                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-4741



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


JAMES DANIEL BATTLE, a/k/a Mush, a/k/a Jimmy,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley, Chief
District Judge. (CR-04-69-IMK)


Submitted:   February 28, 2006             Decided:   April 5, 2006


Before LUTTIG, GREGORY, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


David W. Frame, Clarksburg, West Virginia, for Appellant. Thomas
E. Johnston, United States Attorney, David J. Perri, Robert H.
McWilliams, Jr., Assistant United States Attorneys, Wheeling, West
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           James D. Battle was convicted after a jury trial of

assault   with    a    dangerous    weapon,     in    violation         of   18    U.S.C.

§ 113(a)(3) (2000), and assault resulting in serious bodily injury,

in violation of 18 U.S.C. § 113(a)(6) (2000).                 He appeals the 150-

month   sentence       imposed,    contending    that,        as    charged       in   the

indictment,      the     two   offenses      contained        the       same      factual

allegations,     and     therefore     the    imposition           of    a     partially

consecutive    sentence--which       resulted        in   a   sentence       above     the

statutory maximum for one offense--violated the Double Jeopardy

Clause.

           Battle, an inmate at F.C.I. Morgantown, assaulted fellow

inmate Brian Jointer.          Battle waited for Jointer to finish his

shower, then threw hot coffee in Jointer’s face, temporarily

blinding him.      Battle then took a broken wooden broom handle from

his pocket and struck Jointer across the back of the head, hard

enough to shatter the broom handle. Battle then repeatedly stabbed

Jointer with the broken broom handle.                As a result of the attack,

Jointer suffered a detached retina and permanent loss of sight in

his right eye.

           Battle was charged in a two-count indictment with assault

with a dangerous weapon and assault resulting in serious bodily

injury.   The jury found him guilty on both charges, and also found




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by special interrogatory that the offenses involved more than

minimal planning.

          At sentencing, Battle’s advisory guideline range was

determined to be 120 to 150 months.        The district court noted that

the statutory maximum for each offense was 120 months.                  After

consideration of the relevant sentencing factors, the district

court stated that Battle needed to be incarcerated for as long as

possible, and sentenced him to 120 months on each offense, but ran

the sentences consecutive to each other for 30 months, to achieve

a total sentence of 150 months.       See U.S. Sentencing Guidelines

Manual § 5G1.2(d) (2004).

          Battle concedes that the offenses constitute separate

crimes under the elements test of Blockburger v. United States, 284

U.S. 299, 304 (1932), but he contends that, as charged, the

offenses were the same and therefore the consecutive portion of his

sentence resulted in a double jeopardy violation.

          To   determine   whether   two    charges   are   for   the   same

offense, the relevant consideration is the language of the statute,

not the language of the indictment.         Id. (“Each of the offenses

created requires proof of a different element.”) (emphasis added);

Iannelli v. United States, 420 U.S. 770, 785 n.17 (1975) (stating

that language of statute, not factual allegations in indictment, is

determinative).   If the statutory language for each crime requires

proof of an additional element which is not an element of the other


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crime, the offenses are separate offenses.                    See Blockburger, 284

U.S. at 304. However, if the statutory elements overlap completely

such that proof of one crime necessarily proves the second crime,

the defendant cannot receive separate punishments for the two

crimes.

              Here, as Battle concedes, the two assault crimes each

contain an element that the other does not.                     Notably, § 113(a)(3)

requires      the   use    of   a     dangerous     weapon,     an   element   not    in

§ 113(a)(6). Likewise, § 113(a)(6) requires proof that the assault

resulted in serious bodily injury, an element not in § 113(a)(3).

Because the statutory elements of the offenses do not completely

overlap, they constitute two separate offenses, and conviction and

punishment for both offenses does not run afoul of the Double

Jeopardy Clause.          See Schmuck v. United States, 489 U.S. 705, 716-

17 (1989) (“Since offenses are statutorily defined, that comparison

is appropriately conducted by reference to the statutory elements

of the offenses in question, and not . . . by reference to conduct

proved at trial regardless of the statutory definitions.”).

              Although the factual allegations for the two counts in

the indictment are substantially similar, the parties acknowledged

that    the   additional        factual      allegations      were   included    as    a

precaution after the decision in Blakely v. Washington, 542 U.S.

296 (2004), issued, and before United States v. Booker, 543 U.S.

220    (2005).      Because      it    is    the    statutory    language,     not   the


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allegations in the indictment, that is used to determine whether

two charges are the same offense or one is a lesser-included-

offense of the other, the addition of factual allegations in the

indictment does not convert two separate offenses into one offense.

See Schmuck, 489 U.S. at 716-17; Blockburger, 284 U.S. at 304.

           Lastly, we consider whether the thirty-month consecutive

portion of Battle’s sentence is unreasonable.            As this Court

recently held in United States v. Green, “[A] sentence imposed

within   the   properly   calculated   Guidelines    range   .   .   .   is

presumptively reasonable.”      Green, 436 F.3d 449, 457 (4th Cir.

2006) (internal quotation marks and citation omitted); see United

States v. Hughes, 401 F.3d 540, 546-47 (4th Cir. 2005) (holding

that sentence must be “within the statutorily prescribed range and

. . . reasonable.”) (citations omitted).       Here, Battle does not

contend that the advisory guideline range of 120 to 150 months was

improperly calculated.      See USSG § 5G1.2(d); United States v.

White, 238 F.3d 537, 543 (4th Cir. 2001).           Thus, his 150-month

sentence, which was within the properly calculated advisory range,

was “presumptively reasonable.”     Green, 436 F.3d at 457.

           In conclusion, we find that Battle was properly charged

with and convicted of two separate assault offenses, which contain

separate elements.    Accordingly, we affirm his sentences, which

were imposed to run consecutive to one another for thirty months to

achieve the greatest possible punishment. See USSG § 5G1.2(d). We


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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.



                                                          AFFIRMED




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