UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

v.                                                                   No. 98-4391

BRUCE ELLIOTT LITTLE,
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, Chief District Judge.
(CR-97-142-MU)

Argued: January 29, 1999

Decided: March 23, 1999

Before WILLIAMS, MICHAEL, and MOTZ, Circuit Judges.

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Reversed and remanded by unpublished per curiam opinion.

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COUNSEL

ARGUED: Brian Lee Whisler, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North
Carolina, for Appellant. Dean Michael Beer, Charlotte, North Caro-
lina, for Appellee. ON BRIEF: Mark T. Calloway, United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Char-
lotte, North Carolina, for Appellant.

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Unpublished opinions are not binding precedent in this circuit.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:

Pursuant to a plea agreement, Bruce Elliott Little pleaded guilty
and was convicted of bank robbery under 18 U.S.C.A.§§ 2113(a)
(West 1984 & Supp. 1998) and 2 (West 1969 & Supp. 1998). Little
objected, however, to the presentence report insofar as it relied upon
an earlier North Carolina conviction for assault on a female as a pred-
icate "crime of violence" in recommending that he be sentenced as a
career offender under the United States Sentencing Guidelines (Sen-
tencing Guidelines). The district court sustained Little's objection and
sentenced him without employing the career offender enhancement.
The Government now appeals the district court's decision to disregard
the North Carolina assault-on-a-female conviction in determining
career offender status as permitted by 18 U.S.C.A.§ 3742(b) (West
1985 & Supp. 1998). We agree that the determination of Little's sen-
tence was improper and remand for resentencing.

I.

In October 1997, after being named in a two-count bill of indict-
ment for federal bank robbery and larceny charges, Bruce Elliot Little
entered into a plea agreement and pleaded guilty to bank robbery. The
presentence report reflected that in 1990, Little was convicted of com-
mitting assault on a female under the law of North Carolina.1 Adding
the assault conviction to another reported conviction for common law
robbery resulted in Little being categorized as a career offender under
the Sentencing Guidelines. Section 4B1.1 of the Sentencing Guide-
lines states:
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1 Assault on a female is a common law crime in North Carolina consist-
ing of two essential elements: (1) assault, (2) upon a female by a male.
See North Carolina v. Craig, 241 S.E.2d 704, 705 (N.C. App. 1978).

                    2
          A defendant is a career offender if (1) the defendant was at
          least eighteen years old at the time the defendant committed
          the instant offense of conviction, (2) the instant offense of
          conviction is a felony that is either a crime of violence or
          a controlled substance offense, and (3) the defendant has at
          least two prior felony convictions of either a crime of vio-
          lence or a controlled substance offense.

U.S.S.G. §4B1.1 (1997).

In Little's case, absent the career offender enhancement, his
adjusted offense level was 20, but with the career offender enhance-
ment his adjusted offense level was calculated to be 29. The differ-
ence in the adjusted offense level calculation translated into a
significant disparity in the sentencing range: 70-87 months versus
151-188 months.

On April 28, 1998, Little appeared for sentencing, and the district
court addressed Little's previously filed objections to the presentence
report. Little specifically challenged the inclusion of the prior assault-
on-a-female conviction as a predicate crime of violence in determin-
ing career offender status. Section 4B1.2(a) of the Sentencing Guide-
lines defines a crime of violence as any federal or state offense
punishable by a term of imprisonment 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 pre-
sents a serious potential risk of physical injury to another." U.S.S.G.
§ 4B1.2(a) (1997). Little urged that a later statutory change in the
penalty attached to a North Carolina conviction for assault on a
female, from a two-year to a 150-day maximum sentence, precluded
the conviction from being considered a crime of violence. The Gov-
ernment opposed Little's objection.

In addressing Little's objection, the district court expressed con-
cern about the range of conduct that North Carolina courts accepted
as constituting assault on a female, observing:

          In light of this court's experience and the district courts in
          North Carolina, the ease with which one may . . . become
          convicted of assault on a female while doing no assaulting

                     3
          -- excuse me, while committing no battery, indicate that
          using that to enhance him to career offender overstates the
          seriousness of his criminal history . . . .

(J.A. at 21.) None of the records concerning the assault-on-a-female
conviction were available and the district court was unable to deter-
mine whether Little actually engaged in behavior constituting a crime
of violence. The uncertainty expressed by the district court prompted
it to deviate from "the mechanistic approach that[courts] are called
on in this circuit to make." (J.A. at 23.)

Instead of sentencing Little as suggested by the presentence report
and as urged by the Government, the district court calculated Little's
sentence without any enhancement for career offender status and
imposed a sentence of eighty-seven months with a three-year term of
supervised release. Little also was ordered to pay restitution.

The Government appeals the sentence imposed, claiming that the
district court improperly determined that Little's conviction for
assault on a female did not constitute a crime of violence under the
Sentencing Guidelines.

II.

In reviewing this appeal, key to our determination is whether the
district court chose to depart downward from the sentencing range
established by the Sentencing Guidelines, as Little contends, or
whether the district court made a preliminary finding that the assault-
on-a-female conviction did not constitute a predicate crime of vio-
lence under the Sentencing Guidelines, as the Government argues.
This initial question governs the appropriate standard of review.

We have previously stated that this "court reviews the district
court's designation of [a defendant] as a career offender de novo."
United States v. Johnson, 114 F.3d 435, 444 (4th Cir.), cert. denied,
118 S. Ct. 257 (1997). We, however, have also permitted district
courts some discretion in applying the Sentencing Guidelines and
have allowed downward departures if "`career offender' status exag-
gerates the defendant's prior offenses." United States v. Adkins, 937

                    4
F.2d 947, 951 (4th Cir. 1991). If a district court departs from the Sen-
tencing Guidelines, this Court is to review the departure using an
abuse of discretion standard, taking into account the structure and the-
ory of the Sentencing Guidelines. See United States v. Hairston, 96
F.3d 102, 106-07 (4th Cir. 1996).

A.

We must therefore look to the record from the sentencing proceed-
ings to determine the basis employed by the district court in sentenc-
ing Little. There are four factors that lead us to believe that the district
court concluded that Little's assault-on-a-female conviction did not
rise to the level of a crime of violence, rather than employing its dis-
cretion to depart downward. The first three are statements made by
the district court during Little's sentencing hearing.

The first statement indicates that the district court would not accept
the assault-on-a-female conviction as a predicate crime of violence
absent facts concerning the actual circumstances of the crime. After
asking the probation officer whether facts concerning the case were
available and hearing that none were, the district court stated that
"this court's experience [with] the district courts in North Carolina"
demonstrated that a defendant could be convicted of assault on a
female without committing a battery. (J.A. at 21.) The district con-
cluded "that using that [conviction] to enhance him to career offender
overstates the seriousness of his criminal history, objection sus-
tained." (J.A. at 21.) Admittedly, there is some ambiguity in this state-
ment because of the reference to overstating Little's criminal history
-- possibly a statement establishing reasoning for a departure. But
that statement concluded, "objection sustained." (J.A. at 21.) That rul-
ing was an obvious reference to Little's objection to the use of the
assault-on-a-female conviction as a part of the predicate required for
career offender status. It was not an indication that the district court
intended to depart downward.

The second statement was made moments later in response to an
argument made by the Government. The Government contended that
an earlier judgment, made by that same district court, used an assault-
on-a-female conviction as a predicate for career offender status. That
ruling was upheld on appeal to this Court. See United States v.

                     5
Johnson, 114 F.3d 435, 444-45 (4th Cir.), cert. denied, 118 S. Ct. 257
(1997).2 In response the district court stated:

           Was it Winston Churchill that said consistency is the hob-
          goblin of small minds? I have become increasingly con-
          cerned about the application of assault on a female to arrive
          at career offender status. I realize what the guidelines say.
          I know that I can do it, the question is whether I ought to
          or not. And absent circumstances that lead me to conclude
          that I ought to, what we are faced with here is just a record
          that could have been as simple as a shouting match that cal-
          led for police intervention. We simply don't know.

           And so what I am faced with is as a judge, I have become
          increasingly squeamish about the harshness of the guide-
          lines under circumstances like this. I don't believe that the
          drafters of the guidelines envisioned the mechanistic
          approach that we are called on in this circuit to make, and
          so I am disposed to find against the government on this par-
          ticular point.

(J.A. at 23.) This pronouncement by the district court acknowledged
that it had changed its past position and was now unwilling to con-
sider assault on a female as a predicate crime of violence absent an
understanding of the surrounding circumstances. It was not an indica-
tion that the district court intended to depart downward.

The third statement made by the district court leaves no doubt that
Little's sentence was calculated without using assault on a female as
a foundation to establish career offender status. The district court
said:

          [Little's counsel] made the objection. Nobody has filed a
          motion from the government saying if his objection is sus-
          tained, we want an upward departure. So I am where I am
          . . . objection sustained. . . . [W]e find Mr. Little at a 20 and
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2 Note that we do not comment on the accuracy of the Government's
argument, but merely explain it so that the district court's statements may
be understood in context.

                    6
          a criminal history category at 6, the guideline range, 70 to
          87 months.

(J.A. at 25.) Thus, at Little's sentencing hearing there was no calcula-
tion of his sentence under the career offender enhancement and then
a downward departure -- the district court simply did not consider the
assault-on-a-female conviction as a crime of violence in determining
career offender status.

The fourth and final factor that we consider in making our determi-
nation is the written judgment issued by the district court. In the body
of the judgment, the district court specifically stated that it accepted
the presentence report, except that it did not agree with the finding
that Little was a career offender. Furthermore, it stated that the sen-
tence was imposed in accordance with the guideline range, making no
reference to a downward departure. The oral pronouncement and writ-
ten entry of sentence irrefutably indicates that the Government is cor-
rect in its argument that the district court refused to consider the
assault on-a-female conviction as a crime of violence in determining
the appropriate sentence for Little.

Because this determination was an application of the Sentencing
Guidelines and not a downward departure within the district court's
discretion, we review the decision de novo. See United States v.
Dickerson, 77 F.3d 774, 775 (4th Cir. 1996). Whether the district
court could properly exercise its discretion to depart downward in
these circumstances is not a question before the Court, and thus we
decline to address that issue.

B.

Little's original objection to using the earlier conviction as a predi-
cate crime in calculating career offender status was that, subsequent
to Little's conviction, the penalty for assault on a female was reduced
below the threshold level for crimes of violence under the Sentencing
Guidelines. This Court plainly rejected that argument in Johnson, 114
F.3d at 445, an opinion in which we specifically decided that a North
Carolina conviction for assault on a female was to be considered in
accordance with the provisions of the offense in effect at the time of
conviction and not in light of later amendments. Little's argument,

                    7
therefore, does not present an acceptable ground for omitting consid-
eration of his assault-on-a-female conviction in determining career
offender status.

The ground that the district court relied upon -- whether the facts
giving rise to the conviction warranted classifying the offense as a
crime of violence -- also has been previously considered by this
Court. In United States v. Wilson, 951 F.2d 586 (4th Cir. 1991), we
stated:

           [T]he plain language of the Guidelines contemplates a
          legal rather than a factual approach to determining which
          offenses qualify as crimes of violence. First, the career
          offender provision is triggered by a defendant's"prior fel-
          ony convictions," not his prior criminal conduct. Hence, the
          relevant determination is whether the defendant was con-
          victed of a given offense, not whether he engaged in certain
          conduct. Second, the Guidelines' definition clearly man-
          dates a categorical approach by focusing the inquiry on the
          elements of the offense rather than the particular conduct
          involved.

Id. at 588 (citation omitted).3 The Supreme Court has also endorsed
this position, stating that "the practical difficulties and potential
unfairness of a factual approach are daunting." Taylor v. United
States, 495 U.S. 575, 601 (1990) (applying 18 U.S.C. § 924(e)).
Courts in this Circuit are, therefore, bound to consider only the ele-
ments of the convicted offense in deciding whether the defendant
committed a crime of violence, and not the defendant's conduct.

Applying the definition of a crime of violence to Little's conviction
for assault on a female establishes that the conviction does fit the defi-
nition. A crime of violence is defined in the Sentencing Guidelines as:
_________________________________________________________________
3 We note that if the definition of the prior crime under consideration
is ambiguous, then it is appropriate to look to the charging document to
determine the circumstances of the convicted conduct. See United States
v. Kirksey, 138 F.3d 120, 124 (4th Cir. 1998). As we explain, however,
we do not believe there is any ambiguity in North Carolina's definition
of assault on a female.

                    8
"[A]ny offense under federal or state law, punishable by imprison-
ment for a term exceeding one year, that . . . has as an element the
use, attempted use, or threatened use of physical force against the per-
son of another . . . ." U.S.S.G. §4B1.2(a) (1997). Assault on a female
is defined by the State of North Carolina as "(1) assault and (2) upon
a female person by a male person." North Carolina v. Craig, 241
S.E.2d 704, 705 (N.C. App. 1978). The North Carolina courts have
defined assault in this context "as an overt act or an attempt, or the
unequivocal appearance of an attempt, with force and violence, to do
some immediate physical injury to the person of another, which show
of force or menace of violence must be sufficient to put a person of
reasonable firmness in fear of immediate bodily harm." North Caro-
lina v. Jefferies, 291 S.E.2d 859, 860-61 (N.C. App. 1982). Finally,
the maximum sentence for assault on a female in 1990 was two years
imprisonment. See N.C. Gen. Stat. § 14-33 (1990). Little's 1990 con-
viction for assault on a female contained all of the elements necessary
under the Sentencing Guidelines to be classified as a crime of vio-
lence including force, attempted force, or threat of force and a possi-
ble term of imprisonment exceeding one year. We have no choice but
to conclude that the district court erred in its application of the Sen-
tencing Guidelines when it declined to consider Little's assault-on-a-
female conviction as a predicate crime in determining whether Little
should be classified as a career offender.

III.

Based on the foregoing, we reverse Little's sentence and remand
to the district court for resentencing in accordance with this opinion.

REVERSED AND REMANDED

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