United States v. Aaron Shell
2015 U.S. App. LEXIS 9885
4th Cir.2015Background
- Defendant Aaron Shell pleaded guilty to being a felon in possession of a firearm (18 U.S.C. § 922(g)).
- During flight after a single-vehicle accident, police found a loaded pistol in a bag Shell discarded; Shell later admitted possession.
- The PSR increased Shell’s base offense level to 20 under U.S.S.G. § 2K2.1(a)(4)(A), treating a prior North Carolina second-degree rape conviction as a "crime of violence."
- The PSR also recommended a two-level obstruction enhancement under U.S.S.G. § 3C1.2 for recklessly creating a substantial risk of death or serious bodily injury while fleeing an officer.
- At sentencing the district court applied both enhancements, producing a 57-month sentence; Shell appealed both enhancements.
Issues
| Issue | Plaintiff's Argument (Government) | Defendant's Argument (Shell) | Held |
|---|---|---|---|
| Whether North Carolina second-degree rape is a categorical “crime of violence” under U.S.S.G. § 4B1.2 | The prior rape conviction is a forcible sex offense and thus a crime of violence (relying on commentary reference to "forcible sex offenses"). | The statute can be violated absent physical force (by presumed inability to consent), so it is overbroad and not categorically a crime of violence. | The court held the statute is not categorically a crime of violence under § 4B1.2 and vacated the enhancement. |
| Whether the § 4B1.2 commentary’s phrase “forcible sex offenses” should be read to include offenses predicated on legally insufficient consent (relying on § 2L1.2 precedent) | Commentary term should be read broadly (as in Chacon/§2L1.2) to include offenses where consent is legally invalid. | §4B1.2’s text controls; commentary cannot expand the two-clause textual definition to cover non-physical-force offenses. | The court held context matters: §2L1.2 and §4B1.2 differ; §4B1.2’s text governs and does not encompass lack-of-physical-force, invalid-consent sex offenses. |
| Whether U.S.S.G. § 3C1.2 obstruction enhancement applies when defendant was unaware of police pursuit | The government argued Shell saw an officer and fled, so enhancement applies. | Shell conceded reckless driving but contended he did not know he was being pursued, so §3C1.2 should not apply. | The court adopted the prevailing view that §3C1.2 requires awareness of pursuit; remanded for the district court to make/find whether Shell knew he was being pursued. |
| Remedy | N/A | N/A | Because the career-offender enhancement was improper and the §3C1.2 factual/knowledge finding was unresolved, the court vacated the sentence and remanded for resentencing. |
Key Cases Cited
- Descamps v. United States, 133 S. Ct. 2276 (2013) (describing and endorsing the categorical approach to predicate offenses)
- Begay v. United States, 553 U.S. 137 (2008) (explaining that residual clauses cover crimes similar in kind and degree to listed examples)
- Johnson v. United States, 559 U.S. 133 (2010) (holding that "physical force" means violent force capable of causing pain or injury)
- Stinson v. United States, 508 U.S. 36 (1993) (clarifying that Guidelines commentary ordinarily controls interpretation of Guidelines text)
- United States v. Thornton, 554 F.3d 443 (4th Cir. 2009) (holding statutory rape lacking physical force is not a §4B1.2 crime of violence under the residual clause)
- United States v. Chacon, 533 F.3d 250 (4th Cir. 2008) (construing "forcible sex offenses" in §2L1.2 to include certain invalid-consent offenses; relied on by government but distinguished by the court)