                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 10-5224


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

MARK LINN RANDOLPH,

                Defendant - Appellant.


Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Catherine C. Blake, District Judge.
(1:09-cr-00244-CCB-8)


Submitted:   August 24, 2011                 Decided:   August 30, 2011


Before WILKINSON, KEENAN, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Gary A. Ticknor, Elkridge, Maryland, for Appellant.        Rod J.
Rosenstein, United States Attorney, Michael C. Hanlon, Assistant
United States Attorney, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Mark     Linn      Randolph       appeals     his    conviction      and     108-

month sentence for one count of distribution and possession with

intent to distribute cocaine base and aiding and abetting in

violation      of    21       U.S.C.   § 841(a)(1)        (2006)    and    18   U.S.C.     § 2

(2006).       Randolph, who pled guilty to the offense, argues on

appeal that his prior convictions for Maryland second degree

assault should not be considered predicate offenses for a career

offender enhancement.             We affirm.

              We review de novo whether a prior conviction qualifies

as     a    “crime     of       violence”       for   purposes       of     a     sentencing

enhancement.         See United States v. Jenkins, 631 F.3d 680, 682

(4th Cir. 2011).              In addition to certain enumerated offenses not

relevant      here,       a    “crime     of    violence”     for    purposes        of   U.S.

Sentencing Guidelines Manual 4B1.1 (2009), is “any other offense

under federal, state, or local law that has as an element the

use, attempted use, or threatened use of physical force against

the person of another.”                  USSG § 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

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conviction and the statutory definition of the prior offense.”

Taylor, 495 U.S. at 602.                    In a limited class of cases, however,

where the definition of the underlying crime encompasses both

violent and non-violent conduct, a sentencing court may look

beyond the statutory definition.                         Kirksey, 138 F.3d at 124.                  In

such cases, “the modified categorical approach . . . permits a

court to determine which statutory phrase was the basis for the

conviction       by    consulting           the     trial       record—including        charging

documents,        plea          agreements,             [and]     transcripts           of        plea

colloquies[.]”             Johnson v. United States, 130 S. Ct. 1265, 1273

(2010) (internal quotation marks omitted); see United States v.

Harcum, 587 F.3d 219, 223 (4th Cir. 2009).

            In        Maryland,             the     common-law          crime      of    assault

encompasses “‘the crimes of assault, battery, and assault and

battery,   which           retain      their      judicially       determined      meanings.’”

United    States       v.       Alston,      611        F.3d    219,    222     (4th Cir. 2010)

(quoting Md. Code Ann., Crim. Law § 3-201(b) (LexisNexis Supp.

2010)).      Maryland                case    law        defines       assault     as    “1.       [a]

consummated battery . . . ; 2. [a]n attempted battery; and 3.

[a]    placing        of    a    victim        in   reasonable         apprehension          of    an

imminent battery.               A battery . . . include[s] any unlawful force

used   against        the       person      of    another,       no    matter     how   slight.”

Alston,    611    F.3d          at   222     (internal         quotation      marks     omitted);

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Kirksey, 138 F.3d at 125. Further, “[t]he common law offense of

battery thus embraces a wide range of conduct, including kissing

without    consent,      touching         or   tapping,       jostling,      and    throwing

water upon another. . . .                 At the other end of the spectrum, a

battery includes a fatal shooting or stabbing of a victim.” Id.

at 223 (internal quotation marks omitted).

            Randolph argues that the categorical approach should

be     applied     in    analyzing        Maryland’s          second       degree    assault

statute.      Our opinions in Harcum and Kirksey are clear that

where, as here, the issue is whether a conviction for second

degree     assault      in    Maryland         is    a     “crime    of    violence,”     the

modified categorical approach is appropriate.                             Thus, Randolph’s

argument is foreclosed by this Court’s published authority.

            Applying         the    modified         categorical       approach      to   the

facts of this case, it is clear that the district court did not

err in concluding that Randolph’s convictions were for crimes of

violence.         In    2001,      Randolph         pled    guilty    to    second    degree

assault and admitted during his plea colloquy that he struck his

girlfriend in the face with an open palm, causing swelling and

redness.         With   respect      to    a    different      second      degree    assault

charge, Randolph admitted in a 2002 plea colloquy that he struck

a man in the face, caused a laceration, and stole money from the

man.     We conclude that these are crimes of violence because they

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involve “use, attempted use, or threatened use of physical force

against the person of another.”               We thus find no error in the

district    court’s      decision   to    sentence    Randolph       as    a   career

offender.

            We    therefore    affirm     the    judgment     of    the    district

court.     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.



                                                                            AFFIRMED




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