US v. Shawntanna Thompson
PUBLISHED AUTHORED OPINION filed. Originating case number: 5:15-cr-00058-BR-1. . [15-4685]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
SHAWNTANNA LEMARUS THOMPSON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. W. Earl Britt, Senior District Judge. (5:15-cr-00058-BR-1)
Argued: September 12, 2017
Decided: October 26, 2017
Before WILKINSON, MOTZ, and DIAZ, Circuit Judges.
Affirmed by published opinion.
Wilkinson and Judge Diaz joined.
Judge Motz wrote the opinion, in which Judge
ARGUED: Jennifer Claire Leisten, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Raleigh, North Carolina, for Appellant. Phillip Anthony Rubin, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF:
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon, Chief Appellate
Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina,
for Appellant. John Stuart Bruce, Acting United States Attorney, Jennifer P. May-Parker,
Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee.
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DIANA GRIBBON MOTZ, Circuit Judge:
Shawntanna Lemarus Thompson pled guilty to a drug offense and being a felon in
possession of a firearm. The district court increased his sentence, because it found
Thompson’s previous state conviction for assault inflicting serious bodily injury
constituted a “crime of violence” under § 4B1.2 of the United States Sentencing
Guidelines. Thompson appeals, challenging only his sentence. Because the residual
clause of § 4B1.2 authorizes the increased sentence, we affirm.
In 2015, Thompson pled guilty to possession of marijuana with intent to distribute
and being a felon in possession of a firearm. Pursuant to § 4B1.2, the probation officer
recommended imposition of an increased sentence because Thompson had previously
been convicted of assault inflicting serious bodily injury (“AISBI”) in violation of N.C.
Gen. Stat. Ann. § 14-32.4. Thompson objected to the designation of AISBI as a crime of
violence, but the district court rejected Thompson’s contention. After making various
adjustments and granting Thompson’s motion for a downward variance, the court
imposed an enhanced sentence of 120 months imprisonment and three years of
Thompson noted a timely appeal, again arguing that his prior
conviction for AISBI does not qualify as a crime of violence under § 4B1.2.
We originally heard oral argument in this case on October 27, 2016. At that time,
the Supreme Court had granted certiorari in a case that posed the question, inter alia, of
whether the residual clause of § 4B1.2 was void for vagueness. See Beckles v. United
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States, 616 F. App’x 415 (11th Cir. 2015), cert. granted, 136 S. Ct. 2510 (2016) (Mem.).
We held Thompson’s appeal in abeyance awaiting the Court’s decision. The Supreme
Court ultimately held that “[b]ecause they merely guide the district courts’ discretion, the
Guidelines are not amenable to a vagueness challenge.” Beckles v. United States, 137
S. Ct. 886, 894 (2017). We then ordered the parties to rebrief and reargue this case,
addressing the applicability of the residual clause of § 4B1.2 in light of Beckles.
“In assessing whether a sentencing court has properly applied the Guidelines, we
review factual findings for clear error and legal conclusions de novo.” United States v.
Llamas, 599 F.3d 381, 387 (4th Cir. 2010). Because this appeal involves a purely legal
question — interpretation of the Guidelines — we review de novo.
The Guidelines, as applicable to this case, define a “crime of violence” as:
[A]ny 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 (2015) (emphasis added). The italicized text is colloquially referred to
as the “residual clause.” 1
The Sentencing Commission revised the career offender guideline, effective
August 1, 2016. The new guideline omits the residual clause. SUPPLEMENT TO THE 2015
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The definition of crime of violence in § 4B1.2 parallels the definition of “violent
felony” in the residual clause of the Armed Career Criminal Act (“ACCA”), 18 U.S.C.
§ 924(e)(2)(B). See James v. United States, 550 U.S. 192, 206–07 (2007). Accordingly,
courts look to the Supreme Court’s ACCA “violent felony” analysis in cases interpreting
§ 4B1.2’s definition of “crime of violence.” See, e.g., United States v. Wray, 776 F.3d
1182, 1184–85 (10th Cir. 2015); United States v. Peterson, 629 F.3d 432, 438 (4th Cir.
In James, the Court considered whether a defendant’s prior Florida conviction for
attempted burglary constituted a “violent felony” under the ACCA. The Court held it
did, explaining that the enumerated offenses preceding the residual clause “provide a
baseline against which to measure the degree of risk that a nonenumerated offense must
‘otherwise’ present in order to qualify” as a “crime of violence.” 550 U.S. at 208. The
James Court concluded that because “the ordinary case” of attempted burglary posed the
same “degree of risk” as the enumerated offenses, i.e., a “serious potential risk of injury
to another,” the crime qualified as a “violent felony.” Id. at 208–09.
A year later, in Begay v. United States, the Court considered whether New Mexico
felony convictions for driving under the influence (“DUI”) constituted violent felonies
under the ACCA residual clause. 553 U.S. 137 (2008). While acknowledging that drunk
driving poses a “serious potential risk of physical injury to another,” the Court
GUIDELINES MANUAL § 4B1.2(a)(2) (U.S. SENTENCING COMM’N 2016).
however, was sentenced pursuant to the 2015 guideline quoted above.
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nonetheless concluded that the DUI offenses did not qualify as “violent felonies.” Id. at
141, 147–48. The Court reasoned that the structure of the ACCA indicates Congress’s
intent to cover only crimes that are “similar” to the enumerated offenses, “rather than
every crime that ‘presents a serious potential risk of physical injury to another.’” Id. at
142. Moreover, the Court concluded that the ACCA residual clause applies only to those
offenses “roughly similar, in kind as well as in degree of risk posed” to the enumerated
offenses. Id. at 143. Begay thus expanded the inquiry as to whether a crime falls within
a residual clause — requiring a sentencing court to assess both the degree of risk
typically posed by the crime and whether the crime involves the same kind of
“purposeful, violent, and aggressive conduct” as the enumerated offenses. Id.
In United States v. Martin, 753 F.3d 485 (4th Cir. 2014), we applied James and
Begay to hold that a defendant’s prior Maryland conviction for fourth-degree burglary did
not constitute a crime of violence under the residual clause in § 4B2.1. We reasoned that
even though the burglary crime posed the same “degree of risk” as the enumerated
offenses, it was not “similar in kind” to them. Id. at 490–94. This was so, because unlike
the “purposeful, violent, and aggressive” enumerated offenses, fourth-degree burglary
under Maryland law could be committed by negligent conduct. Id. at 493.
One year after we issued our opinion in Martin, the Supreme Court decided
Johnson v. United States, 135 S. Ct. 2551 (2015). In explaining why the residual clause
in the ACCA was unconstitutionally vague, the Court reviewed the line of residual clause
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cases that had set forth how a sentencing court should determine if a predicate offense
constitutes a crime of violence warranting an increased sentence. 2
The parties draw very different conclusions from the discussion of the residual
clause in Johnson. The Government argues that Johnson overrules the “portion of Martin
that . . . applies the Begay similar-in-kind test.” Appellee Suppl. Br. 18–19. Thompson
contends that “Johnson . . . does no such thing.”
Appellant Suppl. Reply Br. 6.
Thompson further maintains that, notwithstanding Johnson, two completely different
analyses guide the “degree-of-risk” inquiry and the Begay “similar-in-kind” inquiry.
According to Thompson, a court looks to the “ordinary case” in determining if a
predicate offense involves the same “degree of risk” as the enumerated offenses, but a
court looks only to how a predicate offense “may be committed” in determining if it is
“similar-in-kind” to the enumerated offenses.
Appellee Suppl. Br. 6–10 (emphases
added). Thompson insists that AISBI is not similar in kind to the enumerated offenses
because it may be committed with culpable negligence.
We do not believe that Johnson, which addressed the Begay “similar-in-kind test”
only in the course of discussing various failed approaches to interpreting the ACCA
residual clause, “overruled” the portion of Martin that applies Begay. Johnson does,
however, clarify that when considering whether a prior crime constitutes a crime of
The holding in Johnson that the ACCA residual clause was unconstitutionally
vague overruled numerous Supreme Court and lower court cases interpreting that clause,
including James and Begay. But previous precedent interpreting the ACCA residual
clause remains persuasive authority for our task here — interpreting the residual clause of
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violence under the residual clause, courts must look to the ordinary case not only in
assessing the “degree-of-risk” posed by the prior crime, but also in assessing whether that
crime is “similar-in-kind” to the enumerated offenses. 3 See 135 S. Ct. at 2559.
In many cases, the statutory language will clearly indicate whether — in the
ordinary case — an offense is “similar-in-kind” to the enumerated offenses. If a statute
requires knowing or intentional conduct, “Begay provides no shelter.” United States v.
Rodriguez, 659 F.3d 117, 119 (1st Cir. 2011). By contrast, if a statute has a mens rea of
“strict liability, negligence, or recklessness,” then, most likely, the ordinary case does not
involve purposeful conduct and so is not similar in kind to the enumerated offenses. See
Sykes v. United States, 564 U.S. 1, 13 (2011). But where a statute has no stated mens rea
requirement, a court must look to how the statute is ordinarily applied and what the mens
rea is in those cases. See, e.g., United States v. Hart, 674 F.3d 33, 43 (1st Cir. 2012)
(holding that assault and battery with a deadly weapon qualified as a “violent felony”
under ACCA even though a “conviction may rest on a recklessness theory” because “our
analysis under the residual clause is explicitly, and necessarily, limited to the ‘ordinary
case’”). For as the Johnson Court explained, the Begay similar-in-kind analysis “did not
As the Government acknowledges, this “‘ordinary case’ approach is significantly
different from the ‘minimum culpable conduct’ examined for the force clause.” Appellee
Suppl. Br. at 12 (citing Moncrieffe v. Holder, 569 U.S. 184, 191 (2013) and United States
v. Winston, 850 F.3d 677, 684 (4th Cir. 2017)). In determining whether a prior state
conviction necessarily requires “the use, attempted use, or threatened use of physical
force,” U.S.S.G. § 4B1.2(a)(1), courts focus on “the minimum conduct necessary for a
violation” under state law. Castillo v. Holder, 776 F.3d 262, 267–68 (4th Cir. 2015).
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(and could not) eliminate the need to imagine the kind of conduct typically involved in a
crime.” 135 S. Ct. at 2559 (emphasis added).
We now turn to the question of whether Thompson’s prior North Carolina AISBI
conviction qualifies as a crime of violence for purposes of the residual clause of § 4B1.2
under both the degree-of-risk test and the similar-in-kind test. Martin, 753 F.3d at 490.
To determine whether a prior state conviction constitutes a predicate crime of
violence justifying an enhanced federal sentence, we follow the categorical approach. 4
United States v. Seay, 553 F.3d 732, 737 (4th Cir. 2009); see also Taylor v. United States,
495 U.S. 575, 600–02 (1990).
This approach considers “how the law defines the
offense,” not “how an individual offender might have committed it on a particular
occasion.” Begay, 553 U.S. at 141.
Section 14-32.4(a), the North Carolina statute under which Thompson was
previously convicted, defines AISBI as follows:
Unless the conduct is covered under some other provision of law providing
greater punishment, any person who assaults another person and inflicts
serious bodily injury is guilty of a Class F felony. “Serious bodily injury”
A court can apply a modified categorical approach only if the prior state
conviction rests on a statute that “contains divisible categories of proscribed conduct, at
least one of which constitutes — by its elements — a violent felony.” United States v.
Gomez, 690 F.3d 194, 199 (4th Cir. 2012). Under the modified categorical approach, a
court may examine a limited universe of documents relevant to the underlying conviction
for the sole purpose of determining which part of the statute the defendant violated. Id.
The predicate state statute at issue here, AISBI, includes no “divisible categories.” See
N.C. Gen. Stat. Ann. § 14-32.4(a).
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is defined as bodily injury that creates a substantial risk of death, or that
causes serious permanent disfigurement, coma, a permanent or protracted
condition that causes extreme pain, or permanent or protracted loss or
impairment of the function of any bodily member or organ, or that results in
The Court of Appeals of North Carolina has explained that AISBI, as this statutory
definition indicates, applies to “those assaults that are especially violent and result in the
infliction of extremely serious injuries.” State v. Williams, 563 S.E.2d 616, 619 (N.C. Ct.
App. 2002). Thus, AISBI clearly involves a degree of risk “roughly similar,” Begay, 553
U.S. at 143, or “comparable” to the risk of physical injury posed by the enumerated
offenses in § 4B1.2, James, 550 U.S. at 20. See United States v. White, 571 F.3d 365,
370 (4th Cir. 2009) (“A roughly similar ‘degree of risk’ means that the prior crime, like
the enumerated offenses, creates an ‘immediate, serious, and foreseeable physical risk
that arises concurrently with the commission of the crime’ itself.” (alterations omitted)).
As we explained in Martin, however, our conclusion that AISBI has a comparable
degree of risk as the enumerated offenses “does not end our inquiry.” Martin, 753 F.3d
at 492. Applying Begay’s similar-in-kind test post-Johnson, we ask whether AISBI, like
the enumerated offenses, is “purposeful, violent, and aggressive” in the “ordinary case.”
Thompson argues that the “broadly sweeping nature of North Carolina’s assault law
makes it impossible to determine the ordinary [AISBI] case.” Appellant Suppl. Reply Br.
We cannot agree. The Government asserts that it has reviewed every North
Carolina case mentioning AISBI, and not one of the 141 cases supports the notion that
AISBI can be committed with anything less than actual intent. Appellee Suppl. Br. 15–
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16 n.6. See, e.g., State v. Brown, 628 S.E.2d 787 (N.C. Ct. App. 2006); State v. Shannon
Williams, 563 S.E.2d 616 (N.C. Ct. App. 2002); State v. Nathaniel Williams, 571 S.E.2d
619 (N.C. Ct. App. 2002). Thompson does not dispute this report. 5
Thus, unlike the DUI statute in Begay, which “typically” did not involve
“purposeful, violent, and aggressive” behavior, 553 U.S. at 145, AISBI under North
Carolina law “typically” does involve such conduct. Accordingly, Thompson’s prior
AISBI conviction constituted a crime of violence under the residual clause of the
applicable guideline, U.S.S.G. § 4B1.2 (2015).
For the foregoing reasons, the judgment of the district court is
Indeed, Thompson offers only a single unreported, clearly distinguishable civil
case to support his contrary view. See Mitchum v. Gaskill, 172 N.C. App. 171, 616
S.E.2d 29, 2005 WL 1804798, at *9 (2005) (unpublished) (concluding that there was “no
error in the trial court’s judgment” finding Gaskill liable for negligent conduct arising
from the same facts as his AISBI guilty plea).
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