                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 10-4941


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DARRYL LEE JOHNSON,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, Chief District
Judge. (2:08-cr-00930-DCN-7)


Submitted:   March 16, 2012                 Decided:    April 12, 2012


Before MOTZ and    SHEDD,   Circuit   Judges,   and    HAMILTON,   Senior
Circuit Judge.


Vacated and remanded by unpublished per curiam opinion.


N. Elliott Barnwell, Charleston, South Carolina, for Appellant.
William N. Nettles, United States Attorney, Columbia, South
Carolina, Peter T. Phillips, 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Unpublished opinions are not binding precedent in this circuit.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:

       Darryl Lee Johnson pled guilty to conspiracy to possess

with intent to distribute and to distribute a quantity of heroin

and three counts of possession with intent to distribute and

distribution       of    a    quantity     of    heroin.          The    district         court

concluded    that       Johnson    qualified       as     a    Career        Offender     under

United States Sentencing Guideline (USSG) § 4B1.1 and imposed a

sentence     of    151       months’   imprisonment.             On     appeal,        Johnson

challenges        his    sentence.         As     explained        below,         we    vacate

Johnson’s sentence and remand for further proceedings consistent

with this opinion.

       To qualify as a Career Offender under USSG § 4B1.1, inter

alia,    a   defendant         must    have      “at    least      two        prior     felony

convictions       of    either    a    crime     of     violence        or    a   controlled

substance offense.”            USSG § 4B1.1(a).               Johnson did not dispute

below and does not dispute on appeal that his 2004 conviction,

pursuant to a guilty plea in South Carolina state court, for

possession with intent to distribute marijuana qualifies as a

prior felony conviction for a controlled substance offense under

USSG    § 4B1.1(a).             However,        Johnson        challenged         below     and

continues to challenge on appeal the district court’s conclusion

that his 2008 conviction, pursuant to a guilty plea in South

Carolina state court, for assault and battery of a high and

aggravated    nature         (ABHAN)    under     South        Carolina’s         common    law

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constitutes a “crime of violence” under USSG § 4B1.1(a).                            This

is the sole issue on appeal.

       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 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).         In deciding whether a prior conviction qualifies as

a    crime    of      violence      under     the    Guidelines’    Career       Offender

provision, the sentencing court normally employs a categorical

approach.          United States v. Peterson, 629 F.3d 432, 435 (4th

Cir. 2011).         Under this approach, the district court considers

the    offense        as     defined    by     the   relevant    law,     rather     than

considering the facts of the underlying specific crime.                             Sykes

v. United States, 131 S. Ct. 2267, 2272 (2011).                      “For an offense

to    constitute       a    ‘crime     of    violence’   under     th[e    categorical]

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, 2012 WL 745535, at *2 (4th Cir. March 8,

2012).       However, if the offense as defined by the relevant law

includes      conduct        such    that    some    commissions    of     the    offense

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constitute crimes of violence and others do not, “we look beyond

the   generic     elements      of      the    offense       to   the   specific       conduct

underlying that prior offense.”                     Id. at *3.          This is known as

the modified categorical approach.                       In applying the modified

categorical approach to a prior conviction based upon a guilty

plea such is at issue here, the sentencing 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.

      Here,      employing      the       categorical         approach,        the    district

court    concluded       that    South        Carolina’s      common     law     offense    of

ABHAN constitutes a crime of violence under USSG § 4B1.1(a).

Having so concluded, the district court did not go on to analyze

the conviction under the modified categorical approach.                               Without

expressing       an   opinion      on    whether       the    offense     of    ABHAN     under

South Carolina’s common law categorically constitutes a crime of

violence    under      USSG     § 4B1.1(a),         we   have     decided       the    prudent

course under the circumstances is to vacate Johnson’s sentence

and     remand    this      case     to       the     district     court       for     further

proceedings in order to allow the district court to determine if

the modified categorical approach supports the conclusion that

Johnson’s conviction for ABHAN under South Carolina common law

constitutes       a   crime     of   violence         under    USSG     § 4B1.1(a).        See

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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.”).

On this issue, the district court should permit the parties to

present evidence.        For example, the government is free on remand

to   present    a    transcript      of   the   plea   colloquy      from    Johnson’s

guilty   plea       hearing   with    respect     to   his    2008   conviction      for

ABHAN under South Carolina’s common law.

      Based on the foregoing, we vacate Johnson’s sentence and

remand for further proceedings consistent with this opinion.                         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.



                                                              VACATED AND REMANDED




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