UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-4837

UNITED STATES OF AMERICA, 

Plaintiff - Appellee, 

v. 

DWAYNE LAMONT HAMILTON, a/k/a Michael Givens Gibbons, a/k/a 

Dewayne Lamont Hamilton, 

Defendant - Appellant. 

Appeal from the United States District Court for the District of 

South Carolina, at Beaufort. Solomon Blatt, Jr., Senior

District Judge. (9:07-cr-00716-SB-1) 

Submitted: April 27, 2012 Decided: May 10, 2012

Before KING, AGEE, and DAVIS, Circuit Judges. 

Affirmed in part, vacated in part, and remanded by unpublished 

per curiam opinion. 

William L. Runyon, Jr., WILLIAM L. RUNYON, JR. LAW OFFICE, 

Charleston, South Carolina, for Appellant. William N. Nettles, 

United States Attorney, Nick Bianchi, Assistant United States 

Attorney, Charleston, South Carolina, for Appellee. 

Unpublished opinions are not binding precedent in this circuit.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

Dwayne Lamont Hamilton pled guilty to possession of a 

firearm and ammunition by a convicted felon, in violation of 

18 U.S.C. §§ 922(g)(1), 924(a)(2), (e) (2006), using and 

carrying a firearm during and in relation to and possessing the 

firearm in furtherance of a drug trafficking crime, in violation 

of 18 U.S.C. § 924(c)(1)(A)(i), and possession with the intent 

to distribute cocaine and aiding and abetting, in violation of 

18 U.S.C. § 2 (2006) and 21 U.S.C.A. § 841(a)(1), (b)(1)(C) 

(West 2006 & Supp. 2011). The district court determined that 

Hamilton qualified as a career offender under U.S. Sentencing 

Guidelines Manual (“USSG”) § 4B1.1 (2009) and imposed a sentence 

of 226 months’ imprisonment. On appeal, Hamilton challenges his 

sentence. We affirm Hamilton’s convictions, vacate his 

sentence, and remand for resentencing. 

To qualify as a career offender under USSG § 4B1.1, 

inter alia, a defendant must have “at least two prior felony 

convictions of either a crime of violence or a controlled 

substance offense.” USSG § 4B1.1(a). Hamilton did not dispute 

in the district court and does not dispute on appeal that his 

prior South Carolina state conviction for possession with the 

intent to distribute cocaine base constitutes a predicate felony 

conviction for a controlled substance offense under USSG 

§ 4B1.1(a). Rather, Hamilton challenged below and continues to 
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challenge on appeal the district court’s conclusion that his 

prior South Carolina state conviction for assault and battery of 

a high and aggravated nature (“ABHAN”) constitutes a crime of 

violence under USSG § 4B1.1(a). 

A “crime of violence” is defined by the Guidelines as 

an offense that is punishable by imprisonment for more than one 

year and “(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.” 

USSG § 4B1.2(a). To decide whether a prior conviction 

constitutes a crime of violence, the district court generally 

must use a categorical approach. United States v. Jenkins, 

631 F.3d 680, 684 (4th Cir. 2011). This approach “look[s] only

to the elements of the offense . . . . [and] examin[es] [the 

offense] in terms of how the law defines it and not in terms of 

how an individual offender might have committed it on a 

particular occasion.” Id. (internal quotation marks and 

alternation omitted). “For an offense to constitute a crime of 

violence under this approach, the offense’s full range of 

proscribed conduct, including the least culpable proscribed 

conduct, must fall within the applicable Guidelines definition 
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of that term.” United States v. King, 673 F.3d 274, 278 

(4th Cir. 2012) (internal quotation marks omitted). 

However, in a “narrow range of cases” where the 

offense defined by the relevant law includes conduct such that 

some commissions of the offense constitute crimes of violence 

and others do not, the court is to “look beyond the generic 

elements of the offense to the specific conduct underlying that 

prior offense.” Id. This approach is known as the modified 

categorical approach. Id. In applying the modified categorical 

approach, the court is limited to considering “the record of 

conviction, which includes the charging document, the plea 

agreement, and the transcript of the plea colloquy, and any 

explicit factual findings made by the trial court.” Id. 

Employing the categorical approach, the district court 

concluded that Hamilton’s conviction for ABHAN was a crime of 

violence under USSG § 4B1.1(a). Without expressing an opinion 

on whether a conviction for ABHAN so qualifies, we vacate 

Hamilton’s sentence and remand this case to the district court 

for further proceedings to allow that court to determine if the 

modified categorical approach supports the conclusion that 

Hamilton’s conviction for ABHAN constitutes a crime of violence 

under USSG § 4B1.1(a). See Anderson v. United States, 417 U.S. 

211, 218 (1974) (“We think it inadvisable . . . to reach 

out . . . to pass on important questions of statutory 
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construction when simpler, and more settled, grounds are 

available for deciding the case at hand.”).* Hamilton does not 

challenge his convictions on appeal, and we therefore affirm 

them. 

We deny as moot the parties’ motion for remand and

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 IN PART,

VACATED IN PART,

AND REMANDED

 * On this issue, the district court should permit the 

parties to present evidence. For example, the Government is 

free on remand to present a transcript of the plea colloquy from 

Hamilton’s guilty plea hearing with respect to his conviction 

for ABHAN.