UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 96-4784

DANA C. RICH,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Frederic N. Smalkin, District Judge.
(CR-95-480-S)

Submitted: December 15, 1998

Decided: January 12, 1999

Before WILKINS, Circuit Judge, and HALL and
PHILLIPS, Senior Circuit Judges.

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Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

James K. Bredar, Federal Public Defender, Denise C. Barrett, Assis-
tant Federal Public Defender, Baltimore, Maryland, for Appellant.
Lynne A. Battaglia, United States Attorney, Philip S. Jackson, Assis-
tant United States Attorney, Baltimore, Maryland, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Appellant Dana Rich appeals his sentence following his conviction
on one count of unlawful possession of a firearm by a convicted
felon, in violation of 18 U.S.C.A. § 922(g)(1) (West Supp. 1998). On
appeal, the issue is whether the district court erred in sentencing Rich
as an armed career criminal pursuant to 18 U.S.C.A.§ 924(e) (West
Supp. 1998), based, in part, on a 1982 Maryland state conviction for
common law battery. For the reasons that follow, we vacate and
remand for further proceedings.

Prior to his § 922(g)(1) conviction, Rich had been convicted in
Maryland state court for several crimes including a 1981 robbery con-
viction, a 1982 common law battery conviction, and a 1990 felony
conviction for drug trafficking. Based on these three Maryland con-
victions, the district court found that Rich qualified for enhanced sen-
tencing under § 924(e), and sentenced him to 235 months in prison.
Without the sentence enhancement, the maximum sentence Rich
would have faced under § 922(g) was ten years in prison.

Rich argues that the district court erred in counting his 1982 Mary-
land common law battery conviction as a predicate"violent felony"
for the purpose of sentence enhancement under § 924(e)(1). Section
924(e)(1) establishes a mandatory minimum sentence of fifteen years
without parole for anyone convicted of violating 18 U.S.C.A.
§ 922(g) who has had at least three prior convictions for a "violent
felony" or a "serious drug offense." A violent felony is defined as
"any crime punishable for a term exceeding one year . . . ." 18
U.S.C.A. § 924(e)(2)(B). However, pursuant to 18 U.S.C.A.
§ 921(a)(20)(B) (West 1976 & Supp. 1998), the term "crime punish-
able by imprisonment for a term exceeding one year" does not include
"any State offense . . . classified by the laws of the State as a misde-
meanor and punishable by a term of imprisonment of two years or
less."

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At the time of Rich's 1982 battery conviction, battery under Mary-
land law was a common law misdemeanor and carried no maximum
penalty, so long as the sentence did not violate the prohibition against
cruel and unusual punishment. See State v. Huebner, 505 A.2d 1331,
1335 (Md. 1986). Rich argues, however, that his 1982 Maryland com-
mon law battery conviction does not qualify as a predicate "violent
felony" for purposes of § 924(e)(1) enhancement because the state
court judge applied a rule under which she could sentence him to no
more than ninety days in prison* and, in fact, he received only a sus-
pended sentence of sixty days. This court determines whether a defen-
dant has committed a violent felony for purposes of§ 924(e)(1) based
on the maximum sentence the defendant could have received rather
than based on the sentence he actually served. See United States v.
Coleman, 158 F.3d 199, 203-04 (4th Cir. 1998). Regardless of the
actual sentence Rich received or application of a court rule limiting
the prison term the state judge could impose, the maximum sentence
Rich could have received exceeded two years in prison. Therefore, his
common law battery conviction did not fall within the misdemeanor
exclusion of 18 U.S.C.A. § 921(a)(20)(B).

Rich also argues that his battery conviction does not qualify as a
"violent felony" for purposes of § 924(e)(1)(B). This provision
defines a "violent felony" as a crime punishable by more than a year
in prison and that has as one of its elements "the use, attempted use
or threatened use of physical force against the person of another." In
determining whether a prior offense qualifies as a prior violent felony
conviction for purposes of § 924(e), generally the sentencing court
must "look only to the fact of conviction and statutory definition of
the prior offense." Taylor v. United States , 495 U.S. 575, 602 (1990).
When a prior offense could be committed by violent or non-violent
means, however, the court must look to the facts of the case. See
United States v. Cook, 26 F.3d 507, 509 (4th Cir. 1994).
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*This rule, the "Gerstung Rule," formerly codified at Md. Cts. & Jud.
Proc. § 4-302(d)(ii), authorized state judges to bind themselves to limit-
ing a defendant's maximum sentence to 90 days, thereby promoting judi-
cial economy by preventing a defendant from seeking a jury trial. Two
years after Rich's battery conviction, the Court of Appeals of Maryland
declared the Gerstung Rule unconstitutional. See Kawamura v. State, 473
A.2d 438, 443-44 (Md. 1984).

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Maryland case law defines the physical component of common law
battery as "any unlawful application of force, direct or indirect, to the
body of the victim." Lamb v. State, 613 A.2d 402, 413 (Md. App.
1992). Within this definition, force is broadly defined to include such
conduct as nonconsensual kissing, ordering a dog to attack, and even
exposing a helpless person to inclement weather. See United States v.
Kirksey, 138 F.3d 120, 125 (4th Cir.), cert. denied, ___ U.S. ___, 67
U.S.L.W. 3232 (U.S. Oct. 5, 1998).

For the purpose of determining whether a common law battery con-
viction constitutes a crime of violence for purposes of sentence
enhancement under U.S. Sentencing Guidelines§ 4B1.2 (1997), this
court held that "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." See Kirksey, 138 F.2d at
125. Observing that "[a] Maryland conviction for common-law
assault presents the unusual situation in which an offense may be
committed in one of two ways--one of which requires the use,
attempted use, or threatened use of physical force and one which does
not," this court also held that to determine whether a common law
assault conviction in Maryland is a violent felony for purposes of
§ 924(e), "the district court properly looked beyond the fact of convic-
tion and the elements of the offense to determine whether . . . [a prior
Maryland common law assault conviction] . . . was a violent felony."
Coleman, 158 F.3d at 202.

The record on appeal does not include details of Rich's Maryland
common law battery conviction. Moreover, the district court did not
look beyond the fact of the conviction when it concluded that Rich's
battery conviction constituted a violent felony for purposes of
§ 924(e). We therefore vacate Rich's sentence and remand for resen-
tencing in light of Kirksey and Coleman . We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.

VACATED AND REMANDED

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