                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 12-4549


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

DARRYL LEE JOHNSON,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(2:08-cr-00930-DCN-7)


Submitted:   January 29, 2013              Decided:   February 6, 2013


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


Affirmed by unpublished per curiam opinion.


N. Elliott Barnwell, Charleston, South Carolina, for Appellant.
Sean Kittrell, Peter Thomas Phillips, Assistant United States
Attorneys, Charleston, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Darryl       Lee   Johnson       pleaded    guilty      to       conspiracy       to

possess    with    intent      to    distribute       and    distribute            heroin,    in

violation of 21 U.S.C. §§ 841(a), 841(b)(1)(C), 846 (2006); and

three     counts    of     possession        with     intent       to    distribute          and

distribution of heroin, in violation of 21 U.S.C. §§ 841(a),

(b)(1)(C) (2006).          The district court sentenced Johnson to 151

months of imprisonment, following its finding that Johnson was a

career offender based on his prior South Carolina convictions

for possession with intent to distribute marijuana and assault

and battery of a high and aggravated nature (“ABHAN”).                                Johnson

appealed,    and    we     vacated     the    sentence       and    remanded          for    the

district    court     to    determine,        under    the     modified            categorical

approach, whether Johnson’s prior ABHAN conviction qualified as

a   predicate      offense       for    purposes       of    the        career       offender

enhancement under the Guidelines.                   United States v. Johnson, 475

F. App’x 494 (4th Cir. 2012) (unpublished).

            On     remand,     the     district      court    again          concluded      that

Johnson was a career offender, and resentenced him to 151 months

of imprisonment.           Johnson now appeals.              Appellate counsel has

filed a brief pursuant to Anders v. California, 386 U.S. 738

(1967), questioning whether the district court erred in finding

that    Johnson’s        ABHAN      conviction       qualified          as     a    crime     of

violence.     Although Johnson was informed of the right to file a

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supplemental pro se brief, he has not done so.                             For the reasons

that follow, we affirm.

           We     review     the         district            court’s      conclusion         that

Johnson’s prior offense was a crime of violence for sentencing

enhancement purposes de novo.                  See United States v. Gomez, 690

F.3d 194, 197 (4th Cir. 2012).                 Under the Sentencing Guidelines,

a   defendant    is    classified         as       a    career       offender    if    he     was

eighteen   years      old   at    the    time          he    committed     the   offense       of

conviction,     the    offense      of    conviction            is    a   felony      crime    of

violence or controlled substance offense, and he has sustained

at least two prior felony convictions for crimes of violence or

controlled      substance        offenses.               U.S.       Sentencing     Guidelines

Manual (“USSG”) § 4B1.1(a) (2012).                           A crime of violence is an

offense punishable by a term exceeding one year of imprisonment

that    “(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).

           Under the modified categorical approach, applied “only

when a statute prohibits different types of behavior such that

it can be construed to enumerate separate crimes,” a district

court   must    determine        which    part          of    the    statute     at   issue    a

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defendant      violated,          without      recourse      to    whether       the    specific

conduct of the defendant constituted a purposeful, violent, and

aggressive      act.         Gomez,      690    F.3d    at   198     (internal         quotation

marks and citation omitted).                    In so doing, in the context of a

guilty    plea,        the    court      may    review       the    terms     of       the   plea

agreement, the transcript of the plea colloquy and the factual

basis    for    the     plea,      or   other     comparable        judicial       records     to

determine       whether       a    prior       conviction         constituted      a     violent

felony or crime of violence. 1                  See Shepard v. United States, 544

U.S. 13, 26 (2005).

               Under     South      Carolina         law,    ABHAN    is     a    common      law

offense     that       requires         “an    unlawful      act     of    violent       injury

accompanied by circumstances of aggravation.”                              State v. White,

605 S.E.2d 540, 543 (S.C. 2004) (internal quotation marks and

citation omitted). 2               The circumstances of aggravation include

“the use of a deadly weapon, the intent to commit a felony,

infliction of serious bodily injury, great disparity in the ages



     1
       The determination of whether an offense is a violent
offense under the Armed Career Criminal Act is the same as the
determination of whether an offense qualifies under the career
offender provisions of the Guidelines.  See Gomez, 690 F.3d at
197.
     2
       Johnson was convicted of ABHAN in 2008, prior to the
codification of that offense in South Carolina. See State v.
Green, 724 S.E.2d 664, 674 n.9 (S.C. 2012) (citing S.C. Code
Ann. § 16-3-600 (Supp. 2011)).



                                                 4
or physical conditions of the parties, a difference in gender,

the purposeful infliction of shame and disgrace, taking indecent

liberties    or   familiarities     with      a     female,     and   resistance    to

lawful authority.”         Id. (internal quotation marks and citation

omitted); see also Johnson v. United States, 130 S. Ct. 1265,

1269   (2010)     (federal    courts    are    bound      by    the   state   supreme

court’s interpretation of state law, including determination of

the elements of the offense).

            Here,    the     district    court       correctly        concluded,    as

Johnson concedes, that the transcript of Johnson’s guilty plea

demonstrates      that     the   offense      of     conviction       involved     the

aggravating circumstance of infliction of serious bodily injury.

We   conclude     that    this   offense      has    as   an     element   the     use,

attempted use, or threatened use of physical force against the

person of another.           See USSG § 4B1.2(a)(1); see also United

States v. Wright, 594 F.3d 259, 263 (4th Cir. 2010) (conviction

for aggravated assault and battery is violent felony because it

has as an element the use, attempted use, or threatened use of

physical force against person of another).                     We therefore further

conclude that the district court did not err in determining that

Johnson’s prior conviction for ABHAN qualified as a crime of

violence    under   the    modified     categorical        approach     and   he   was

therefore a career offender.



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           We have examined the entire record in accordance with

the requirements of Anders and have found no meritorious issues

for appeal.      Accordingly, we affirm the judgment of the district

court.

           This court requires that counsel inform Johnson, in

writing,   of    the   right     to   petition   the    Supreme   Court    of   the

United States for further review.                If Johnson requests that a

petition be filed, but counsel believes that such a petition

would be frivolous, then counsel may move in this court for

leave to withdraw from representation.                  Counsel’s motion must

state that a copy thereof was served on Johnson.                       We dispense

with oral argument because the facts and legal contentions are

adequately      presented   in    the   materials      before   this    court   and

argument would not aid the decisional process.

                                                                          AFFIRMED




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