                                UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                                No. 10-5140


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

          v.

FRANKLIN JOE WHITE, a/k/a Joe Franklin White,

                 Defendant - Appellant.


Appeal from the United States District Court for the District of
South Carolina, at Charleston.    Patrick Michael Duffy, Senior
District Judge. (2:09-cr-00692-PMD-1)


Submitted:     May 19, 2011                      Decided:    July 29, 2011


Before TRAXLER,     Chief     Judge,   and   DUNCAN   and   WYNN,   Circuit
Judges.


Affirmed by unpublished per curiam opinion.


Cameron J. Blazer, Assistant Federal Public Defender, OFFICE OF
THE FEDERAL PUBLIC DEFENDER, Charleston, South Carolina, for
Appellant.     William N. Nettles, United States Attorney,
Columbia, South Carolina, Sean Kittrell, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston,
South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Franklin   Joe    White   appeals   an   87-month       sentence   he

received after pleading guilty to possession of a firearm by a

convicted felon, see 18 U.S.C. § 922(g)(1).            Finding no error,

we affirm.



                                    I.

          White pleaded guilty in April 2010 to one count of

possession of a firearm by a convicted felon based on conduct

that took place in September 2008.         A presentence report (“PSR”)

was prepared, which determined that White’s advisory guidelines

range should be 70-87 months.           This calculation was based, in

part, on the probation officer’s view that a January 2008 South

Carolina conviction of White’s for assault and battery of a high

and   aggravated   nature   (“ABHAN”)      qualified   as     a    “crime    of

violence” under the Guidelines.          U.S.S.G. § 2K2.1(a)(2) (2009).

The indictment underlying the ABHAN conviction alleged:

      Joe Franklin White did in Georgetown County on or
      about January 23, 2008, commit an assault and battery
      upon the victim, Fredrena Cheley, constituting an
      unlawful act of violent injury to the person of the
      said   victim,   accompanied  with   circumstances of
      aggravation, including but not limited to: use of a
      deadly weapon and by hitting the victim in the mouth
      with a closed fist, and by putting a .38 caliber
      handgun to her head, pulling back the hammer, this in
      violation of the Common Law Crime of Assault and
      Battery, High and Aggravated Nature.

J.A. 180a-180b (internal quotation marks omitted).

                                    2
              Although White objected to the PSR’s treatment of the

ABHAN    conviction    as       a    crime      of       violence,    the    district    court

overruled his objection, adopted the PSR’s recommended guideline

range, and sentenced White to the high end of that range.



                                                II.

              White   challenges              the       district   court’s    determination

that his ABHAN conviction constituted a crime of violence.                                 We

disagree. 1

              The guidelines set a base offense level of at least 24

for a § 922(g) offense “if the defendant committed any part of

the . . . offense subsequent to sustaining at least two felony

convictions      of   .     .        .    a     crime       of     violence.”       U.S.S.G.

§ 2K2.1(a)(2).         It       is       undisputed         that    White    had   two   such

convictions if the ABHAN conviction was of a crime of violence,

and thus it is to that issue that we now turn.

              Whether a prior conviction is of a crime of violence

is an issue we consider de novo.                         See United States v. Jenkins,

631 F.3d 680, 682 (4th Cir. 2011).                         As is relevant here, a crime

of violence, for U.S.S.G. § 2K2.1(a)(2) purposes, is an offense

that “involves conduct that presents a serious potential risk of

     1
       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.



                                                    3
physical    injury    to     another.”           U.S.S.G.      § 4B1.2(a)(2);      see

U.S.S.G.    § 2K2.1     cmt.       (n.1)       (providing     that    “‘[c]rime    of

violence’ has the meaning given that term in § 4B1.2(a)”).

            To   decide     whether    a   prior     conviction      constitutes     a

crime of violence, the sentencing court normally should employ a

“categorical approach.”            Taylor v. United States, 495 U.S. 575,

600 (1990); United States v. Kirksey, 138 F.3d 120, 124–25 (4th

Cir. 1998).       Under this approach, the court may “look only to

the fact of conviction and the statutory definition of the prior

offense.”     Taylor, 495 U.S. at 602.                  The court must consider

“whether the conduct encompassed by the elements of the offense,

in   the   ordinary   case,     presents        a   serious    potential   risk    of

injury to another.”          United States v. Seay, 553 F.3d 732, 737

(4th Cir. 2009) (internal quotation marks omitted).

            In a limited class of cases, however, in which the

definition of the underlying crime encompasses both violent and

non-violent      conduct    such    that   they      “constitute     at   least    two

separate    crimes    for   [sentencing]         purposes,”     United    States    v.

Rivers, 595 F.3d 558, 563 (4th Cir. 2010), cert. denied, 79

U.S.L.W. 3661 (2011), a sentencing court may look beyond the

statutory definition.          See United States v. Clay, 627 F.3d 959,

966 (4th Cir. 2010); Seay, 553 F.3d at 737.                          This “modified

categorical      approach”      allows         courts    “to     determine      which

statutory phrase was the basis for the conviction by consulting

                                           4
the    trial       record-including     charging      documents.”        Johnson   v.

United States, 130 S. Ct. 1265, 1273 (2010) (internal quotation

marks omitted).

               The government maintains that even assuming arguendo

that       ABHAN    is   not     categorically    a     crime    of   violence,    it

effectively encompasses several different types of conduct and

White’s ABHAN indictment shows he pled guilty to a type that

generally “presents a serious potential risk of physical injury

to another.”         We agree.

               At the time of White’s ABHAN conviction, ABHAN was the

common      law     crime   of   committing     “an   unlawful    act    of   violent

injury to another accompanied by circumstances of aggravation.” 2

State v. Patterson, 522 S.E.2d 845, 853 (S.C. Ct. App. 1999);

see    Gay     v.    Ariail,     673   S.E.2d    418,    419    n.1   (S.C.    2009).

Aggravating circumstances included

       the use of a deadly weapon, the infliction of serious
       bodily injury, the intent to commit a felony, great
       disparity between the ages and physical conditions of
       the parties involved, . . . the difference in the
       sexes . . .[,] indecent liberties or familiarities
       with a female, the purposeful infliction of shame and
       disgrace, and resistance to lawful authority.


       2
       After White was convicted, South Carolina                        enacted the
Omnibus Crime Reduction and Sentencing Reform Act                       of 2010, S.
1154, 2009-10 Leg. 118th Sess. (S.C. 2010), which,                       among other
things, redefined and classified degrees of criminal                    assault.




                                           5
State   v.   Tyndall,   518   S.E.2d   278,     285   (S.C.    Ct.   App.   1999)

(emphasis omitted).

             This list demonstrates the varied nature of the types

of   conduct    ABHAN   encompasses.       On   one   end     of   the   violence

spectrum, an ABHAN may be committed by a “stranger on the street

embrac[ing] a young lady” or “a large man improperly fondl[ing]

a child.”      State v. DeBerry, 157 S.E.2d 637, 640 (S.C. 1967).

On the other end, ABHAN can be accomplished by committing an

assault and battery with a deadly weapon, which would almost

always “present[] a serious potential risk of physical injury to

another.”      Since it is undisputed that White’s indictment shows

that his offense fell within that violent class, the district

court correctly counted White’s ABHAN as a predicate offense.



                                   III.

             In sum, because we conclude that the district court

properly found that White’s ABHAN conviction was of a crime of

violence, we affirm his sentence.



                                                                         AFFIRMED




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