UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4742

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

MARCO ANTONIO VELEZ,

Defendant - Appellant.

Appeal from the United States District Court for the District of

South Carolina, at Florence. Terry L. Wooten, District Judge.

(CR-04-93)

Submitted: January 31, 2006 Decided: February 15, 2006

Before WILKINSON, WILLIAMS, and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Jack B. Swerling, LAW OFFICES OF JACK B. SWERLING, Columbia, South

Carolina, for Appellant. Jonathan S. Gasser, United States

Attorney, Alfred W. Bethea, Jr., Assistant United States Attorney,

Florence, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Marco Antonio Velez pled guilty to using and carrying a

firearm in connection with a drug trafficking offense, in violation

of 18 U.S.C. § 924(c) (2000). He was sentenced as a career

offender to 276 months in prison. Velez now appeals his sentence.

We affirm.

Prior to committing the instant offense, Velez had been

convicted of manslaughter and, in 1999, of three counts of assault

and battery of a high and aggravated nature (ABHAN). Velez was

sentenced to three concurrent three-year terms for the 1999

convictions. His probation officer first determined that Velez had

the requisite prior convictions to qualify him as a career

offender, see U.S. Sentencing Guidelines Manual § 4B1.1(a) (2003),

and that Velez was entitled to a three-level reduction in his

offense level for acceptance of responsibility under USSG § 3E1.1.

Accordingly, the probation officer concluded that Velez’s guideline

range was 262-327 months in prison. See USSG § 4B1.1(c)(1),

(c)(3).

Velez objected under Blakely v. Washington, 542 U.S. 296

(2004), to his treatment as a career offender. The district court

overruled his objection, adopted the Presentence Report, and

imposed a 276-month sentence.

According to the sentencing guidelines, a defendant is a

career offender if, inter alia, he has two prior felony convictions
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for a crime of violence. See USSG § 4B1.1(a). Velez concedes his

convictions for manslaughter and ABHAN. He contends, however, that

he should not have been sentenced as a career criminal because a

conviction for ABHAN does not qualify as a crime of violence.

Velez raised this claim below, and our review is de novo. See

United States v. Mackins, 315 F.3d 399, 405 (4th Cir. 2003). 

To determine whether a state-law offense falls within the

sentencing guideline’s definition of a “crime of violence,” we use

the categorical approach, “which takes into account only the

definition of the offense and the fact of conviction.” United

States v. Pierce, 278 F.3d 282, 286 (4th Cir. 2002). Under the

sentencing guidelines, a “crime of violence” is “any offense under

federal or state law, 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 . . . .” USSG § 4B1.2(a). The sentencing guideline’s

application notes further explain that “‘crime of violence’

includes . . . aggravated assault.” USSG § 4B1.2 app.1. Under

South Carolina law, “ABHAN is the unlawful act of violent injury to

another accompanied by circumstances of aggravation” and is

“punishable by up to ten years in prison.” State v. Fennell, 531

S.E.2d 512, 516 (S.C. 2000). Therefore, Velez’s conviction for

ABHAN meets the sentencing guideline’s definition of a crime of

violence because ABHAN is, by definition, aggravated assault. 
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We accordingly affirm. 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