                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4183


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

JESSIE DONALD KINNEY,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Charleston.    Patrick Michael Duffy, Senior
District Judge. (2:09-cr-01091-PMD-1)


Submitted:   February 23, 2012            Decided:   March 12, 2012


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


Affirmed by unpublished per curiam opinion.


Mary   Gordon    Baker,   Assistant  Federal   Public    Defender,
Charleston, South Carolina, for Appellant.    William N. Nettles,
United States Attorney, Jeffrey Mikell Johnson, Robert F. Daley,
Jr.,   Assistant   United   States  Attorneys,   Columbia,   South
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Jessie       Donald    Kinney         pled       guilty       to    one   count   of

possession of a firearm and ammunition by a convicted felon, in

violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2006), and was

sentenced to thirty months’ imprisonment.                             On appeal, Kinney

challenges       his     sentence,       arguing         that      the         district    court

incorrectly counted his prior South Carolina state conviction

for   assault      and    battery        of   a     high       and    aggravated           nature

(“ABHAN”) as a predicate offense qualifying him for the enhanced

base offense level at U.S. Sentencing Guidelines Manual (“USSG”)

§ 2K2.1(a)(4)(A) (2010).            We affirm.

            The     Guidelines       establish           a    base    offense         level   of

twenty for a defendant who violates 18 U.S.C. § 922(g) if “the

defendant committed any part of the . . . offense subsequent to

sustaining one felony conviction of . . . a crime of violence.”

USSG § 2K2.1(a)(4)(A).             Whether a prior conviction qualifies as

a   crime   of    violence    is    an    issue      of      law     we    review     de    novo.

United States v. Jenkins, 631 F.3d 680, 682 (4th Cir. 2011).                                    A

crime of violence for purposes of USSG § 2K2.1(a)(4)(A) is an

offense that “involves conduct that presents a serious potential

risk of physical injury to another.”                          USSG § 4B1.2(a)(2); see

USSG § 2K2.1 cmt. n.1 (providing that a “‘[c]rime of violence’

has the meaning given that term in § 4B1.2(a)”).



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            At    the    time       of     Kinney’s     conviction       for        ABHAN,    the

crime was a common-law crime defined as the “unlawful act of

violent     injury      to     another         accompanied       by     circumstances          of

aggravation.”            State        v.       Fennell,     531        S.E.2d        512,     516

(S.C. 2000).       Kinney argues that a conviction for ABHAN is not a

per se crime of violence because such a crime can be committed

recklessly and negligently, in addition to intentionally.

            In    this       case,       the    district    court       determined          that,

under either the categorical or modified categorical approach,

Kinney’s conviction for ABHAN qualified as a crime of violence.

Even    assuming     that      ABHAN       is    not    categorically           a    crime    of

violence,    we    affirm      the       district      court’s     finding,          using    the

modified    categorical         approach,           that   the    record        of    Kinney’s

conviction for ABHAN reflects intentional and violent conduct.

See United States v. Spence, 661 F.3d 194, 197–200 (4th Cir.

2011)     (applying          modified          categorical        approach           to     ABHAN

conviction for purposes of enhancing sentence under 18 U.S.C.

§ 2252A(b)(2) (2006)).               We therefore conclude that the district

court properly determined that Kinney’s conviction for ABHAN was

a crime of violence for purposes of applying the enhanced base

offense level at USSG § 2K1.2(a)(4)(A).

            Accordingly, we affirm the district court’s judgment.

We   dispense     with       oral    argument       because      the    facts        and    legal



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contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

                                                           AFFIRMED




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