United States v. Donald Covington, 880 F.3d 129

Donald Covington pleaded guilty to distribution of heroin; his PSR labeled him a "career offender" based on two prior felonies: robbery with a firearm and West Virginia unlawful wounding (W. Va. Code § 61-2-9(a)).
Covington did not object to the classification, but the district court sua sponte ordered briefing on whether unlawful wounding qualifies as a "crime of violence" under U.S.S.G. § 4B1.2(a).
The district court concluded unlawful wounding was not a crime of violence (relying on Torres-Miguel) and sentenced Covington to time served; the government appealed.
The Fourth Circuit reviews de novo whether a prior state conviction is a "crime of violence" and applies the categorical approach (with the modified categorical approach only if a statute is divisible and the specific variant is unclear).
The WV statute is divisible (malicious vs. unlawful wounding), and record showed Covington was convicted of the "unlawful, not malicious" variant, so the court compared that offense’s minimum conduct to the Guidelines’ force clause.
The Fourth Circuit concluded the unlawful-wounding offense categorically requires violent force (including indirect applications under Castleman), vacated the sentence, and remanded for resentencing.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether W. Va. § 61-2-9(a) (unlawful wounding) is a "crime of violence" under U.S.S.G. § 4B1.2(a)(1) (force clause)	Government: Yes — the offense requires use of physical force capable of causing pain/injury; Castleman confirms indirect force counts.	District/Covington: No — statute could be read to reach non-forceful or indirect conduct (relying on Torres-Miguel), so it does not categorically require violent force.	The Fourth Circuit: Yes — unlawful wounding’s minimum conduct necessarily involves violent force; it is a crime of violence.
Whether the modified categorical approach was required	Government: Not necessary because record shows Covington was convicted of the unlawful (non-malicious) variant.	District: Treated the statute’s divisibility and considered hypotheticals.	The Fourth Circuit: No modified approach needed here because the record identifies the specific statutory variant of conviction.

Johnson v. United States, 559 U.S. 133 (interpreting "physical force" as "violent force")
Castleman v. United States, 134 S. Ct. 1405 (indirect applications of force, e.g., poisoning, qualify as "use of force")
Mathis v. United States, 136 S. Ct. 2243 (statutory divisibility and when to apply modified categorical approach)
Taylor v. United States, 495 U.S. 575 (foundational categorical approach principles)
Descamps v. United States, 133 S. Ct. 2276 (modified categorical approach as a tool for divisible statutes)
United States v. Salmons, 873 F.3d 446 (Fourth Circuit: categorical-approach review of prior convictions)
United States v. Torres-Miguel, 701 F.3d 165 (Fourth Circuit decision distinguishing direct vs. indirect force; superseded in relevant respects by Castleman)
United States v. Reid, 861 F.3d 523 (Fourth Circuit holding that "inflicting bodily injury" aligns with force-clause requirements)