                                     PUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                      No. 18-6754


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

KEVIN BATTLE,

                    Defendant - Appellant.



Appeal from the United States District Court for the District of Maryland, at Baltimore.
Ellen L. Hollander, District Judge. (1:11-cr-00110-ELH; 1:15-cv-03814-ELH)


Argued: March 19, 2019                                          Decided: June 11, 2019


Before NIEMEYER and QUATTLEBAUM, Circuit Judges, and SHEDD, Senior Circuit
Judge.


Affirmed by published opinion. Judge Quattlebaum wrote the opinion, in which Judge
Niemeyer and Senior Judge Shedd joined.


ARGUED: Paresh S. Patel, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Greenbelt, Maryland, for Appellant. Elizabeth G. Wright, OFFICE OF THE UNITED
STATES ATTORNEY, Greenbelt, Maryland, for Appellee. ON BRIEF: James Wyda,
Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Baltimore, Maryland, for Appellant. Robert K. Hur, United States Attorney, Baltimore,
Maryland, David I. Salem, Assistant United States Attorney, Ellen Cobb, Special
Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Greenbelt, Maryland, for Appellee.




                                     2
QUATTLEBAUM, Circuit Judge:

       Kevin Battle appeals from the district court’s denial of his motion to vacate his

sentence under 28 U.S.C. § 2255. Battle had been sentenced as an armed career criminal

under 18 U.S.C. § 924(e) after he pleaded guilty to being a felon in possession of a

firearm in violation of 18 U.S.C. § 922(g). In his petition, Battle argues that, in light of

Johnson v. United States, 559 U.S. 133 (2015), he is not an armed career criminal

because his 1991 Maryland conviction for assault with intent to murder (“AWIM”) is no

longer a “violent felony” under the Armed Career Criminal Act (“ACCA”). For the

reasons set forth below, we affirm the district court and find that Maryland AWIM is a

violent felony under the ACCA.



                                              I.

       On August 8, 2011, Battle pleaded guilty to being a felon in possession of a

firearm under 18 U.S.C. § 922(g). The district court adopted the factual findings and

advisory guidelines in the Presentence Report (“PSR”). After finding that he had three

prior qualifying convictions, the court concluded that Battle was an armed career criminal

under the ACCA. Specifically, the PSR referenced a 1991 Maryland conviction for

AWIM as a violent felony and two Maryland convictions from 1998 and 2006 for

possession with intent to distribute cocaine which qualified as serious drug offenses

under § 924(e)(1). Accordingly, the court sentenced Battle on November 8, 2011, to a

mandatory minimum term of imprisonment of fifteen years under the ACCA.



                                             3
       Battle directly appealed to this Court on November 9, 2011, challenging his

designation as an armed career criminal and specifically arguing that his prior conviction

for Maryland AWIM failed to qualify as a violent felony under the ACCA. This Court

affirmed the sentence in an unpublished per curiam opinion dated October 4, 2012,

concluding that the offense was a violent felony under the ACCA’s residual clause.

Battle filed his first 28 U.S.C. § 2255 petition on November 25, 2013, which the district

court denied.

       After the Supreme Court’s decision in Johnson, which invalidated the ACCA’s

residual clause as vague, and Welch v. United States, 136 S. Ct. 1257 (2016), which made

Johnson retroactive, Battle moved to file a successive § 2255 petition. This Court

granted that motion on June 1, 2016, finding that Battle made the prima facie showing

required for successive § 2255 petitions. In the petition before the district court, Battle

argued that he no longer has the requisite number of prior convictions to qualify as an

armed career criminal post-Johnson because the 1991 AWIM conviction no longer

qualifies under the ACCA’s residual clause.       The district court denied his petition,

finding AWIM involves violent force sufficient to satisfy the ACCA force clause,

regardless of the ruling about the ACCA’s residual clause. Despite the court’s finding, it

granted a certificate of appealability. This Court has jurisdiction over the appeal based

on 28 U.S.C. § 2253(a) and 28 U.S.C. § 1291.




                                            4
                                             II.

       The central issue for us on appeal is whether Maryland’s AWIM offense qualifies

as a violent felony under the ACCA. 1 The ACCA requires a mandatory fifteen-year

statutory minimum sentence for a defendant convicted of possession of a firearm after

three prior convictions “for a violent felony or a serious drug offense or both.” 18 U.S.C.

§ 924(e)(1). To frame the issue, we initially review several pertinent definitions. In

defining the term “violent felony,” the ACCA provides a list of offenses, as well as what

is known as the “force clause,” to define the scope of a predicate violent felony.

Applicable here, under the force clause, “violent felony” means any crime 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.”         18 U.S.C.

§ 924(e)(2)(B)(i).   The phrase “physical force,” as referenced in 18 U.S.C.

§ 924(e)(2)(B)(i), means “violent force—that is, force capable of causing physical pain

or injury to another person.” Johnson, 559 U.S. at 140 (emphasis in original). The

meaning of “physical force” is a question of federal law, not state law. Id. at 138.


       1
          To prevail on a § 2255 motion to vacate, the moving party must show that his
sentence is unlawful on one of the grounds specified in § 2255(b). United States v.
Pettiford, 612 F.3d 270, 277 (4th Cir. 2010). Section 2255 provides for habeas relief
where the court finds the judgment was rendered without jurisdiction; where the sentence
imposed was not authorized by law or otherwise open to collateral attack; or where there
has been a denial or infringement on the constitutional rights of the prisoner so as to
render the judgment vulnerable to collateral attack. 28 U.S.C. § 2255(b). The Court
reviews the district court’s denial of a petitioner’s § 2255 petition de novo. United States
v. Carthorne, 878 F.3d 458, 464 (4th Cir. 2017). Likewise, this Court reviews de novo a
district court’s ruling that a particular offense qualifies as a violent felony under the
ACCA. See United States v. Evans, 848 F.3d 242, 245 (4th Cir. 2017).

                                             5
      Our inquiry is whether AWIM has as an “element the use, attempted use, or

threatened use of physical force against the person of another.”              18 U.S.C.

§ 924(e)(2)(B)(i). To determine whether Battle’s AWIM conviction qualifies under the

ACCA as a violent predicate felony, we apply the categorical approach originally set

forth in the Supreme Court’s decision of Taylor v. United States, 495 U.S. 575 (1990). 2

Under the categorical approach, we look to the statutory definition of the state crime to

determine whether the conduct criminalized by the statute falls within the ACCA’s

definition of a violent felony. In other words, we look to the elements of the state law

crime, rather than the conduct underlying Battle’s particular offense. United States v.

Diaz-Ibarra, 522 F.3d 343, 348 (4th Cir. 2008). In doing so, however, we are “bound by

the interpretation of such offense articulated by that state’s courts.” United States v.

Winston, 850 F.3d 677, 684 (4th Cir. 2017).

      In conducting this analysis, “we focus on the minimum conduct required to sustain

a conviction for the state crime.” United States v. Doctor, 842 F.3d 306, 308 (4th Cir.

2016) (internal quotation marks omitted). Yet, the conduct must give rise to a “realistic

probability, not a theoretical probability” that a state would apply the law and uphold a


      2
        Through the Alice in Wonderland path known as the “categorical approach,” we
must consider whether Battle’s assault of a person with the intent to murder is a crime of
violence. While the answer to that question might seem to be obviously yes, it is not so
simple after almost 30 years of jurisprudence beginning with Taylor. We must look not
to what Battle actually did. Instead, we must turn away from the facts of this case and
consider how assault with intent to murder could realistically be committed in situations
that have nothing to do with Battle. As absurd as this sounds, it is what we are bound to
do under current precedent.


                                              6
conviction based on such conduct. Moncrieffe v. Holder, 569 U.S. 184, 191 (2013). The

“focus on the minimum conduct criminalized by the state statute is not an invitation to

apply ‘legal imagination’ to the state offense.”      Id. 3   In other words, Battle must

“demonstrate that the State actually prosecutes the relevant offense in cases” in the

manner Battle claims. Id. at 206.

       The district court below concluded that AWIM qualifies as a violent felony under

the ACCA. Relying on United States v. Castleman, 572 U.S. 157 (2014), the district

court focused on the requisite AWIM mens rea—the intent to murder the assault victim.

We find the district court’s analysis thorough and its conclusion correct. In affirming, we

first address the Maryland AWIM statute and the definition of that crime. We then

examine Castleman and this Court’s decisions following it that bear heavily on the

outcome of this case. Next, we evaluate the Maryland cases Battle argues indicate that

AWIM can be committed in Maryland without the exercise of force. Finally, we examine

other analogous authority from Maryland, this Court and other circuits consistent with the

conclusion reached by the district court which we affirm.

                                             A.

       Looking first at the relevant statute, at the time of conviction, Article 27, § 12 of

the Maryland Code stated: “[e]very person convicted of the crime of an assault with

intent to murder is guilty of a felony and shall be sentenced to imprisonment for not less

      3
         This Court has applied the “realistic probability” test in comparing a state
statutory crime to the ACCA force clause. See United States v. Burns-Johnson, 864 F.3d
313, 316 (4th Cir. 2017); Doctor, 842 F.3d at 308–09.


                                             7
than two years nor more than 30 years.” Md. Code Ann., Art. 27, §12 (1957, 1991 Repl.

Vol.). 4 At that time, AWIM was a statutory aggravated assault, but the statute did not

define the crime.

       Without a statutory definition, the Maryland Court of Appeals defined AWIM “as

an assault upon the victim coupled with an intent to murder, which can be shown by

proof that the crime would have been murder if the victim had died.” Hardy v. State, 482

A.2d 474, 477 (Md. 1984). 5 In other words, “there must be proof not only of an assault

but of an intent to murder.” State v. Jenkins, 515 A.2d 465, 471 (Md. 1986) (internal

quotation marks omitted) (emphasis in original). AWIM is a specific intent crime and the

only mens rea that would support the conviction is the specific intent to bring about the

death of the assault victim. See Abernathy v. State, 675 A.2d 115, 116 (Md. Ct. Spec.

App. 1996).

                                             B.

       In light of the foregoing, we turn to the Supreme Court’s recent decision in

Castleman, which considered 18 U.S.C. § 922(g)(9)’s “physical force” requirement.

       4
         When determining whether a defendant was convicted of a violent felony, we
look to the version of state law the defendant was convicted of violating. See McNeill v.
United States, 563 U.S. 816, 821 (2011). In 1996, the Maryland General Assembly
enacted assault statutes “combining all statutory offenses of assault then existent as well
as all common law forms of assault and battery into a single and comprehensive statutory
scheme….” Robinson v. State, 728 A.2d 698, 704 (Md. 1999).
       5
          We previously noted that common law assault under Maryland law is an
attempted battery or the intentional placing of a victim in reasonable apprehension of an
imminent battery, while battery is “is any unlawful application of force, direct or indirect,
to the body of the victim.” United States v. Battle, 494 F. App’x 404, 405 (4th Cir. 2012)
(internal quotation marks omitted).

                                             8
Based on this case, we conclude that Maryland AWIM is a crime of violence under the

ACCA.     In Castleman, the defendant was convicted of “intentionally or knowingly

caus[ing] bodily injury” to his child’s mother in violation of Tennessee law.

Castleman, 572 U.S. at 169 (internal quotation marks omitted). The Court held that the

use of physical force was an element of his conviction because “[i]t is impossible to

cause bodily injury without applying force….” Id. at 170. In other words, the “knowing

or intentional causation of bodily injury necessarily involves the use of physical force,”

regardless of whether an injury resulted from direct or indirect means. Id. at 169. Thus,

the Court concluded that Castleman’s state court conviction qualified as a misdemeanor

crime of domestic violence, justifying an indictment under 18 U.S.C. § 922(g)(9) for

illegal possession of a firearm.

       Pertinent to Battle’s arguments, Castleman rejected the notion that one could

cause bodily injury without the use of physical force by, for example, deceiving a victim

into drinking a poisoned beverage. Id. at 170. Instead, the Court concluded that force

encompasses even its indirect application. “[I]t is the act of employing poison knowingly

as a device to cause physical harm. That the harm occurs indirectly, rather than directly

(as with a kick or punch), does not matter.” Id. at 171. After Castleman, the poison

analogy that was so central to the holding of United States v. Torres-Miguel, 701 F.3d




                                            9
165 (4th Cir. 2012), 6 and to Battle’s argument concerning the use of physical force, no

longer stands.

       Following Castleman, our precedent leads us to the same result. As this Court

noted in In re Irby, 858 F.3d 231 (4th Cir. 2017), the “distinction we drew in Torres-

Miguel between indirect and direct applications of force and our conclusion that poison

involves no use or threatened use of force, no longer remains valid in light

of Castleman’s explicit rejection of such a distinction.” In re Irby, 858 F.3d 231, 238

(4th Cir. 2017) (internal quotation marks omitted). We concluded in Irby that retaliatory

murder, which “makes it an offense to intentionally kill another person in retaliation,”

was a crime of violence because “one cannot unlawfully kill another human being

without a use of physical force capable of causing physical pain or injury to another.” Id.

       We noted in United States v. Reid, 861 F.3d 523 (4th Cir. 2017), that Castleman’s

reasoning extended to situations involving the ACCA because Castleman did not rest on

any distinction between § 922(g)(9) and ACCA’s force clause. United States v. Reid, 861

F.3d 523, 528 (4th Cir. 2017). In Reid, we affirmed a conviction following a guilty plea

to a § 922(g) felon in possession violation and a sentencing posed under the ACCA. We

rejected the appellant’s argument that a violation of a Virginia statute for the infliction of

bodily injury could be violated in a variety of non-violent ways. We held that because


       6
         In Torres-Miguel, this Court stated that “a crime may result in death or serious
injury without involving use of physical force,” such as “by threatening to poison
another, which involves no use or threatened use of force.” Torres-Miguel, 701 F.3d at
168–69 (considering whether a California threat conviction constituted a crime of
violence under the United States Sentencing Guidelines).

                                             10
the statute required that the defendant “knowingly and willfully inflict[ed] bodily injury”

on the victim, a conviction under the statute falls within the ACCA’s definition of a

violent felony and therefore serves as a predicate offense. 7 Id. at 529.

       Irby and Reid demonstrate that the logic of Castleman extends to our review of

ACCA’s force clause and that Maryland AWIM satisfies the force clause because the

offense contemplates an intentional causation of bodily injury.

       Battle suggests that despite Irby and Reid, our decision in United States v.

Middleton, 883 F.3d 485 (4th Cir. 2018), supports his position by acknowledging that a

crime may result in death or serious injury without involving the use of force. In

Middleton, we held that South Carolina involuntary manslaughter is not a violent felony

under the ACCA’s force clause. In doing so, we noted that Castleman did not abrogate

the “causation aspect” of Torres-Miguel that “a crime may result in death or serious

injury without involving the use of physical force.” United States v. Middleton, 883 F.3d

485, 491 (4th Cir. 2018) (internal quotation marks omitted). 8 But that proposition applies

only where a crime does not have as an element the intentional causation of death or


       7
          We similarly recognized the limitations of Torres-Miguel in Burns-Johnson,
where we affirmed the district court’s judgment and concluded that there was not “a
realistic probability that North Carolina’s appellate courts would apply [the state armed
robbery statute] as encompassing robbery with the unintentional use of a dangerous
weapon.” Burns-Johnson, 864 F.3d at 319–20. The panels in Reid, Irby and Burns-
Johnson did not overrule another panel and ignore Torres-Miguel as Battle suggests.
Even still, a panel decision is not binding to the extent that its holding has been “clearly
undermined” by later Supreme Court precedent. Winston, 850 F.3d at 683.
       8
       But we also declared that it “is well-settled that Castleman abrogated a portion of
Torres-Miguel’s reasoning.” Middleton, 883 F.3d at 491.

                                             11
injury. It is true that a crime “may result in” bodily injury without involving the use of

force as we found in Middleton. But a crime requiring the “intentional causation” of

injury requires the use of physical force. Castleman, 572 U.S. at 170.

      In sum, Castleman teaches us that the requisite mens rea is crucial in the force

analysis. “[T]he knowing or intentional causation of bodily injury necessarily involves

the use of physical force.” Castleman, 572 U.S. at 169. Again, Castleman held that the

use of physical force was an element of his conviction because “[i]t is impossible to

cause bodily injury without applying force.” 9 Id. at 170.    Here, AWIM requires the

specific intent to bring about the death of the assault victim. Following Castleman, it is

impossible to intend to cause injury or death without physical force as contemplated

under the ACCA.

                                            C.

      In arguing that a Maryland AWIM can be committed without violent force, Battle

argues that the offense can be accomplished by an act of omission, such as refusing to

provide food, shelter or medicine to a child. Battle cannot point to any Maryland AWIM

case to support the notion that AWIM may be committed by an act of mere omission.

Without any AWIM cases to support his theory, he points to two Maryland cases

concerning depraved heart second degree murder convictions based on acts of


      9
         Indeed, the Tenth Circuit acknowledged that almost every circuit that has looked
at this issue has determined that the logic of Castleman applies when analyzing a
“physical force” requirement. United States v. Ontiveros, 875 F.3d 533, 537 (10th Cir.
2017) (collecting cases).


                                           12
“omission.” Neither case addresses the elements of AWIM (assault and mens rea) and

cannot show a realistic probability that AWIM would be applied to acts of mere

omission.

       Battle first relies on Simpkins v. State, 596 A.2d 655 (Md. Ct. Spec. App. 1991)

where the intermediate appellate court affirmed the second-degree murder convictions for

defendants who left their two-year-old daughter in a crib without food and water for days,

leading to her death by starvation. Simpkins v. State, 596 A.2d 655 (Md. Ct. Spec. App.

1991). This case, however, does not support Battle’s position.

       Simpkins lists four types of mens rea which distinguish murder from

manslaughter: (1) intent to kill; (2) intent to do grievous bodily harm; (3) intent to do an

act under circumstances manifesting extreme indifference to the value of human life

(depraved heart); or (4) intent to commit a dangerous felony.            Id. at 657.     As

acknowledged by Battle himself, Simpkins involves a depraved heart murder conviction

meaning the defendant acted with extreme indifference as opposed to an intent to kill or

do grievous bodily harm. Therefore, the defendants in Simpkins could not be convicted

of AWIM because they lacked AWIM’s required “intent to murder.” See Hardy v. State,

482 A.2d at 477. Indeed, “[c]ommon-law assault, an element of [AWIM], has been

defined in various ways, but the essence of the crime is an attempt by force to injure the

person of another.”    Id. (internal quotations marks omitted).       To extrapolate from

Simpkins, a depraved heart murder case based on extreme indifference, that Maryland

would uphold an AWIM conviction based on an act of omission would require this Court

to disregard the only mens rea that would support an AWIM conviction—the intent to

                                            13
kill. This would be the type of extraordinary exercise of legal imagination the Supreme

Court has counseled us to avoid.

      Battle’s second case is no more helpful to his argument. In In re Eric F., 698 A.2d

1121 (Md. Ct. Spec. App. 1997), the Maryland intermediate court found a fourteen-year-

old defendant delinquent after determining that he had committed acts which, if he had

been an adult, would have constituted depraved heart murder. In that case, the defendant

dragged an intoxicated, unconscious teenaged girl into the woods behind his house and

left her to die of hypothermia in sub-zero temperatures. In re Eric F., 698 A.2d 1121

(Md. Ct. Spec. App. 1997). Citing Simpkins, the court acknowledged generally that an

act of omission can be the basis for depraved heart murder. 10 However, this case does

not support Battle’s position either. It does not reference an assault crime and the

conduct in that case clearly involves an act of commission.

      Without support from those two cases, Battle points to Lamb v. State, 613 A.2d

402 (Md. Ct. Spec. App. 1992), which offers a scholarly exploration of the crime of

assault and attempted battery. However, the only citation for the general proposition that

a “battery may be perpetrated by an act of omission” is a criminal law hornbook. Lamb

v. State, 613 A.2d 402, 415 (Md. Ct. Spec. App. 1992). Further, although Lamb makes

clear that a common-law assault could be committed in a number of ways, it does not


      10
            “The essential element of depraved heart murder is that the act in question be
committed under circumstances manifesting extreme indifference to the value of human
life. . . . The question is whether the defendant engaged in conduct that created a very
high risk of death or serious bodily injury to others.” In re Eric F., 698 A.2d at 1126
(internal quotation marks omitted).

                                           14
refer to a Maryland assault or AWIM conviction based on an omission. Citing to a

hornbook to support dicta does not equate to an exemplary prosecution under Maryland

law. In fact, the primary issue in Lamb was whether a conviction for assault should have

merged into a conviction for false imprisonment. See Pair v. State, 33 A.3d 1024, 1029

(Md. Ct. Spec. App. 2011) (discussing the holding of Lamb). Therefore, Lamb does not

support Battle’s argument.

                                            D.

       In concluding that Maryland AWIM qualifies as a violent felony under the

ACCA’s force clause, we find several other interpretations of Maryland law instructive.

First, we note that Maryland sentencing statutes in effect at the time of Battle’s

conviction defined AWIM as a “crime of violence” for Maryland sentencing

enhancement purposes, imposing mandatory sentences for such crimes. See Md. Code

Ann., Art. 27, § 643B(a) (1957, 1987 Repl. Vol., 1991 Supp.) (defining “crime of

violence” to include “assault with intent to murder,” but not including simple assault, and

imposing a further imprisonment for a person who had been convicted on two separate

occasions of a crime of violence, and had served at least one term of confinement as a

result of a conviction of a crime of violence). Like the district court, we find this strong

evidence that Maryland AWIM has as an element the use, attempted use, or threatened

use of physical force against a person of another. Therefore, it qualifies as a violent

felony under the ACCA.

       Similarly, our conclusion that Maryland AWIM is a violent felony is consistent

with United States v. Redd, 372 F. App’x 413 (4th Cir. 2010), where this Court

                                            15
determined that Maryland first-degree assault in violation of Maryland Criminal Code

§ 3-202, a re-codification of the previous AWIM, is a violent felony. Finally, it is

consistent with the D.C. Circuit’s conclusion in United States v. Haight, 892 F.3d 1271,

1281 (D.C. Cir. 2018) which found that Maryland first degree assault is a violent felony.



                                            III.

       We conclude that a conviction of Maryland AWIM, which constitutes a statutory

aggravated form of assault, coupled with a specific intent to murder, falls within ACCA’s

definition of a violent felony and, therefore, serves as a predicate offense for purposes of

the ACCA. Battle has three prior convictions that qualify as ACCA predicate offenses.

Consequently, the district court’s denial of habeas relief was proper.

       The district court’s judgment is


                                                                             AFFIRMED.




                                            16
