United States v. Jolon Carthorne, Sr.
2013 U.S. App. LEXIS 16739
| 4th Cir. | 2013Background
- Carthorne pleaded guilty to possession with intent to distribute cocaine base and possession of a firearm in furtherance of a drug trafficking crime; district court held him as a career offender based on two predicates including a 2002 Virginia ABPO conviction.
- ABPO convicts: 2002 Virginia assault and battery of a police officer under Va. Code § 18.2-57(C); offense involves common-law battery and assault elements.
- District court treated ABPO as a crime of violence under Guideline § 4B1.2(a) and increased his offense level; federal guidelines range rose from 181–211 months to 322–387 months, with a mandatory 60-month firearm term.
- Carthorne did not object to the ABPO classification or career-offender status at sentencing.
- Court analyzed whether ABPO under Virginia is categorically a crime of violence under the residual clause; ultimately held ABPO is not categorically a crime of violence, but plain error review does not establish plain error here.
- Opinion affirms district court’s judgment despite disagreement on ABPO’s categorization, noting split among circuits and lack of controlling authority.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether VA ABPO is a crime of violence under § 4B1.2(a)(2) residual clause | Carthorne argues ABPO presents serious risk under residual clause | Government argues ABPO categorically fits residual clause | ABPO not categorically a crime of violence under residual clause |
| Whether ABPO has element of force under § 4B1.2(a)(1) | ABPO lacks force element given common-law battery scope | Government contends force element implied by statute | ABPO does not have force element; not a violent felony under 4B1.2(a)(1) |
| Whether district court’s error was plain under plain-error review | Error persists given unresolved circuit split | Error not plain since law unsettled | Not plain error under current circumstances; affirmed |
| Whether modified categorical approach applied to ABPO conviction | Descamps governs when statute divisible | Not applicable here because ABPO conviction analyzed under categorical approach | Modified categorical approach not required; ABPO treated via categorical approach as non-divisible for this issue |
| Impact of appellate split on review of sentencing error | Courts should correct clear errors even if unsettled law | Discretion to correct error depends on plainness | Court applied plain-error framework; affirmed accordingly |
Key Cases Cited
- United States v. White, 606 F.3d 144 (4th Cir. 2010) ( Virginia assault and battery not have element of force; ABPO not categorically violent)
- Descamps v. United States, 133 S. Ct. 2276 (2013) (modified categorical approach limited to divisible statutes)
- Johnson v. United States, 559 U.S. 133 (2010) (physical force definition for residual/violent felonies)
- Sykes v. United States, 131 S. Ct. 2267 (2011) (test for residual clause: risk level of offense elements)
- Begay v. United States, 553 U.S. 137 (2008) (residual clause similarity to enumerated offenses required)
- Aparicio-Soria v. United States, 721 F.3d 317 (4th Cir. 2013) ( Maryland resisting arrest not analogous to ABPO Virginia)
- United States v. Hampton, 675 F.3d 720 (7th Cir. 2012) (insulting/provoking contact not a violent felony; ABPO not categorically violent)
- Rozier v. United States, 701 F.3d 681 (11th Cir. 2012) (circuit split on ABPO as residual-clause violent felony)
- United States v. Williams, 559 F.3d 1143 (10th Cir. 2009) (battery of armed officer not per se dangerous; residual-clause analysis)
- United States v. Dancy, 640 F.3d 455 (1st Cir. 2011) (ABPO categorization varies by jurisdiction)
- United States v. Wynn, 684 F.3d 473 (4th Cir. 2012) (lack of controlling precedent on residual clause)
- United States v. Boykin, 669 F.3d 467 (4th Cir. 2012) (plain-error review in sentencing contexts)