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United States v. Battle

United States Court of Appeals, Fourth Circuit

June 11, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
KEVIN BATTLE, Defendant-Appellant.

          Argued: March 19, 2019

          Appeal from the United States District Court for the District of Maryland, at Baltimore. Ellen L. Hollander, District Judge. (1:11-cr-00110-ELH; 1:15-cv-03814-ELH)

         ARGUED:

          Paresh 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.

         ON BRIEF:

          James Wyda, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for Appellant.

          Robert 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.

          Before NIEMEYER and QUATTLEBAUM, Circuit Judges, and SHEDD, Senior Circuit Judge.

          QUATTLEBAUM, CIRCUIT JUDGE

         Kevin 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.

         I.

         On 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.

         Battle 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.

         After 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 ...


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