Argued: March 19, 2019
from the United States District Court for the District of
Maryland, at Baltimore. Ellen L. Hollander, District Judge.
S. Patel, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenbelt,
Maryland, for Appellant.
Elizabeth G. Wright, OFFICE OF THE UNITED STATES ATTORNEY,
Greenbelt, Maryland, for Appellee.
Wyda, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Baltimore, Maryland, for Appellant.
K. Hur, United States Attorney, Baltimore, Maryland, David I.
Salem, Assistant United States Attorney, Ellen Cobb, Special
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Greenbelt, Maryland, for Appellee.
NIEMEYER and QUATTLEBAUM, Circuit Judges, and SHEDD, Senior
QUATTLEBAUM, CIRCUIT JUDGE
Battle appeals from the district court's denial of his
motion to vacate his sentence under 28 U.S.C. § 2255.
Battle had been sentenced as an armed career criminal under
18 U.S.C. § 924(e) after he pleaded guilty to being a
felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g). In his petition, Battle argues that, in light
of Johnson v. United States, 559 U.S. 133 (2015), he
is not an armed career criminal because his 1991 Maryland
conviction for assault with intent to murder
("AWIM") is no longer a "violent felony"
under the Armed Career Criminal Act ("ACCA"). For
the reasons set forth below, we affirm the district court and
find that Maryland AWIM is a violent felony under the ACCA.
August 8, 2011, Battle pleaded guilty to being a felon in
possession of a firearm under 18 U.S.C. § 922(g). The
district court adopted the factual findings and advisory
guidelines in the Presentence Report ("PSR"). After
finding that he had three prior qualifying convictions, the
court concluded that Battle was an armed career criminal
under the ACCA. Specifically, the PSR referenced a 1991
Maryland conviction for AWIM as a violent felony and two
Maryland convictions from 1998 and 2006 for possession with
intent to distribute cocaine which qualified as serious drug
offenses under § 924(e)(1). Accordingly, the court
sentenced Battle on November 8, 2011, to a mandatory minimum
term of imprisonment of fifteen years under the ACCA.
directly appealed to this Court on November 9, 2011,
challenging his designation as an armed career criminal and
specifically arguing that his prior conviction for Maryland
AWIM failed to qualify as a violent felony under the ACCA.
This Court affirmed the sentence in an unpublished per curiam
opinion dated October 4, 2012, concluding that the offense
was a violent felony under the ACCA's residual clause.
Battle filed his first 28 U.S.C. § 2255 petition on
November 25, 2013, which the district court denied.
the Supreme Court's decision in Johnson, which
invalidated the ACCA's residual clause as vague, and
Welch v. United States, 136 S.Ct. 1257 (2016), which
made Johnson retroactive, Battle moved to file a
successive § 2255 petition. This Court granted that
motion on June 1, 2016, finding that Battle made the prima
facie showing required for successive § 2255 petitions.
In the petition before the district court, Battle argued that
he no longer has the requisite number of prior convictions to
qualify as an armed career criminal post-Johnson
because the 1991 AWIM conviction no longer qualifies under
the ACCA's residual clause. The district court denied his
petition, finding AWIM involves violent force sufficient to
satisfy the ACCA force clause, regardless of the ruling about