United States v. Omar Vereen
703 F. App'x 171
4th Cir.2017Background
- Omar Ramone Vereen pleaded guilty to: possession of a firearm/ammunition by a felon (18 U.S.C. § 922(g)(1)), possession with intent to distribute cocaine base and marijuana (21 U.S.C. § 841(a)(1)), and possession of a firearm in furtherance of a drug trafficking crime (18 U.S.C. § 924(c)).
- The district court calculated his Sentencing Guidelines range treating a prior North Carolina conviction for assault with a deadly weapon with intent to kill (AWDWIK) as a "crime of violence," increasing his base offense level under USSG § 2K2.1(a)(4)(A).
- Vereen did not dispute that AWDWIK involves violent force but argued on appeal that AWDWIK may be convicted based on mens rea less than recklessness, so it does not categorically involve a "use" of force under USSG § 4B1.2(a)’s force clause.
- The Fourth Circuit reviewed the issue under the categorical approach and considered North Carolina law and pattern jury instructions, which treat AWDWIK as requiring specific intent to kill.
- Because North Carolina precedent indicates specific intent is required (a mens rea greater than recklessness), the court concluded Vereen could not show plain error in treating AWDWIK as a crime of violence; the Guidelines calculation was affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether AWDWIK categorically qualifies as a "crime of violence" under USSG § 4B1.2(a)’s force clause | N/A (government argued it does) | Vereen: AWDWIK can be convicted on mens rea less than recklessness, so it may not involve a "use" of force | Court: AWDWIK requires specific intent to kill under NC law; does qualify; no plain error |
| Whether appellate plain-error standard was satisfied | N/A | Vereen: any error was plain and affected substantial rights | Court: Vereen failed to show clear/obvious error; plain-error relief denied |
| Whether AWDWIK also qualifies under the Guidelines’ residual clause (as applicable at sentencing) | N/A | Vereen: residual clause requires at least recklessness, so AWDWIK might not qualify | Court: Even under the residual clause, Vereen did not clearly demonstrate error (residual clause was in effect at sentencing) |
| Applicability of Fourth Circuit precedent distinguishing mens rea levels for "use" of force | N/A | Vereen relied on Vinson and related authority to show convictions based on lesser mens rea fail the force-clause test | Court: Vinson involved different assault statute; AWDWIK carries specific-intent element; prior precedent supports treating AWDWIK as violent offense |
Key Cases Cited
- Puckett v. United States, 556 U.S. 129 (plain-error standard governs unpreserved sentencing errors)
- Olano v. United States, 507 U.S. 725 (defining "plain" error)
- Johnson v. United States, 559 U.S. 133 (definition of "violent force" for force clauses)
- McNeal v. United States, 818 F.3d 141 (mens rea requirement for "use" of force in similar clause)
- Garcia v. Gonzales, 455 F.3d 465 (mens rea analysis for force clauses)
- Descamps v. United States, 133 S. Ct. 2276 (categorical approach to prior offenses)
- Montes-Flores v. Lynch, 736 F.3d 357 (application of the categorical approach)
- Vinson v. United States, 805 F.3d 120 (holding misdemeanor assault could be convicted on less than recklessness for a different statute)
- Carthorne v. United States, 726 F.3d 503 (Fourth Circuit sentencing- enhancement analysis precedent)
- Mack v. United States, 855 F.3d 581 (consideration of Guidelines’ residual clause)
- Martin v. United States, 753 F.3d 485 (discussion that residual clause requires at least recklessness)