UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 01-4197

RICKY LEE AUSTIN,

Defendant-Appellant. 

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

J. Frederick Motz, District Judge.

(CR-97-309-L)

Submitted: December 27, 2001

Decided: January 14, 2002

Before LUTTIG and WILLIAMS, Circuit Judges, and

HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion. 

COUNSEL

G. Arthur Robbins, G. ARTHUR ROBBINS, L.L.C., Annapolis,

Maryland, for Appellant. Thomas M. DiBiagio, United States Attorney, Christine Manuelian, Assistant United States Attorney, Baltimore, Maryland, for Appellee. 
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Ricky Lee Austin appeals the fifty-seven-month sentence he

received after he pled guilty to being a felon in possession of a firearm, 18 U.S.C.A. § 922(g)(1) (West 2000). He contests the enhanced

base offense level of twenty which the district court applied because

he had a prior felony conviction for a crime of violence, U.S. Sentencing Guidelines Manual § 2K2.1(a)(4)(A) (2000), and a further

enhancement which applied because he stipulated that he possessed

the firearm in connection with another felony offense. USSG

§ 2K2.1(b)(5). We affirm. 

Austin first asserts that the district court erred in failing to conduct

a factual inquiry to determine whether his 1988 Maryland conviction

for battery was a crime of violence. Because Austin did not contest

the enhanced base offense level on this ground in the district court,

our review is for plain error. United States v. Bornstein, 977 F.2d 112,

115 (4th Cir. 1992); see also United States v. Olano, 507 U.S. 725,

732-37 (1993). 

A "crime of violence," as used in § 2K2.1(a)(4)(A), is defined as

any offense punishable by imprisonment for more than one year that

"has as an element the use, attempted use, or threatened use of force

against the person of another." USSG § 2K2.1, comment. (n.5);

§ 4B1.2(a)(1). Generally, to determine whether a prior felony conviction is a crime of violence, the sentencing court "must use a categorical approach, relying only on (1) the fact of conviction and (2) the

definition of the prior offense." United States v. Kirksey, 138 F.3d

120, 124 (4th Cir. 1998). Because battery is a common law crime in

Maryland, it is not defined by statute, but in case law, and the definition embraces both violent and non-violent conduct. Id. at 125. When

the statutory definition of a prior crime does not establish whether the

conviction was for a crime of violence, the court may look to the facts

2 UNITED STATES v. AUSTIN
alleged in the charging document. Id. at 124. In Maryland, the affidavits of the complaining witnesses are part of the charging document

and may be consulted by the district court for this purpose. Id. at 125-

26. 

In Austin’s case, the charging document for the battery conviction

was submitted to the district court before Austin was sentenced. The

attached witness statement stated: "My son, Terrance Malone, age 9,

came home crying saying that Ricky had slapped him in the face several times and punched him in the chest." Austin was twenty-eight

years old when the incident occurred. The facts alleged thus establish

that the conduct for which Austin was charged and convicted

involved the use of physical force against the person of another.

Although Austin argues that the facts alleged were insufficient to support a legal conclusion that the battery was a crime of violence, we

find that the district court did not plainly err in treating it as such. 

Next, Austin argues that the government failed to produce evidence

to support the four-level enhancement for use of the firearm in connection with the distribution of cocaine. This argument is meritless

because Austin stipulated in his plea agreement that the enhancement

applied. The statement of facts attached to the plea agreement further

stipulated that the government could prove, if necessary, that Austin

had allowed his barber shop and residence to be used for cocaine and

crack distribution. At the guilty plea hearing, Austin acknowledged

after some initial waffling that he had possessed the gun in connection

with a drug offense. Austin at no time disputed that the government

could produce testimony to this effect. Therefore, the district court did

not clearly err in applying the enhancement to which Austin had stipulated. See United States v. Gilliam, 987 F.2d 1009, 1013 (4th Cir.

1993) (government may meet burden of proof concerning disputed

factual issue through stipulation that district court finds has reasonable factual basis). 

We therefore affirm the sentence. 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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