                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-5166


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JERRY BARNES,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.     Peter J. Messitte, Senior District
Judge. (8:06-cr-00178-PJM-1)


Submitted:   November 22, 2011            Decided:   December 13, 2011


Before DAVIS, KEENAN, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Teresa Whalen, LAW OFFICE OF TERESA WHALEN, Silver Spring,
Maryland, for Appellant.     Rod J. Rosenstein, United States
Attorney, David I. Salem, Assistant United States Attorney,
Greenbelt, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Jerry        Barnes   appeals   his     eighty-four   month   sentence

following a guilty plea for possession with intent to distribute

cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)

(2006).       On       appeal,   Barnes    argues    that   neither   his    prior

Maryland conviction for assault with intent to disable nor his

1974 robbery conviction should be considered predicate offenses

under the career offender enhancement of the advisory sentencing

guidelines.     Finding no reversible error, we affirm.

           Pursuant        to    the   U.S.    Sentencing   Guidelines      Manual

(“USSG”) § 4B1.1(a) (2010), a defendant is designated a career

offender if:       (1) he 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) he

“has at least two prior felony convictions of either a crime of

violence   or      a    controlled     substance    offense.”     A   “crime    of

violence” is any offense under federal or state law, punishable

by imprisonment for a term exceeding one year, 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.




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USSG § 4B1.2(a).         We review de novo whether a prior conviction

qualifies as a “crime of violence” for purposes of a sentencing

enhancement.        United States v. Clay, 627 F.3d 959, 964 (4th Cir.

2010).

               In assessing whether an offense constitutes a crime

of violence for purposes of the career offender enhancement, we

employ either of two analyses—the “categorical” approach or the

“modified      categorical”       approach.       Id.   at    966.      Under       the

categorical     approach,       this   court   “looks   to    the    words    of   the

statute and judicial decisions interpreting it, rather than to

the conduct of any particular defendant convicted of the crime.”

Taylor v. United States, 495 U.S. 575, 602 (1990).                           However,

“where it is evident from the statutory definition of the state

crime that some violations of the statute are crimes of violence

and others are not,” we apply the modified categorical approach.

United States v. Diaz-Ibarra, 522 F.3d 343, 348 (4th Cir. 2008).

In applying the modified categorical approach, we look “to the

terms of the charging document and, if necessary in a nonjury

case,    to   the    terms   of    a   plea    agreement,    [as     well    as]   the

transcript of colloquy between judge and defendant.”                   Id.

              Barnes     first     contends      that   the     district        court

erroneously      found    his     Maryland     conviction     for    assault       with

intent to disable categorically a “crime of violence.”                       The now-

repealed      Maryland       statute,     captioned      “Unlawful          Shooting,

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Stabbing, Assaulting, etc., with Intent to Maim, Disfigure or

Disable or to Prevent Lawful Apprehension,”         read:

      If any person shall unlawfully shoot at any person, or
      shall in any manner unlawfully and maliciously attempt
      to discharge any kind of loaded arms at any person, or
      shall unlawfully and maliciously stab, cut or wound
      any person, or shall assault or beat any person, with
      intent to maim, disfigure or disable such person, or
      with intent to prevent the lawful apprehension or
      detainer of any party for any offense for which the
      said party may be legally apprehended or detained,
      every such offender, and every person counseling,
      aiding or abetting such offender shall be guilty of a
      felony   and,   upon    conviction   are  subject   to
      imprisonment for not more than 15 years.

Md.   Code    Ann.,   art.   27,   § 386   (1957,   1982    Repl.)(emphases

added).      Barnes argues that, contrary to the district court’s

approach, the categorical approach is inapplicable because on

its face, the statute proscribes both violent and non-violent

conduct.     Specifically, Barnes contends that assault with intent

to avoid apprehension (as described in the above highlighted

portion of the former statute) would not require an offender to

harbor an injurious intent posing a “serious potential risk of

physical injury to another” or involving “the use or attempted

use of physical force against the person of another.”

             We need not determine whether the district court erred

in applying the categorical approach, however, because, contrary

to Barnes’s contention, even applying the modified categorical

approach, his conviction would nonetheless qualify as a career

offender predicate.      Under the modified categorical analysis, we

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look to Barnes’s indictment before the Circuit Court for Prince

George’s       County,      which          charges       that     Barnes      “maliciously

assault[ed] Beverly Barnes with intent to disable.”                           See Johnson

v.    United     States,    130       S.    Ct.    1265,   1273      (2010)     (court   may

determine which statutory phrase was the basis for conviction by

consulting the charging documents).                      Further, the Circuit Court

Sentencing       and   Conviction          Order    establishes       that    Barnes     pled

guilty to the first count of the indictment—assault with the

intent to disable.           Thus, the record unambiguously establishes

that     Barnes’s offense of conviction within the broader Maryland

statute constitutes a crime of violence.                        See Ford v. State, 330

Md. 682, 702 (1993) (defining assault with intent to disable as

an     assault    with     the    “specific          intent     to   permanently       maim,

disfigure, or disable the victim”); see also Hammond v. State,

322 Md. 451, 457-59 (1991).                       Assault with intent to disable

clearly involves both “the use, attempted use, or threatened use

of physical force against the person of another,” and, as well,

its    commission      poses      a    “serious       potential       risk    of   physical

injury to another.”              Therefore, Barnes’s assault with intent to

disable    conviction       qualifies         as     a   career      offender      predicate

under the modified categorical approach.                         See United States v.

McHan, 386 F.3d 620, 623 (4th Cir. 2004) (observing that this

court “[is] entitled to affirm on any ground appearing in the

record, including theories not relied upon or rejected by the

                                               5
district    court”)     (internal   quotation    and    citation     omitted));

United    States   v.   Smith,   395   F.3d    516,    519   (4th    Cir.   2005)

(same).

              Barnes next contends that the district court erred in

enhancing his sentence as a career offender based upon his 1974

robbery conviction.       To qualify as a career offender predicate,

a sentence following a conviction for a crime of violence must

have   been    “imposed   within    fifteen    years    of   the     defendant’s

commencement of the instant offense” or “whenever imposed, [must

have] resulted in the defendant being incarcerated during any

part of such fifteen-year period.”            USSG § 4A1.2(e)(1).       We have

reviewed the testimony and documents presented at sentencing and

find sufficient evidence that a portion of Barnes’s sentence

following his 1974 robbery conviction was served within fifteen

years of the instant offense, thereby qualifying as a career

offender predicate.         Barnes does not dispute the accuracy of

these records in his reply brief on appeal, and we find no error

in the district court’s finding in this regard.

              Accordingly, we 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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