UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-4941

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DARRYL LEE JOHNSON,

Defendant - Appellant.

Appeal from the United States District Court for the District of 

South Carolina, at Charleston. David C. Norton, Chief District 

Judge. (2:08-cr-00930-DCN-7)

Submitted: March 16, 2012 Decided: April 12, 2012

Before MOTZ and SHEDD, Circuit Judges, and HAMILTON, Senior 

Circuit Judge.

Vacated and remanded by unpublished per curiam opinion.

N. Elliott Barnwell, Charleston, South Carolina, for Appellant. 

William N. Nettles, United States Attorney, Columbia, South 

Carolina, Peter T. Phillips, Assistant United States Attorney, 

OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South 

Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Darryl Lee Johnson pled guilty to conspiracy to possess 

with intent to distribute and to distribute a quantity of heroin 

and three counts of possession with intent to distribute and 

distribution of a quantity of heroin. The district court 

concluded that Johnson qualified as a Career Offender under 

United States Sentencing Guideline (USSG) § 4B1.1 and imposed a 

sentence of 151 months’ imprisonment. On appeal, Johnson 

challenges his sentence. As explained below, we vacate 

Johnson’s sentence and remand for further proceedings consistent 

with this opinion.

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). Johnson did not dispute 

below and does not dispute on appeal that his 2004 conviction, 

pursuant to a guilty plea in South Carolina state court, for 

possession with intent to distribute marijuana qualifies as a 

prior felony conviction for a controlled substance offense under 

USSG § 4B1.1(a). However, Johnson challenged below and 

continues to challenge on appeal the district court’s conclusion 

that his 2008 conviction, pursuant to a guilty plea in South 

Carolina state court, for assault and battery of a high and 

aggravated nature (ABHAN) under South Carolina’s common law 
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constitutes a “crime of violence” under USSG § 4B1.1(a). This 

is the sole issue on appeal.

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). In deciding whether a prior conviction qualifies as 

a crime of violence under the Guidelines’ Career Offender 

provision, the sentencing court normally employs a categorical 

approach. United States v. Peterson, 629 F.3d 432, 435 (4th 

Cir. 2011). Under this approach, the district court considers 

the offense as defined by the relevant law, rather than 

considering the facts of the underlying specific crime. Sykes 

v. United States, 131 S. Ct. 2267, 2272 (2011). “For an offense 

to constitute a ‘crime of violence’ under th[e categorical]

approach, the offense’s full range of proscribed conduct, 

including the least culpable proscribed conduct, must fall 

within the applicable Guidelines definition of that term.” 

United States v. King, 2012 WL 745535, at *2 (4th Cir. March 8, 

2012). However, if the offense as defined by the relevant law 

includes conduct such that some commissions of the offense 
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constitute crimes of violence and others do not, “we look beyond 

the generic elements of the offense to the specific conduct 

underlying that prior offense.” Id. at *3. This is known as 

the modified categorical approach. In applying the modified 

categorical approach to a prior conviction based upon a guilty 

plea such is at issue here, the sentencing 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. 

Here, employing the categorical approach, the district 

court concluded that South Carolina’s common law offense of 

ABHAN constitutes a crime of violence under USSG § 4B1.1(a). 

Having so concluded, the district court did not go on to analyze 

the conviction under the modified categorical approach. Without 

expressing an opinion on whether the offense of ABHAN under 

South Carolina’s common law categorically constitutes a crime of 

violence under USSG § 4B1.1(a), we have decided the prudent 

course under the circumstances is to vacate Johnson’s sentence 

and remand this case to the district court for further 

proceedings in order to allow the district court to determine if

the modified categorical approach supports the conclusion that

Johnson’s conviction for ABHAN under South Carolina common law 

constitutes a crime of violence under USSG § 4B1.1(a). See
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Anderson v. United States, 417 U.S. 211, 218 (1974) (“We think 

it inadvisable . . . to reach out . . . to pass on important 

questions of statutory construction when simpler, and more 

settled, grounds are available for deciding the case at hand.”). 

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 Johnson’s 

guilty plea hearing with respect to his 2008 conviction for 

ABHAN under South Carolina’s common law.

Based on the foregoing, we vacate Johnson’s sentence and 

remand for further proceedings consistent with this opinion. 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.

VACATED AND REMANDED