US v. Aaron Shell

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 5:13-cr-00054-RLV-DSC-1. [999601136]. [14-4211]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4211

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
AARON EUGENE SHELL,
Defendant - Appellant.

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:

March 25, 2015

Decided:

June 12, 2015

Before WILKINSON and HARRIS, Circuit Judges, and DAVIS, Senior
Circuit Judge.

Vacated and remanded by published opinion.
Judge Harris wrote
the majority opinion, in which Senior Judge Davis joined. Judge
Wilkinson wrote a dissenting opinion.

ARGUED: Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Asheville, North Carolina, for Appellant.
William Michael Miller, OFFICE OF THE UNITED STATES ATTORNEY,
Charlotte, North Carolina, for Appellee.
ON BRIEF:
Ross Hall
Richardson, Acting Executive Director, FEDERAL DEFENDERS OF
WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for
Appellant. Anne M. Tompkins, United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for
Appellee.

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PAMELA HARRIS, Circuit Judge:
Defendant-Appellant

Aaron

Eugene

Shell

(“Shell”)

pleaded

guilty to being a felon in possession of a firearm, in violation
of 18 U.S.C. § 922(g) (2012).
applied

an

enhanced

base

At sentencing, the district court

offense

level

on

the

ground

that

Shell’s prior North Carolina conviction for second-degree rape
constituted
Guidelines

a

crime

of

Manual

violence

under

(“U.S.S.G.”

the

or

U.S.

the

Sentencing

“Guidelines”)

§ 2K2.1(a)(4)(A) (2014).

The district court also applied a two-

level

obstruction

enhancement

for

of

justice

pursuant

to

Guidelines § 3C1.2, concluding that Shell recklessly created a
substantial risk of death or serious bodily injury to another
person in the course of fleeing from a law enforcement officer.
On appeal, Shell challenges the district court’s application of
both

enhancements.

For

the

reasons

that

follow,

we

vacate

Shell’s sentence and remand for resentencing.

I.
On

December

27,

2012,

Shell

was

driving

Highway 321 in Caldwell County, North Carolina.

southbound

on

North Carolina

Trooper Christopher Hodges (“Hodges”), traveling northbound, saw
Shell speeding and turned around to follow him.

By the time

Hodges was able to complete the turn, Shell had disappeared from

2

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sight.

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But

in

short

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order,

Hodges

discovered

that

Shell’s

vehicle had veered off the road and down an embankment.
As he fled the scene of the accident, Shell discarded a bag
behind a tree.
semiautomatic

Officers searched the bag and found a loaded

pistol.

Several

days

later,

Shell

voluntarily

submitted to a police interview and admitted that he was the
driver of the vehicle and was in possession of the firearm.
Shell

was

charged

with

one

count

of

being

a

felon

in

possession of a firearm, in violation of 18 U.S.C. § 922(g), and
pleaded

guilty.

The

presentence

report

(“PSR”)

recommended

raising Shell’s base offense level from 14 to 20 under U.S.S.G.
§ 2K2.1(a)(4)(A), on the ground that Shell committed the instant
offense

after

a

prior

felony

conviction

for

a

“crime

of

violence” – here, a North Carolina conviction for second-degree
rape.

The

PSR

also

recommended

a

two-level

enhancement

for

obstruction of justice, pursuant to U.S.S.G. § 3C1.2, because
Shell's reckless driving in the course of fleeing from a law
enforcement
serious

officer

bodily

created

injury

to

a

substantial

another

risk

person.

of

death

Applying

or

those

provisions, the PSR calculated a Guidelines range of 57 to 71
months’ imprisonment.
Shell objected to both enhancements.

At sentencing, the

district court overruled Shell’s objections.
endangerment

under

§

3C1.2,

the
3

district

As to reckless
court

credited

a

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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

The court also held that Shell’s prior second-degree

conviction

qualified

as

a

“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 court’s application of
both enhancements.

II.
A.
Under
felon

in

the

Guidelines,

possession

of

a

a

defendant

firearm

convicted

receives

an

of

being

enhanced

a

base

offense level of 20 if he or she has committed a prior “crime of
violence,” as defined in Guidelines § 4B1.2.
cmt.

n.1.

Shell

argues

that

the

U.S.S.G. § 2K2.1

district

court

erred

in

characterizing his North Carolina conviction for second-degree
rape as a crime of violence because the state statute does not
require the use of physical force, and may instead be violated
through
consent.

constructive

force

or

the

absence

of

We review de novo that question of law.

legally

United States

v. Montes-Flores, 736 F.3d 357, 363 (4th Cir. 2013).
4

valid

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The parties agree that in considering whether Shell’s North
Carolina conviction constitutes a crime of violence, we must
apply

what

is

called

the

“categorical

approach,”

which

“focus[es] on the elements, rather than the facts,” of the prior
offense.

United States v. Carthorne, 726 F.3d 503, 511 (4th

Cir. 2013) (quoting Descamps v. United States, 133 S. Ct. 2276,
2285 (2013)).

What matters for the categorical approach is how

the law defines the offense generically, and not the particulars
of how an individual might have committed the offense on a given
occasion.

Begay v. United States, 553 U.S. 137, 141 (2008);

United States v. Seay, 553 F.3d 732, 737 (4th Cir. 2009).
The

question

we

must

decide,

then,

is

whether

the

full

range of conduct covered by North Carolina’s second-degree rape
statute, “including the most innocent conduct,” would qualify as
a

crime

of

violence

§ 4B1.2 enhancement.

for

purposes

of

the

United States v. Diaz-Ibarra, 522 F.3d

343, 348, 352 (4th Cir. 2008).

If it is “evident from the

statutory definition of the state crime that some violations of
the statute are ‘crimes of violence’ and others are not,” then
the

state

offense

is

§ 4B1.2 does not apply.

deemed

“categorically

overbroad”

and

United States v. Rangel-Castaneda, 709

F.3d 373, 376 (4th Cir. 2013) (quoting Diaz-Ibarra, 522 F.3d at
348).

Whether North Carolina second-degree rape categorically

qualifies

as

a

crime

of

violence
5

under

this

approach

is

a

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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 § 4B1.2’s definition of “crime of violence,” we begin
with

the

Carolina

it.

construing

North

North

statute

Carolina’s

and

the

state

second-degree

precedent

rape

statute

consists of two separate offenses, providing that:
(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 (West 2004).
Shell’s

conviction

do

not

specify

Because the records of

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

intercourse is effectuated by force and against the victim’s
will.”

State v. Atkins, 666 S.E.2d 809, 812 (N.C. Ct. App.

2008).

Under North Carolina law, that force requirement may be
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satisfied either by “actual, physical force or by constructive
force in the form of fear, fright, or coercion.”
Etheridge, 352 S.E.2d 673, 680 (N.C. 1987).

State v.

Constructive force

may be demonstrated by proof of compulsion or threats of force,
and also will be inferred from certain relationships - such as a
parent-child relationship – that are deemed inherently coercive.
See id. at 680–82; State v. Morrison, 380 S.E.2d 608, 611–12
(N.C. Ct. App. 1989).
The second subsection, by contrast, does not require the
state to prove either force or the absence of consent.
666 S.E.2d at 812.

Atkins,

Instead, it applies to victims who are

deemed by law incapable of validly consenting to intercourse or
resisting sexual acts,

State v. Williams, 698 S.E.2d 542, 544–

45 (N.C. Ct. App. 2010), and it is used by the state in cases
where there is factual but legally insufficient consent, see
State v. Ramey, No. COA10–1197, 2011 WL 3276720, at *4–5 (N.C.
Ct. App. Aug. 2, 2011) (unpublished) (conviction for seconddegree

rape

intercourse).

of

mentally

disabled

victim

who

initiated

In this sense, it is analogous to the age element

of North Carolina’s statutory rape law: the fact of consent is
not a defense where the victim is unable to give legally valid
consent by virtue of age or by virtue of mental disability. See
Atkins, 666 S.E.2d at 812 (comparing second-degree and statutory
rape and quoting legislative history:
7

“In second degree rape,

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we

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are

adding

incapacitated,

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persons
or

who

physically

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are

mentally

helpless.

defective,
This

is

mentally

basically

a

statutory rape section . . . .”); see also State v. Banks, 766
S.E.2d 334, 339 (N.C. 2014) (statutory and second-degree rape
“separately punish the act of intercourse with a victim who,
because of her age, is unable to consent to the act, and the act
of intercourse with a victim who, because of a mental disability
or mental incapacity, is unable to consent to the act”). 1
C.
Our

other

point

of

comparison

is

the

phrase

violence,” as used in the Sentencing Guidelines. 2

“crime

of

As will become

important in this case, different guideline provisions describe
1

To the extent our dissenting colleague suggests that lack
of legally valid consent cannot alone sustain a conviction for
North Carolina second-degree rape, as opposed to statutory rape,
we must respectfully disagree. See Williams, 698 S.E.2d at 54445. Nor is the prospect of prosecution in cases of factual but
legally insufficient consent so fanciful that we may overlook it
under the categorical approach. See Ramey, 2011 WL 3276720, at
*4-5.
Indeed, at his sentencing hearing, Shell adduced
testimony that his own conviction under the statute was for
engaging in sexual intercourse with his stepsister by marriage
when both were young and with factual consent. The particulars
of Shell’s offense, of course, do not control the analysis under
the categorical approach we apply.
But they may help to
illustrate the practical scope of the North Carolina statute at
issue.
2

As is customary, we rely as well on cases construing the
phrase “violent felony” under the Armed Career Criminal Act,
“because the two terms have been defined in a manner that is
substantively identical.”
Montes-Flores, 736 F.3d at 363
(internal quotation marks omitted).

8

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“crime

of

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differently.

But

Shell’s

sentence

was

enhanced for a prior crime of violence under U.S.S.G. § 2K2.1,
which

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.

Section 4B1.2, in turn, defines a crime of violence as:
(a) . . . any offense under federal or state law,
punishable by imprisonment for a term exceeding one
year, that—
(1) has as an element the use, attempted use, or
threatened use of physical force against the
person of another, or
(2) is burglary of a dwelling, arson, or
extortion,
involves
use
of
explosives,
or
otherwise
involves
conduct
that
presents
a
serious potential risk of physical injury to
another.
U.S.S.G. § 4B1.2(a).

The commentary elaborates, in relevant

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

§ 4B1.2 to focus on its commentary, and in particular the phrase
“forcible sex offenses.”

But it is the text, of course, that

takes precedence, see Stinson v. United States, 508 U.S. 36, 43
(1993)

(where

commentary

is

inconsistent

controls), and so that is where we begin.

9

with

text,

text

And like two other

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courts,

as

well

as

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our

own

court

in

an

unpublished

opinion, we conclude that offenses that may be committed without
physical force and predicated instead on the absence of legally
valid consent – as under the North Carolina second-degree rape
statute – are not categorically crimes of violence under either
clause of § 4B1.2.

See United States v. Wray, 776 F.3d 1182,

1187–91 (10th Cir. 2015) (conviction for sexual assault with a
10-year age difference not categorically a crime of violence
under § 4B1.2); United States v. Wynn, 579 F.3d 567, 572–75 (6th
Cir.

2009)

relationship

(sexual
not

battery

based

categorically

a

on

coercive

crime

of

nature

violence

of

under

§ 4B1.2); United States v. Leshen, 453 F. App’x 408, 412–16 (4th
Cir.

2011)

(unpublished)

(third-degree

rape

and

aggravated

sexual assault based on age of victim not categorically crimes
of violence under § 4B1.2).
We can dispense relatively quickly with the first clause of
the career-offender guideline – the so-called “force clause” which covers crimes that have “as an element the use, attempted
use, or threatened use of physical force against the person of
another.”

U.S.S.G.

§

4B1.2(a)(1).

For

these

purposes,

the

Supreme Court held in Johnson v. United States, “physical force”
means

“violent

force

-

that

is,

force

physical pain or injury to another person.”

capable

of

causing

559 U.S. 133, 140

(2010); see also United States v. Aparicio-Soria, 740 F.3d 152,
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154–55 (4th Cir. 2014) (en banc) (applying Johnson).

We think

it clear that the second subsection of North Carolina’s 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”

standard, and indeed, the government does not argue otherwise. 3
Nor

do

offense

we

believe

qualifies

that
as

a

North

Carolina’s

crime

of

violence

second-degree
under

§

rape

4B1.2’s

“residual clause” or “otherwise clause,” covering any crime that
“is burglary of a dwelling, arson, or extortion, involves use of
explosives,

or

otherwise

involves

conduct

that

presents

serious potential risk of physical injury to another.”
§ 4B1.2(a)(2). 4

Sex

offenses

are

not

among

the

a

U.S.S.G.
enumerated

3

As the dissent notes, the North Carolina Supreme Court has
held that for purposes of the state’s own sentencing laws,
felony rape necessarily is a crime of violence.
See State v.
Holden, 450 S.E.2d 878, 884 (N.C. 1994).
But the meaning of
“physical force” under § 4B1.2(a)(1) is a question of federal
law, not state law, and in answering that question, we “are not
bound by a state court’s interpretation of a similar – or even
identical – state statute.” Johnson, 559 U.S. at 138. Instead,
we follow Johnson and other Supreme Court and Fourth Circuit
precedent that bears on the relevant federal provision before
us.
4

The dissent chides us for giving too much attention to the
“straw man of the ‘residual clause’” at the expense of § 4B1.2’s
force clause. Post at 9. But this is an unusual case in that
the government ignores both clauses equally, and that makes it
hard for us to say which is the straw man.
On the assumption
that the government’s argument must be anchored at least
implicitly in one of § 4B1.2’s textual clauses, and without
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And the final clause, the Supreme Court instructs, does

not reach every crime that “otherwise . . . presents a serious
potential risk of physical injury,” U.S.S.G. § 4B1.2(a)(2), but
only those “that are roughly similar [] in kind” to the listed
examples – involving conduct that is “purposeful, violent and
aggressive” – as well as similar in the “degree of risk” of
physical injury they pose.

Begay, 553 U.S. at 142-45. 5

That

standard, we have held already, is not met by sex offenses that
do not require the use of physical force and may be predicated
instead on the legal insufficiency of purported consent.

See

United States v. Thornton, 554 F.3d 443, 446–49 (4th Cir. 2009)
(conviction for statutory rape does not fall within residual
clause); see also Leshen, 453 F. App’x at 413–14 (same).
That

precedent

governs

here.

Like

the

statutory

rape

offense considered in Thornton, the second subsection of North
Carolina’s statute may be violated without the threat or use of
physical force, and on the legal presumption that the victim is

further guidance from the government
ourselves obliged to address both.
5

as

to

which,

we

feel

Although the Supreme Court refined the Begay approach in
Sykes v. United States, 131 S. Ct. 2267, 2275–76 (2011), we
continue to require that an offense be similar to the listed
examples both in kind and in degree of risk before it can
qualify as a crime of violence under the residual clause.
See
United States v. Martin, 753 F.3d 485, 490 (4th Cir. 2014).

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unable to consent.

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See Atkins, 666 S.E.2d at 812.

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

554 F.3d at 449; see also Leshen, 453 F. App’x at

414; Wynn, 579 F.3d at 574.

Similarly, we do not doubt that sex

offenses committed without physical force and against vulnerable
victims can present physical as well as psychological risks, in
the form of sexually transmitted diseases or health concerns
attendant to pregnancy.

But we have concluded that those risks

are not comparable to the physical risks generated by the crimes
listed in § 4B1.2(a)(2), both because they are more attenuated
and because they are not “violent in nature.”

Thornton, 554

F.3d at 449; see Leshen, 453 F. App’x at 414.
At issue in Thornton (and Leshen, as well) was a statute
criminalizing adult sexual contact with minors, whereas North
Carolina’s

statute

criminalizes

sexual

intercourse

who are mentally disabled or incapacitated.
that

distinction

applicable here.

renders

the

logic

of

with

those

But nothing about
Thornton

any

less

Like statutory rape laws, North Carolina’s

second-degree rape statute does not require the state to prove
force or the absence of consent in fact, Atkins, 666 S.E.2d at
812,

and

there

is

at

least

a
13

“realistic

probability,”

Diaz-

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Ibarra,

522

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F.3d

at

348,

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that

the

statute

would

apply

in

situations in which a victim is presumed unable to give legally
valid consent, Williams, 698 S.E.2d at 544–45; Ramey, 2011 WL
3276720, at *4–5.

Those are precisely the features that led us

to conclude in Thornton that statutory rape is not a crime of
violence under § 4B1.2.

See 554 F.3d at 448 (“[A] victim’s lack

of ability to give legal consent” does not make statutory rape
“inherently violent and aggressive.”); see also Leshen, 453 F.
App’x at 414.

In applying § 4B1.2’s definition of crime of

violence, we see no grounds for distinguishing between sexual
intercourse

with

a

victim

whose

consent

is

legally

invalid

because he or she is fourteen years old, and sexual intercourse
with an adult victim whose consent is legally invalid because he
or she has the mental capacity of a fourteen-year-old.

Indeed,

as noted above, North Carolina law itself draws precisely this
parallel, treating the second subsection of its second-degree
rape

statute

as

analogous

to

its

statutory

rape

law.

See

Atkins, 666 S.E.2d at 812 (“This is basically a statutory rape
section . . . .”); Banks, 766 S.E.2d at 339. 6

6

Thornton controls

The dissent argues that offenses under the second-degree
rape statute necessarily are “violent” in a way that statutory
rape is not because the second subsection of that statute limits
its reach to defendants who know – or do not know, but should –
that a victim is mentally disabled or otherwise falls within the
protected category.
We cannot agree.
A defendant’s “guilty
knowledge” that a victim is mentally disabled, post at 13 – or
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on this question, and we are bound to find that North Carolina’s
second-degree

rape

statute

is

not

categorically

a

crime

of

violence under § 4B1.2(a)(2)’s residual clause. 7

his failure to discern mental disability when it is found that
he should, see Williams, 698 S.E.2d at 546-47 (despite his own
mental
impairments,
defendant
“reasonably
should
have
discovered” victim’s mental disability) – of course may bear on
culpability, and, again, we do not doubt the gravity of offenses
under North Carolina’s statute. But that is a distinct question
from whether all such offenses are “inherently violent and
aggressive,” Thornton, 554 F.3d at 448, and as we have held, sex
offenses committed against victims who give factual (but legally
invalid) consent are not “inherently violent” in that sense, id.
Moreover, because North Carolina second-degree rape, like
statutory rape, presumes invalid any consent, it may be
committed even when a defendant lacks the intent to override the
will of a factually consenting victim, and is in that way akin
to a strict liability, recklessness, or negligence offense. See
Sykes, 131 S. Ct. at 2275-76; Begay, 553 U.S. at 144-45;
Thornton, 554 F.3d at 448.
7

Our conclusion here is limited to the second subsection of
North Carolina’s statute. We should note, however, that even if
the second subsection could be reconciled with the text of
§ 4B1.2, there would remain the question of the first.
And
because that subsection may be violated through force that is
constructive rather than physical, it, too, raises significant
issues under § 4B1.2. After Johnson, 559 U.S. at 140 (“physical
force” under § 4B1.2(a)(1) means “violent force”), we doubt that
a statute requiring only constructive force in the form of an
inherently coercive relationship, like the first subsection of
the North Carolina law, can be brought within the force clause.
See United States v. Vann, 660 F.3d 771, 779 n.2 (4th Cir. 2011)
(en banc) (King, J., concurring). And there is room to question
whether an offense under the first subsection that is predicated
on an inherently coercive relationship could fall within the
residual clause, as sufficiently similar in kind and degree of
risk of physical injury to § 4B1.2(a)(2)’s listed examples. See
Thornton, 554 F.3d at 448 (rejecting government argument that
sex offense involves constructive force and therefore falls
within residual clause); see also Leshen, 453 F. App’x at 415
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D.
We turn now to the government’s argument on appeal.

The

government does not contest, at least directly, our holding that
a North Carolina second-degree rape conviction does not qualify
categorically
§

4B1.2’s

argument

as

a

crime

definition.

entirely

on

the

of

violence

Instead,

under

the

commentary

to

either

government
§

4B1.2,

clause
rests

which

of
its

lists

“forcible sex offense[]” as an example of a crime of violence.
U.S.S.G. § 4B1.2 cmt. n.1.
contends

that

because

sex

More specifically, the government
offenses

resting

on

legally

insufficient consent constitute “forcible sex offenses” under a
different section of the Guidelines – Guidelines § 2L1.2 – they
must be crimes of violence under the commentary to § 4B1.2, as
well.

Two other circuit courts have rejected precisely that

argument, see Wynn, 579 F.3d at 574–75 (Sixth Circuit); Wray,
776 F.3d at 1187–88 (Tenth Circuit); see also Leshen, 453 F.
App’x at 415–16 (Fourth Circuit, unpublished), and we join them
now.

(constructive force “no longer satisfies either prong” of
§ 4B1.2’s definition of crime of violence).
But we need not
resolve those issues today.
As we have explained, North
Carolina’s second-degree rape statute can qualify categorically
as a crime of violence only if both its subsections are covered
by § 4B1.2, and so our determination that the second subsection
reaches offenses that fall outside the terms of § 4B1.2 is
enough to dispose of this case.

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Section 2L1.2 of the Guidelines enhances the base offense
level for certain immigration violations where the defendant has
committed

a

prior

felony

“crimes of violence.”

“crime

of

violence”

or

misdemeanor

U.S.S.G. § 2L1.2(b)(1)(A), (E).

The text

of § 2L1.2 does not define crime of violence and, unlike the
provision

under

which

by

reference

incorporate

crime of violence.

Shell
§

was

4B1.2’s

sentenced,

it

does

not

two-clause

definition

of

Instead, § 2L1.2 includes commentary listing

“forcible sex offense[]” as an example of a crime of violence.
Id. at cmt. n.1(B)(iii).
In

United

States

v.

Chacon,

we

applied

§

2L1.2

to

a

subsection of a Maryland statute much like the second subsection
of North Carolina’s statute, criminalizing intercourse with a
person

who

physically

is

mentally

helpless.

defective,

mentally

incapacitated,

533 F.3d 250, 255 (4th Cir. 2008).

or
At

the time, § 2L1.2’s commentary provided:
“Crime of violence” means any of the following
offenses under federal, state, or local law: murder,
manslaughter, kidnapping, aggravated assault, forcible
sex offenses, statutory rape, sexual abuse of a minor,
robbery, arson, extortion, extortionate extension of
credit, burglary of a dwelling, or any offense under
federal, state, or local law that has as an element
the use, attempted use, or threatened use of physical
force against the person of another.
U.S.S.G. § 2L1.2 cmt. n.1(B)(iii) (2006) (emphases added).

We

held,

an

first,

that

the

Maryland

offense

did

not

have

“as

element the use, attempted use, or threatened use of physical
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force,” and so did not fall within § 2L1.2’s “force clause.”
Chacon, 533 F.3d at 255-56. 8

We went on to find, however, that

it nevertheless qualified as a “forcible sex offense[]” within
the meaning of § 2L1.2.

Id. at 256–58.

In the absence of a

textual definition, we relied on the “ordinary, contemporary”
meaning of “forcible” and concluded that it reaches not only
physical force but also compulsion effectuated through “power”
or “pressure,” id. at 257, as when a rape is “accomplished by
taking advantage” of someone who cannot give legal consent, id.
at 258.

And extending “forcible sex offenses” to statutes that

do not require physical force and instead presume the inability
to consent, we held, is consistent with § 2L1.2’s commentary as
a

whole,

which

expressly

enumerates

the

similar

“statutory rape” and “sexual abuse of a minor.”
It

is

Chacon’s

“common

meaning”

government relies most heavily here.
once

we

forcible

have
sex

established
offenses,

the

that

of

See id.

analysis

on

which

the

The government argues that

common

common

offenses

meaning

meaning

of

stays

the
the

phrase
same,

traveling with the term wherever it appears in the Guidelines.
8

The dissent relies heavily on Chacon in arguing that North
Carolina second-degree rape falls within § 4B1.2, and presumably
its force clause.
But if Chacon’s construction of the § 2L1.2
commentary directly governed this case, as the dissent urges,
then surely this part of Chacon’s holding would govern, as well,
and eliminate § 4B1.2’s force clause as a textual basis for the
dissent’s position.

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Appellee’s

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Br.

25

(“It

is

Pg: 19 of 55

difficult

to

imagine

how

.

.

.

examining the common meaning of the phrase forcible sex offense
[] would lead to a different result simply based on where the
enumerated offense appears in the guidelines.”).

We appreciate

the logic of this position, but, as in Leshen, 453 F. App’x at
414–16, we must disagree.
As the Supreme Court recently reminded us, when it comes to
statutory construction, context matters.

See Yates v. United

States, 135 S. Ct. 1074, 1082 (2015) (“In law as in life, [] the
same

words,

placed

in

different things.”).

different

contexts,

sometimes

mean

Section 4B1.2’s career-offender guideline,

at issue here, and § 2L1.2’s immigration guideline, construed in
Chacon, are different provisions, with significantly different
texts and structures.
question

Chacon’s

inability

to

Accordingly, while we of course do not

conclusion

consent

that

qualify

as

offenses

forcible

presuming

sex

offenses

the
under

§ 2L1.2’s commentary, we reach a different result under § 4B1.2.
Both provisions, as the government says, list forcible sex
offenses in their commentaries.
defines

crime

§

provides

4B1.2

violence

in

of

its

violence
a

entirely

separate

text,

But critically, while § 2L1.2

with

through

two-part
the

that

definition

commentary

commentary,
of

serving

crime

of

only

to

amplify that definition, and any inconsistency between the two
resolved in favor of the text, Stinson, 508 U.S. at 43.
19

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interpreting “forcible sex offenses” in § 4B1.2’s commentary, we
do not write on a blank slate; instead, we have a carefully
reticulated definition of crime of violence to which we must
adhere.

See

“‘[f]orcible

Leshen,
sex

453

F.

offenses’

App’x

at

415

does

not

(under

have

§

4B1.2,

freestanding

definitional power,” but must instead be linked to a prong of
the textual definition of crime of violence); see also United
States

v.

Benkahla,

(recognizing

530

courts’

F.3d

“duty

300,

to

312

(4th

harmonize

Cir.

2008)

Guidelines

and

commentary”).

And as discussed above, that textual definition

comes

glossed

to

us

by

Supreme

Court

and

Fourth

Circuit

precedent that precludes its application to offenses committed
without “violent” force and predicated on the legal invalidity
of consent.

Chacon, on the other hand, interpreted “forcible

sex offenses” as a freestanding phrase, without the constraints
imposed by § 4B1.2’s text, and so had the leeway to canvas
outside sources in search of ordinary meaning.

533 F.3d at 257

(“When a word is not defined by statute, we normally construe it
in accord with its ordinary or natural meaning.” (quoting Smith
v.

United

States,

markedly

different

different

structures

508

U.S.

223,

interpretive
of

the

228

(1993))).

enterprises,

provisions,

and

surprise that we end up in different places.

20

Those

driven
it

should

by
be

are
the
no

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Moreover, the full text of the two commentaries themselves
strongly

suggests

a

broader

reading

of

the

term

“crime

of

violence” under the immigration guideline at issue in Chacon
than under the career-offender guideline before us today.

As we

explained in Chacon, the commentary to § 2L1.2 includes not only
“forcible

sex

offenses”

but

also

other

offenses

that

do

not

require physical force, such as statutory rape and sexual abuse
of a minor, in its list of enumerated crimes of violence.
F.3d at 258 (citing U.S.S.G. § 2L1.2 cmt. n.1(B)(iii)).

533

Section

4B1.2’s commentary, on the other hand, does not list statutory
rape or sexual abuse of a minor, but only offenses that plainly
involve physical force, such as murder and aggravated assault.
U.S.S.G. § 4B1.2 cmt. n.1.
immigration

guideline

On its face, the commentary to the

sweeps

further

and

“expressly

more sex crimes” than the career-offender commentary.
F.3d

at

575;

see

Leshen,

453

F.

App’x

at

415–16.

cover[s]
Wynn, 579
Reading

“forcible sex offenses” to include offenses committed without
physical force and predicated on legally invalid consent makes
sense under § 2L1.2’s commentary in a way it would not under
§ 4B1.2’s commentary.
Finally,

we

think

it

is

Commission intended this result.
include

multiple

and

different

violence” in the Guidelines.

clear

that

the

Sentencing

First, the Commission chose to
definitions

of

“crime

of

Had it wanted that term to have
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the same scope each time it appeared, then the obvious solution
would have been to provide one uniform definition, applicable
throughout.
violence”

Instead, the Commission set out different “crime of

enhancements

for

different

underlying

crimes.

The

felon-in-possession guideline under which Shell was sentenced,
§ 2K2.1, by cross-referencing § 4B1.2’s definition, provides for
an enhancement if Shell is a “career offender” – the “kind of
person

who

trigger.”

might

deliberately

point

Begay, 553 U.S. at 146.

the

gun

and

pull

the

If the Commission had wanted

to enhance felon-in-possession sentences for a broader range of
crimes of violence, including misdemeanor crimes, then it simply
could have cross-referenced § 2L1.2, instead.

See Wray, 776

F.3d at 1188.
Second, in 2008 and after we decided Chacon, the Sentencing
Commission

amended

the

guideline,

adding

a

commentary

to

parenthetical:

§

2L1.2’s

“forcible

immigration

sex

offenses

(including where consent to the conduct is not given or is not
legally

valid,

such

as

where

consent

to

the

conduct

is

involuntary, incompetent, or coerced) . . . .”

U.S.S.G. § 2L1.2

cmt.

same

n.1(B)(iii)

(emphasis

added).

At

the

time,

the

Commission left § 4B1.2 intact, explaining that its purpose was
to “clarif[y] the scope of the term ‘forcible sex offense’ as
that term is used in the definition of ‘crime of violence’ in
§ 2L1.1.”

U.S. Sentencing Guidelines Manual app. C, vol. III,
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722,

Filed: 06/12/2015

at

302

(2011)

Pg: 23 of 55

(emphases

added).

“[T]he

logical

conclusion that we must draw is that the Sentencing Commission
did not intend for ‘forcible sex offenses’ under § 4B1.2 to be
defined the same way as ‘forcible sex offenses’ under § 2L1.2.”
Wynn, 579 F.3d at 575; see Wray, 776 F.3d at 1188 (citing maxim
of expressio unius est exclusio alterius and concluding that the
express

inclusion

of

invalid-consent

offenses

in

§

2L1.2

“suggests, at a minimum,” that those offenses are not covered by
§

4B1.2);

Leshen,

453

F.

App’x

at

415–16

(relying

on

Commission’s decision to amend § 2L1.2 but not § 4B1.2).
Following the reasoning of the Sixth and Tenth Circuits, we
hold that Shell’s prior conviction for North Carolina seconddegree

rape

§ 4B1.2.

is

not

categorically

a

crime

of

violence

under

Our decision should not be understood to minimize in

any way the seriousness of the offenses proscribed by the North
Carolina statute or the importance of the state’s interest in
protecting the most vulnerable of victims.

But whether the full

range of conduct covered by that state statute constitutes a
crime of violence under § 4B1.2, as construed both by our court
and the Supreme Court, is a different question, which we are
obliged to answer in the negative.

Because the district court

erred in characterizing Shell’s prior conviction as a crime of
violence and thereby enhancing Shell’s base offense level for

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illegally possessing a firearm, we vacate Shell’s sentence and
remand for resentencing.

III.
The

district

Guidelines

§

court

3C1.2,

for

also

enhanced

“recklessly

Shell’s

creat[ing]

sentence
a

under

substantial

risk of death or serious bodily injury to another person in the
course

of

fleeing

from

a

law

enforcement

officer.”

Shell

concedes on appeal that he drove recklessly during the incident
leading to his arrest, but argues that the enhancement does not
apply because he was not aware that he was being pursued by a
law enforcement officer.

We evaluate that legal claim de novo

and review relevant factual findings by the district court for
clear error.

United States v. Carter, 601 F.3d 252, 254 (4th

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.

But every circuit to consider the question has

concluded that the enhancement is not warranted where an officer
is following a defendant but the defendant does not know that
the officer is in pursuit, and is driving recklessly for some
other reason.

See United States v. Martikainen, 640 F.3d 1191,

1193–94 (11th Cir. 2011) (per curiam); United States v. Moore,
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242 F.3d 1080, 1082 (8th Cir. 2001); United States v. Hayes, 49
F.3d 178, 183–84 (6th Cir. 1995).

At argument, the government

conceded that this is the correct reading of § 3C1.2.
and

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

a

law

enforcement officer.
This interpretation of § 3C1.2 comports with the Sentencing
Commission’s reason for promulgating it.

See U.S. Sentencing

Guidelines Manual app. C, vol. I, amend. 347, at 196–99 (2008).
The

provision

is

a

derivative

of

Guidelines

§

3C1.1,

the

obstruction-of-justice enhancement, which targets defendants who
engage in conduct to mislead authorities or otherwise interfere
with the disposition of criminal charges.

See id. at 196.

The

Commission found that “reckless endangerment during flight is
sufficiently

different

from

other

forms”

of

obstruction

of

justice that it warranted a separate enhancement, and § 3C1.2 is
expressly

made

applicable

to

resisting

arrest.

Id.

at

199.

Those origins make clear, we believe, that § 3C1.2 is intended
to capture “behavior that could be viewed as an obstruction of
justice,” and thus requires that a defendant be aware that he or
she is fleeing from a law enforcement officer.
at 183.

25

Hayes, 49 F.3d

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B.
At

sentencing

in

this

case,

the

parties

contested

both

whether Shell recklessly created a risk of injury and – despite
the absence of circuit precedent – whether Shell knew that he
was being pursued by the police.

As to reckless endangerment,

the government relied principally on the testimony of Nicole
Smith, who described “screeching tires” and a “black car coming
sideways” that “missed [her] by about two inches.”
Shell

sought

to

rebut

that

testimony

J.A. 44-45.

primarily

through

the

of

pursuit

was

absence of skid marks on the road.
The

case

as

to

Shell’s

knowledge

police

complicated by the fact that Shell already was speeding at the
time

Hodges

encountered

him

while

traveling

in

the

opposite

direction, and that Shell was no longer within Hodges’s sight
once

Hodges

Shell.

activated

his

siren

and

turned

around

to

follow

Shell argued that he was unaware that Hodges had decided

to pursue him, and pointed for support to witness testimony that
Shell had expressed concern when a bystander to his accident
called the police – concern that would have been beside the
point, Shell argued, had he believed that the police already
were

in

pursuit.

The

government,

for

its

part,

pointed

to

Shell’s 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

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to the government, Shell’s concern about the call to the police
after his accident could be explained by Shell’s belief that he
had eluded Hodges successfully up until that point.
In

imposing

the

§ 3C1.2

enhancement

at

sentencing,

the

district court made the following finding:
The court credits the testimony of Ms. Smith as to the
perception she had at the time of the approach of the
black Mercedes to her car which she described as being
sideways
in
the
roadway
and
making
substantial
skidding noises and that it missed her car by
approximately two inches.
And that testimony is
fortified by the fact that no – people don’t tend to
forget that sort of thing. [An inconsistent detail in
Smith’s testimony] is not critical to the analysis
under U.S. Sentencing Guidelines 3C1.2. Defendant did
create a substantial risk of death or serious bodily
injury to her in the course of fleeing from a law
enforcement officer.
J.A.

58–59.

The

final

sentence,

incorporating

the

ultimate

finding, quotes the language of § 3C1.2, in determining that
Shell “created a substantial risk of death or serious bodily
injury,”

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

a

law

because

the

the

ruling

we

announce today, it had no occasion to make a separate finding
that Shell was aware that he was being pursued by Hodges.

And

given the preceding context, which focuses exclusively on the
separate question of whether Shell recklessly endangered Smith,
we cannot be certain that the district court in fact did make
such a finding.

Accordingly, we remand on this issue, as well,
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may

apply

our

newly

announced

understanding of § 3C1.2 to this case and clarify whether Shell
knew that he was being pursued by law enforcement.

IV.
For the foregoing reasons, we vacate the district court’s
judgment

and

remand

for

resentencing

consistent

with

this

opinion.
VACATED AND REMANDED

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WILKINSON, Circuit Judge, dissenting:
North

Carolina’s

predatory

acts

individuals.
one

must

second-degree

committed

against

rape

statute

society’s

punishes

most

vulnerable

To violate the contested portion of this statute,

have

taken

advantage

of

a

mentally

or

physically

defenseless person to engage in sexual intercourse -- all the
while knowing of the victim’s impaired condition.

N.C. Gen.

Stat.

considered

§ 14-27.3(a)(2).

This

law

protects

people

incapable of volitional acts from such callous conduct.
The

majority,

proposition:
intercourse

however,

that
with

a

asks

us

defendant

another

to

who

accept

a

“engages

person . . . [w]ho

disquieting
in

is

vaginal
mentally

disabled, mentally incapacitated, or physically helpless,” with
knowledge of that vulnerability, has somehow not committed a
forcible sex offense.

Id. How can that be?

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

emblematic of a “crime of violence” under the relevant provision
of

the

United

States

Sentencing

Guidelines.

U.S.S.G.

§ 4B1.2(a)(1) & cmt. n.1. Both this court and North Carolina’s
courts have specifically recognized the forcible nature of these
sorts of acts, and rightly so.

I do not understand how the

knowing, forcible sexual subjugation of helpless human beings

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fails to qualify as a crime of violence.

With all respect for

my friends in the majority, I dissent. 1

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).

a

heightened

base

offense

A “crime of violence” may

refer to any felony that “has as an element the use, attempted
use, or threatened use of physical force against the person of
another.”

Id. § 4B1.2(a)(1); see id. § 2K2.1 cmt. n.1 (cross-

referencing
Guidelines

the

provision

commentary

for

explains,

career
the

offenders).

term

“crime

of

As

the

violence”

also covers a number of enumerated offenses, including “murder,
manslaughter,

kidnapping,

aggravated

assault,

forcible

sex

offenses, robbery, arson, extortion, extortionate extension of
credit, and burglary of a dwelling.”
id. § 2K2.1 cmt. n.1.

Id. § 4B1.2 cmt. n.1; see

This list of crimes by the Sentencing

Commission is “authoritative.”

Stinson v. United States, 508

1

I agree with the majority that Shell was required to know,
for the purposes of an enhancement under U.S.S.G. § 3C1.2, that
he was being pursued by a law enforcement officer.
While I
think the district court’s discussion has already incorporated
the fact of such knowledge, I have no objection to remanding for
a further finding on the point.

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U.S. 36, 38 (1993).

Pg: 31 of 55

The term “crime of violence” thus expressly

encompasses forcible sex offenses.

A.
Was Shell’s prior crime a forcible sex offense?
with the state statute under which he was convicted. 2

We begin
Our charge

is to determine the range of actions that North Carolina would
realistically

classify

as

second-degree

rape.

This

is

a

practical exercise, not a dreamy one about every conceivable
scenario to which the statute might apply.

See United States v.

Diaz-Ibarra, 522 F.3d 343, 348 (4th Cir. 2008) (requiring “‘a
realistic probability, not a theoretical possibility,’ that the
state would apply its statute to conduct that falls outside the

2

Of course, the meaning of a federal provision, be it
statutory or regulatory or Sentencing Guideline, is a federal
question.
See Johnson v. United States, 559 U.S. 133, 138
(2010).
But the elements of a predicate state offense are
obviously a question of state law, see id., and determining
those elements is obviously a critical step here:
our express
charge is to compare the elements of the predicate state offense
with the elements of the “generic” crime, see Descamps v. United
States, 133 S. Ct. 2276, 2281 (2013).
In fact, in construing
this North Carolina statute, we are bound by the interpretations
and decisions of the Supreme Court of North Carolina.
See
Johnson, 559 U.S. at 138; United States v. Aparicio-Soria, 740
F.3d 152, 154 (4th Cir. 2014) (en banc). No federal court “has
any authority to place a construction on a state statute
different from the one rendered by the highest court of the
State.”
Johnson v. Fankell, 520 U.S. 911, 916 (1997).
Examining North Carolina’s case law is an essential part of the
inquiry before us.

31

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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).

Another state provision,

in turn, defines each of the three mental or physical conditions
identified in the second-degree rape statute:
(1) “Mentally disabled” means (i) a victim who suffers
from mental retardation, or (ii) a victim who suffers
from a mental disorder, either of which temporarily or
permanently renders the victim substantially incapable
of appraising the nature of his or her conduct, or of
resisting the act of vaginal intercourse or a sexual
act, or of communicating unwillingness to submit to
the act of vaginal intercourse or a sexual act.
(2) “Mentally incapacitated” means a victim who due to
any act committed upon the victim is rendered
substantially incapable of either appraising the
nature of his or her conduct, or resisting the act of
vaginal intercourse or a sexual act.
(3) “Physically helpless” means (i) a victim
unconscious; or (ii) a victim who is physically
to resist an act of vaginal intercourse or a
act or communicate unwillingness to submit to
of vaginal intercourse or a sexual act.
32

who is
unable
sexual
an act

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Id. § 14-27.1(1)-(3).

Pg: 33 of 55

The import of these provisions is plain.

The victims under this North Carolina law cannot comprehend the
situation or resist the aggressor’s sexual advances.

In one way

or another, these persons are helpless.
North Carolina’s second-degree rape statute does not suffer
from vagueness.
conduct.

It covers a specific and limited universe of

And each disjunctive variant under the statute entails

some form of force.
he

The record of Shell’s conviction does not

specify

whether

was

convicted

(a)(2).

under

subsection

(a)(1)

or

See J.A. 62, 119-20.

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.

The forcible nature of this crime is self-

See U.S.S.G. § 4B1.2(a)(1) & cmt. n.1.

Shell’s only

possible refuge lies in subsection (a)(2) of the North Carolina
statute.

But

raping

a

mentally

disabled,

mentally

incapacitated, or physically helpless person is a forcible sex
offense and a crime of violence -- so much so that only our
esteemed profession could complicate the inquiry.

B.
In addressing the nature of this North Carolina predicate
offense, I must first acknowledge the validity of the majority’s
33

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concerns.

Filed: 06/12/2015

It

is

important

violence metastasize.

Pg: 34 of 55

not

to

let

predicate

crimes

of

I agree with the majority that it is

unfair to tag defendants with predicate crimes of violence when
a

state

statute

applications.
quite

wrong

is

in

reality

capable

of

many

nonviolent

Notwithstanding this, I think the majority is
to

expand

nonviolent rape.

the

whole

concept

of

nonforcible

or

Even apart from the cognitive jolt delivered

by such terms, North Carolina’s statute is limited in all kinds
of ways that the majority has failed both to acknowledge and to
appreciate.
Second-degree

rape

in

North

Carolina

involves

the

three

basic elements of (1) “vaginal intercourse,” (2) “force,” and
(3) “lack of consent.”
(N.C.

2006);

see

N.C.

State v. Smith, 626 S.E.2d 258, 261
Gen.

Stat.

§ 14-27.3(a)(1)-(2).

critical issue in the present case is force.

The

The Supreme Court

of North Carolina’s binding case law interpreting this state
statute is exceptionally clear.
Soria,

740

F.3d

152,

154

See United States v. Aparicio-

(4th

Cir.

2014)

Guidelines require “forcible sex offenses.”

(en

banc).

The

Second-degree rape

of any kind in North Carolina requires an element of force.
Force

may

actual,

assume

various

constructive,

still exactly that:

legal

implied

--

force.

34

labels
but,

in

different

under

any

cases

name,

it

-is

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The history of North Carolina’s laws against rape confirms
that force is an indispensable element of the offense.

North

Carolina’s rape statutes “essentially codify the common law of
rape.” State v. Moorman, 358 S.E.2d 502, 506 (N.C. 1987).

The

common law “implied in law the elements of force and lack of
consent,” with the result that the crime of rape was “complete
upon the mere showing of sexual intercourse with a person who is
asleep, unconscious, or otherwise incapacitated.”
Under

the

difference

modern

second-degree

whether

the

rape

indictment

Id. at 505.

statute,

alleges

“it

that

makes

the

no

vaginal

intercourse was by force and against the victim’s will,” as in
§ 14-27.3(a)(1),
intercourse
27.3(a)(2).
covered

by

“or

with

whether

an

it

alleges

incapacitated

merely

victim,”

Id. at 506 (emphasis added).
subsection

(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.”

Id. As a legal matter, the threshold force

required for a conviction under either subsection is the same.
The Supreme Court of North Carolina has spoken with utmost
clarity about the nature of crimes of rape in that state.

In

the context of North Carolina’s own sentencing laws, the state’s
highest court has stated plainly, “[W]e reject the notion of any
felony which may properly be deemed ‘non-violent rape.’”
v.

Holden,

450

S.E.2d

878,

884
35

(N.C.

1994)

(emphasis

State
added)

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(discussing

Filed: 06/12/2015

N.C.

Gen.

Pg: 36 of 55

Stat.

§ 15A-2000(e)(3)).

In

North

Carolina, “rape is a felony which has as an element the use or
threat of violence to the person.”

Id. at 883. Indeed, even

“the crime of attempted rape always involves at least a ‘threat
of violence.’”

Id. at 884.

North Carolina’s highest court has specifically rejected a
claim very much like the one endorsed by today’s majority.
Holden,

the

defendant

argued

that

his

prior

conviction

In
for

attempted second-degree rape did not necessarily constitute a
crime

of

violence

conviction
mentally

could

under

have

disabled,

helpless.

N.C.

North

involved

mentally

Gen.

Stat.

Carolina
sex

with

law,
a

because

person

incapacitated,

the

who

was

or
But

§ 14-27.3(a)(2).

physically
the

court

firmly disagreed. Holden, 450 S.E.2d at 883-84.
The key to the Holden court’s ruling was the presence of
force, and indeed violence, in any instance of rape.
the

victim

whether

refuses

the

victim

to

consent,

cannot

as

consent

in

subsection

because

of

a

Whether

(a)(1),

or

mental

or

physical impairment, as in subsection (a)(2), the analysis is
the same.
inherent

Id. at 884-85.
to

having

sexual

Under North Carolina law, “the force
intercourse

with

a

person

who

is

deemed by law to be unable to consent is sufficient to amount to
‘violence.’”

Id.

at

884

(emphasis

added).

In

interpreting

North Carolina’s second-degree rape statute, we could hardly ask
36

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for

Doc: 42

a

Filed: 06/12/2015

clearer

mandate

from

Pg: 37 of 55

the

state’s

highest

court.

The

majority’s novel felony of “non-violent rape” is an oxymoron not
recognized in North Carolina law.

Id.

This interpretation of North Carolina’s rape statutes is
now firmly rooted in the state’s jurisprudence.

The Court of

Appeals of North Carolina has heeded the dictates of the state’s
highest court.

“The gravamen of the offense of second[-]degree

rape,” the Court of Appeals recently reaffirmed, “is forcible
sexual
(N.C.

intercourse.”
Ct.

App.

State

2008).

v.

The

Haddock,

stipulated

664

S.E.2d

conditions

339,
of

344

mental

disability, mental incapacity, and physical helplessness simply
constitute “alternative means by which the force necessary to
complete a rape may be shown.”

Id. at 345; see, e.g., State v.

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

See Maj. Op. at 10-16.

“residual

clause,”

The residual clause

covers any felony that is a “burglary of a dwelling, arson, or
extortion,
conduct
injury

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

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relies on United States v. Thornton, 554 F.3d 443 (4th Cir.
2009).

But the differences between that case and this are night

and day.

The Virginia law in Thornton criminalized “‘carnal

knowledge’” of a minor “‘without the use of force,’” 554 F.3d at
445

n.2

(emphasis

added)

--

quite

unlike

forcible crime of second-degree rape.

North

Carolina’s

Because the force clause

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.

The majority’s discussion of Thornton and

the residual clause is thus inapposite.

C.
The

majority

maintains

that

the

rape

of

a

mentally

disabled, mentally incapacitated, or physically helpless person
is

analogous

to

statutory

rape.

The

shared

logic

of

those

crimes, according to the majority, is that “the fact of consent
is not a defense where the victim is unable to give legally
valid

consent

disability.”
a

by

virtue

of

Maj. Op. at 7.

preliminary

matter,

age

or

by

It

is

instead

defined

of

mental

But the analogy is misguided.

North

Carolina’s

statute does not target statutory rape.
§ 14-27.3; J.A. 60-66.

virtue

second-degree

As
rape

See N.C. Gen. Stat.

It makes no mention of the victim’s age.
by

the

38

victim’s

mental

or

physical

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defenselessness and an inability to fathom the basic situation
or oppose the aggressor’s actions.
I would not equate age and impairment.

Some teenagers are

mature and responsible; others are decidedly not.

But all the

victims under North Carolina’s second-degree rape statute are by
definition required to be lacking in basic mental or physical
capacity.

Unlike

with

statutory

rape,

the

extent

of

the

victim’s disability must be individually established, sometimes
with expert testimony.
92

(N.C.

2012).

See State v. Hunt, 722 S.E.2d 484, 491-

Such

circumstances,

based

on

a

person’s

particular mental or physical characteristics, differ markedly
from legally insufficient consent based on age alone.
The differences do not stop there.

Compulsion is not the

operative factor in the crime of statutory rape.

This court has

already underscored that distinction in the Guidelines context
as well.

As we observed in an assessment of § 2L1.2, “it is

clear that the Sentencing Commission purposely juxtaposed the
neighboring terms ‘forcible sex offense[]’ and ‘statutory rape,’
with the former intended to connote rape or other qualifying
conduct by compulsion and the latter intended to connote rape on
account

of

the

victim’s

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

a

forcible

sex

offense.

Id.

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Before today, at least, the distinction between forcible sex
offenses and statutory rape was sharply defined.
Even the cases cited by the majority actually underscore
the distinction between second-degree rape and statutory rape.
See Maj. Op. at 7-8.

The majority quotes a state senator who

likened an underlying 1979 bill to “‘basically a statutory rape
section.’”

State v. Atkins, 666 S.E.2d 809, 812 (N.C. Ct. App.

2008) (emphasis added).

But the legislator goes on to note a

key distinction: this law would apply “‘in cases where someone
engages in a sex act with a person who is, in fact, incapable of
resisting

or

communicating

resistance’”

perpetrator’s forcible actions.
telling example:

--

against

the

Id. Atkins itself provides a

the victim was a severely arthritic eighty-

three-year-old woman who was deemed “physically helpless” based
on

her

apparent

attacker.”

inability

“to

actively

oppose

or

resist

her

Id. at 812-13; see also State v. Huss, 734 S.E.2d

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.

aff’d

2013)

comparing

by

(per

an

equally

curiam).

second-degree

rape

divided

The
and

majority

case

--

and

the

Supreme

749

cites

statutory

Banks, 766 S.E.2d 334 (N.C. 2014).
jeopardy

court,

S.E.2d

another

rape.

case

State

v.

In fact, that was a double
Court

of

North

Carolina

expressly found them to be separate and distinct offenses.
40

279

Id.

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Pg: 41 of 55

at 339; see Blockburger v. United States, 284 U.S. 299, 304
(1932).
Statutory rape is, finally, a crime of strict liability in
North Carolina.
2000).

State v. Anthony, 528 S.E.2d 321, 323-25 (N.C.

Laws against statutory rape traditionally lack a mens

rea requirement.

2 Wayne R. LaFave, Substantive Criminal Law

§§ 5.5, 17.4 (2d ed. 2014).
provision

contains

convicted

under

known, or

a

N.C.

mens

rea

requirement.

(a)(2),

the

perpetrator

have

known,

should

disabled,

helpless.

strong

subsection

reasonably

mentally

Unlike with statutory rape, this

mentally

Gen.

Stat.

that

incapacitated,
§ 14-27.3(a)(2).

To

be

must
victim

the
or

have
was

physically

This

knowledge

forms part of the element of force that is present in virtually
all

crimes

of

rape

under

North

Carolina

law

--

besides

the

strict liability offense of statutory rape.
The

threshold

act

under

subsection

(a)(2)

is

sexual

intercourse with a mentally or physically defenseless victim.
This is a crime of forcible sexual compulsion.

Lack of legally

valid consent is but one feature of this offense.

One wonders

how it has come to be that a perpetrator who acted with guilty
knowledge -- to take advantage of a profoundly vulnerable victim
who is unable to resist -- could now escape sanction for the

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prior commission of what the Guidelines require: a “forcible”
sex offense. 3

D.
“Force” may involve the exertion of “[p]ower, violence, or
pressure” against another person.
(9th ed. 2009).

Black’s Law Dictionary 717

This conception of force is integral to the

North Carolina statute.

Yet the majority’s argument suggests that

3

In its effort to portray many of these crimes as not so
very serious, the majority’s discussion of anecdotal evidence
about Shell’s earlier conviction, see Maj. Op. at 8 n.1,
impermissibly compromises the categorical approach. “Sentencing
courts may ‘look only to the statutory definitions’ -- i.e., the
elements -- of a defendant’s prior offenses, and not ‘to the
particular facts underlying those convictions.’”
Descamps v.
United States, 133 S. Ct. 2276, 2283 (2013) (quoting Taylor v.
United States, 495 U.S. 575, 600 (1990)).
Despite its
disclaimers, the majority nevertheless proceeds to sift through
the scant and fragmentary indications in the record to try to
ascertain
highly
questionable
“facts”
underlying
Shell’s
predicate offense.
Its efforts illustrate why the categorical
approach obliges courts to examine “elements, not facts.”
Id.
The alternative is this sort of attempted factfinding from the
remove of the appellate bench -- here, without the benefit of
the state court’s or the sentencing court’s findings as to those
“facts,”
without
adequate
elucidation
of
the
surrounding
circumstances, and without any indicia of the transparently
self-serving testimony’s reliability.
What we do know is that
Shell was convicted of North Carolina’s forcible crime of
second-degree rape, which criminalizes vaginal intercourse with
someone known to be mentally disabled, mentally incapacitated,
or physically helpless. The categorical approach turns on those
statutory elements.
The majority, however, slides by that
approach, notwithstanding the heartbreaking instances of seconddegree rape that lie in the weeds of predicate convictions
through which federal courts in the course of Guidelines
calculations such as this are not permitted to trek.

42

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second-degree

Filed: 06/12/2015

rape

is

somehow

Pg: 43 of 55

not

“forcible”

enough

to

be

a

forcible sex offense, or not “violent” enough to be a crime of
violence.
For its own understanding of “force,” the majority relies
on

the

Supreme

States,

559

Court’s

U.S.

133

pronouncements

(2010).

See

Johnson is not like this case.
conviction for battery.

in

Maj.

Johnson

Op.

at

v.

United

10-11.

But

Johnson involved a prior Florida

559 U.S. at 136-37.

With the common

law crime of battery, the element of “force” was “satisfied by
even the slightest offensive touching.”

Id. at 139.

For the

Court, that threshold was too low when applied to a “violent
felony.”

Id. at 140; see also Aparicio-Soria, 740 F.3d at 154-

55.

modern

In

parlance,

the

various

generally do not denote slight touching.
138-41.

definitions

of

“force”

Johnson, 559 U.S. at

The degree of power or pressure indicated by the term

“force” is not infinitely expansive.
at 139-40.

Context does matter.

Id.

And de minimis contact is assuredly not the issue

with the pertinent forms of second-degree rape punished under
North Carolina law.

Forcible intercourse is light-years removed

from nominal battery.
The majority fails to grasp any of the multiple ways in
which

the

circumscribed

North

Carolina

and

limited.

second-degree
The

particular crime is unmistakable.
43

forcible

rape

offense

nature

of

is
this

The differences between this

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offense and statutory rape or nominal battery are clear.

Nor

does the majority appreciate the narrow range of mentally or
physically defenseless persons to which this statute applies, on
a personalized basis.

The reality of what is happening to these

victims

the

quite

eludes

majority’s

view.

The

categorical

approach applied by the majority rightly bars our inquiry into
the particulars of any single predicate offense.

It should not

blind us to, in the words of Woody Guthrie, “a picture from
life’s other side.”

II.
The problems with the majority’s approach do not end at the
borders of North Carolina.

Its decision is also inconsistent

with precedents that, until now, seemed to speak with a clear
and singular voice about the law governing this circuit.

Our

past pronouncements left no doubt about the inexorably forcible
character of this brutal, unfeeling act.

A.
This

court

has

already

determined,

in

the

context

of

a

comparable Guidelines provision, that second-degree rape under a
parallel state statute did constitute a forcible sex offense and
thus

qualified

as

a

“crime

of

violence.”

Chacon, 533 F.3d 250, 252 (4th Cir. 2008).
44

United

States

v.

The pertinent parts

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of the Maryland second-degree rape statute at issue in Chacon
were functionally identical to those in the North Carolina law
here.

The Maryland statute criminalized “vaginal intercourse”

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

physically

should

or

or

reasonably

know” of the condition; or (3) with a victim “under 14 years of
age,” when the perpetrator is “at least four years older than
the victim.”
2002)

Md. Code Ann. art. 27, § 463(a)(1)-(3) (repealed

(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

Examining the Guidelines provision for illegally
United
a

States,

violation

categorically

a

of

U.S.S.G.

§ 2L1.2,

Maryland’s

forcible

sex

this

court

second-degree
offense

within

ambit of a “crime of violence,” Chacon, 533 F.3d at 252.
court’s reasoning was this:

rape
the
The

even without a requirement of the

use of physical force, a crime under the Maryland statute was
necessarily achieved through some form of compulsion.

Id. at

255-56.
Contrary to the majority’s suggestion, see Maj. Op. at 1723, this court’s analysis in Chacon applies with equal if not
45

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greater power in this case.

Pg: 46 of 55

As with the Guidelines provisions

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

the definition of “crime of violence,” the commentary to the
illegal-reentry
offenses.”

provision

likewise

listed

Id. § 2L1.2 cmt. n.1(B)(iii).

“forcible

sex

This court focused on

the “ordinary, contemporary meaning” of the term “forcible sex
offenses,” which is not defined in the Guidelines.

Chacon, 533

F.3d at 257; see Smith v. United States, 508 U.S. 223, 228
(1993).

Perusing

“forcible,”

the

dictionary

court

definitions

gleaned

a

of

“force”

significant

insight:

and
“a

‘forcible sex offense’ may be accomplished in the absence of
physical
added).

force”

per

Properly

se.

Chacon,

understood,

“the

involves a degree of compulsion.”
be

effected

through

‘power’

533
use

Id.

or

Maryland

statute

in

of

at

Chacon

257

force

(emphasis

necessarily

And that compulsion “can

‘pressure,’

necessarily have physical components.”
The

F.3d

which

do

not

Id.
contained

a

provision

virtually identical to the disputed North Carolina provision in
this case.

Both states’ second-degree rape laws criminalize

sexual intercourse with a person who is mentally or physically
defenseless, where the perpetrator knows or reasonably should
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know of the victim’s condition.

See Md. Code Ann. art. 27,

§ 463(a)(2); N.C. Gen. Stat. § 14-27.3(a)(2).

For these crimes,

“any nonconsensual sexual contact is forcible because, if actual
physical

force

is

unnecessary,

some

degree

of

compulsion

is

nevertheless required to overcome an unwilling victim or take
advantage of a helpless and incapacitated one.”
F.3d

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.

That point of distinction

embodies no neutral principle.

B.
The majority makes much of a technical amendment to the
illegal-reentry

Guidelines

provision

shortly after we handed down Chacon.

that

became

effective

U.S.S.G. app. C, amend.

722, at 301-03; see Maj. Op. at 22-23.

That amendment made

clear that “forcible sex offenses” do in fact include instances
“where consent to the conduct is not given or is not legally
valid, such as

where

consent

incompetent, or coerced.”

to

the

conduct

is

involuntary,

Id. § 2L1.2 cmt. n.1(B)(iii).

As

this court later confirmed, the amendment “was intended simply
to clarify that the requisite compulsion need not be physical in
nature,” and the revised Guidelines language was fully in line
with our prior holding in Chacon.
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Castaneda, 709 F.3d 373, 380 (4th Cir. 2013).
not alter the governing analysis.
the

amendment

specifically

The amendment did

If anything, the language of

reinforces

the

interpretation

that

the term “forcible sex offenses” here does refer to crimes of
compulsion.
In
from

excluding

the

“crime

majority

can

North
of

violence”

only

implication.

The

Carolina’s

second-degree

definition

grasp

at

the

trouble

is

that

under

thin

rape

§ 4B1.2,

reed

the

statute

of

positive

the

negative

indications

undercut the majority’s conclusion.
Neither

the

modified

illegal-reentry

language

in

§ 2L1.2

nor the unmodified career-offender language in § 4B1.2 supports
the

majority’s

force.

proffered

requirement

of

the

use

of

physical

The Sentencing Commission has not chosen to alter the

language

in

requirement.

the

career-offender

provision

to

impose

such

a

See Chacon 533 F.3d at 257-58.

The Commission simply has not restricted the meaning of
“forcible sex offenses” as the majority does today.
wanted

to

do

so,

the

Commission

could

easily

have

Had it
added

to

§ 4B1.2 a phrase excluding from the definition of forcible sex
offense

cases

where

consent

to

the

“involuntary, incompetent, or coerced.”
cmt. n.1(B)(iii).

conduct

was

See U.S.S.G. § 2L1.2

Yet the Commission did no such thing.

48

merely

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The

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majority

professes

Pg: 49 of 55

not

to

“question”

Chacon’s

interpretation of forcible sex offenses under § 2L1.2, even as
it “reach[es] a different result under § 4B1.2.” Maj. Op. at 19.
The

Chacon

court,

however,

would

be

surprised

ruling was a ticket for one train only.

to

learn

its

It is not right to cast

aside precedents on such a slim and precarious basis.

C.
The
force.

North

Carolina

statute

See supra Section I.B.

requires

the

state

to

show

The majority suggests, however,

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 majority stresses that § 4B1.2 requires “physical force,”
whereas the commentary omits the word “physical” and alludes
only to “forcible sex offenses.”

See Maj. Op. at 9-11.

The

majority’s conclusion of inconsistency not only is incorrect,
but will spell trouble down the road in future Guidelines cases.
First,

in

finding

an

inconsistency,

the

majority

misconstrues the Supreme Court’s mandate in Stinson v. United
States, 508 U.S. 36 (1993).
“‘controlling weight.’”

The commentary generally deserves

Id. at 45 (quoting Bowles v. Seminole

Rock & Sand Co., 325 U.S. 410, 414 (1945)).

After all, the very

same Sentencing Commission promulgates both the Guidelines text
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and the accompanying commentary.

Id. at 40-41.

This is not an

instance where an agency rule purports to interpret the work of
a different instrumentality such as Congress.
the

contrary,

work.
need

the

Commission

Id. at 44-45.
“not

be

simply

interpreting

On

its

own

Stipulations contained in the commentary

compelled

(emphasis added).

is

Id. at 44.

by

the

guideline

text.”

Id.

at

47

The commentary may give specific form to a

broad textual mandate -- that is precisely why the Commission
provides both.
Second,

there

is

no

nettlesome

conflict

here

between

felonies involving “the use, attempted use, or threatened use of
physical
qualify

force,”
as

U.S.S.G.

“forcible

sex

§ 4B1.2(a)(1),
offenses,”

and

id.

felonies

§ 4B1.2

that

cmt.

n.1.

Whether the prosecution proves the defendant had sex by force
and against the other person’s will, or whether the element of
force is fastened to proof that the defendant had sex with a
mentally

or

physically

defenseless

victim,

these

are

simply

alternative but equal pathways for demonstrating force.
N.C.

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

U.S.S.G. § 2L1.2 cmt. n.1(B)(iii).

We should

be loath to find the Commission at war with itself and, in so
doing,

to

disregard

the

settled
50

maxim

that

the

provision

of

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instructions,

a

Pg: 51 of 55

conventional

function

of

Guidelines

commentary, presumptively trumps more general statements.

See

RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 132 S. Ct. 2065,
2070-72 (2012).
And third, the instances in which this court has invalidated
part of the commentary as inconsistent with the Guidelines text
are quite rare.

See Stinson, 508 U.S. at 38.

On what basis is

a federal court, in the role of haruspex, supposed to divine
such a delicate inconsistency hidden among the Commission’s own
pronouncements?
1871 (2013).

Cf. City of Arlington v. FCC, 133 S. Ct. 1863,

Presumably, the rare occurrences of such purported

“inconsistency” holdings still bespeak an understanding by our
own and other courts that the Sentencing Commission, through its
commentary, can and routinely does provide specific elucidation
of the Guidelines’ more general textual provisions.

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.

The illegal-reentry provision, § 2L1.2,

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

provision that applied to Shell, § 4B1.2, mentions “forcible sex
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offenses” but not the other two crimes.

Id. § 4B1.2 cmt. n.1.

But here, those differences are immaterial.
It

is

§ 4B1.2.

true

that

Chacon

involved

§ 2L1.2

rather

than

But the logic of the majority turns the old Latin

maxim on its head:

instead of applying expressio unius est

exclusio alterius (i.e., “the expression of one thing is the
exclusion of the other”), the majority treats the exclusion of
one term (“statutory rape”) as the expression of another term
(“forcible

sex

offenses”)

inference,

rather,

is

with

simply

new

that

meaning.

the

The

Sentencing

proper

Commission

deliberately excluded the crime of statutory rape from § 4B1.2,
see Barnhart v. Sigmon Coal Co., 534 U.S. 438, 452-53 (2002) -–
not

that

it

was

modifying

the

definition

of

“forcible

sex

offenses” sub silentio.
In fact, the balance of the available indications suggests
that the Sentencing Commission wanted “forcible sex offenses” to
retain the same meaning in §§ 2L1.2 and 4B1.2.

The “‘normal

rule of statutory construction’” is that “‘identical words used
in different parts of the same act are intended to have the same
meaning.’”

Gustafson v. Alloyd Co., 513 U.S. 561, 570 (1995)

(quoting Dep’t of Revenue v. ACF Indus., Inc., 510 U.S. 332, 342
(1994)).

Context matters, to be sure.

But the interpretive

context is not appreciably different here.

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On the contrary,

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“forcible sex offenses” is a distinct term with a consistent
meaning across §§ 2L1.2 and 4B1.2.
I doubt that the majority would argue that the crimes of
murder, manslaughter, kidnapping, aggravated assault, robbery,
arson, extortion, extortionate extension of credit, or burglary
of a dwelling -- all, like forcible sex offenses, enumerated in
both

Guidelines

provisions

--

would

assume

different meaning in the two provisions.

a

substantively

This is precisely the

point of the categorical approach mandated by the Supreme Court:
we compare the elements of the particular predicate offense with
“the elements of the ‘generic’ crime -- i.e., the offense as
commonly understood.”

Descamps v. United States, 133 S. Ct.

2276, 2281 (2013).

After today’s ruling, the rest of us are

left

the

to

wonder

how

generic

definition

of

“forcible

sex

offenses” could have changed so swiftly and abruptly.
The term “forcible sex offenses” is not quite the chameleon
the

majority

says

it

is.

In

fact,

in

advancing

a

view

of

Guidelines interpretation where identical terms assume different
meanings at a blink, the majority has started us down the road
of

a

confusing

and

contradictory

Guidelines

structure,

thus

rendering an already difficult interpretive exercise more arcane
and byzantine.

In sum, the newly contradictory status of our

precedents, the new receptivity to finding Guidelines text and
commentary at odds, and the new willingness to imbue the same
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terms with shifting meanings will, whether taken singly or in
combination,

create

jurisprudence.

crosscurrents

and

riptides

in

Guidelines

That does not bode well for those who need or

aspire to understand them.

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.

But here the majority has chosen essentially to

absolve, through its construct of nonviolent rape, individuals
accorded the full slate of protections in our criminal justice
system.

Doctrinal

reasoning,

but

analysis

upon

is

occasion

indispensable

it

can

lead,

to

judicial

increment

by

increment, from sound beginnings toward untenable conclusions.
So

it

is

here:

the

real

need

to

protect

the

unthinking

expansion of “crimes of violence” has led to a race to restrict
them.

If such a restriction makes sense in many instances, it

does not in the case at bar.
they cannot consent.

The victims here cannot resist;

But they yet retain the capacity to feel

the trauma and, yes, the violence that has been so visited upon
their very beings.
rape

of

someone

The majority nevertheless maintains that the
known

to

be

mentally

disabled,

mentally

incapacitated, or physically helpless is neither a forcible sex
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offense nor a crime of violence.
sentient, would beg to differ.
They know not our doctrines.

Pg: 55 of 55

The victims, were they even
They know not our precedents.

But somewhere in the recesses of

consciousness they do know they have been wronged, and we now
know that law has failed to duly recognize it.
I respectfully dissent.

55