                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4478


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

LIONEL RICHARD WELLS,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:10-cr-00948-RBH-1)


Submitted:   June 8, 2012                 Decided:   June 22, 2012


Before MOTZ, GREGORY, and KEENAN, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


William F. Nettles, IV, Assistant Federal Public Defender,
Florence, South Carolina, for Appellant. William N. Nettles,
United States Attorney, Alfred W. Bethea, Jr., Assistant United
States Attorney, Florence, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Lionel Richard Wells pled guilty to possession of a

firearm by a convicted felon.                 The district court concluded that

Wells’   base      offense          level    should     be    calculated          under     U.S.

Sentencing Guidelines Manual § 2K2.1(a)(4)(A) (2010) based upon

his prior conviction for a “crime of violence,” namely a South

Carolina    conviction             for   Assault    and      Battery       of    a   High    and

Aggravated Nature (“ABHAN”). *                The court imposed a thirty-seven

month sentence, and Wells appeals, contending that his prior

conviction       was     not       categorically        a    crime        of    violence.        As

explained       below,    we        vacate    Wells’        sentence       and    remand     for

further proceedings consistent with this opinion.

            A    defendant          convicted      of   unlawful          possession        of    a

firearm is given a base offense level of 20 if he committed the

crime “subsequent to sustaining one felony conviction of either

a crime of violence or a controlled substance offense.”                                     USSG

§ 2K2.1(a)(4)(A).              A    “crime    of   violence”         is    defined     by    the

Guidelines as an offense that is punishable by imprisonment for

more than one year and (1) “has as an element the use, attempted

use, or threatened use of physical force against the person of


     *
       Wells was actually convicted of both ABHAN and Assault of
a High and Aggravated Nature.    The district court analyzed the
two convictions as one ABHAN conviction.          Neither party
objected.



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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.”          USSG        § 4B1.2(a).            Here,      the       Government

concedes that an ABHAN conviction does not satisfy subsection

(1)     and     instead       contends             only      that      ABHAN         categorically

“otherwise involves conduct that presents a serious potential

risk of physical injury to another.”

               To    decide    whether         a     prior     conviction            constitutes         a

crime    of    violence,       the       district         court     generally             must    use   a

categorical approach.               United States v. Jenkins, 631 F.3d 680,

684   (4th      Cir.    2011).           This        approach       “look[s]         only        to   the

elements of the offense . . . . [and] examin[es] [the offense]

in terms of how the law defines it and not in terms of how an

individual      offender       might          have     committed         it    on     a    particular

occasion.”            Id.    (internal          quotation           marks      and        alternation

omitted).           “For an offense to constitute a crime of violence

under    this       approach,      the     offense’s           full    range         of    proscribed

conduct, including the least culpable proscribed conduct, must

fall within the applicable Guidelines definition of that term.”

United    States       v.    King,       673       F.3d    274,       278      (4th       Cir.     2012)

(internal quotation marks omitted).

               However,       in    a     “narrow         range       of      cases”       where      the

offense defined by the relevant law includes conduct such that

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some commissions of the offense constitute crimes of violence

and others do not, the court is to “look beyond the generic

elements of the offense to the specific conduct underlying that

prior offense.”          Id.    This approach is known as the modified

categorical approach.           Id.   In applying the modified categorical

approach, the court is limited to considering “the record of

conviction,      which     includes    the      charging   document,         the    plea

agreement,     and   the    transcript     of    the    plea    colloquy,     and    any

explicit factual findings made by the trial court.”                    Id.

              Employing the categorical approach, the district court

concluded     that     Wells’    conviction      for    ABHAN    was   a     crime    of

violence under USSG § 4B1.1(a).                 Without expressing an opinion

on whether a conviction for ABHAN so qualifies, we vacate Wells’

sentence and remand this case to the district court for further

proceedings to allow that court to determine if the modified

categorical      approach       supports       the     conclusion      that        Wells’

conviction for ABHAN constitutes a crime of violence under USSG

§ 2K2.1(a)(4)(A).          See Anderson v. United States, 417 U.S. 211,

218 (1974) (“We think it inadvisable . . . to reach out . . . to

pass    on    important     questions    of      statutory      construction        when

simpler, and more settled, grounds are available for deciding

the case at hand.”).           We dispense with oral argument because the

facts   and    legal     contentions     are    adequately      presented      in    the



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materials   before   the   court   and   argument   would   not   aid   the

decisional process.

                                                    VACATED AND REMANDED




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