United States v. Donnell, No. 09-4851 (4th Cir. 2011)
Annotate this CaseDefendant pled guilty to being a felon in possession of a firearm and the district court sentenced him to 78 months' imprisonment, based in part on its finding that defendant had committed the offense subsequent to sustaining at least two felony convictions for a "crime of violence." On appeal, defendant argued that the district court erred in relying on his Maryland second degree assault conviction to enhance his offense level. The court found that it was uncontested that the district court relied upon an officer's sworn statements contained in a statement of probable cause that was not expressly incorporated into the statement of charges to determine that defendant's Maryland second degree assault constituted a predicate offense under U.S.S.G. 2K2.1(a)(2). Therefore, the court held that the district court erred in relying on facts contained in the unincorporated affidavit to find that defendant had two qualifying convictions. Accordingly, the judgment was vacated and remanded.
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