Beruflich Dokumente
Kultur Dokumente
No. 14-4211
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.
Richard L.
Voorhees, District Judge. (5:13-cr-00054-RLV-DSC-1)
Argued:
Decided:
Aaron
Eugene
Shell
(Shell)
pleaded
an
enhanced
base
offense
level
on
the
ground
that
crime
of
Manual
violence
under
(U.S.S.G.
the
or
U.S.
the
Sentencing
Guidelines)
2K2.1(a)(4)(A) (2014).
level
obstruction
enhancement
for
of
justice
pursuant
to
enhancements.
For
the
reasons
that
follow,
we
vacate
I.
On
December
27,
2012,
Shell
was
driving
southbound
on
North Carolina
By the time
Hodges was able to complete the turn, Shell had disappeared from
sight.
But
in
short
order,
Hodges
discovered
that
Shells
pistol.
Several
days
later,
Shell
voluntarily
was
charged
with
one
count
of
being
felon
in
guilty.
The
presentence
report
(PSR)
recommended
after
prior
felony
conviction
for
crime
of
The
PSR
also
recommended
two-level
enhancement
for
officer
bodily
created
injury
to
substantial
another
risk
person.
of
death
Applying
or
those
At sentencing, the
under
3C1.2,
the
3
district
As to reckless
court
credited
witness who testified that Shell sped, skidded, and almost hit
her vehicle, and thus concluded that Shell created a substantial
risk of death in the course of fleeing from a law enforcement
officer.
rape
conviction
qualified
as
crime
of
violence
under
2K2.1.
The district court adopted the PSR and sentenced Shell to
57 months imprisonment and three years of supervised release.
Shell appeals, challenging the district courts application of
both enhancements.
II.
A.
Under
felon
in
the
Guidelines,
possession
of
defendant
firearm
convicted
receives
an
of
being
enhanced
base
n.1.
Shell
argues
that
the
U.S.S.G. 2K2.1
district
court
erred
in
constructive
force
or
the
absence
of
legally
United States
valid
what
is
called
the
categorical
approach,
which
the law defines the offense generically, and not the particulars
of how an individual might have committed the offense on a given
occasion.
United States v. Seay, 553 F.3d 732, 737 (4th Cir. 2009).
The
question
we
must
decide,
then,
is
whether
the
full
crime
of
violence
4B1.2 enhancement.
for
purposes
of
the
state
offense
is
deemed
categorically
overbroad
and
F.3d 373, 376 (4th Cir. 2013) (quoting Diaz-Ibarra, 522 F.3d at
348).
qualifies
as
crime
of
violence
5
under
this
approach
is
question of first impression for our court, and for the reasons
that follow, we agree with Shell that it does not.
B.
In comparing the elements of North Carolina second-degree
rape to 4B1.2s definition of crime of violence, we begin
with
the
construing
North
Carolina
it.
North
statute
Carolinas
and
the
state
second-degree
precedent
rape
statute
conviction
do
not
specify
which
subsection
of
the
statute formed the basis for his conviction, the parties agree,
that conviction may be treated as a crime of violence only if
both subsections so qualify.
The
first
subsection
is
applicable
where
sexual
2008).
State v.
Constructive force
Atkins,
rape
intercourse).
of
mentally
disabled
victim
who
initiated
we
are
adding
incapacitated,
persons
or
who
physically
are
mentally
helpless.
defective,
This
is
mentally
basically
other
point
of
comparison
is
the
phrase
crime
of
As will become
crime
of
violence
differently.
But
Shells
sentence
was
defines
guideline,
that
U.S.S.G.
term
by
reference
4B1.2.
to
U.S.S.G.
the
career-offender
2K2.1
cmt.
n.1.
part:
Crime of violence includes murder, manslaughter,
kidnapping, aggravated assault, forcible sex offenses,
robbery, arson, extortion, extortionate extension of
credit, and burglary of a dwelling.
U.S.S.G. 4B1.2 cmt. n.1 (emphasis added).
In
its
argument,
the
government
skips
past
the
text
of
(where
commentary
is
inconsistent
with
text,
text
circuit
courts,
as
well
as
our
own
court
in
an
unpublished
2009)
relationship
(sexual
not
battery
based
categorically
on
coercive
crime
of
nature
violence
of
under
2011)
(unpublished)
(third-degree
rape
and
aggravated
U.S.S.G.
4B1.2(a)(1).
For
these
purposes,
the
violent
force
that
is,
force
capable
of
causing
We think
it clear that the second subsection of North Carolinas seconddegree rape statute, which does not require the state to prove
force at all and may instead be violated if there is legally
insufficient
consent,
does
not
meet
this
violent
force
do
offense
we
believe
qualifies
that
as
North
Carolinas
crime
of
violence
second-degree
under
rape
4B1.2s
or
otherwise
involves
conduct
that
presents
Sex
offenses
are
not
among
the
U.S.S.G.
enumerated
crimes.
That
See
United States v. Thornton, 554 F.3d 443, 44649 (4th Cir. 2009)
(conviction for statutory rape does not fall within residual
clause); see also Leshen, 453 F. Appx at 41314 (same).
That
precedent
governs
here.
Like
the
statutory
rape
as
to
which,
we
feel
12
unable to consent.
That does
not mean, of course, that the crime is not serious; but it does
mean, we held in Thornton, that unlike the crimes enumerated in
the career-offender guideline, it does not support an inference
that
any
or
aggressive.
all
instances
of
the
offense
are
violent
and
Thornton, 554
statute
criminalizes
sexual
intercourse
distinction
applicable here.
renders
the
logic
of
with
those
any
less
and
there
is
at
least
a
13
realistic
probability,
Diaz-
Ibarra,
522
F.3d
at
348,
that
the
statute
would
apply
in
with
victim
whose
consent
is
legally
invalid
Indeed,
statute
as
analogous
to
its
statutory
rape
law.
See
Thornton controls
rape
statute
is
not
categorically
crime
of
D.
We turn now to the governments argument on appeal.
The
4B1.2s
argument
as
crime
definition.
entirely
on
the
of
violence
Instead,
under
the
commentary
to
either
government
4B1.2,
clause
rests
which
of
its
lists
that
because
sex
resting
on
legally
16
prior
felony
crimes of violence.
crime
of
violence
or
misdemeanor
The text
under
which
by
reference
incorporate
crime of violence.
Shell
was
4B1.2s
sentenced,
it
does
not
two-clause
definition
of
United
States
v.
Chacon,
we
applied
2L1.2
to
who
physically
is
mentally
helpless.
defective,
mentally
incapacitated,
or
At
We
held,
an
first,
that
the
Maryland
offense
did
not
have
as
Id. at 25658.
In the absence of a
whole,
which
expressly
enumerates
the
similar
is
Chacons
common
meaning
we
forcible
have
sex
established
offenses,
the
that
of
See id.
analysis
on
which
the
common
common
offenses
meaning
meaning
of
stays
the
the
phrase
same,
18
Appellees
Br.
25
(It
is
difficult
to
imagine
how
We appreciate
States, 135 S. Ct. 1074, 1082 (2015) (In law as in life, [] the
same
words,
placed
in
different things.).
different
contexts,
sometimes
mean
Chacons
inability
to
conclusion
consent
that
qualify
as
offenses
forcible
presuming
sex
offenses
the
under
crime
provides
4B1.2
violence
in
of
its
violence
a
entirely
separate
text,
with
through
two-part
the
that
definition
commentary
commentary,
of
serving
crime
of
only
to
So in
See
[f]orcible
Leshen,
sex
453
F.
offenses
Appx
at
415
does
not
(under
have
4B1.2,
freestanding
v.
Benkahla,
(recognizing
530
courts
F.3d
duty
300,
to
312
(4th
harmonize
Cir.
2008)
Guidelines
and
commentary).
comes
glossed
to
us
by
Supreme
Court
and
Fourth
Circuit
United
States,
markedly
different
different
structures
508
U.S.
223,
interpretive
of
the
228
(1993))).
enterprises,
provisions,
and
20
Those
driven
it
should
by
be
are
the
no
suggests
broader
reading
of
the
term
crime
of
As we
sex
offenses
but
also
other
offenses
that
do
not
533
Section
guideline
sweeps
further
and
expressly
at
575;
see
Leshen,
453
F.
Appx
at
41516.
cover[s]
Wynn, 579
Reading
we
think
it
is
multiple
and
different
clear
that
the
Sentencing
of
crime
of
the same scope each time it appeared, then the obvious solution
would have been to provide one uniform definition, applicable
throughout.
violence
enhancements
for
different
underlying
crimes.
The
who
trigger.
might
deliberately
point
the
gun
and
pull
the
F.3d at 1188.
Second, in 2008 and after we decided Chacon, the Sentencing
Commission
amended
the
guideline,
adding
commentary
to
parenthetical:
2L1.2s
forcible
immigration
sex
offenses
valid,
such
as
where
consent
to
the
conduct
is
U.S.S.G. 2L1.2
cmt.
same
n.1(B)(iii)
(emphasis
added).
At
the
time,
the
amend.
722,
at
302
(2011)
(emphases
added).
[T]he
logical
inclusion
of
invalid-consent
offenses
in
2L1.2
4B1.2);
Leshen,
453
F.
Appx
at
41516
(relying
on
rape
4B1.2.
is
not
categorically
crime
of
violence
under
23
III.
The
district
Guidelines
court
3C1.2,
for
also
enhanced
recklessly
Shells
creat[ing]
sentence
a
under
substantial
of
fleeing
from
law
enforcement
officer.
Shell
Cir. 2010).
A.
Our court has not addressed whether the 3C1.2 enhancement
applies if the defendant was unaware that he was being pursued
by an officer.
242 F.3d 1080, 1082 (8th Cir. 2001); United States v. Hayes, 49
F.3d 178, 18384 (6th Cir. 1995).
now
holding
adopt
that
defendant
that
the
was
reading,
3C1.2
unaware
joining
enhancement
that
he
was
our
sister
does
being
not
We agree,
circuits
apply
pursued
by
in
where
a
law
enforcement officer.
This interpretation of 3C1.2 comports with the Sentencing
Commissions reason for promulgating it.
provision
is
derivative
of
Guidelines
3C1.1,
the
The
different
from
other
forms
of
obstruction
of
made
applicable
to
resisting
arrest.
Id.
at
199.
25
Hayes, 49 F.3d
B.
At
sentencing
in
this
case,
the
parties
contested
both
As to reckless endangerment,
sought
to
rebut
that
testimony
J.A. 44-45.
primarily
through
the
of
pursuit
was
case
as
to
Shells
knowledge
police
Hodges
encountered
him
while
traveling
in
the
opposite
Hodges
Shell.
activated
his
siren
and
turned
around
to
follow
in
pursuit.
The
government,
for
its
part,
pointed
to
Shells flight from the scene of the accident and his admission
that he had seen Hodges at some point, though it was unclear
whether before or after Hodges activated his siren.
26
According
imposing
the
3C1.2
enhancement
at
sentencing,
the
5859.
The
final
sentence,
incorporating
the
ultimate
and
enforcement
district
did
so
in
officer.
court
did
not
the
course
U.S.S.G.
have
the
of
3C1.2.
benefit
fleeing
But
of
from
law
because
the
the
ruling
we
And
so
that
the
district
court
may
apply
our
newly
announced
IV.
For the foregoing reasons, we vacate the district courts
judgment
and
remand
for
resentencing
consistent
with
this
opinion.
VACATED AND REMANDED
28
Carolinas
predatory
acts
individuals.
one
must
second-degree
committed
against
rape
statute
societys
punishes
most
vulnerable
have
taken
advantage
of
mentally
or
physically
N.C. Gen.
Stat.
considered
14-27.3(a)(2).
This
law
protects
people
majority,
proposition:
intercourse
however,
that
with
asks
us
defendant
another
to
who
accept
engages
person . . . [w]ho
disquieting
in
is
vaginal
mentally
A proper reading of
the law confirms the common intuition about the nature of this
crime.
It
inherently
involves
the
kind
of
force
that
is
the
United
States
Sentencing
Guidelines.
U.S.S.G.
4B1.2(a)(1) & cmt. n.1. Both this court and North Carolinas
courts have specifically recognized the forcible nature of these
sorts of acts, and rightly so.
29
I.
Under the Guidelines provisions for firearms offenses, a
defendant who previously sustained a felony conviction for a
crime
level.
of
violence
is
subject
to
U.S.S.G. 2K2.1(a)(4)(A).
heightened
base
offense
referencing
Guidelines
the
provision
commentary
for
explains,
career
the
offenders).
term
crime
of
As
the
violence
kidnapping,
aggravated
assault,
forcible
sex
Commission is authoritative.
30
A.
Was Shells prior crime a forcible sex offense?
with the state statute under which he was convicted. 2
We begin
Our charge
classify
as
second-degree
rape.
This
is
31
definition of crime of violence (quoting Gonzales v. DuenasAlvarez, 549 U.S. 183, 193 (2007))).
North Carolina defines the felony of second-degree rape as
follows:
(a) A person is guilty of rape in the second degree if
the person engages in vaginal intercourse with another
person:
(1) By force and against the will of the other
person; or
(2)
Who
is
mentally
disabled,
mentally
incapacitated, or physically helpless, and the
person
performing
the
act
knows
or
should
reasonably know the other person is mentally
disabled, mentally incapacitated, or physically
helpless.
N.C. Gen. Stat. 14-27.3(a)(1)-(2).
who is
unable
sexual
an act
Id. 14-27.1(1)-(3).
The victims under this North Carolina law cannot comprehend the
situation or resist the aggressors sexual advances.
In one way
specify
whether
was
convicted
(a)(2).
under
subsection
(a)(1)
or
The majority could scarcely argue that subsection (a)(1) -which criminalizes sex [b]y force and against the will of the
other person, N.C. Gen. Stat. 14-27.3(a)(1) -- falls short of
a crime of violence.
evident.
Shells only
But
raping
mentally
disabled,
mentally
B.
In addressing the nature of this North Carolina predicate
offense, I must first acknowledge the validity of the majoritys
33
concerns.
It
is
important
violence metastasize.
not
to
let
predicate
crimes
of
state
statute
applications.
quite
wrong
is
in
reality
capable
of
many
nonviolent
expand
nonviolent rape.
the
whole
concept
of
nonforcible
or
rape
in
North
Carolina
involves
the
three
2006);
see
N.C.
Stat.
14-27.3(a)(1)-(2).
The
740
F.3d
152,
154
(4th
Cir.
2014)
(en
banc).
The
Second-degree rape
may
actual,
assume
various
constructive,
legal
implied
--
force.
34
labels
but,
in
different
under
any
cases
name,
it
-is
North
The
the
difference
modern
second-degree
whether
the
rape
indictment
Id. at 505.
statute,
alleges
it
that
makes
the
no
vaginal
by
or
with
whether
an
it
alleges
incapacitated
merely
victim,
(a)(2),
sexual
the
as
in
vaginal
14-
In the instances
intercourse
with
the
victim is ipso facto rape because the force and lack of consent
are implied in law.
In
Holden,
450
S.E.2d
878,
884
35
(N.C.
1994)
(emphasis
State
added)
(discussing
N.C.
Gen.
Stat.
15A-2000(e)(3)).
In
North
Id. at 884.
the
defendant
argued
that
his
prior
conviction
In
for
of
violence
conviction
mentally
could
under
have
disabled,
helpless.
N.C.
North
involved
mentally
Gen.
Stat.
Carolina
sex
with
law,
a
because
person
incapacitated,
14-27.3(a)(2).
the
who
was
or
physically
But
the
court
victim
whether
refuses
the
victim
to
consent,
cannot
as
consent
in
subsection
because
of
Whether
(a)(1),
or
mental
or
Id. at 884-85.
to
having
sexual
with
person
who
is
Id.
at
884
(emphasis
added).
In
interpreting
for
clearer
mandate
from
the
states
highest
court.
The
Id.
The Court of
intercourse.
Ct.
App.
State
2008).
v.
The
Haddock,
stipulated
664
S.E.2d
conditions
339,
of
344
mental
Washington, 506 S.E.2d 283, 290 (N.C. Ct. App. 1998); State v.
Martin, 485 S.E.2d 352, 354 (N.C. Ct. App. 1997) (Wynn, J.);
State v. Aiken, 326 S.E.2d 919, 926 (N.C. Ct. App. 1985).
The majority too quickly dismisses the force clause of
the career-offender Guidelines provision, 4B1.2(a)(1), and too
readily
assails
4B1.2(a)(2).
the
straw
man
of
the
residual
clause,
involves
that
to
use
presents
another.
of
a
explosives,
serious
U.S.S.G.
37
or
potential
otherwise
risk
4B1.2(a)(2).
involves
of
physical
The
majority
But the differences between that case and this are night
and day.
n.2
(emphasis
added)
--
quite
unlike
North
Carolinas
obviously did not apply, id. at 446, all that remained was the
residual clause, which the court understandably deemed a poor
fit, id. at 446-49.
C.
The
majority
maintains
that
the
rape
of
mentally
analogous
to
statutory
rape.
The
shared
logic
of
those
consent
disability.
a
by
virtue
of
Maj. Op. at 7.
preliminary
matter,
age
or
by
It
is
instead
defined
of
mental
North
Carolinas
virtue
second-degree
As
rape
the
38
victims
mental
or
physical
Unlike
with
statutory
rape,
the
extent
of
the
(N.C.
2012).
Such
circumstances,
based
on
persons
of
the
victims
age.
United
States
v.
Rangel-
Castaneda, 709 F.3d 373, 380 (4th Cir. 2013) (emphasis added).
Indeed, we specifically held that a Tennessee statutory rape
conviction
did
not
qualify
as
39
forcible
sex
offense.
Id.
or
communicating
resistance
--
against
the
her
apparent
attacker.
inability
to
actively
oppose
or
resist
her
612, 615 (N.C. Ct. App. 2012) (noting that the factors and
attributes examined in Atkins were unique and personal to the
victim),
(N.C.
affd
2013)
comparing
by
(per
an
equally
curiam).
second-degree
rape
divided
The
and
majority
case
--
and
the
Supreme
749
cites
statutory
court,
S.E.2d
another
rape.
case
State
v.
of
North
Carolina
279
Id.
rea requirement.
contains
convicted
under
known, or
N.C.
mens
rea
requirement.
(a)(2),
the
perpetrator
have
known,
should
disabled,
helpless.
strong
subsection
reasonably
mentally
mentally
Gen.
Stat.
that
incapacitated,
14-27.3(a)(2).
the
or
To
be
must
have
victim
was
physically
This
knowledge
crimes
of
rape
under
North
Carolina
law
--
besides
the
threshold
act
under
subsection
(a)(2)
is
sexual
Lack of legally
One wonders
41
D.
Force may involve the exertion of [p]ower, violence, or
pressure against another person.
(9th ed. 2009).
42
second-degree
rape
is
somehow
not
forcible
enough
to
be
the
Supreme
States,
559
Courts
U.S.
133
pronouncements
(2010).
See
in
Maj.
Johnson
Op.
at
v.
United
10-11.
But
Id. at 139.
For the
55.
modern
In
parlance,
the
various
definitions
of
force
Id.
the
circumscribed
North
Carolina
and
limited.
second-degree
The
forcible
rape
offense
nature
of
is
this
Nor
victims
the
quite
eludes
majoritys
view.
The
categorical
It should not
II.
The problems with the majoritys approach do not end at the
borders of North Carolina.
Our
A.
This
court
has
already
determined,
in
the
context
of
qualified
as
crime
of
violence.
United
States
v.
committed (1) [b]y force or threat of force against the will and
without the consent of the other person; (2) with a victim who
is
mentally
helpless,
defective,
when
the
mentally
perpetrator
incapacitated,
knows
or
or
physically
should
reasonably
(current
version
at
Md.
Code
Ann.,
Crim.
Law
3-
304(a)(1)-(3)).
In Chacon, we recognized the fundamentally forcible nature
of this crime.
reentering
concluded
statute
the
that
was
States,
violation
categorically
of
U.S.S.G.
2L1.2,
Marylands
forcible
sex
this
court
second-degree
offense
within
rape
the
The
Id. at
255-56.
Contrary to the majoritys suggestion, see Maj. Op. at 1723, this courts analysis in Chacon applies with equal if not
45
that applied to Shell, U.S.S.G. 2K2.1, 4B1.2, the illegalreentry Guidelines provision at issue in Chacon provided for a
sentencing enhancement if the defendant had previously sustained
a felony conviction for a crime of violence, id. 2L1.2.
In
provision
likewise
listed
forcible
sex
Chacon, 533
F.3d at 257; see Smith v. United States, 508 U.S. 223, 228
(1993).
Perusing
forcible,
the
dictionary
court
definitions
gleaned
of
force
significant
insight:
and
a
force
per
Properly
se.
Chacon,
understood,
the
effected
through
power
533
use
Id.
or
Maryland
statute
in
of
at
Chacon
257
force
(emphasis
necessarily
pressure,
F.3d
which
do
not
Id.
contained
provision
force
is
unnecessary,
some
degree
of
compulsion
is
at
255-56.
The
only
difference
between
Chacon, 533
this
case
and
Chacon is that this statute comes from North Carolina, while the
statute in Chacon came from Maryland.
B.
The majority makes much of a technical amendment to the
illegal-reentry
Guidelines
provision
that
became
effective
where
consent
incompetent, or coerced.
to
the
conduct
is
involuntary,
As
amendment
specifically
reinforces
the
interpretation
that
excluding
the
crime
majority
can
North
of
violence
only
implication.
The
Carolinas
second-degree
definition
grasp
at
the
trouble
is
that
under
thin
rape
4B1.2,
reed
the
statute
of
positive
the
negative
indications
the
modified
illegal-reentry
language
in
2L1.2
majoritys
force.
proffered
requirement
of
the
use
of
physical
language
in
requirement.
the
career-offender
provision
to
impose
such
to
do
so,
the
Commission
could
easily
have
Had it
added
to
cases
where
consent
to
the
conduct
was
48
merely
The
majority
professes
not
to
question
Chacons
Chacon
court,
however,
would
be
surprised
to
learn
its
C.
The
force.
North
Carolina
statute
requires
the
state
to
show
that, even if the statute does require force, that would still
be
insufficient,
accompanying
because
Guidelines
the
text
commentary
are
of
4B1.2
fatally
and
the
inconsistent.
The
in
finding
an
inconsistency,
the
majority
Id. at 40-41.
This is not an
contrary,
work.
need
the
Commission
Id. at 44-45.
not
be
simply
interpreting
On
its
own
compelled
(emphasis added).
is
Id. at 44.
by
the
guideline
text.
Id.
at
47
there
is
no
nettlesome
conflict
here
between
force,
as
U.S.S.G.
forcible
sex
4B1.2(a)(1),
offenses,
and
id.
felonies
4B1.2
that
cmt.
n.1.
or
physically
defenseless
victim,
these
are
simply
Gen.
Pointedly,
forcible
Stat.
the
sex
14-27.3(a)(1)-(2);
illegal-reentry
offenses
physical force.
with
supra
provision
any
other
Section
specifically
See
I.B.
equates
offense
involving
We should
to
disregard
the
settled
50
maxim
that
the
provision
of
specific
instructions,
conventional
function
of
Guidelines
See
On what basis is
D.
Finally, the majority reads too much into the fact that
certain other sex offenses appear in 2L1.2 but not 4B1.2.
See Maj. Op. at 21.
lists not only forcible sex offenses but also statutory rape
and sexual abuse of a minor as examples of crimes of violence.
U.S.S.G.
2L1.2
cmt.
n.1(B)(iii).
The
career-offender
is
4B1.2.
true
that
Chacon
involved
2L1.2
rather
than
sex
offenses)
inference,
rather,
is
with
simply
new
that
meaning.
the
The
Sentencing
proper
Commission
that
it
was
modifying
the
definition
of
forcible
sex
The normal
(quoting Dept of Revenue v. ACF Indus., Inc., 510 U.S. 332, 342
(1994)).
52
On the contrary,
Guidelines
provisions
--
would
assume
substantively
left
the
to
wonder
how
generic
definition
of
forcible
sex
majority
says
it
is.
In
fact,
in
advancing
view
of
confusing
and
contradictory
Guidelines
structure,
thus
create
jurisprudence.
crosscurrents
and
riptides
in
Guidelines
III.
I do understand that the circumstances surrounding sexual
interactions are often hazy, a fact that makes the preservation
of due process protections for accused persons a necessity in
all settings.
Doctrinal
reasoning,
but
analysis
upon
is
occasion
indispensable
it
can
lead,
to
judicial
increment
by
it
is
here:
the
real
need
to
protect
the
unthinking
the trauma and, yes, the violence that has been so visited upon
their very beings.
rape
of
someone
to
be
mentally
disabled,
mentally
55