UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit. 
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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