PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 97-4189

CHARLES LEON KIRKSEY,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Catherine C. Blake, District Judge.
(CR-96-451)

Argued: December 5, 1997

Decided: March 9, 1998

Before NIEMEYER, Circuit Judge, BUTZNER,
Senior Circuit Judge, and MICHAEL,
Senior United States District Judge for the
Western District of Virginia, sitting by designation.

_________________________________________________________________

Affirmed by published opinion. Judge Niemeyer wrote the opinion,
in which Senior Judge Butzner and Senior Judge Michael joined.

_________________________________________________________________

COUNSEL

ARGUED: Denise Charlotte Barrett, Assistant Federal Public
Defender, Baltimore, Maryland, for Appellant. Philip S. Jackson,
Assistant United States Attorney, Baltimore, Maryland, for Appellee.
ON BRIEF: James K. Bredar, Federal Public Defender, Baltimore,
Maryland, for Appellant. Lynne A. Battaglia, United States Attorney,
Bonnie S. Greenberg, Assistant United States Attorney, Baltimore,
Maryland, for Appellee.

_________________________________________________________________

OPINION

NIEMEYER, Circuit Judge:

We are presented with the question of whether convictions in
Maryland state courts for common law assault and battery, defined by
Maryland law to be "any unlawful force used against the person of
another, no matter how slight," qualify as predicate crimes of violence
for purpose of career offender status under the United States Sentenc-
ing Guidelines § 4B1.1 (enhancing sentences of career offenders). If
such convictions are not categorically crimes of violence, then we
must decide what portions of the state record may be consulted to
determine whether they are. These issues are questions of law which
we review de novo. See United States v. Dickerson, 77 F.3d 774, 775
(4th Cir.), cert. denied, 117 S. Ct. 126 (1996).

I

Following his two-count indictment for two bank robberies in
downtown Baltimore, in violation of 18 U.S.C. §§ 2113(a) and (f),
Charles Kirksey pled guilty to one of the counts, reserving his right
to appeal. Because the district court found that Kirksey had been con-
victed four previous times in Maryland for crimes of violence, it sen-
tenced him as a career offender under U.S.S.G. § 4B1.1 (requiring
two prior crimes of violence) and imposed a 151-month sentence. The
court relied on a 1980 conviction for robbery with a deadly weapon,
a 1989 conviction for assault, a 1990 conviction for battery, and a
1991 conviction for battery. To find one of the two required crimes
of violence, the court categorically used the 1980 conviction for rob-
bery with a deadly weapon. Because the other three convictions were
for common law assault or common law battery, crimes requiring
only an unconsented touching under Maryland law, the district court
determined that the 1989, 1990, and 1991 convictions were not cate-
gorically crimes of violence. It therefore concluded that it should

                    2
review certain documents beyond the state charging documents to
determine whether the three crimes were violent:

          I think that when one cannot categorically tell from the ele-
          ments of the offense, common law elements such as we
          have here, that it is [a crime of violence, one] should be per-
          mitted to look at the charging documents, including state-
          ments of probable cause and so forth that are all contained
          in these initial charging documents which I think we have
          here.

          And if I am permitted to do that, if I am correct in that deter-
          mination, I think clearly all three, the '89 and '90 and '91
          assault and two battery convictions qualify as crimes of vio-
          lence and place Mr. Kirksey in the career offender category.

Official state records showed that the 1989 eight-count criminal
information charged Kirksey with robbing $40 from Brently Mason
by pointing a gun at him. While most of the counts of the information
described the violent use of a deadly weapon to rob the victim, the
court found Kirksey guilty of one count alleging common law assault,
one count alleging a handgun violation, and one count alleging theft
under $300, none of which expressly alleged acts of violence. It sen-
tenced Kirksey to seven years' imprisonment for the assault and to
lesser, concurrent sentences on the other counts. The assault count,
without recounting any facts, charged that Kirksey"unlawfully did
make an assault upon, and did then and there beat the aforesaid Com-
plainant; against the peace, government and dignity of the State." As
Kirksey argues, the term "beat" as used in the count is the common
law verb for a battery. See Lamb v. State, 93 Md. App. 422, 428-29
(Md. Ct. Spec. App. 1992). Thus, the language of this count is conclu-
sory and failed to reveal the fact that the assault actually involved vio-
lence. The facts of the assault, which are described in other counts on
which Kirksey was not convicted and in court records underlying the
criminal information, however, reveal the violent nature of the con-
duct. The "Application for Statement of Charges/Statement of Proba-
ble Cause," signed by the investigating officer under oath before a
magistrate, stated that the victim was walking along a street when
Kirksey "pulled up to him and displayed a large dark colored
revolver. [Kirksey] demanded, `give me your money,' while pointing

                     3
the gun at him. Mr. Mason being in fear for his life complied with the
demand, giving the suspect $40 in U.S. currency." At the time that
this "Application for Statement of Charges/Statement for Probable
Cause" was signed by the officer, the magistrate issued an "Arrest
Warrant on Charging Document" and a handwritten"Statement of
Charges," charging Kirksey in the District Court of Maryland for the
"primary charge" of robbery with a deadly weapon. That statement of
charges, however, was superseded by the criminal information filed
in the Circuit Court for Baltimore City, on which Kirksey was tried
and convicted.

In connection with the 1990 battery, official state records show that
Kirksey was charged with assault and battery by the following lan-
guage: "Upon the facts contained in the application of Madry, Teresa
Michelle, it is formally charged that Kirksey, Charles Leroy . . . did
make an assault upon and did batter Teresa Michelle Madry. Against
the Peace, Government, and Dignity of the State." The incorporated
facts contained in the "Application for Statement of
Charges/Statement of Probable Cause" signed under oath by Madry
reveal that Kirksey visited Madry, an old acquaintance, and, while at
her apartment, stated that he wanted to have sex with her. Kirksey
said, "I'm going to do what I have to do to get what I want from you.
I['ve] been watching you for over a year now, and I want you." The
victim refused, and Kirksey started choking her with his hands, telling
her to take her pants off. When the victim escaped and ran to a neigh-
bor, the incident ended. Kirksey was tried on a statement of facts and
found guilty, and the judge sentenced him to three years' imprison-
ment, with 18 months suspended.

Official records revealed with respect to the 1991 conviction that
Kirksey was charged on a charging document which alleged: "Upon
the facts contained in the application of Mitzel, Paul C., Jr., it is for-
mally charged that Smith, Cedrick [Kirksey]" committed "robbery-
general: att," "deadly weapon-conceal," and"battery." Incorporated
facts contained in the "Application for Statement of
Charges/Statement of Probable Cause," signed under oath by Mitzel,
revealed that Kirksey tried to steal $200 from the upper shirt pocket
of the victim. When Kirksey grabbed for the bills, the victim said "get
away from me, I'm a cop." Kirksey then "kicked the victim several
times in the legs." The victim stated that he feared that Kirksey was

                     4
armed. When Kirksey was apprehended a short time later, he was
found with a knife in the open position for which he gave no explana-
tion other than that "he likes to clean his fingernails." The court found
Kirksey guilty of common law battery and sentenced him to one year
imprisonment.

With respect to all three of these assault and battery convictions,
Kirksey took the position before the district court that, under Mary-
land law, assault and battery are not categorically crimes of violence
and the court was not entitled to look behind the charging document
to determine whether violence was involved because to do so would
violate the categorical approach for reviewing past convictions articu-
lated in Taylor v. United States, 495 U.S. 575 (1990). Even though
the district court agreed with Kirksey that the common law offenses
were not categorically violent crimes, it determined that his convic-
tions involved crimes of violence because it could properly review the
underlying "Applications for Statements of Charges/Statements of
Probable Cause." Neither party disputes the fact that these underlying
records are official and authentic and reveal that Kirksey committed
crimes of violence.

Kirksey now appeals the district court's ruling.

II

Under the mandate of 28 U.S.C. § 994(h) (directing the United
States Sentencing Commission to establish imprisonment terms "at or
near the maximum" for specified categories of defendants such as
career offenders), § 4B1.1 of the Sentencing Guidelines directs that
career offenders be sentenced at enhanced offense levels and at crimi-
nal history Category VI. A career offender is defined as any defendant
who (1) is at least 18 years old, (2) is convicted of a felony that is
either a crime of violence or controlled substance offense, and (3) has
at least "two prior felony convictions of either a crime of violence or
a controlled substance offense." U.S.S.G. § 4B1.1. A crime of vio-
lence is defined to include any federal or state offense punishable by
imprisonment for a term exceeding one year that"has as an element
the use, attempted use, or threatened use of physical force against the
person of another, or . . . involves conduct that presents a serious
potential risk of physical injury to another." U.S.S.G. § 4B1.2(1).

                     5
Application notes explain that in determining whether offenses are
crimes of violence, "the conduct of which the defendant was con-
victed is the focus of inquiry." U.S.S.G. § 4B1.2, comment. (n.2)
(Nov. 1995).

To determine whether a prior felony conviction constitutes a crime
of violence, a sentencing court must determine as a matter of law
whether the elements of the prior offense for which the defendant was
convicted involved conduct that presented a serious risk of physical
injury to another. Thus, it must use a categorical approach, relying
only on (1) the fact of conviction and (2) the definition of the prior
offense. See United States v. Wilson, 951 F.2d 586, 588 (4th Cir.
1991); cf. Taylor v. United States, 495 U.S. 575, 600, 602 (1990)
(applying same approach to armed career offender status under 18
U.S.C. § 924(e)). Neither Congress nor the Sentencing Commission
intended to permit sentencing courts to retry the facts of prior
offenses to determine whether the defendant's conduct presents a seri-
ous risk of physical injury to others. As the Supreme Court noted in
Taylor, "the practical difficulties and potential unfairness of a factual
approach are daunting." Id. at 601. Similarly, we have observed that
"[t]he factual approach . . . would transform the sentencing hearing
into a series of mini-trials . . . [which] would not only be costly, but
unreliable." Wilson, 951 F.2d at 590. Accordingly, in determining
whether predicate offenses constitute crimes of violence, we have uni-
formly followed a categorical approach that focuses on the elements
of the prior crimes of conviction. See, e.g., United States v. Neal, 27
F.3d 90, 93 (4th Cir. 1994); Wilson, 951 F.2d at 588.

In a limited class of cases, such as the one before us, when the defi-
nition of the prior crime of conviction is ambiguous and will not nec-
essarily provide an answer to whether the prior conviction was for a
crime of violence, we look beyond the definition of the crime to
examine the facts contained in the charging document on which the
defendant was convicted. In Taylor, for example, the Court observed,

          This categorical approach, however, may permit the sen-
          tencing court to go beyond the mere fact of conviction in a
          narrow range of cases where a jury was actually required to
          find all the elements of generic burglary. For example, in a
          State whose burglary statutes include entry of an automobile

                     6
          as well as a building, if the indictment or information and
          jury instructions show that the defendant was charged only
          with a burglary of a building, and that the jury necessarily
          had to find an entry of a building to convict, then the Gov-
          ernment should be allowed to use the conviction for
          enhancement.

495 U.S. at 602. Likewise, the comments to the Sentencing Guide-
lines themselves authorize courts to consult the charging document of
predicate convictions to examine the conduct expressly charged in the
count for which the defendant was previously convicted. See U.S.S.G.
§ 4B1.2, comment. (n.2) (crime of violence includes offenses where
"the conduct set forth (i.e., expressly charged) in the count . . . by its
nature, presented a serious potential risk of physical injury to
another." (emphasis added)); see also United States v. Cook, 26 F.3d
507, 509 (4th Cir. 1994); United States v. Johnson, 953 F.2d 110, 113
(4th Cir. 1991). It is also consistent with this approach, as noted in
Taylor, that we may review jury instructions on the offense of convic-
tion. 495 U.S. at 602; see also Cook, 26 F.3d at 509. This exceptional
application of the categorical approach, however, never involves a
factual inquiry into the facts previously presented and tried. Consis-
tent with a pure categorical approach, the method of reviewing the
charging document requires that we focus only on the facts necessar-
ily decided by the prior conviction. At bottom, the design of the
§ 4B1.1 sentencing enhancement for career offender status involves
punishing recidivists based on the official record of prior convictions
and not on any reconsideration of the facts tried in those prior cases.

With these principles in hand, we now examine the approach taken
by the district court in this case.

III

At the time of his sentencing, Kirksey had been convicted on three
prior occasions for the Maryland common law crimes of assault and
battery. Because Maryland recognizes common law crimes, no statute
defines their elements. But the Maryland case law fully articulates
them. As recognized in Maryland common law, an assault is an
attempted battery or an intentional placing of a victim in reasonable
apprehension of an imminent battery. See Lamb v. State, 93 Md. App.

                     7
422, 441 (Md. Ct. Spec. App. 1992). A battery is defined as the "un-
lawful beating of another," and includes "any unlawful force used
against a person of another, no matter how slight." State v. Duckett,
306 Md. 503, 510 (1986). The common law offense of battery thus
embraces a wide range of conduct, including "kissing without con-
sent, touching or tapping, jostling, and throwing water upon another."
Epps v. State, 333 Md. 121, 127 (1993). It may include even indirect
applications of force such as directing a dog to attack or "exposing a
helpless person to the inclemency of the weather." Lamb, 93 Md.
App. at 448 (internal quotation marks omitted). In Epps, the defen-
dant was convicted of battery when he intentionally threw a "rela-
tively small amount of water onto the person of another at waist level
or below, and with no great force." Epps, 333 Md. at 127. At the other
end of the spectrum, a battery includes a fatal shooting or stabbing of
a victim.

Thus, 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 as used in U.S.S.G. § 4B1.2(1)(i). The relevant
application note to § 4B1.2 explains that crimes of violence categori-
cally include "aggravated assault," but it does not specifically mention
simple assault, although it does later describe conduct qualifying as
simple assault. See U.S.S.G. § 4B1.2, comment. (n.2) (Nov. 1995).
Moreover, it might be argued that the very term"violent" excludes a
minor or slight touching. On the other hand, the language of the Sen-
tencing Guidelines does not qualify the degree of"physical force" that
constitutes a crime of violence, and by definition, a common law bat-
tery requires some level of applied force. See, e.g., Lamb, 93 Md.
App. at 446. Thus, it might just as well be argued that every battery
is a crime of violence.

In the case before us, however, no one disputes that the conduct of
Kirksey's prior convictions was violent, as that term is used in
U.S.S.G. § 4B1.1. The 1989 conviction was based on Kirksey's
armed robbery of a pedestrian, during which he stole $40 from the
victim; the 1990 conviction was based on Kirksey's choking a woman
to compel her to have sex with him; and the 1991 conviction involved
Kirksey's effort to steal $200 with the threat of a knife and his kick-

                    8
ing the victim. Kirksey argues, rather, that this violent conduct is not
revealed in any of the charging documents, but only in sworn state-
ments contained in the "Application for Statement of
Charges/Statement of Probable Cause" for each charging document.
Because these statements themselves are not the charging documents,
Kirksey argues, they may not be used under the categorical approach
described in Wilson, Johnson, Cook, and Neal. We cannot, however,
agree that the complaining witnesses' statements in this case may not,
in light of Maryland procedure, be consulted consistent with our pre-
cedent.

Under Maryland law, because a statement of charges is a charging
document, it must contain "a concise and definite statement of the
essential facts of the offense with which the defendant is charged."
Md. Rule 4-202. This requirement of facts is in addition to the
requirement that the charging document state the time and place of
the offense. Id. With these procedural requirements, Maryland dis-
charges its constitutional duty to advise defendants adequately about
the nature of the charges against them and with sufficient particularity
so that a disposition may be pled to avoid double jeopardy. See
United States v. Smith, 44 F.3d 1259, 1264 (4th Cir. 1995).

In at least two of the charging documents involved in Kirksey's
prior convictions, the state charges begin with the clause, "Upon the
facts contained in the application of [complaining witness], it is for-
mally charged," etc. (Emphasis added). While these charging docu-
ments go on to describe the time and place of the battery in each case,
they describe no facts other than those incorporated by the first sen-
tence. By incorporating the facts of the complaining witnesses' state-
ments, the charging documents thus comply with Maryland Rule 4-
202. Moreover, the facts so incorporated are filed with the charging
document, as required by Maryland Rule 4-211. Accordingly, under
Maryland procedure, the affidavits of complaining witnesses in these
circumstances were not mere testimony providing underlying facts for
the issuance of a charging document; they served to supply the facts
of the charges as required by Maryland Rule 4-202.

In consulting these incorporated statements, the district court did
not make a factual inquiry into the facts of trial. Rather, it followed
the methodology of the categorical approach described in Taylor and

                    9
our precedent, which includes the consultation of the charging docu-
ment, the jury instructions, and, in this case, the official factual state-
ments incorporated into and filed with the charging documents. The
factual charges of Kirksey's convictions thus reveal his use of vio-
lence sufficient to qualify his convictions as predicate offenses for
career offender status under U.S.S.G. § 4B1.1.

Together with the 1980 armed robbery conviction, the 1989, 1990,
and 1991 convictions provide the district court with more than a suffi-
cient basis to sentence Kirksey as a career offender. Accordingly, we
affirm the judgment of the district court.

AFFIRMED

                     10
