                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                              No. 01-4197
RICKY LEE AUSTIN,
              Defendant-Appellant.
                                       
           Appeal from the United States District Court
            for the District of Maryland, at Baltimore.
                 J. Frederick Motz, District Judge.
                           (CR-97-309-L)

                  Submitted: December 27, 2001

                      Decided: January 14, 2002

      Before LUTTIG and WILLIAMS, Circuit Judges, and
              HAMILTON, Senior Circuit Judge.



Affirmed by unpublished per curiam opinion.


                             COUNSEL

G. Arthur Robbins, G. ARTHUR ROBBINS, L.L.C., Annapolis,
Maryland, for Appellant. Thomas M. DiBiagio, United States Attor-
ney, Christine Manuelian, Assistant United States Attorney, Balti-
more, Maryland, for Appellee.
2                       UNITED STATES v. AUSTIN
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                               OPINION

PER CURIAM:

   Ricky Lee Austin appeals the fifty-seven-month sentence he
received after he pled guilty to being a felon in possession of a fire-
arm, 18 U.S.C.A. § 922(g)(1) (West 2000). He contests the enhanced
base offense level of twenty which the district court applied because
he had a prior felony conviction for a crime of violence, U.S. Sentenc-
ing Guidelines Manual § 2K2.1(a)(4)(A) (2000), and a further
enhancement which applied because he stipulated that he possessed
the firearm in connection with another felony offense. USSG
§ 2K2.1(b)(5). We affirm.

   Austin first asserts that the district court erred in failing to conduct
a factual inquiry to determine whether his 1988 Maryland conviction
for battery was a crime of violence. Because Austin did not contest
the enhanced base offense level on this ground in the district court,
our review is for plain error. United States v. Bornstein, 977 F.2d 112,
115 (4th Cir. 1992); see also United States v. Olano, 507 U.S. 725,
732-37 (1993).

   A "crime of violence," as used in § 2K2.1(a)(4)(A), is defined as
any offense punishable by imprisonment for more than one year that
"has as an element the use, attempted use, or threatened use of force
against the person of another." USSG § 2K2.1, comment. (n.5);
§ 4B1.2(a)(1). Generally, to determine whether a prior felony convic-
tion is a crime of violence, the sentencing court "must use a categori-
cal approach, relying only on (1) the fact of conviction and (2) the
definition of the prior offense." United States v. Kirksey, 138 F.3d
120, 124 (4th Cir. 1998). Because battery is a common law crime in
Maryland, it is not defined by statute, but in case law, and the defini-
tion embraces both violent and non-violent conduct. Id. at 125. When
the statutory definition of a prior crime does not establish whether the
conviction was for a crime of violence, the court may look to the facts
                       UNITED STATES v. AUSTIN                         3
alleged in the charging document. Id. at 124. In Maryland, the affida-
vits of the complaining witnesses are part of the charging document
and may be consulted by the district court for this purpose. Id. at 125-
26.

   In Austin’s case, the charging document for the battery conviction
was submitted to the district court before Austin was sentenced. The
attached witness statement stated: "My son, Terrance Malone, age 9,
came home crying saying that Ricky had slapped him in the face sev-
eral times and punched him in the chest." Austin was twenty-eight
years old when the incident occurred. The facts alleged thus establish
that the conduct for which Austin was charged and convicted
involved the use of physical force against the person of another.
Although Austin argues that the facts alleged were insufficient to sup-
port a legal conclusion that the battery was a crime of violence, we
find that the district court did not plainly err in treating it as such.

   Next, Austin argues that the government failed to produce evidence
to support the four-level enhancement for use of the firearm in con-
nection with the distribution of cocaine. This argument is meritless
because Austin stipulated in his plea agreement that the enhancement
applied. The statement of facts attached to the plea agreement further
stipulated that the government could prove, if necessary, that Austin
had allowed his barber shop and residence to be used for cocaine and
crack distribution. At the guilty plea hearing, Austin acknowledged
after some initial waffling that he had possessed the gun in connection
with a drug offense. Austin at no time disputed that the government
could produce testimony to this effect. Therefore, the district court did
not clearly err in applying the enhancement to which Austin had stip-
ulated. See United States v. Gilliam, 987 F.2d 1009, 1013 (4th Cir.
1993) (government may meet burden of proof concerning disputed
factual issue through stipulation that district court finds has reason-
able factual basis).

  We therefore affirm the sentence. 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
