                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-5226


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

TAMAR BALDWIN, a/k/a James Baldwin,

                  Defendant – Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore. Andre M. Davis, District Judge. (1:08-
cr-00117-AMD-2)


Submitted:    September 30, 2009            Decided:   October 16, 2009


Before KING and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Michael D. Montemarano, MICHAEL D. MONTEMARANO, P.A., Elkridge,
Maryland, for Appellant.     Rod J. Rosenstein, United States
Attorney, Bonnie S. Greenberg, Assistant United States Attorney,
Nick Lyon, Third Year Law Student, Baltimore, Maryland, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Tamar Baldwin pled guilty to bank robbery, 18 U.S.C.

§ 2113(a), (d) (2006) (Count One), and use of a firearm during a

crime of violence, 18 U.S.C. §§ 924(c), 2 (2006) (Count Two).

The   district     court      sentenced       him    as    a     career    offender,        U.S.

Sentencing Guidelines Manual § 4B1.1 (2008), to a term of 156

months      imprisonment       for    the     bank    robbery        and    a    consecutive

seven-year sentence for aiding and abetting his co-defendant’s

brandishing       of    a    firearm      during      the       robbery.            18   U.S.C.

§ 924(c)(1)(A)(ii).            Baldwin       appeals       his    sentence,         contending

that (1) the district court erred in giving him an enhanced

sentence for the § 924(c) offense based on his co-defendant’s

brandishing of a firearm, (2) he was not a career offender, and

(3) the sentence was unreasonable.                   We affirm.

              Baldwin stipulated as part of his plea agreement that

he    and     co-defendant          Chi     Antonio       Ray      robbed       a    bank     in

Reiserstown, Maryland.              Baldwin       carried a crowbar into the bank

and Ray carried a gun.               Baldwin remained at the door while Ray

ordered     the   tellers      and    customers       to    the      floor,     ordered     two

tellers to open cash drawers at gunpoint and took money, then

returned     to   the       first    teller,      kicked       him   in    the      head,   and

ordered him to get more money.                    A third cash drawer was opened

and Ray obtained money from it, after which he and Baldwin left

the bank and were apprehended a short time later.

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            In    the   presentence         report,      the     probation         officer

recommended that Baldwin qualified for sentencing as a career

offender because he had prior convictions for a drug offense and

second degree assault.            The probation officer also recommended a

seven-year sentence under § 924(c)(1)(A)(ii), which applies if a

firearm was brandished during and in relation to a crime of

violence.        Baldwin    objected       to    the   seven-year       sentence       for

brandishing, alleging that he had not admitted participating in

or condoning Ray’s brandishing.                He also objected that his prior

Maryland    assault       conviction       was    categorically          a    crime      of

violence and thus not a predicate for career offender status.

At   sentencing,    the     district     court      overruled     both       objections.

The court determined that Baldwin was a career offender, but

imposed a sentence below the career offender guideline range, to

be followed by a consecutive eighty-four-month sentence for the

§ 924(c) conviction.

            On    appeal,     Baldwin       first      challenges       the     enhanced

sentence    for    brandishing.            “To    be    liable    for        aiding    and

abetting, a defendant must (1) willfully associate himself with

the criminal venture, and (2) seek to make the venture succeed

through    some    action    of    his   own.”         United    States       v.    Bowen,

527 F.3d 1065, 1078 (10th Cir. 2008); see also United States v.

Wilson, 135 F.3d 291, 305 (4th Cir. 1998) (aiding and abetting

in   § 924(c)     context    does    not    require     participation          in     every

                                           3
stage of crime, only knowing participation at some stage and

intent to achieve common goal).               Most circuits require that the

defendant “intentionally facilitate or encourage another’s use

of a gun,” but “[l]ittle is required to satisfy the element of

facilitation.”        Bowen, 527 F.3d at 1079 (noting that the Tenth

Circuit    requires     only    that    the    aider      and     abettor    know   of

another’s use of a gun in a crime of violence and knowingly and

actively participate in the crime) (citations omitted).

              Baldwin does not dispute that he aided and abetted the

bank robbery and knew a firearm would be “used,” but he contends

that “there was no evidence either that [he] knew the firearm

would be brandished, or that he condoned the brandishing when it

took   place.”        He   seeks    support        from     the   Supreme      Court’s

discussion, in Dean v. United States, 129 S. Ct. 1849, 1853-54

(2009), of the requirement in § 924(c)(4) that “[t]he defendant

must   have    intended    to   brandish      the    firearm”      for   a   specific

purpose,      which    the      Court      distinguished          from      subsection

(c)(1)(A)(iii),       which     requires      no    proof    of    intent     for   an

enhanced sentence when a firearm is discharged in the course of

a violent or drug trafficking crime.                   Id. at 1856.           However,

Dean does not advance Baldwin’s argument.

              As defined in § 924(c)(4), to “brandish” a firearm

means “to display all or part of the firearm, or otherwise make

the presence of the firearm known to another person, in order to

                                         4
intimidate that person, regardless of whether the firearm is

directly visible to that person.”                 Brandishing a firearm is one

type of active use of a firearm, Wilson, 135 F.3d at 304, and is

arguably the most obvious and likely use to be anticipated in an

armed robbery.          Baldwin stood guard at the door of the bank,

armed with a crowbar, while Ray obtained money by brandishing a

gun, presumably in full view of Baldwin, and then left with Ray

and the proceeds of the robbery.                  We conclude that the evidence

was sufficient for the district court to determine that Baldwin

intentionally      aided     and      abetted      Ray’s     brandishing          of    the

firearm,    and     that     Baldwin     was       subject        to   a    consecutive

seven-year sentence for the § 924(c) conviction.

            Next, Baldwin contests his career offender status.                           A

defendant is a career offender if he was at least eighteen years

old when the instant offense was committed, the instant offense

is a felony and is either a crime of violence or a drug offense,

and he has at least two prior felony convictions for crimes of

violence or drug offenses.               See USSG § 4B1.1.                 A “crime of

violence”    is    any      federal     or       state    offense      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, or . . . involves conduct

that presents a serious potential risk of physical injury to

another.”      USSG § 4B1.2(a).              In deciding whether convictions

                                             5
constitute     crimes      of     violence,       the     sentencing         court     should

employ   a    “categorical         approach.”           Taylor    v.    United        States,

495 U.S. 575, 600 (1990); United States v. Kirksey, 138 F.3d

120, 124 (4th Cir. 1998).                 Under this approach, the court may

look only to the fact of conviction and the statutory definition

of the prior offense.            Taylor, 495 U.S. at 602.

              However, in a limited number of cases, such as this

one, where the definition of the predicate crime is ambiguous

because it describes both violent and non-violent offenses, the

sentencing         court   may     “examine       the     facts      contained        in   the

charging document on which the defendant was convicted[,]” with

the aim “that we focus only on the facts necessarily decided by

the   prior    conviction.”           Kirksey,          138   F.3d     at    124-25.        In

addition, the sentencing court may consider other items from the

record of a prior conviction, such as “a bench-trial judge’s

formal rulings of law and findings of fact, and in pleaded cases

. . . the statement of factual basis for the charge,” but may

not   consider       any   items    from    the    prior      record        that    were   not

conclusively validated in the earlier proceeding.                                  Shepard v.

United States, 544 U.S. 13, 20-23 (2005).

              In     Maryland,      the     common        law     crime       of      assault

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

battery,     which     retain      their    judicially        determined           meanings.”

Md. Code Ann., Crim. Law § 3-201(b) (LexisNexis Supp. 2008).

                                            6
Maryland case law defines assault as “an attempted battery or an

intentional placing of a victim in reasonable apprehension of an

imminent battery.               A battery . . . includes any unlawful force

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

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.”

Kirksey, 138 F.3d at 125 (internal quotation marks and citations

omitted).         Thus,         we   observed          in   Kirksey       that,      “under       the

definition       of       assault      and     battery       in       Maryland,      it     remains

unclear    whether         we    can     say       categorically         that       the    conduct

encompassed      in       the    crime       of    battery       constitutes        the     use    of

physical    force         against      the     person       of    another      to    the    degree

required to constitute a crime of violence.”                             Id.    In this case,

the court properly considered the charging document.

            Baldwin argues that, because the government failed to

produce    the      bench-trial          judge’s        factual        findings       and    legal

rulings, the government failed to prove that he was actually

convicted      of      the       violent          assault    charged        when      he      could

conceivably have been convicted of a non-violent assault if the

evidence was insufficient to prove the charged violent assault.

He also contends that the district court improperly considered

the statement of probable cause because it was not “linked to

[the statement of charges] by any language demonstrating such

                                                   7
relation or incorporation[.]”                The latter claim is baseless. *

The statement of facts states, “Upon the facts contained in the

application of Joseph, Burl it is formally charged that . . . .”

The    statement       of   probable    cause      contains   Officer     Joseph’s

description of Baldwin’s offense.               Both were filed on the same

day in the Baltimore County district court and have the same

case       number.     These    facts   establish     that    the   statement   of

probable cause was incorporated into the charging document, and

was properly considered by the district court.                      Kirksey, 138

F.3d at 126.

               With respect to the adequacy of the proof of a violent

assault, we have held, post-Shepard, that, in a case where the

defendant did not plead guilty and the state statute proscribes

both violent and non-violent conduct, the district court may

look to jury instructions or the charging documents to determine

whether a prior conviction was for a crime of violence.                       See,

e.g., United States v. Roseboro, 551 F.3d 226, 230 n.3 (4th Cir.

2009); United States v. Diaz-Ibarra, 522 F.3d 343, 348 (4th Cir.

2008).       Baldwin was convicted in a bench trial; therefore, the

district       court    acted    properly     in    consulting      the   charging




       *
        Baldwin   acknowledges  that  he   did  not   object  to
consideration of the statement of probable cause on this ground,
only on relevance grounds.



                                         8
document and determining from it that Baldwin was convicted of a

violent assault.

          As support for his argument that the charging document

was inadequate under Shepard, Baldwin relies on In re Sealed

Case, 548 F.3d 1085 (D.C. Cir. 2008), which held that a guilty

plea to a District of Columbia robbery charge was insufficient

to establish a prior crime of violence because the statute could

have been violated by mere snatching.           Id. at 1089-93; see also

United States v. Ventura, 565 F.3d 870 (D.C. Cir. 2009) (holding

prior guilty plea to Virginia felonious abduction insufficient

to establish crime of violence on similar grounds).             However, in

both In re Sealed Case and Ventura, the charging document did

not incorporate a statement of facts, as it did in Baldwin’s

case.   In re Sealed Case, 548 F.3d at 1090; Ventura, 565 F.3d at

878.

          Last,      Baldwin     argues       that   his     sentence   was

unreasonable.     We review a sentence for reasonableness under an

abuse of discretion standard.        Gall v. United States, 552 U.S.

38, ___, 128 S. Ct. 586, 597 (2007).                 This review requires

appellate consideration of both the procedural and substantive

reasonableness of a sentence.           Id.    After determining whether

the district court properly calculated the defendant’s advisory

guidelines range, this court must consider whether the district

court   considered    the   18   U.S.C.       § 3553(a)    (2006)   factors,

                                    9
analyzed      any      arguments      presented     by      the     parties,      and

sufficiently explained the selected sentence.                      Id. at 596-97;

see United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009).

Finally,      we     review    the    substantive    reasonableness         of    the

sentence,          “taking     into     account     the      totality       of    the

circumstances, including the extent of any variance from the

Guidelines range.”            United States v. Pauley, 511 F.3d 468, 473

(4th Cir. 2007) (internal quotation marks and citation omitted).

Applying these standards, we have thoroughly reviewed the record

on appeal and conclude that the sentence was reasonable.

              We    therefore     affirm    the    sentence       imposed   by    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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