PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-4874

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

FRANKIE LANE DOCTOR, SR., a/k/a Nose,

Defendant – Appellant.

Appeal from the United States District Court for the District of South Carolina, at Columbia. Joseph F. Anderson, Jr., Senior District Judge. (3:05-cr-00681-JFA-1)

Submitted: March 26, 2020 Decided: May 4, 2020

Before GREGORY, Chief Judge, FLOYD, and HARRIS, Circuit Judges.

Affirmed by published opinion. Chief Judge Gregory wrote the opinion, in which Judge Floyd and Judge Harris joined.

Emily Deck Harrill, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Columbia, South Carolina, for Appellant. Sherri A. Lydon, United States Attorney, Alyssa Leigh Richardson, Assistant United States Attorney, Stacey Denise Haynes, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. GREGORY, Chief Judge:

Frankie Lane Doctor, Sr., appeals the district court’s revocation of his supervised

release and resulting sentence, citing three primary errors. First, Doctor claims the court

erred in finding the government proved he committed the assault underlying the supervised

release violation. Second, even if the government had proven he perpetrated the assault,

Doctor asserts the court failed to announce the specific state offense he committed. Third,

he argues that the court improperly used the conduct-specific approach—rather than the

categorical approach—to determine that the assault qualified as a crime of violence under

the Sentencing Guidelines, which affected the advisory Guidelines range for his sentence.

For the reasons that follow, we affirm the district court. 1

I.

A.

In 2005, a jury found Doctor guilty on two counts: (1) felon in possession of a

firearm, and (2) possession with intent to distribute cocaine base. The district court deemed

Doctor an armed career criminal and sentenced him to 262 months in prison followed by 5

years of supervised release. In early 2018, the district court granted Doctor’s 28 U.S.C.

1 We also deny as moot Doctor’s motion to expedite. (ECF No. 49.) We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before us and argument would not aid the decisional process.

2 § 2255 petition and reduced his sentence to time served and three years of supervised

release. 2 Doctor began serving his supervised release term on February 9, 2018.

On August 7, 2018, Doctor’s probation officer filed a report alleging Doctor

committed three violations of his supervised release. First, Doctor engaged in new criminal

conduct—namely, on July 31, 2018, he was arrested and charged with second-degree

assault and battery in Richland County, South Carolina (“Violation One”). Second, he

tested positive for cocaine use (“Violation Two”). Third, he failed to notify his probation

officer of his contact with law enforcement when police questioned him about the alleged

assault (“Violation Three”). Another violation was later added to reflect Doctor’s failure

to notify his probation officer of his arrest on the assault charge (“Violation Four”).

The district court held a two-day hearing on the violations in November 2018.

Doctor admitted Violations Two and Three. The district court dismissed Violation Four

because Doctor had instructed a family member to notify the probation officer of his arrest,

and the family member complied. Accordingly, the only contested violation was the

criminal conduct related to the assault in Violation One, which is the subject of this appeal.

At the hearing, the government first called the victim of the assault, Tony Pearson,

a disabled veteran. Pearson indicated he met Doctor, whom he called “Nose Doctor,” when

Pearson purchased crack cocaine from Doctor through a third party. Pearson testified that

2 The petition was based on the Supreme Court’s holding in Johnson v. United States, which prohibited imposing increased sentences pursuant to the vague residual clause of the Armed Career Criminal Act.

(2015). Under Johnson, Doctor should have received a sentence of no more than 120 months, a sentence he overserved by about three years before obtaining relief. 3 on July 18, 2018, around 6:00 p.m., he went to the residence of a friend, Rondell “Pop”

Bennett, to “get[] high, drink[], and . . . just hang[] out.” J.A. 43. Several other people

were at Pop’s house when Pearson arrived, including Pop; Doctor; Doctor’s son,

Chris “Furby” Doctor; Doctor’s sister, Frances “Jenny” Brice; Doctor’s girlfriend,

Michelle Clifton; and a woman named Renea. Pearson drank several beers and smoked a

small amount of crack cocaine that evening but testified that he was “back to normal” by

the time of the assault. J.A. 46.

Later in the evening, Pearson lent his car to Doctor’s girlfriend, Michelle, and

Doctor’s sister, Jenny, to go to the store for beer and cigarettes. Doctor and Furby had left

Pop’s house, but they returned around the time Michelle and Jenny came back from the

store. While Doctor was in the kitchen, he leaned toward the living room and asked, “You

got a problem with my mother fucking son[?]” J.A. 48. Pearson believed this was directed

to him because he was the only one in the living room.

Doctor then entered the living room and sat down to the left of Pearson. Furby stood

in front of Pearson with an empty liquor bottle in his hand and threatened to “slap the shit

out of [Pearson] with [the] bottle.” J.A. 49. Pearson did not do anything to prompt Furby’s

behavior and was “shocked” by it.

Pearson took the bottle from Furby and walked into

the kitchen, where he used his cell phone to call Doctor’s niece and ask her to tell Furby

that Pearson was not a bad person. Furby entered the kitchen and snatched the phone from

Pearson’s hand. Doctor remained in the living room during this exchange.

Pearson returned to the living room and sat on the couch. Doctor was seated in a

chair to Pearson’s left and Furby stood in front of Pearson. Furby then punched Pearson

4 in the face. In response, Pearson got up and “slammed” Furby onto the couch. J.A. 50.

When Pearson turned around, Doctor screamed, “That’s my mother fucking son,” before

punching Pearson in the left side of his face.

By that time, Furby had gotten up, and

he punched Pearson in the right side of his face. Then, Doctor “punch[ed Pearson] again

in the left side of [his] face.”

As Pearson put it, “they double-team[ed] me.” J.A. 51.

Pop came into the room and said something to the men that Pearson could not hear due to

the fighting. Doctor responded by telling Pop, “Shut the fuck up before we beat your ass.”

J.A. 50. Pop ran into the kitchen and no one else attempted to intervene.

Pearson grabbed a cushion from the couch and placed it across his head while “they

continue[d] to beat [him].” J.A. 51. With the cushion over his head, he could not tell who

was hitting him. He was “positive,” however, that Doctor hit him on the left side of his

face at least two times before he shielded himself with the cushion. J.A. 52. Pearson

estimated the assault lasted at most fifteen minutes before paramedics rushed in. He

declined medical attention and returned home to call the police.

A police officer responded to Pearson’s complaint that same night. The officer’s

report indicated that according to Pearson, two unknown males began an altercation with

him. One threatened to hit him with a liquor bottle, and when Pearson pushed the bottle

away, a fight ensued. A second male then jumped into the fight and hit Pearson. To

identify these men, Pearson indicated “it could [have] been one of the Doctor brothers and

the father.” J.A. 228. 3 The officer photographed Pearson’s injuries.

3 Volume II of the J.A.—pages 199 through 284—was filed under seal. To the extent this opinion quotes from the sealed volume, it does not disclose confidential matters. 5 The day after the assault, Pearson sought medical attention from the Veterans

Affairs (“VA”) hospital. To explain his visit, he told medical personnel that two men he

had never seen before “jumped” him. J.A. 203. He reported that an initial assailant and

the assailant’s father punched him repeatedly in the head. Medical staff noted his right eye

was swollen shut and his tongue was bruised and swollen. He received stitches near his

right eye. According to Pearson, the assault led to a loss of vision and sensitivity to light.

He continued to experience jaw pain and headaches for several months.

Pearson also testified that a couple of days after the fight, he contacted Doctor

through a three-way call involving Doctor’s niece. Pearson told Doctor, “That was fucked

up what y’all did to me. . . . Y’all was wrong as hell.” J.A. 54. Pearson then invited Doctor

and Furby to fight him and said that if they beat him, he would not press charges.

At the revocation hearing, the government also called as a witness Aubree Torres,

an investigator from the Richland County Sheriff’s Department. Torres was not the

responding officer on the night of the incident, but she was assigned to the complaint

Pearson filed. On July 26, 2018, she contacted him by phone to discuss the incident. On

the call, Pearson informed Torres that Doctor and Furby had assaulted him. Torres found

Pearson credible because “he was able to recall a lot of details and depth” about the assault.

J.A. 82. Torres asked Pearson to come to the station to make a written statement, which

he did, and his written statement was consistent with what he reported over the phone.

When Torres saw Pearson—eight days after the assault—she noticed he wore dark

sunglasses, which he explained was due to sensitivity to light. Torres photographed his

injuries, observing that his eye was watering and involuntarily shutting during the process.

6 Torres also testified that she spoke with Pop and transcribed a statement regarding

his version of the assault. 4 Pop recalled that Pearson was sitting on the couch when Doctor

and Furby entered the room and started beating Pearson up, causing injuries to his face and

eye. When Pop tried to intervene, they threatened to beat him up, too. Torres described

Pop’s statement as consistent with Pearson’s version of events.

Furby then testified that the fight began because he took too long to supply the drugs

Pearson had requested. 5 As a result, Pearson jumped out of his chair and “jabbed [Furby]

in the face with his hand,” which Furby perceived as the first blow of the fight. J.A. 103.

According to Furby, Doctor eventually pulled him away from Pearson. At no time did

Furby see Doctor hit, punch, or otherwise assault Pearson—although he noted he could not

“attest to something that [he] didn’t see.” J.A. 109. Furby also admitted that his memory

was faulty due to impairment from drugs and alcohol.

Doctor’s sister, Jenny, testified next. She indicated that Furby jumped on Pearson

and she instructed Doctor to help Pearson. She watched Doctor try to pull Furby off of

Pearson, but she left when she “saw all that blood.” J.A. 113. Jenny also testified that she

did not see Doctor hit Pearson.

4 Defense counsel objected to Torres’ testimony about Pop’s statement. The court overruled the objection, first noting the Rules of Evidence do not apply in revocation hearings. See Fed. R. Evid. 1101(d)(3). The court then found that permitting the testimony was in the “interest of justice” because there was evidence that witnesses feared Doctor and did not want to testify live. Fed. R. Crim. P. 32.1; see also Morrissey v. Brewer,

(1972) (describing a defendant’s right to confront adverse witnesses in a revocation hearing unless the court finds good cause to deny it). 5 Furby was charged with first-degree assault and battery but stated that he understood his right against self-incrimination before testifying. 7 Doctor’s girlfriend, Michelle, similarly testified that she did not see Doctor punch

or otherwise assault Pearson. She only saw Doctor attempt to grab Furby and stop him

from hitting Pearson. Michelle, however, was not present for the entire fight, as she left

when she saw Doctor trying to pull Furby away from Pearson.

Finally, Norma Dunn, who lived with Pop, testified. She emerged from her room

to find Furby and Pearson in an altercation. She witnessed Doctor attempt to break up the

fight but did not see Doctor punch Pearson. Norma did not witness the entire incident, but

she did see the men separated onto different couches at the fight’s conclusion before

returning to her room.

B.

After hearing all of the evidence, the district court decided “to swallow hard and . . .

accept Mr. Pearson’s version of what happened.” J.A. 161. The court found Pearson

credibly testified that “he was assaulted and punched in the face by Chris Doctor and also

by Frankie Doctor, Chris’ father, who is the defendant here.”

The court “observed the

demeanor of the various witnesses with the sharply conflicting versions of what happened.”

The court noted that some defense witnesses had not seen the entire fight; they only

saw Doctor trying to pull Furby off of Pearson. Ultimately, the court found the government

proved by a preponderance of the evidence that Doctor punched Pearson.

The court then turned to the grade of the supervised release violation, which

depended on whether the assault constituted a crime of violence under the Sentencing

Guidelines. The court determined this analysis should be based on the defendant’s actual

conduct, rather than the categorical approach, citing an application note to Guideline

8 § 7B1.1 that indicates “the grade of the violation is based upon the defendant’s actual

conduct.” J.A. 162. With no published authority from this Court, the district court was

persuaded by an out-of-circuit case that relied on the defendant’s conduct.

Turning to the actual conduct in this case, the court found that Doctor punching

Pearson twice in the face constituted a crime of violence and thus a Grade A violation. As

such, Violation One would have carried a Guidelines range of 33 to 41 months but was

limited by a statutory maximum of 24 months. If this had been a Grade B violation—as

in, not a crime of violence—the Guidelines would have set forth a range of 21 to 27 months,

still capped by the 24-month maximum. The court also adopted the supervised release

violation report, which identified Violation One for second-degree assault and battery as a

Grade A violation. Like a presentence report (“PSR”), the report set forth the conduct

underlying the violation, the relevant Guidelines range, and the statutory maximum.

The court sentenced Doctor to 12 months and 1 day on Violation One, with 12

months of supervised release to follow. 6 The additional day, which defense counsel

requested, would enable Doctor to shorten his sentence through good behavior. The court

noted that even if it erred in its legal analysis regarding the grade of the violation, it would

depart upward as necessary to reach a sentence of 12 months and 1 day. The court

explained that it varied downward partly because Doctor had overserved his original

sentence before obtaining relief pursuant to Johnson. The court also discussed the

applicable

(a) factors to explain why the sentence was reasonable.

6 The court imposed a concurrent sentence of time served on Violation Two but failed to impose a sentence for Violation Three. 9 Doctor timely appealed as to Violation One.

II.

On appeal, Doctor first argues the district court erred by revoking his supervised

release because the government did not prove he participated in the fight, and in any event,

the resulting injuries were insufficient to meet the requirements for second-degree assault

and battery. Second, assuming the government proved the assault, the district court failed

to articulate what offense Doctor committed that constituted a Grade A violation—meaning

it qualified as a crime of violence under the Sentencing Guidelines. Finally, the district

court should have used the categorical approach, rather than Doctor’s actual conduct, to

determine whether he committed a crime of violence. The categorical approach would lead

to the conclusion that South Carolina second-degree assault and battery is overbroad and

therefore not a crime of violence. Accordingly, Doctor committed at most a Grade B

violation, which would have resulted in a lower Guidelines range for sentencing.

In response, the government argues that it established Doctor committed second-

degree assault and battery. Furthermore, the district court announced Doctor’s offense by

adopting the violation report, which specified second-degree assault and battery as the new

criminal conduct in Violation One. The court also properly relied on Doctor’s actual

conduct to determine he committed a crime of violence and thus a Grade A violation.

Alternatively, the court should have applied the modified categorical approach, which

would have led to the same conclusion. In any event, even if the district court erred in its

10 analysis, the government argues the error was harmless because the court would have

imposed the same sentence regardless of any error.

A.

We turn first to whether the district court erred by finding the government proved

Violation One by a preponderance of the evidence. See

(e)(3) (permitting

courts to revoke supervised release upon finding a violation by a preponderance of the

evidence). “This standard requires only that the existence of a fact be more probable than

its nonexistence.” United States v. Padgett,

(4th Cir. 2015) (internal

quotation marks and citation omitted).

We review a district court’s decision to revoke supervised release for abuse of

discretion.

. But we review the factual findings underlying a revocation for clear

error.

“Under the clear error standard, we will only reverse if ‘left with the definite

and firm conviction that a mistake has been committed.’” United States v. Savage,

(4th Cir. 2018) (quoting Anderson v. Bessemer City,

(1985)). When factual findings are based on the credibility of witnesses, we give great

deference to the district court’s determinations. United States v. Hall,

(4th Cir. 2012). We typically only disturb credibility determinations when objective

evidence contradicts the witness’ story or the story is so internally inconsistent or

implausible that a reasonable finder of fact would not credit it. United States v. McGee,

(4th Cir. 2013).

11 i.

In this case, despite Pearson’s involvement with drugs and alcohol, the district court

“observed [his] demeanor” as he testified and found his version of events credible. J.A.

161. On appeal, we see nothing so internally inconsistent or implausible about the account

Pearson gave—as the victim of the assault—that would cause us to disturb the district

court’s credibility determination. See McGee,

.

Aside from initially telling paramedics on the scene that he did not know what

happened, Pearson consistently reported to police and medical personnel that two males

assaulted him, even though he did not always identify his attackers by name. See, e.g., J.A.

203, 207 (telling VA staff that two unknown men—an individual and his father—“jumped”

him). He informed an officer on the night of the incident that his assailants might have

been “one of the Doctor brothers and the father.” J.A. 228. He twice reported to

Investigator Torres that Furby and Doctor had assaulted him. Additionally, Pop, whose

statement the court accepted through Torres, witnessed both Furby and Doctor hitting

Pearson.

Doctor’s witnesses, including his sister and girlfriend, testified that they did not see

Doctor punch Pearson. But most of them did not see the entire fight. Jenny and Michelle

left before the fight ended, and Norma did not come out of her room in time to see the

beginning of the fight. While Doctor’s son, Furby, was present for the entire fight, he

admitted his memory was blurred by drugs and alcohol. Moreover, Furby noted that

although he did not see Doctor punch Pearson, he could not attest to what he did not see.

12 There is no evidence in the record that directly contradicts Pearson’s version of

events or makes his testimony implausible to a reasonable factfinder. Accordingly, we will

not disturb the district court’s credibility determination. Based on Pearson’s credible

testimony, the district court did not clearly err by finding that Doctor punched Pearson. 7

ii.

Because the district court did not err in finding that Doctor punched Pearson, the

next question is whether Doctor’s conduct qualified as second-degree assault and battery,

the offense set forth in the violation report. Under South Carolina law, a person commits

second-degree assault and battery:

if the person unlawfully injures another person, or offers or attempts to injure another person with the present ability to do so, and:

(a) moderate bodily injury to another person results or moderate bodily injury to another person could have resulted; or

(b) the act involves the nonconsensual touching of the private parts of a person, either under or above clothing.

(D)(1). “Moderate bodily injury” as set forth in subsection (a)

means:

physical injury that involves prolonged loss of consciousness, or that causes temporary or moderate disfigurement or temporary loss of the function of a bodily member or organ, or injury that requires medical treatment when the treatment requires the use of regional or general anesthesia or injury that results in a fracture or dislocation. Moderate bodily injury does not include

7 When announcing its findings, the district court remarked that Doctor struck Pearson at the “conclusion” of the fight. J.A. 161. Doctor contends the court erred since Pearson had a pillow over his head at the end of the fight and did not know who punched him at that point. But the court’s mischaracterization of Pearson’s testimony does not mean it clearly erred by adopting Pearson’s version of events; indeed, Pearson’s testimony unequivocally described Doctor punching him before he placed the pillow over his head. 13 one-time treatment and subsequent observation of scratches, cuts, abrasions, bruises, burns, splinters, or any other minor injuries that do not ordinarily require extensive medical care.

§ 16-3-600(A)(2). Doctor asserts that because Pearson did not suffer a moderate bodily

injury, he committed at most a lesser degree of assault.

A person, however, can be guilty of second-degree assault and battery if “moderate

bodily injury to another person could have resulted.” Id. § 16-3-600(D)(1) (emphasis

added). Here, the evidence showed that Pearson required stitches, his eye swelled shut, his

tongue was bruised, his vision suffered, and he experienced prolonged jaw pain and

headaches. Even if these do not constitute moderate bodily injuries, we see no clear error

in finding that punching Pearson in the face as described in the record could have resulted

in “prolonged loss of consciousness,” “disfigurement or temporary loss of the function of

a bodily member or organ,” medical treatment requiring “the use of regional or general

anesthesia,” or “a fracture or dislocation,” as set forth in the statute. Id. § 16-3-600(A)(2).

Indeed, Doctor points us to no case that instructs otherwise. 8

Thus, Doctor’s argument that Pearson did not suffer the necessary injuries for

second-degree assault and battery does not leave us “with the definite and firm conviction”

that the district court made a mistake in finding Doctor committed Violation One. Savage,

. The district court did not clearly err in this regard.

8 Furthermore, because the statute only requires the possibility of moderate bodily injury, Doctor’s attempt to parse out which assailant actually caused which of Pearson’s injuries is unavailing. 14 B.

Doctor next asserts the district court procedurally erred by failing to announce that

Doctor committed second-degree assault and battery. He claims that the district court’s

failure thwarts appellate review because this Court cannot discern what offense Doctor

committed in Violation One. Because he raises this issue for the first time on appeal, we

apply plain error review. United States v. Webb,

(4th Cir. 2013). Thus,

Doctor must show (1) the district court erred; (2) the error was plain; and (3) the error

affected his substantial rights, meaning it affected the outcome of the proceedings. United

States v. Olano,

, 732–34 (1993). The error also must have seriously affected

the fairness, integrity, or public reputation of the proceedings.

.

Doctor points to a Third Circuit case in which the district court had erred by failing

to indicate the particular crime the defendant committed as a violation of his supervised

release. See United States v. Carter,

, 192–93 (3d. Cir. 2013). Instead, the

district court merely stated that the defendant committed “a forcible sexual offense.”

. The appellate court could not determine whether the offense was a crime of

violence under the Guidelines because doing so would require speculating as to which

federal or state offense the district court believed the defendant committed. 9

.

Here, by contrast, we need not speculate about the district court’s findings. The

court stated on the record—more than once—that it adopted the violation report for

purposes of sentencing. In adopting the report, the court overruled Doctor’s objection to

9 The Third Circuit ultimately did not need to decide whether the offense was a crime of violence, because the district court’s error was harmless. Carter,

. 15 it. The report specified that Violation One was based on Doctor’s arrest for second-degree

assault and battery. Nothing in the record suggests the district court meant to find Doctor

committed anything other than second-degree assault and battery. Accordingly, unlike in

Carter, we are not precluded from meaningful review of the district court’s decision.

Even if the district court erred in announcing Doctor’s offense by adopting the

violation report, that error was not plain. Indeed, this Court has held that when resolving

objections to a PSR, a district court “may simply adopt the findings contained in a PSR,

provided that it makes clear which disputed issues were resolved by its adoption,” thus

allowing for effective appellate review. United States v. Bolden,

(4th

Cir. 2003) (internal quotation marks and citation omitted). The “court need not articulate

[findings] as to disputed factual allegations with minute specificity.”

(alteration in

original). The principles set forth in Bolden could logically extend from PSRs to

supervised release violation reports, such that any error by the district court was not “clear”

or “obvious.” 10 Olano,

. In any event, Doctor has not identified how this

lack of clarity affected his substantial rights pursuant to Olano’s third prong.

Thus, the district court did not commit plain error by adopting the violation report

when announcing Doctor committed Violation One.

10 We recognize that PSRs and violation reports are distinct documents prepared for separate criminal proceedings. But for purposes of this appeal, the district court did not plainly err by adopting the violation report like a court would adopt a PSR at sentencing. 16 C.

Next, we turn to the district court’s decision that Doctor’s commission of South

Carolina second-degree assault and battery constituted a crime of violence under the

Guidelines. Doctor argues the court should have applied the categorical approach to

determine his offense was not a crime of violence and thus not a Grade A violation, which

would have resulted in a lower Guidelines range for sentencing.

i.

Under the Sentencing Guidelines, a Grade A violation involves, for purposes of this

appeal, an offense punishable by a term of imprisonment exceeding one year that is a

“crime of violence.” U.S.S.G. § 7B1.1(a)(1). The Guidelines define “crime of violence”

as an offense that “has as an element the use, attempted use, or threatened use of physical

force against the person of another.” 11 Id. § 4B1.2(a)(1). A Grade B violation, on the other

hand, involves only an offense punishable by a term of imprisonment exceeding one year.

Id. § 7B1.1(a)(2). Because South Carolina second-degree assault and battery carries the

possibility of imprisonment for more than one year, it could qualify as either a Grade A or

a Grade B violation.

(D)(2). Thus, to determine the violation

grade, we must ask whether second-degree assault and battery is a crime of violence.

To answer that question, the district court examined Doctor’s actual conduct. Since

Doctor’s revocation hearing, however, this Court has applied the categorical approach to

11 The definition also includes certain delineated offenses, such as murder and aggravated assault, none of which are relevant here. U.S.S.G. § 4B1.2(a)(2). Although the government argued Doctor committed aggravated assault below, that argument is not made on appeal. 17 decide whether a state offense is a crime of violence under the Guidelines. United States

v. Simmons,

(4th Cir. 2019) (“To determine whether North Carolina

[assault with a deadly weapon on a government official] is a ‘crime of violence’ under the

Sentencing Guidelines, we apply the familiar categorical approach.”). Accordingly,

application of the conduct-specific approach in these circumstances is not proper.

The categorical approach examines only the elements of the offense.

.

“[I]f the offense can be committed without satisfying the definition of crime of violence,

then it is overbroad and not a categorical match.”

at 316–17 (internal quotation marks

and citation omitted). Doctor argues that an individual can commit second-degree assault

and battery by “nonconsensual touching,”

(D)(1)(b), which the

Supreme Court has excluded from the Guidelines’ definition of a crime of violence. United

States v. Salmons,

, 448–49 (4th Cir. 2017). Thus, Doctor asserts, the statute

is overbroad and his offense is not categorically a crime of violence.

The government argues that we should apply the modified categorical approach,

since the South Carolina statute is “divisible,” meaning it defines multiple crimes. Mathis

v. United States,

(2016). Under this approach, we determine which

crime a defendant committed and apply the categorical approach only to that offense.

In the government’s view, the statute sets forth two crimes, one involving moderate bodily

injury, and one involving nonconsensual touching. See United States v. Butler,

, 196 (4th Cir. 2019) (applying the modified categorical approach to

(D)(1) based on the parties’ agreement). Because Doctor committed the

18 former crime, the government says, we need only examine whether that constitutes a crime

of violence, and it does.

ii.

But we need not decide whether the categorical or modified categorical approach

applies to South Carolina second-degree assault and battery because, even if the district

court erred in concluding the offense was a crime of violence, the error was harmless.

We review a sentence under a “deferential abuse-of-discretion standard.” United

States v. McDonald,

(4th Cir. 2017). We first examine whether the

district court committed a procedural error, and if we find none, we consider the substantive

reasonableness of the sentence.

“We will not disturb a district court’s revocation

sentence unless it falls outside the statutory maximum or is otherwise plainly

unreasonable.” Padgett,

(internal quotation marks and citation omitted).

It is not necessary, however, to vacate a sentence based on an alleged Guidelines

error if we can determine from the record that the error is harmless. McDonald,

. Indeed, “it would make no sense to set aside [a] reasonable sentence and send the

case back to the district court” when the court “has already told us that it would impose

exactly the same sentence, a sentence we would be compelled to affirm.”

.

Instead, we may assume that a sentencing error occurred and proceed to examine whether

the error affected the defendant’s sentence.

. There are two prongs of this

“assumed error harmlessness inquiry.”

First, we require “knowledge that the district

court would have reached the same result even if it had decided the [G]uidelines issue the

19 other way.”

Second, we must make “a determination that the sentence would be

reasonable even if the [G]uidelines issue had been decided in the defendant’s favor.”

For purposes of this analysis, we assume Doctor’s offense was not a crime of

violence and turn to (1) whether the district court would have arrived at the same sentence

if it had found Doctor committed a Grade B violation, and (2) whether that sentence is

reasonable. As for the first question, the district court made clear that even if it erred, it

“would depart upward if necessary” to reach 12 months and 1 day. J.A. 187. The court

believed the sentence was “appropriate . . . based on the totality of the record,” which

included Doctor’s over-service of his original sentence.

Noting the statutory maximum

was 24 months regardless of the violation grade, the court decided “to split it down the

middle at 12 months and [1] day.” J.A. 186. Thus, “the district court’s sentencing intent

was . . . clear from the record.” McDonald,

; see also United States v.

Gomez-Jimenez,

(4th Cir. 2014) (finding the district court made its intent

clear: “If, however, for some reason someone were to determine that I did not [properly

calculate the advisory Guidelines range], I announce an alternative variant sentence[.]”).

Next we must decide if Doctor’s sentence is substantively reasonable. This entails

looking to “the totality of the circumstances to see whether the sentencing court abused its

discretion in concluding that the sentence it chose satisfied the standards set forth in [18

U.S.C.] § 3553(a).” Gomez-Jimenez,

. When revoking a defendant’s term

of supervised release, a court must consider certain factors set forth in § 3553(a), including

the nature and circumstances of the offense, the history and characteristics of the defendant,

20 the need to afford adequate deterrence, and the need to protect the public. See

(e) (citing § 3553(a)).

In this case, the district court adequately addressed the relevant § 3553(a) factors

when imposing Doctor’s sentence. As for the nature and circumstances of the offense, the

court found Doctor had committed a “serious offense” when he and Furby repeatedly

punched Pearson and caused bruising and lacerations. J.A. 187. Doctor had a criminal

history at the top of the scale and his original PSR listed numerous previous convictions,

leading the court to observe he had “a significant criminal history.” J.A. 188. The court

also considered the need for adequate deterrence and to protect the public from Doctor.

Additionally, and importantly, the district court imposed a sentence well below the

Guidelines range for either a Grade A violation or a Grade B violation. Cf. Gomez-

Jimenez,

(Gregory, J., concurring in part and dissenting in part) (noting the

sentence imposed exceeded what would have been the Guidelines range absent the court’s

calculation error). The court sentenced Doctor to 12 months and 1 day, even though the

range for a Grade A violation was 24 months pursuant to the statutory maximum. But the

sentence also fell considerably below the range for a Grade B violation, which was 21 to

24 months. In other words, Doctor’s sentence was lower than the Guidelines would have

advised if the court had found no crime of violence. Thus, the court did not “anchor” the

sentence “to an improperly calculated Guidelines range.” Simmons,

.

We cannot find—nor does Doctor cite—a reason that this variant sentence would

be substantively unreasonable if the court had found he committed a Grade B violation.

21 Accordingly, even if the district court erred in sentencing Doctor for a Grade A violation,

the error was harmless.

III.

For the foregoing reasons, the judgment of the district court is

AFFIRMED.

22