent

battery, while battery “‘is any unlawful application of force,

direct or indirect, to the body of the victim.’” 1                  United States

v. Coleman, 158 F.3d 199, 201 (4th Cir. 1998) (en banc) (quoting

Lamb v. State, 613 A.2d 402, 413 (Md. Ct. Spec. App. 1992)).

Thus, under Maryland law, an assault conviction may be based on

a wide range of conduct, including conduct involving only slight

     1
       In 1996, the Maryland General Assembly enacted assault
statutes that “subsum[ed] and combin[ed] all statutory offenses
of assault then existent as well as all common law forms of
assault and battery into a single and comprehensive statutory
scheme.” Robinson v. State, 728 A.2d 698, 703-04 (Md. 1999).



                                            3
force and conduct involving “indirect applications of force such

as directing a dog to attack or exposing a helpless person to

the inclemency of the weather.”                      United States v. Kirksey, 138

F.3d     120,    125     (4th     Cir.       1998)      (internal     quotation      marks

omitted).

            Because       assault           as   defined     by    Maryland    law     thus

“encompasses several distinct crimes, some of which qualify as

violent felonies and others of which do not,” United States v.

Alston,    611    F.3d    219,        223    (4th     Cir.   2010),    this    court    has

repeatedly       held    that     a    Maryland         assault     conviction    is    not

categorically a violent felony, see, e.g., id. at 222-23; United

States v. Harcum, 587 F.3d 219, 224 (4th Cir. 2009); Coleman,

158 F.3d at 204.            The district court in this case, however,

concluded that although common-law assault is not categorically

a violent felony, assault with intent to murder is a violent

felony    under    Taylor’s       categorical          approach,     because   “Maryland

courts consistently require evidence of the use or threat of

deadly force by the defendant comparable to the violent felony

defined in Johnson.”            J.A. 79.

            Battle challenges that ruling on appeal, arguing that

assault    with    intent       to    murder         does   not   require   the   use    of

violent force, as required by Johnson.                            Battle contends that

assault with intent to murder can be committed without the use

of violent force – for example, by “tak[ing] hold of a victim’s

                                                 4
arm   and   lead[ing]   him    outside       in    below-freezing    temperatures

with the intent that he freeze to death.”                Brief of Appellant at

14.     Battle   thus   argues    that       the   use   or   threatened   use   of

violent force is not an element of assault with intent to murder

and that the district court therefore erred by concluding that

his Maryland conviction was categorically a crime of violence.

             There is no need for us resolve that issue in this

case.     After concluding that assault with intent to murder was a

violent felony under 18 U.S.C. § 924(e)(2)(B)(i), the district

court also concluded that the offense was a violent felony under

§ 924(e)(2)(B)(ii), the ACCA’s residual clause:

      Even if assault with intent to murder does not include
      as an element the use or attempted use of violent
      force, it plainly involves great potential risk [of]
      physical injury to a victim, because the perpetrator,
      by definition, must intend to kill or at least
      seriously injure the victim and must assault the
      victim with that intention.

J.A. 83.

             Battle does not dispute the court’s conclusion that

assault with intent to murder “involves conduct that presents a

serious     potential   risk     of   physical       injury    to   another,”    as

required    by   §   924(e)(2)(B)(ii).             Instead,   Battle   argues    on

appeal that because the residual clause itself is unclear and

the cases struggling to define its scope are “fatally flawed and

hopelessly confused,” Brief of Appellant at 28, the residual

clause must be struck down as unconstitutionally vague.

                                         5
               The       Supreme      Court,     however,         has    rejected     vagueness

challenges to the residual clause.                          See James v. United States,

550 U.S. 192, 210 n.6 (2007) (“While ACCA requires judges to

make       sometimes      difficult       evaluations             of    the   risks    posed   by

different offenses, we are not persuaded by Justice Scalia’s

suggestion           .     .      .     that         the      residual         provision       is

unconstitutionally vague.”); accord Sykes v. United States, 131

S. Ct. 2267, 2277 (2011) (Although the “general and qualitative”

approach of the residual clause “may at times be . . . difficult

for    courts        to    implement,”          the        residual      clause     “states    an

intelligible         principle         and     provides        guidance       that    allows    a

person to conform his or her conduct to the law.” (internal

quotation marks omitted)).                   And while Battle contends that the

Supreme      Court’s       pronouncements             on    the    issue      are    non-binding

dicta, this court has held otherwise.                                  See United States v.

Mobley, ___ F.3d ___, ___, 2012 WL 2866678, at *6 n.7 (4th Cir.

July 13, 2012) 2 (rejecting vagueness challenge to residual clause

of    U.S.S.G.       §    4B1.2       because    “the        Supreme      Court     has   already

determined that the residual clause falls ‘within congressional


       2
        “The   ACCA  defines  ‘violent   felony’  in   a  manner
substantively identical to the definition of a ‘crime of
violence’ in § 4B1.2.    We have therefore held that precedents
evaluating the ACCA apply with equal force to U.S.S.G. § 4B1.2.”
United States v. Jarmon, 596 F.3d 228, 231 n.* (4th Cir. 2010)
(citations omitted).



                                                 6
power   to   enact’   and   constitutes           ‘an   intelligible   principle

[that] provides guidance that allows a person to ‘conform his or

her conduct to the law.’” (quoting Sykes, 131 S. Ct. at 2277));

United States v. Hudson, 673 F.3d 263, 268-69 (4th Cir. 2012)

(rejecting vagueness challenge because it was not raised in the

defendant’s opening brief and because “the Supreme Court has

consistently    declined    to   find       the    residual   clause   void   for

vagueness”).

             Because the residual clause is not unconstitutionally

vague, the district court committed no error by concluding that

Battle’s conviction for assault with intent to murder amounted

to a “violent felony” under 18 U.S.C. § 924(e)(2)(B)(ii), and

we affirm Battle’s sentence.            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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