United States of America v. Jerry Barnes

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5166
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JERRY BARNES,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, Senior District
Judge. (8:06-cr-00178-PJM-1)
Submitted: November 22, 2011 Decided: December 13, 2011
Before DAVIS, KEENAN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Teresa Whalen, LAW OFFICE OF TERESA WHALEN, Silver Spring,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, David I. Salem, Assistant United States Attorney,
Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Jerry Barnes appeals his eighty-four month sentence
following a guilty plea for possession with intent to distribute
cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)
(2006). On appeal, Barnes argues that neither his prior
Maryland conviction for assault with intent to disable nor his
1974 robbery conviction should be considered predicate offenses
under the career offender enhancement of the advisory sentencing
guidelines. Finding no reversible error, we affirm.
Pursuant to the U.S. Sentencing Guidelines Manual
(“USSG”) § 4B1.1(a) (2010), a defendant is designated a career
offender if: (1) he was at least eighteen years old at the time
of the instant offense; (2) the instant offense is a felony
crime of violence or controlled substance offense; and (3) he
“has at least two prior felony convictions of either a crime of
violence or a controlled substance offense.” A “crime of
violence” is any offense under federal or state law, punishable
by imprisonment for a term exceeding one year, that:
(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.

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USSG § 4B1.2(a). We review de novo whether a prior conviction
qualifies as a “crime of violence” for purposes of a sentencing
enhancement. United States v. Clay, 627 F.3d 959, 964 (4th Cir.
2010).
In assessing whether an offense constitutes a crime
of violence for purposes of the career offender enhancement, we
employ either of two analyses—the “categorical” approach or the
“modified categorical” approach. Id. at 966. Under the
categorical approach, this court “looks to the words of the
statute and judicial decisions interpreting it, rather than to
the conduct of any particular defendant convicted of the crime.”
Taylor v. United States, 495 U.S. 575, 602 (1990). However,
“where it is evident from the statutory definition of the state
crime that some violations of the statute are crimes of violence
and others are not,” we apply the modified categorical approach.
United States v. Diaz-Ibarra, 522 F.3d 343, 348 (4th Cir. 2008).
In applying the modified categorical approach, we look “to the
terms of the charging document and, if necessary in a nonjury
case, to the terms of a plea agreement, [as well as] the
transcript of colloquy between judge and defendant.” Id.
Barnes first contends that the district court
erroneously found his Maryland conviction for assault with
intent to disable categorically a “crime of violence.” The now-
repealed Maryland statute, captioned “Unlawful Shooting,

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Stabbing, Assaulting, etc., with Intent to Maim, Disfigure or
Disable or to Prevent Lawful Apprehension,” read:
If any person shall unlawfully shoot at any person, or
shall in any manner unlawfully and maliciously attempt
to discharge any kind of loaded arms at any person, or
shall unlawfully and maliciously stab, cut or wound
any person, or shall assault or beat any person, with
intent to maim, disfigure or disable such person, or
with intent to prevent the lawful apprehension or
detainer of any party for any offense for which the
said party may be legally apprehended or detained,
every such offender, and every person counseling,
aiding or abetting such offender shall be guilty of a
felony and, upon conviction are subject to
imprisonment for not more than 15 years.
Md. Code Ann., art. 27, § 386 (1957, 1982 Repl.)(emphases
added). Barnes argues that, contrary to the district court’s
approach, the categorical approach is inapplicable because on
its face, the statute proscribes both violent and non-violent
conduct. Specifically, Barnes contends that assault with intent
to avoid apprehension (as described in the above highlighted
portion of the former statute) would not require an offender to
harbor an injurious intent posing a “serious potential risk of
physical injury to another” or involving “the use or attempted
use of physical force against the person of another.”
We need not determine whether the district court erred
in applying the categorical approach, however, because, contrary
to Barnes’s contention, even applying the modified categorical
approach, his conviction would nonetheless qualify as a career
offender predicate. Under the modified categorical analysis, we

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look to Barnes’s indictment before the Circuit Court for Prince
George’s County, which charges that Barnes “maliciously
assault[ed] Beverly Barnes with intent to disable.” See Johnson
v. United States, 130 S. Ct. 1265, 1273 (2010) (court may
determine which statutory phrase was the basis for conviction by
consulting the charging documents). Further, the Circuit Court
Sentencing and Conviction Order establishes that Barnes pled
guilty to the first count of the indictment—assault with the
intent to disable. Thus, the record unambiguously establishes
that Barnes’s offense of conviction within the broader Maryland
statute constitutes a crime of violence. See Ford v. State, 330
Md. 682, 702 (1993) (defining assault with intent to disable as
an assault with the “specific intent to permanently maim,
disfigure, or disable the victim”); see also Hammond v. State,
322 Md. 451, 457-59 (1991). Assault with intent to disable
clearly involves both “the use, attempted use, or threatened use
of physical force against the person of another,” and, as well,
its commission poses a “serious potential risk of physical
injury to another.” Therefore, Barnes’s assault with intent to
disable conviction qualifies as a career offender predicate
under the modified categorical approach. See United States v.
McHan, 386 F.3d 620, 623 (4th Cir. 2004) (observing that this
court “[is] entitled to affirm on any ground appearing in the
record, including theories not relied upon or rejected by the

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district court”) (internal quotation and citation omitted));
United States v. Smith, 395 F.3d 516, 519 (4th Cir. 2005)
(same).
Barnes next contends that the district court erred in
enhancing his sentence as a career offender based upon his 1974
robbery conviction. To qualify as a career offender predicate,
a sentence following a conviction for a crime of violence must
have been “imposed within fifteen years of the defendant’s
commencement of the instant offense” or “whenever imposed, [must
have] resulted in the defendant being incarcerated during any
part of such fifteen-year period.” USSG § 4A1.2(e)(1). We have
reviewed the testimony and documents presented at sentencing and
find sufficient evidence that a portion of Barnes’s sentence
following his 1974 robbery conviction was served within fifteen
years of the instant offense, thereby qualifying as a career
offender predicate. Barnes does not dispute the accuracy of
these records in his reply brief on appeal, and we find no error
in the district court’s finding in this regard.
Accordingly, we affirm the district court’s judgment.
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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