United States v. Aaron Shell

HARRIS, Bеfore WILKINSON and DAVIS, Judges, Circuit Senior Circuit Judge.

Vacated and by published remanded opinion. Judge HARRIS wrote the opinion, which Judge Senior joined. Judge DAVIS WILKINSON dissenting wrote a opinion. HARRIS,

PAMELA Judge: Circuit Defendantr-Appellant Aaron Eugene (“Shell”) pleaded Shell guilty being in possession firearm, felon of a in viola- tion of 18 922(g) U.S.C. At sen- tencing, the district court applied an en- hanced base offense level on ground prior that Shell’s North Carolina convic- second-degree tion for constituted crime of violence under the U.S. Sentenc- (“U.S.S.G.” ing Guidelines Manual or the “Guidelines”) 2K2.1(a)(4)(A)(2014). applied district court also a two-level en- justice hancement for pursu- obstruction of 3C1.2, ant to Guidelines concluding that recklessly Shell created a substantial risk of death or bodily injury serious to another person in the course of fleeing from a law enforcement officer. appeal, On Shell challenges the application district court’s of both enhancements. For the reasons follow, we vacate Shell’s sentence and remand for resentencing. Carpenter, ARGUED: Joshua B. Fed- I.

eral Defenders Of Western North Car- olina, Inc., Asheville, Carolina, On December driving Shell was Appellant. Miller, William Michael Office southbound Highway on Caldwell as a qualified conviction ond-degree rape North Carolina

County, North Carolina. under 2K2.1. (“Hodges”), “crime of violence” Hodges Christopher Trooper northbound, speeding Shell saw traveling adopted thе PSR The district court By him. to follow around and turned im- to 57 months’ sentenced Shell complete able to Hodges time supervised years three prisonment and disappeared from vehicle turn, had Shell challenging the appeals, Shell release. and down an em- the road veered off had of both en- application district court’s bankment. hancements. accident, the scene As he fled a tree. Offi- II. bag behind

Shell discarded a loaded bag and found cers searched A. later, days Several pistol. semiautomatic Guidelines, a defen Under' the in- police to a voluntarily submitted Shell being posses of a felon in dant convicted that he was the driv- terview and admitted receives an enhanced sion of a firearm of possession and was the vehicle er of of 20 if he or she has base offense level the firearm. violence,” “crime of prior committed a count of charged one Shell in Guidelines 4B1.2. U.S.S.G. defined firearm, possession of being a felon argues § 2K2.1 cmt. n. 1. Shell that the 922(g), plead- and of 18 U.S.C. violation characterizing court erred in his district (“PSR”) report guilty. presentence ed The conviction for second-de North Carolina raising Shell’s base offense recommended crime violence because gree rape as a of 14 to 20 under U.S.S.G. level from require statute does not the use the state 2K2.1(a)(4)(A), ground that Shell on force, may instead vio physical be prior after a the instant оffense committed force or the ab through lated constructive “crime of vio- felony for a conviction valid consent. We review sence here, conviction a North Carolina lence”— question de novo that of law. United rape. The PSR also second-degree Montes-Flores, v. 736 F.3d 363 States enhancement for a two-level recommended (4th Cir.2013). justice, pursuant obstruction 3C1.2, driving in because Shell’s reckless parties agree The that consider fleeing from a law enforce- the course of convic ing whether Shell’s Carolina a substantial risk of ment officer created violence, a crime of tion constitutes bodily injury to another death or serious “categorical is called the apply must what provisions, those person. Applying which on the ele approach,” “focus[es] range 57 to PSR calculated Guidelines facts,” ments, prior rather than the of the imprisonment. 71 months’ Carthorne, offense. States v. 726 United Cir.2013) (4th (quoting Des objected enhancements. F.3d 511 Shell to both — States, U.S.-, 133 camps v. United sentencing, At the district court overruled (2013)). 2276, 2285, 186 L.Ed.2d 438 to reckless endan- S.Ct. objections. Shell’s As 3C1.2, categorical approach for the the district court What matters germent under gener the law defines the offense that Shell is how credited a witness who testified vehicle, particulars of how an skidded, ically, hit her and not sped, and almost have committed the of might created a individual and thus concluded Shell Begay v. Unit given on a occasion. in the course of fense substantial risk death 137, 141., 128 553 S.Ct. officer. ed U.S. fleeing from a law enforcement (2008); 1581, 170 L.Ed.2d 490 United prior that Shell’s sec- court also held

339 (4th Seay, v. States 553 F.3d mentally incapacitated, physically .2009). helpless. Cir (West 2004). N.C. Gen.Stat. 14-27.3 Be- decide, then, question we must cause the records of Shell’s conviction do range the full whether conduct cov not specify which subsection of the statute by second-degree ered North Carolina’s conviction, formed the basis for his statute, “including the most innocent parties agree, conviction be conduct,” qualify would as a crime of vio treated as a crime of violence if both purposes lence for 4B1.2 enhance qualify. subsections so Diaz-Ibarra, ment. United States v. applicable first subsection is (4th Cir.2008). F.3d If it is where “sexual by intercourse is effectuated “evident from the definition of force the victim’s will.” State the state crime that some violations of the Atkins, N.C.App. 666 S.E.2d statute are ‘crimes of violence’ and others (2008). 809, 812 Under North Carolina not,” then the state offense is deemed law, that force requirement may be satis “categorically overbroad” and 4B1.2 “actual, fied either force or Rangel- United States v. apply. does not fear, constructive force in the form of Castaneda, Cir. fright, or coercion.” State v. Etheridge, Diaz-Ibarra, 2013) (quoting 522 F.3d at 319 N.C. 352 S.E.2d 348). Whether North Carolina second-de Constructive force be demonstrated gree rape categorically qualifies as a crime by proof compulsion force, of or threats of of violence under approach ques this is a also and will be inferred from certain rela impression court, tion of first for our and tionships parent-child as a relation —such follow, for the agree reasons we ship inherently are deemed coercive. —that Shell that it does not. Morrison, See id. 680-82; State v. 517,

N.C.App. 380 S.E.2d 611-12 B. subsection, by contrast, The second

In comparing the elements of require prove does not the state to either North Carolina second-degree rape to Atkins, force or the absence of consent. violence,” 4B1.2’s definition of “crime of Instead, 666 S.E.2d at 812. it applies begin with the North Carolina statute victims by incapable who are deemed law precedent and the state construing it. validly consenting of to intercourse or re Carolina’s stat Williams, State v. sisting acts, sexual offenses, separate ute consists of two pro N.C.App. 698 S.E.2d 544-45 viding that: (2010), by and it is used the state in cases (a) A person guilty is of in the where there is factual but insuffi degree person second if the engages consent, Ramey, see State v. cient No. vaginal person: intercourse with another COA10-1197, 214 N.C.App. 2011 WL (1) By against force and the will of 3276720, (N.C.Ct.App. Aug. *4-5 person; the other or 2011) (conviction (unpublished) for second- (2) disabled, mentally Who is degree rape mental- of mentally disabled victim intercourse). ly incapacitated, physically help- sense, or who initiated In this less, and the person performing analogous it is age to the element of North act knows or reasonably statutory rape should know Carolina’s law: the fact of disabled, person mentally the other is consent is not a defense where the victim (a) by ... offense under federal or legally valid consent give unable to law, punishable imprisonment state of mental disabil- age or virtue virtue year, that— (com- exceeding for a term one Atkins, 666 S.E.2d at 812 ity. See (1) use, statutory rape and second-degree has as an element at- paring use, threatened use of tempted “In second or history: quoting legislative force adding persons are who degree rape, we another, or defective, mentally incapaci- (2) arson, tated, dwelling, helpless. burglary This is basi- of a physically extortion, explosives, section....”); involves use cally statutory rape or otherwise involves conduct Banks, 367 N.C. also State presents potential a serious risk of (statutory and sec- S.E.2d physical injury to another. “separately punish the act ond-degree rape who, 4B1.2(a). a victim commentary of intercourse with because U.S.S.G. elaborates, act, part: in relevant age, of her is unable to consent to the a victim and the act of intercourse with murder, “Crime of violence” includes who, disability because a mental or men- aggravated manslaughter, kidnapping, assault, incapacity, offenses, robbery, tаl is unable to consent to the sex forcible arson, extortion, act”).1 extortionate extension credit, burglary dwelling. of a (emphasis § 4B1.2 cmt. n. 1 add- C. ed). point comparison is the Our other argument, government its violence,” phrase “crime of as used in the past the text of 4B1.2 skips to focus on Sentencing As will become Guidelines.2 commentary, and in particular its case, important guideline this different phrase “forcible sex offenses.” But it is provisions describe “crime of violence” dif- text, course, precedence, of that takes ferently. But Shell’s sentence was en- 36, see Stinson v. United 508 U.S. prior hanced for a of crime violence under 1913, 113 S.Ct. 123 L.Ed.2d 598 2K2.1, § U.S.S.G. which defines that term (where commentary is inconsistent with guide- reference to the career-offender text, controls), text and so that is where line, § § U.S.S.G. 4B1.2. 2K2.1 U.S.S.G. begin. we And like two other circuit 4B1.2, turn, courts, cmt. n. 1. Section defines as well as our own court in an crime of violence unpublished opinion, as: conclude that of- we offense, dissenting colleague ‍‌‌‌​​​‌​‌‌‌​‌‌‌‌​‌​‌‌‌‌‌​​‌‌‌‌‌‌‌‌​​​​​‌​‌‌‌‌‌​​‍sug- particulars 1. To the extent our consent. The of Shell's gests legally course, that lack of valid consent cannot analysis do control the not under the alone sustain a conviction for North Carolina categorical approach apply. they we second-degree rape, opposed as may help practical scope to illustrate the rape, respectfully disagree. we must See the North Carolina statute at issue. Williams, 698 S.E.2d at 544-45. Nor is the prospect prosecution in cases of factual but customary, rely 2. As is as well on cases legally insufficient consent so fánciful that we construing phrase felony" "violent under may categorical ap- it under the overlook Act, the Armed Career Criminal "because the proach. Ramey, WL have defined two terms been in manner that Indeed, hearing, sentencing *4-5. at his Montes-Flores, substantively identical.” testimony Shell adduced that his own convic- (internal quotation 736 F.3d at 363 marks engaging tion under the statute was for omitted). stepsister by sexual intercourse with his mar- riage young when both were and with factual may fenses that be committed without (2010);

physical predicated force and instead on L.Ed.2d see also United States v. (4th Aparicio-Soria, 740 F.3d legally the absence of valid consent—as 154-55 (en Cir.2014) banc) Johnson). (applying the North second-degree under Carolina think it clear that We the second subsec rape categorically statute —are not crimes tion of North Carolina’s second-degree of violence under either clause of 4B1.2. statute, rape which require does not Wray, See United States v. state to prove force at all and instead (10th Cir.2015) (conviction 1187-91 for sex- be violated if there is insufficient 10-year age ual assault awith difference consent, does not meet this “violent force” categorically not a crime of violenсe under standard, indeed, government does 4B1.2); Wynn, United States argue not otherwise.3 Nor do we believe (6th Cir.2009) (sexual F.3d 572-75 that North second-degree Carolina’s battery based on coercive nature of rela- qualifies , offense as a crime- of violence not tionship categorically a crime of vio- under 4B1.2’s “residual clause” or “oth 4B1.2); lence under United States v. clause,” covering any erwise crime that “is Leshen, Fed.Appx. 412-16 burglary arson, extortion, of a dwelling, Cir.2011) (unpublished) (third-degree rape explosives, involves use of or otherwise aggravated sexual assault based on presents involves conduct that a serious age categorically of victim crimes of potential physical risk of injury to anoth 4B1.2). violence under 4B1.2(a)(2).4 er.” U.S.S.G. Sex offenses dispense relatively canWe among are not the enumerated crimes. quickly with the first clause of the career- clause, And Supreme the final Court guideline offender so-called “force instructs, —the does not every reach crime that clause”—which covers crimes that have presents “otherwise ... potential serious use, use, attempted “as element the risk injury,” threatened use of physical force 4B1.2(a)(2), but those “that are another.” U.'S.S.G. roughly similar in kind” [] to the listed 4B1.2(a)(l). For these purposes, examples involving conduct that is “pur — Court held Johnson v. United poseful, aggressive” violent and well —as States, “physical force” means “violent “degree similаr in the physi risk” of is, capable force—that force of causing injury they cal pose. Begay, 553 U.S. at physical pain 142-45, or injury person.” standard, to another 128 S.Ct. 1581.5 That " notes, 3. As the dissent expense North Carolina clause’ at the of 4B1.2's force Supreme purposes Court has held that for of clause. Post at 351. But this is unusual laws, sentencing felony rape the state's own government ignores case in that both necessarily is a crime of violence. See State v. equally, clauses and that makes it hard for us Holden, 338 N.C. 450 S.E.2d 884 say to which is the straw man. On the as- meaning "physical But the force” sumption government’s argument that 4B1.2(a)(1) question under law, is a of federal implicitly must be anchored at least in one of law, answering not state and in that clauses, § 4B1.2’s textual and without further question, we "are not bound a state court’s which, guidance government from the as to interpretation of a similar —or even identi- obliged we feel ourselves to address both. Johnson, cal—state statute.” 559 U.S. at Instead, 130 S.Ct. 1265. we follow Johnson 5.Although Supreme Court refined the and other Court and Fourth Circuit States,- precedent that bears on the Begay approach Sykes relevant federal in v. United provision -, before us. 2267, 2275-76, U.S. 180 (2011), require L.Ed.2d 60 we continue to 4. giving The dissent chides us .for too much attention to the "straw man of the ‘residual 342 minors, whereas by sex ual contact already, is not met have held inter- criminalizes sexual the use of Carolina’s statute require not that do

offenses in arе dis- may course with those who predicated be force and physical insufficiency purport incapacitated. nothing about abled or legal stead on logic v. Thorn of Thorn- States that distinction renders consent. See United ed (4th Cir.2009) ton, statuto- any applicable 446-49 here. Like 554 F.3d ton less (conviction statutory rape laws, does not fall second-de- ry rape for North Carolina’s Leshen, clause); see also require within residual not gree rape statute does (same). Fed.Appx. at 413-14 453 to force or the absence prove state Atkins, fact, in 666 S.E.2d at consent here. Like governs That precedent probabili- a “realistic and there is at least considered statutory rape offense Diaz-Ibarra, that ty,” at Thornton, subsection of North the second in which a apply statute would situations without statute be violated Carolina’s give legally to presumed victim is unable force, on physical use of and the threat or Williams, consent, 698 S.E.2d at valid that the victim is legal presumption 544-45; 3276720, at *4- Ramey, 2011 WL Atkins, 666 S.E.2d unable to consent. See precisely are the features that mean, course, 5. Those That does not at 812. serious; to in Thornton that statu- it led us conclude crime is not but does that the Thornton, mean, not a crime of violence under tory rape that unlike the we held (“[A] in the career-offender 4B1.2. 554 F.3d at 448 victim’s crimes enumerated support not an inference guideline, ability give legal “does lack to consent” does all of the offense are instances statutory rape “inherently make vio- 449; 554 F.3d at aggressive.” Leshen, and violent aggressive.”); see also lent Leshen, 414; Fed.Appx. see also applying at 414. Fed.Appx. Similarly, at 574. we do Wynn, 579 F.3d violence, 4B1.2’s definition of crime offenses committed not doubt sex grounds distinguishing be- we see no physical force and vulnera- without victim tween sexual intercourse with a present physical can as well as ble victims legally invalid because he whose consent is risks, sexually in the form of psychological old, years fourteen and sexual or she is transmitted diseases or health concerns intercourse with an adult victim whose con- pregnancy. But we have attendant consent is invalid because he she comparable that those risks are not cluded capacity fourteen-year- of a has the mental by the generated to the risks Indeed, above, as noted North Car- old. 4B1.2(a)(2), listed in both because crimes precisely paral- law itself draws this olina they are more attenuated because lel, treating the second subsection of its they not “violent in nature.” Thorn- analogous statute as Leshen, ton, 449; F.3d at Atkins, its law. See Fed.Appx. at 414. (“This basically a statuto- 5.E.2d (and section....”); Banks, Leshen, ry rape 766 S.E.2d

At issue Thornton well) ques- controls on this criminalizing a statute adult sex- at 339.6 Thornton argues 6. The dissent that offenses under the that an offense be similar to the listed exam- necessarily secоnd-degree rape are statute degree

ples kind and in of risk before both in way statutory rape "violent” in a is not qualify violence under the it can as crime of because the second subsection of that statute Martin, v. residual clause. See United States to defendants who know—or limits its reach (4th Cir.2014). 753 F.3d know, victim do not but should—that a mentally disabled or otherwise falls within the tion, and we are bound to find that North on legally insufficient consent constitute rape second-degree Carolina’s statute is “forcible sex offenses” under a different categorically a crime of violence under section the Guidelines —Guidelines 4B1.2(a)(2)’s § residual clause.7 § they must be crimes of violence 2L1.2 — 4B1.2, § under the commentary to as well. D. Two other circuit rejected courts have pre- government’s turn now to the argu- We . cisely that argument, Wynn, see 579 F.3d appeal. government ment on does not (Sixth Circuit); at 574-75 Wray, 776 F.3d contest, directly, holding least our that a (Tenth Circuit); at 1187-88 see also Lesh- North Carolina convic- en, (Fourth Fed.Appx. at 415-16 Cir- qualify categorically tion does not as a cuit, unpublished), join and we them now. crime of violence under either clause of Section 2L1.2 of the Guidelines enhances Instead, § govern- 4B1.2’s definition. the base offense level for certain immigra- its argument entirely ment rests on the tion 4B1.2, violations where the defendant commentary §to has which lists “forc- prior felony committed a ible sex as an “crime of vio- examрle offense[]” of a § lence” or crime of violence. U.S.S.G. 4B1.2 cmt. misdemeanor “crimes of vio- (E). specifically, 2L1.2(b)(l)(A), n. 1. More lence.” government contends that because sex resting offenses The text of 2L1.2 does not define crime protected category. agree. through We cannot A de- be violated force that is constructive it, too, "guilty knowledge" physical, fendant’s that a significant victim rather than raises disabled, post Johnson, at 353—or his failure issues under 4B1.2. After disability to discern mental when it is found ("physical 130 S.Ct. 1265 force” un- should, Williams, 4B1.2(a)(1) force”), that he 698 S.E.2d at der means "violent we (despite impairments, 546-47 his own mental requiring doubt that a only statute construc- "reasonably defendant should have inherently discover- tive force in the form of an coer- disability) may relationship, ed” victim’s mental course cive like the first subsection of —of and, law, culpability, again, bear on brought we do not the North Carolina can be with- Vann, gravity doubt of offenses under in the North force clause. See United States ques- Cir.2011) (en Carolina’s statute. But that ais distinct 779 n. 2 banc) J., tion from whether all such (King, offenses "in- concurring). And there is Thornton, herently aggressive,” violent and question room to whether an under offense held, 554 F.3d at and as have sex predicated the first subsection that is on an give offenses committed victims who inherently relationship coercive could fall (but invalid) factual clause, consent are not sufficiently within the residual simi- sense, "inherently violеnt” in that id. More- degree lar in kind and of risk of over, second-degree because North Carolina 4B1.2(a)(2)'s injury examples. listed rape, statutory rape, presumes like Thornton, invalid (rejecting govern- 554 F.3d at 448 consent, may be committed even when argument ment that sex offense involves con- a defendant lacks the intent to override the structive force and therefore falls within re- victim, factually consenting will of a and is in Leshen, clause); sidual Fed.Appx. see also recklessness, way liability, akin to a strict (constructive longer at 415 force "no satisfies negligence Sykes, offense. See 131 S.Ct. at prong” either of 4B1.2’s definition of crime 2275-76; 144-45, Begay, 553 U.S. at violence). But we need not resolve those 1581; Thornton, S.Ct. 554 F.3d at 448. today. explained, issues As we have second-degree Carolina's statute can 7. Our conclusion here qualify categorically is limited to the second as a crime of violence subsection of North Carolina’s statute. We if both its subsections are covered note, however, 4B1.2, should that even if the second and so our determination that the subsection could be reconciled with the text second subsection reaches offenses that fall 4B1.2, §of there question enough would remain the outside the terms of 4B1.2 is of the first. And dispose because that subsection of this case. compulsion also and, only physical under not force but provision unlike the

of violence sentenced, through “power” “pressure,” оr it does not effectuated Shell was which “accomplished a § id. at as when 4B1.2’s two- by reference incorporate who can- by taking advantage” of someone of violence. In- of crime clause definition consent, at 258. And give legal id. stead, commentary listing § 2L1.2 includes extending “forcible sex offenses” to stat- of a example as an offense[ ]” “forcible sex l(B)(iii). require physical that do not force and utes violence. Id. at cmt. n. crime of consent, inability presume instead Chacon, applied States v. we In United held, consistent with 2L1.2’s com- Maryland a to a subsection of 2L1.2 whole, mentary expressly as a which enu- the second subsection of much like statute “statutory merates the similar offenses statute, criminalizing in North Carolina’s a rape” and “sexual abuse of minor.” See person a who is tercourse with id. defective, physi or mentally incapacitated, meaning” analy- It is Chacon’s “common cally helpless. 533 F.3d Cir. relies most 2008). government sis on which the time, commentary § 2L1.2’s At the government argues that heavily here. The provided: the common once we have established any of violence” means of the “Crime phrase forcible sex of- meaning of the federal, state, following offenses under fenses, meaning stays that common murder, manslaughter, kid- or local law: same, traveling with the term wherever it assault, aggravated sex napping, forcible in Br. appears Appellee’s the Guidelines. offenses, statutory rape, sexual abuse of (“It ... imagine is difficult to how minor, arson, extortion, robbery, ex- examining meaning the common credit, burglary extension of tortionate phrase forcible sex offense would lead [] dwelling, of a under fed- offense simply based on where to different result eral, state, has or local law that as appears the enumerated offense in the use, use, attempted element appreciate logic guidelines.”). We physical threatened use force Leshen, but, position, this as 453 Fed. another. 414-16, Appx. disagree. we must l(B)(iii) (2006) § 2L1.2 cmt. n. added). first, held, recently (emphases that the As the Court remind- We us, Maryland it comes to construc- offense did not have “as an ele- ed when tion, use, use, attempted ment the or threat- context matters. See Yates v. United — U.S.-, force,” ened use of and so did not (2015)(“In life, [ fall 2L1.2’s “force clause.” Cha- 191 L.Ed.2d 64 law as ] within con, words, placed at 255-56.8 went on to the same different con- We find, however, texts, quali- things.”). it nevertheless sometimes mean different guideline, fied as a “forcible sex within the Section 4B1.2’s career-offender offense[ ]” here, immigration 2L1.2’s meaning of 2L1.2. Id. at 256-58. In the issue Chacon, definition, are differ- guideline, absence of textual we relied construed “ordinary, provisions, significantly on different contemporary” ‍‌‌‌​​​‌​‌‌‌​‌‌‌‌​‌​‌‌‌‌‌​​‌‌‌‌‌‌‌‌​​​​​‌​‌‌‌‌‌​​‍meaning ent Accordingly, while of “forcible” and concluded that it reaches texts and structures. case, urges, heavily surely 8. The relies on Chaсon in ar- as the dissent then this dissent guing that North Carolina part holding govern, of Chacon's would 4B1.2, presumably well, falls within its force and eliminate 4B1.2's force clause as clause. But if Chacon's construction of the position. for the a textual basis dissent’s governed commentary directly 2L1.2 this es, question we of course do Chacon’s driven the different structures of presuming conclusion that offenses the ina- provisions, and it surprise should be no bility qualify to consent as forcible sex that up we end in places. different § commentary, offenses under 2L1.2’s we Moreover, the full text of the two com- a different reach result under 4B1.2. mentaries strongly themselves suggests a provisions, government Both as the broader reading of the term “crime of says, list forcible sex offenses their com- violence” immigration under the guideline critically, mentaries. But while 2L1.2 at issue Chacon than under the career- entirely defines crime of violence through guideline offender today. before us As we commentary, § that 4B1.2 provides sepa- Chacon, explained in the commentary to two-part rate definition of crime of vio- § 2L1.2 only includes not “forcible sex of- text, lence in its commentary with the fenses” but also other offenses that do not definition, serving only amplify that and require physical force, such statutory any inconsistency between the two re- rape minor, and sexual abuse of a in its list Stinson, text, solved in favor of the 508 of enumerated crimes of violence. 533 43,113 U.S. at S.Ct. 1913. in interpret- So F.3d at 258 (citing U.S.S.G. 2L1.2 cmt. ing “forcible sex offenses” 4B1.2’s l(B)(iii)). n. Section commentary, 4B1.2’s commentary, we do not write on a blank hand, on the other does not list slate; instead, a carefully we have reticu- minor, or sexual abuse of a but lated definition of crime of violence to plainly force, offenses that involve physical Leshen, which we must adhere. See 453 such as aggravated murder and assault. “ (under 4B1.2, Fed.Appx. at 415 ‘[forc- § 4B1.2 face, cmt. n. 1. On its ible sex offenses’ does not have freestand- commentary immigration to the guideline ing power,” definitional but must instead sweeps “expressly further arid cover[s] to a prong be linked of the textual defini- more sex crimes” than the career-offender violence); tion of crime of see also United commentary. 575; Wynn, 579 F.3d at Benkahla, States v. Leshen, Fed.Appx. at 415-16. Read- Cir.2008) (recognizing “duty courts’ to har- ing “forcible sex offenses” to include of- monize Guidelines commentary”). fenses committed without force above, And as discussed that textual defi- predicated on legally invalid consent nition glossed by comes to us makes sense under commentary 2L1.2’s precedent Court and Fourth Circuit in way it would not under 4B1.2’s precludes application its to offenses com- commentary. mitted without “violent” predi- force and Finally, we think it is clear that legal invalidity cated on the of consent. Sentencing Commission intended this re- Chacon, hand, on the other interpreted First, sult. the Commission chоse to in- “forcible sex offenses” as a freestanding multiple clude and different definitions of phrase, without imposed by the constraints text, “crime violence” the Guidelines. Had leeway 4B1.2’s and so had the canvas wanted term to have the same scope outside sources in search of ordi- (“When nary appeared, each time it meaning. 533 F.3d at then the obvious statute, word solution provide is not defined would have been to we normal- one ly definition, construe it in uniform ordinary applicable throughout. accord with its Instead, meaning.” natural (quoting Smith the Commission set out v. Unit- different ed “crime of violence” enhancements dif- (1993))). 124 L.Ed.2d underlying Those are ferent crimes. The felon-in- markedly different interpretive enterpris- possession guideline under which Shell was second-de- 2K2.1, conviction for North Carolina by cross-referencing

sentenced, § a crime of categorically is not definition, gree for an en- provides § 4B1.2’s § 4B1.2. Our decision violence under offender”— is a “career if Shell hancement minimize in understood to deliberately should not be might who person the “kind of of the offenses any way the seriousness trigger.” the Be- pull and gun point the by North Carolina statute proscribed If the 128 S.Ct. 1581. at gay, in importance of the state’s interest to enhance or the had wanted the Commission the most vulnerable of victims. protecting a sentences for broader felon-in-possession full of conduct cov- violence, range thе including mis- whether range of crimes a by that state statute constitutes crimes, simply could ered then demeanor 4B1.2, § con- 2L1.2, under § instead. crime of violence cross-referenced have by court and the strued both our at 1188. Wray, 776 F.3d Court, question, a different which we is Second, and after we decided in 2008 negative. Be- obliged to answer the Chacon, Sentencing Commission the court in character- cause the district erred § im- commentary to 2L1.2’s amended prior conviction as a crime izing Shell’s adding parentheti- migration guideline, thereby enhancing and Shell’s violence (including sex offenses cal: “forcible illegally possessing level for base offense given not to the conduct is where consent firearm, we vacate Shell’s sentence valid, such as where or is resentencing. remand for involuntary, in- to the conduct consent ” coerced).... competent, III. added). l(B)(iii) (emphasis n. 2L1.2 cmt. time, left The district court also enhanced Shell’s the Commission At the same 3C1.2, for intact, purpose that its sentence under Guidelines explaining § 4B1.2 “recklessly creating] a substantial risk of “clarif[y] scope of the term was to bodily injury another that term is used death or serious offense’ as ‘forcible sex fleeing from a law of ‘crime of violence’ in the course in the definition officer.” concedes on Sentencing Guidelines Man- enforcement Shell 2L1.1.” U.S. Ill, C, recklessly during that he drove appeal amend. at 302 app. ual vol. added). arrеst, argues logical leading incident to his but (emphases “[T]he apply must draw is that the that the enhancement does not be- conclusion that we being he not aware that he was did not intend for cause was Sentencing Commission by § 4B1.2 to officer. pursued offenses’ under be' law enforcement We ‘forcible sex claim novo re- way legal as ‘forcible sex of- evaluate that de defined the same Wynn, findings by § 2L1.2.” 579 F.3d at view relevant factual the dis- fenses’ under 575; trict court for clear error. States Wray, (citing 776 F.3d United (4th Cir.2010). Carter, v. 601 F.3d expressio maxim of unius est exclusio al- that in- concluding express terius and A.

clusion of invalid-consent offenses minimum,” “suggests, 2L1.2 at a Our court has not addressed whether by are not covered those offenses if applies 3C1.2 enhancement Leshen, 4B1.2); Fed-Appx. 415- being was unaware that he was defendant (relying on Commission’s decision to every an officer. But circuit to pursued 4B1.2). amend 2L1.2 but not question has concluded that consider not warranted reasoning of the Sixth and the enhancement is Following where Circuits, following a defendant but the prior Tenth we hold that Shell’s officer know that the officer is police. defendant does not As to endangerment, reckless driving recklessly pursuit, government and is relied principally on the Smith, testimony some other reason. See United States v. of Nicole who described (11th Martikainen, “screeching 640 F.3d 1193-94 tires” and a “black car coming Cir.2011) curiam); (per sideways” v. United States “missed [her] about two Moоre, Cir.2001); 242 F.3d inches.” J.A. 44-45. sought Shell to re- Hayes, that testimony primarily United States 183- but through the (6th Cir.1995). argument, At gov- absence of skid marks on the road. ernment conceded that this is the correct The case as to knowledge po- Shell’s of § reading agree, 3C1.2. We and now pursuit complicated lice was by the fact adopt reading, joining that our sister cir- already that Shell speeding at the holding § cuits in that the 3C1.2 enhance- Hodges time encountered him while travel- ment a apply does where defendant ing direction, in opposite that and Shell being pursued by was unaware that he was longer Hodges’s was no within sight once a law enforcement officer. Hodges activated his siren and turned around to argued follow Shell. Shell that interpretation comports

This 3C1.2 he was Hodges unaware that had Sentencing with the Commission’s reason decided him, pursue to pointed support and for to promulgating Sentencing it. See U.S. C, I, testimony witness that expressed Manual Shell had app. Guidelines vol. amend. bystander concern when a at 196-99 to his accident provision is a 3C1.1, police called the that would have derivative Guidelines the ob- —concern enhancement, been struction-of-justice point, argued, beside the Shell had which he police believed that targets already in were in engage defendants who conduct pursuit. government, part, to mislead authorities or for its otherwise inter- pointed flight fere to Shell’s from the scenе of disposition with the of criminal the accident and his charges. See id. at 196. The admission that he had Commission Hodges seen point, though found that some it was endangerment during “reckless flight unclear whether before or after sufficiently Hodges different from other According gov- activated his siren. justice forms” of it to the obstruction that ernment, enhancement, Shell’s concern about call to separate warranted a and police expressly after his accident could be ex- applicable 3C1.2 is made plained Shell’s belief that he had eluded resisting arrest. Id. at 199. origins Those clear, successfully believe, Hodges up point. until that make that 3C1.2 is capture intended to “behavior could In imposing the 3C1.2 enhancement at justice,” be viewed as an obstruction of sentencing, the district court made the fol- requires and thus that a defendant be lowing finding: aware that he or fleeing she is from a law testimony The court credits the of Ms. enforcement officer. Hayes, 49 F.3d at perception Smith as to the she had at 183. approach the time of the of the black Mercedes to her car which she described

B. being sideways roadway in the case, At sentencing parties making skidding this substantial noises recklessly contested both whether car by approximately Shell that missed her injury despite testimony created a risk of two inches. And that is forti- and — absence of precedent people circuit fied the fact that don’t —whether no— being pursued by forget thing. Shell knew that he was tend to that sort of [An statute, testimony] of this one must have taken ad- detail Smith’s inconsistent mentally analysis vantage physically under U.S. de- is not critical to person engage Defendant in sexual in- Sentencing Guidelines 3C1.2. fenseless risk of death or knowing did create a substantial tercourse —all the while injury to her in the course bodily impaired serious victim’s condition. N.C. Gen. 27.3(a)(2). fleeing protects from a law enforcement offi- Stat. This law 14— people incapable cer. considered of volitional acts from such callous conduct. sentence, incorporat- J.A. 58-59. The final ing finding, quotes the ultimate the lan- however, majority, accept asks us to 3C1.2, determining guage of disquieting proposition: that a defendant risk of death Shell “created substantial “engages vaginal who intercourse with bodily injury,” so “in or serious and did another ... dis- [w]ho is fleeing course of from a law enforcement abled, mentally incapacitated, physically officer.” U.S.S.G. 3C1.2. because the helpless,” .knowledge of that vulnera- district court did not have the benefit of bility, has somehow not committed a forc- ruling today, we announce it had no Id. can A ible sex offense. How that be? separate finding to make a that occasion reading proper of the law confirms the being that he pursued Shell was aware was common intuition about the nature of this given preceding And con- by Hodges. inherently It crime. the kind of involves text, exclusively sepa- which focuses on the force that is emblematic of a “crime of recklessly question rate of whether Shell provision violence” under the relevant Smith, endangered we cannot be certain Sentencing the United States Guidelines. in fact that the district court did make 4B1.2(a)(l) & cmt. n. 1. Both finding. Accordingly, such remand this court and North Carolina’s courts issue, well, on this as so the district specifically recognized have the forcible may apply newly court our announced un- acts, rightly nature of these sorts of derstanding of 3C1.2 to this case and so. I do not knowing, understand how the clarify whether Shell knew he was subjugation helpless forcible sexual hu- being pursued by law enforcement. beings qualify man fails to as a crime of respect my violence. With all for friends IV. in majority, I dissent.1 reasons, foregoing For the we vacate the judgment district court’s and remand for I. resentencing opinion. consistent with this VACATEDAND REMANDED provisions Under the Guidelines for fire- offenses, arms a defendant who previously WILKINSON, Judge, Circuit felony sustained a conviction for a “crime dissenting: subject heightened of violence” is to a base Carolina’s, 2K2.1(a)(4)(A). second-degree rape offense level. U.S.S.G. punishes predatory statute acts commit- A “crime of violence” refer to against society’s ted felony use, most vulnerable indi- that “has element use, To portion attempted viduals. violate the contested or physi- threatеned use of agree 1. I with the that Shell was cer. While I think the district court’s discus- know, required purposes already incorporated for the of an sion has the fact of such 3C1.2, knowledge, objection remanding enhancement under U.S.S.G. that he I have no being pursued by finding point. a law enforcement offi- for a further on the against person cal force of another.” lence’” (quoting Gonzales v. Duenas-Al 4B1.2(a)(l); varez, 183, 193, see 2K2.1 cmt. n. Id. id. 549 U.S. (2007))). (cross-referencing provision ca- L.Ed.2d 683 offenders).

reer As Guidelines com- North Carolina defines felony of sec- mentary explains, the term “crime of vio- ond-degree rape as follows: lence” also covers a number of enumerated (a) person A guilty in the offenses, “murder, including manslaughter, degree second if person engages in assault, Mdnapping, aggravated forcible vaginal intercourse with another person: offenses, arson, extortion, robbery, sex ex- (1) By force and the will of credit, burglary tortionate extension of person; the other or 1; dwelling.” of a 4B1.2 cmt. n. mentally disabled, isWho mental- § 2K2.1 cmt. n. 1. id. This list crimes ly incapacitated, physically help- Sentencing Commission is “authori- less, person and the performing, the tative.” Stinson v. United act knows or reasonably should know S.Ct. L.Ed.2d 598 disabled, the other (1993). The term “crime of violence” thus mentally incapacitated, physically expressly encompasses forcible sex of- helpless. fenses. 14-27.3(a)(l)-(2).

N.C. Gen.Stat. Anoth- A. provision, turn, er state eаch defines the three mental or conditions prior Was Shell’s crime a forcible sex second-degree identified rape stat- begin offense? We with the state statute ute: under which he was convicted.2 Our (1) (i)

charge range is to determine the of “Mentally actions disabled” means a vic- realistically retardation, that North Carolina would tim who suffers from mental (ii) classify second-degree rape. This is a or a victim who suffers from a men- exercise, practical disorder, dreamy not a one about tal temporarily either of which every conceivable scenario to which the permanently or renders the victim sub- might apply. statute See United States v. stantially incapable appraising of the na- Diaz-Ibarra, conduct, 522 F.3d 348 Cir. ture of his or her or of resisting “ 2008) (requiring ‘a realistic 'probability, vaginal the act of intercourse or a sexual act, possibility,’ not a theoretical that the state or of communicating unwillingness apply would its statute to conduct that falls to submit to act vaginal of inter- outside the definition of ‘crime of vio- course or a act. sexual course, statute, meaning provi- 2. by interpreta Of of a federal olina we are bound sion, regulatory be it or or Sentenc- Supreme tions and decisions of Court of Guideline, ing question. is a federal Johnson, North Carolina. See U.S. at 559 133, 138, Johnson v. United 1265; Apari 130 S.Ct. United States v. (2010). 130 S.Ct. 176 L.Ed.2d 1 cio-Soria, (4th Cir.2014) predicate the elements of a state offense аre (en banc). any No federal court "has authori law, id., obviously question a state see ty place to a construction on a state statute determining obviously those elements is a highest different the one from rendered step express charge critical here: our is to Fankell, court of the State.” v. Johnson compare predicate the elements of the state 911, 916, U.S. 117 S.Ct. 138 L.Ed.2d "generic” offense with the elements of the (1997). Examining North Carolina’s case crime, States,-U.S. Descamps see v. United part inquiry law is an essential of the before -, 186 L.Ed.2d 438 us. fact, construing In this North Car-

(2) B. incapacitated” means “Mentally to act committed victim who due addressing In the nature of this North substantially is rendered upon victim offense, predicate I must first Carolina appraising the nature incapable of either acknowledge validity majority’s conduct, resisting or the act or her important predi- of his concerns. It is not to let crimes of violence metastasize. I or a act. cate vaginal intercourse sexual unfair agree majority with the that it is (i) (3) means a vic- “Physically helpless” predicate defendants with crimes of tag (ii) unconscious; victim tim who is reality violence when a state statute is unable to resist an act physically who is many capable applications. nonviolent or a sexual act or vaginal intercourse this, Notwithstanding I think the unwillingness to submit to communicate wrong concept quite expand whole vaginal intercоurse or a sexual act of rape. of nonforcible or nonviolent Even act. cognitive jolt delivered ‍‌‌‌​​​‌​‌‌‌​‌‌‌‌​‌​‌‌‌‌‌​​‌‌‌‌‌‌‌‌​​​​​‌​‌‌‌‌‌​​‍apart from terms, such North Carolina’s statute is 27.1(1)—(3). these import 14— ways majori- in all kinds that the limited under this provisions plain. The victims acknowledge ty has failed both to and to comprehend law cannot Carolina appreciate. aggressor’s or resist the sex- the situation Second-degree rape North Carolina another, way ual advances. one (1) involves the three basic elements of persons helpless. these (3) intercourse,” “force,” “vaginal North Carolina’s Smith, “lack of consent.” State vagueness. not suffer from It statute does (2006); 626 S.E.2d N.C. specific and limited universe of covers 14-27.3(a)(l)-(2). GemStat. N.C. disjunctive And each variant un- conduct. present critical issue in the case is force. form of force. der the entails some statute of North Court Carolina’s binding interpreting The record of Shell’s conviction does not case law this state exceptionally statute is clear. See United specify whether he was convicted under 152, 154 Aparicio-Soria, States (a)(1) (a)(2). subsection See J.A. (4th Cir.2014) (en banc). The Guidelines 119-20. require “forcible sex offenses.” Second- scarcely argue The could rape any in degree of kind North Carolina (a)(1) subsection criminalizes sex —which of requires element force. Force “[b]y against force and the will of the other in legal assume various labels differеnt 14-27.3(a)(l)— person,” GemStat. N.C. actual, constructive, implied but, cases— — falls short a crime of violence. The of name, any exactly under is still that: forcible nature of this crime is self-evident. force. 4B1.2(a)(l) & cmt. n. 1. history The of North Carolina’s laws in only possible refuge Shell’s lies subsec- that force an in against rape confirms (a)(2) tion of the North Carolina statute. dispensable element of the offense. North mentally disabled,

But raping rape “essentially codify Carolina’s statutes incapacitated, physically helpless person rape.” the common law of State v. Moor ais forcible sex offense and a crime of man, 320 N.C. 358 S.E.2d 506 much violence—so so that our es- (1987). “implied The law in law common profession complicate consent,” teemed could the in- the elements of force and lack of quiry. rape with the result that the crime of

351 showing Holden, the mere of “complete upon firmly disagreed. sexu- the court 450 S.E.2d at person asleep, al intercourse with a who is 883-84. unconscious, incapacitated.” or otherwise key to the Holden ruling court’s

Id. at 505. Under the modern second- presence force, was the and indeed vio- statute, “it degree rape makes no lence, differ- in instance rape. Whether alleges ence whether the indictment consent, the victim refuses to as in subsec- vaginal by intercourse was force and (a)(1), tion or whether the victim cannot will,” as in 14- victim’s cоnsent because of a mental or physical 27.3(a)(1), alleges merely “or whether it impairment, (a)(2), subsection vaginal incapacitat- intercourse with an analysis is the same. Id. at 884-85. Un- victim,” 14-27.3(a)(2). ed as in law, der North Carolina “the inher- force added). In (emphasis the instances ent to having sexual intercourse with a (a)(2), by covered subsection “sexual inter- who is deemed law to be unable ipso rape course with the victim is to consent is sufficient to amount to ‘vio- facto because the force lack of added). consent are lence.’” Id. at (emphasis In matter, implied legal law.” Id. As a interpreting North Carolina’s second-de- statute, required gree rape threshold force a conviction hardly we could ask for under either is the subsection same. clearer mandate from the highest state’s majority’s court. The felony novel Court of North Carolina rape” oxymoron “non-violent is an not rec- spoken clarity has with utmost about the ognized North Carolina law. Id. rape nature of crimes of that state. interpretation This of North Carolina’s the context of North own Carolina’s sen- firmly statutes is now rooted in the laws, tencing highest state’s court has jurisprudence. state’s Ap- The Court of reject plainly, stated the notion of “[W]e peals of North Carolina has heeded the any felony may properly which be deemed highest dictates of the state’s court. “The ” Holden, rape.’ ‘non-violent Stаte v. gravamen of second[-]degree the offense of (1994) (em- N.C. 450 S.E.2d rape,” Appeals recently the Court of reaf- added) phasis (discussing N.C. Gen.Stat. firmed, “is forcible sexual intercourse.” 15A-2000(e)(3)). Carolina, In North Haddock, State v. 191 N.C.App. “rape felony ais which has as an element stipulated S.E.2d the use or threat of per- violence to the disability, conditions mental mental in- Indeed, son.” Id. at 883. even “the crime capacity, physical helplessness simply attempted rape always involves at least constitute “alternative means which the ” ‘threat violence.’ Id. at 884. necessary force complete rape may to a be 345; see, shown.” at e.g., Id. State v. North highest spe- Carolina’s court has 156, Washington, N.C.App. 131 506 S.E.2d rejected cifically very a claim much like 283, (1998); Martin, 290 State v. 126 by today’s the one majority. endorsed (1997) 426, 352, N.C.App. 485 S.E.2d 354 Holden, the argued pri- defendant that his J.); Aiken, (Wynn, v. N.C.App. State 73 attempted or conviction for second-degree (1985). 326 S.E.2d rape necessarily did not constitute a crime law, of violence under North Carolina majority be- The quickly too dismisses the cause the conviction could have involved “force clause” of the career-offender person mentally 4B1.2(a)(l), sex with a who provision, was dis- Guidelines and too abled, mentally incapacitated, physically readily or assails the straw man of the “resid- 14-27.3(a)(2). 4B1.2(a)(2). clause,” helpless. N.C. Gen.Stat. Maj. Op. ual See at by definition re- grеe rape statute clause covers The residual 341-43. lacking in mental or dwelling, quired a to be basic “burglary a felony that is statutory extortion, explo- physical capacity. use of Unlike arson, involves or disability of the victim’s rape, conduct that the extent sives, involves otherwise or established, some- individually must be potential physi- risk of a presents serious expert testimony. See State v. times with injury another.” cal Hunt, 4B1.2(a)(2). 491- majority on 365 N.C. 722 S.E.2d The relies circumstances, Thornton, on a based 554 F.3d 443 92 Such v. United States Cir.2009). particular physical mental or person’s But the differences be- characteristics, day. markedly legal- differ from night and this are tween that case age alone. ly criminalized insufficient consent based on in Thornton Virginia law “ ” “ of a minor ‘without knowledge’ ‘carnal stop The differences do not there. ” force,’ n. 2 554 F.3d at 445 the use of factor in Compulsion operative is not the added) quite unlike (emphasis — statutory court rape. the crime of This second-degree crime of forcible Carolina’s already has underscored that distinction obviously force clause rape. Because the context as well. As we Guidelines 446, all that remained apply, not id. at did 2L1.2, in an “it observed assessment clause, the court was the residual which Sentencing is clear that Commission fit, a at understandably poor deemed id. purposely juxtaposed neighboring majority’s discussion of 446-49. terms ‘forcible sex and ‘statuto- offense[ ]’ clause is thus Thornton and residual ry with the former intended to con- rape,’ inapposite. rape qualifying by note other conduct or compulsion and the latter intended to con- C. rape age.” note on account of the victim’s Rangel-Castaneda, v. majority rape maintains of United States (4th Cir.2013) disabled, mentally incapacitat- (emphasis F.3d added). ed, Indeed, helpless specifically that a physically or is analo- held statutory rape. logic statutory rape The shared Tennessee conviction did gous to crimes, according majority, qualify sex of those to the offense. forcible least, today, fact of consent is not a defense Before the distinction be- “the give statutory is unable to tween forcible sex offenses and where the victim by age by sharply valid consent virtue of virtue defined. disability.” Maj. Op. of mental at 340. But Even the cases cited analogy misguided. prelimi- As a actually underscore the distinction be- matter, nary North Carolina’s second-de- tween gree rape target statutory statute does not rape. Maj. Op. major- 339-40. The 27.3; rape. See N.C. Gen.Stat. J.A. 14— ity who quotes state senator likened “ 60-66. It makes no mention of the vic- ‘basically a statu- underlying 1979 bill ” age. tim’s It is instead defined Atkins, tory rape section.’ State victim’s mental defenselessness N.C.App. 666 S.E.2d inability and an to fathom the situa- basic added). legislator goes (emphasis oppose aggressor’s tion or actions. keya this law would on to note distinction: “ I equate age impairment. apply engages would not and ‘in cases where someone is, fact, teenagers responsi- Some are mature and in a sex act with a who ble; decidedly resisting communicating the or incapable others not. all perpetrator’s victims under second-de- resistance’ North Carolina’s ”—

353 provides itself statutory forcible actions. Id. Atkins Unlike with rape, provision this the victim telling example: strong severe contains a requirement. mens rea . ly eighty-three-year-old arthritic woman To be (a)(2), convicted under subsection “physically helpless” who was deemed perpetrator known, must have or rea- inability actively on apparent sonably known, based her “to should have that the victim disabled, oppose mentally or resist her attacker.” Id. 812- was mentally incapaci- 13; Huss, tated, N.C.App. see also State v. 223 physically helpless. N.C. Gen. (2012) 612, 14-27.3(a)(2). (noting 734 615 S.E.2d that Stat. This knowledge the “factors and part attributes” examined forms of the element of force that is unique personal present Atkins “were and to the in virtually all crimes of un- victim”), court, equally divided der North Carolina law—besides the strict aff'd (2013) 367 749 (per Lability N.C. S.E.2d 279 statutory offense of rape. curiam). majority The cites another case The threshold act under subsection comparing second-degree rape statu (a)(2) is sexual intercourse with a mentally Banks, tory rape. State 367 N.C. physically defenseless victim. This is a (2014). fact, S.E.2d that was a crime of forcible sexual compulsion. Lack jeopardy double case—and the valid consent is but one feature expressly Court of North Carolina found of this offense. One wonders how has separate them to be and distinct offenses. come to be that a perpetrator who acted 339; Blockburger Id. at see v. United guilty knowledge take advantage —to States, 299, 304, 284 U.S. 52 S.Ct. 76 of a profoundly vulnerable victim who is (1932). L.Ed. 306 unable to resist —could now escape sanc- is, Statutory rape finally, a crime of tion, prior for the commission of what the liability strict in North Carolina. State v. require: Guidelines a “forcible” sex of- Anthony, 351 N.C. 528 S.E.2d fense.3

323-25 against statutory Laws D. rape traditionally lack a require- mens rea LaFave, 2 Wayne ment. R. may Substantive “Force” involve the exertion of (2d 5.5, ed.2014). §§ Criminal violence, Law 17.4 “[p]ower, or pressure” against an- portray many 3. In its effort attempted factfinding these ís this sort of from the serious, very here, majority’s crimes as not so appellate remove of the without bench— discussion of anecdotal evidence about benefit state court’s or the sentenc- conviction, Maj. "facts,” Shell’s Op. ing earlier findings court’s as to those with- 1, impermissibly compromises categor n. adequate surrounding out elucidation circumstances, approach. "Sentencing ical courts look and without indicia of the i.e., statutory to the transparently self-serving the ele testimony’s reliabil- definitions' — offenses, prior ity. ments —of a defendant’s What we do know is that Shell was con-. particular underlying not 'to the facts those victed of North Carolina’s forcible crime of ” States, - Descamps convictions.' second-degree rape, v. United vagi- which criminalizes U.S.-, 2276, 2283, 133 S.Ct. 186 L.Ed.2d nal intercourse with someone known to be disabled, (quoting Taylor mentally v. United incapacitated, or physically helpless. categorical ap- (1990)). disclaimers, Despite L.Ed.2d proach its turns on those elements. however, proceeds majority, ap- nevertheless to sift slides through fragmentary proach, notwithstanding scant and indica heartbreaking try highly tions in the record to to ascertain instances of that lie in questionable underlying predi predicate "facts” Shell’s through the weeds of convictions why cate offense. Its efforts illustrate which federal courts in the course of Guide- categorical approach obliges permit- courts to exam lines calculations such as this are not “elements, ine not facts.” alternative ted to trek. ity happening is to these victims Dictionary 717 of what Black’s Law person. other ed.2009). majority’s view. The cat- quite eludes the conception of force This applied by majority egorical approach Carolina statute. to the North integral inquiry particu- our into the suggests rightly that bars majority’s argument Yet the offense. It any single predicate lars of somehow not “forc- second-degree rape is to, offense, in the words of or should not blind us a forcible sex enough to be ible” Guthrie, picture “a from life’s other Woody a crime of vio- enough to be not “violent” side.” lence. “force,” understanding of its own For II. relies on the Court’s majority majority’s ap- problems The with the v. United

pronouncements Johnson proach do not end at the borders North 559 U.S. is also inconsistent Maj. Op. at 341. Carolina. Its decision L.Ed.2d now, that, until seemed to precedents like this case. Johnson with is not Johnson about speak singular bat- with a clear and voice prior Florida conviction for involved 136-37, past circuit. Our governing at S.Ct. 1265. the law this tery. 559 U.S. battery, pronouncements left no doubt about the common law crime of With the brutal, inexorably even forcible character of this of “force” was “satisfied element touching.” unfeeling Id. at act. slightest offensive Court, For the 130 S.Ct. 1265. A. applied threshold was too low when felony.” at “violent S.Ct. determined, already This court has 1265; 740 F.3d at Aparicio-Soria, see also comparable the context of a Guidelines parlance, In modern the various 154-55. provision, second-degree rape under a generally definitions of “force” do not de- parallel state statute did constitute a forc Johnson, slight touching. note qualified as a ible sex offense and thus 138-41, degree The 130 S.Ct. 1265. “crime of violence.” States v. Cha United power pressure or indicated the tеrm (4th Cir.2008). con, 250, 252 infinitely expansive. “force” is not Context pertinent parts Maryland of the second- 139-40,130 does matter. Id. at S.Ct. 1265. degree rape statute at issue Chacon assuredly And contact is de minimis functionally identical to those in the were pertinent the issue with the forms of sec- Maryland North Carolina law here. The ond-degree rape punished under North “vaginal statute criminalized intercourse” Carolina law. Forcible intercourse (1) “[b]y committed force or threat of force light-years battery. removed from nominal against the will and without the consent of „ (2) majority grasp any person”; fails to the other with a victim who is defective, mentally multiple ways “mentally incapacitat in which the North Carolina ed, physically helpless,” offense is circum- when the reasonably “knows or should perpetrator scribed and limited. The forcible nature condition; of this know” of the or with a victim particular crime is unmistakable. years age,” perpe “under 14 when the differences between this offense and battery years trator is “at least four older than the rape or nominal clear. Ann. art. appreciate Nor does the victim.” Md.Code 463(a)(l)-(3) 2002) (current range mentally physically (repealed narrow Ann., Law 3- persons defenseless to which this statute version Md.Code Crim. 304(a)(l)-(3)). applies, on a basis. The real- personalized Chacon, recognized the fundamen- The Maryland statute in Chacon con- provision tained a tally virtually forcible nature of this crime. Exam- identical to the disputed North provision Carolina in the this ining provision illegally Guidelines for case. Both states’ second-degree rape States, reentering the United U.S.S.G. laws criminalize ‍‌‌‌​​​‌​‌‌‌​‌‌‌‌​‌​‌‌‌‌‌​​‌‌‌‌‌‌‌‌​​​​​‌​‌‌‌‌‌​​‍sexual intercourse with a 2L1.2, this court concluded that a viola- person who is mentally or physically de- Maryland’s tion of fenseless, where perpetrator knows or categorically statute was a forcible sex of- reasonably should know of the victim’s fense within the ambit of a “crime of vio- condition. See Md.Code Ann. art. lence,” Chacon, 533 F.3d at 252. The 463(a)(2); N.C. Gen.Stat. 14- reasoning court’s was this: even without a 27.3(a)(2). crimes, For “any these noncon- requirement force, physical of the use of sensual sexual because, contact is forcible Maryland crime under the statute was nec- if physical actual force is unnecessary, essarily through achieved form some degree compulsion some is nevertheless compulsion. Id. at 255-56. required to overcome an unwilling victim inca-, advantage take of a helpless Contrary majority’s to the suggestion, Chacon, pacitated one.” 533 F.3d at 255- 343-46, Maj. see atOp. analy- this court’s 56. The difference between this case in applies equal sis Chacon if not and Chacon is that this statute comes from greater power in this case. As with the Carolina, while the statute Cha- Shell, provisions Guidelines that applied to Maryland. con came from Thаt point of 2K2.1, 4B1.2, §§ illegal-reen- U.S.S.G. distinction embodies no principle. neutral try provision Guidelines at- issue Chacon provided a sentencing if enhancement B. previously defendant had sustained The majority makes much of a technical felony violence,” conviction for a “crime of amendment to the illegal-reentry Guide id. 2L1.2. In the definition of “crime of provision lines that became effective short violence,” commentary illegal- ly after we handed down Chacon. reentry provision likewise listed “forcible C, app. 301-03; amend. l(B)(iii). sex offenses.” Id. 2L1.2 cmt. n. Maj. Op. at 345-46. That amendment “ordinary, This court focused on the con- made clear that “forcible sex offenses” do temporary meaning” of the term “forcible in fact include instances “where consent to offenses,” sex which is not defined in the given conduct is not or is not Chacon, 257; Guidelines. F.3d see valid, such as where consent to the conduct Smith v. United involuntary, incompetent, or coerced.” S.Ct. L.Ed.2d 138 l(B)(iii). 2L1.2 cmt. n. As this court Perusing dictionary definitions of “force” confirmed, later in amendment “was “forcible,” gleaned signifi- court simply clarify tended requisite that the insight: cant “a ‘forcible sex offense’ compulsion physical need not be in na accomplished be absence ture,” and the revised language Guidelines Chacon, per force” se. 533 F.3d at 257 fully in line prior holding with our added). (emphasis understood, Properly Rangel-Cas Chacon. United States v. necessarily “the use оf force involves a taneda, (4th Cir.2013). degree of compulsion.” Id. And that com- The amendment did not govern alter the pulsion “can through ‘power’ be effected ing analysis. If anything, language ‘pressure,’ which do necessarily have specifically the amendment reinforces the physical components.” Id. interpretation that the term “forcible sex inconsistent. commentary fatally to crimes of com- lines does refer here

offenses” § 4B1.2 re- stresses that pulsion. force,” the com- quires “physical whereas second- excluding North Carolina’s mentary “physical” the word omits from the “crime of statute degree rape only to “forcible sex See alludes offenses.” 4B1.2, § ma- under the violence” definition majority’s The con- Maj. Op. at 340-41. at the thin reed of only grasp jority can inconsistency not is incor- clusion of The trouble is that negative implication. rect, the road spell but will trouble down undercut the ma- indications positive cases. in future Guidelines jority’s conclusion. First, inconsistency, finding an illegal-reentry lan- the modified Neither majority misconstrues ca- nor the unmodified §in 2L1.2 guage mandate Stinson United Court’s § language sup- 4B1.2 reer-offender 1913, 113 S.Ct. requirement majority’s proffered ports the commentary gen- The L.Ed.2d 598 physical force. Sentenc- of the use of “ ” erally ‘controlling weight.’ deserves Id. not chosen to alter the ing has Commission Bowles v. (quoting 113 S.Ct. 1913 provision in the career-offender language Co., Seminole Rock & Sand U.S. requirement. Cha- impose tо such S.ee (1945)). 65 S.Ct. 89 L.Ed. at 257-58. con 533 F.3d all, very Sentencing After same Com- simply has not restrict- The Commission the Guidelines promulgates mission both n accompanying commentary. meaning of “forcible sex offenses” ed the text and the today. Had it majority does wanted as the 40-41,113 Id. at S.Ct. 1913. ’This is not an so, easily could have to the Commission do purports to agency instance where rale from phrase excluding § 4B1.2 a added to the work of a different instru- interpret forcible sex offense cases definition mentality Congress. such as Id. at merely to the conduct was where consent contrary, S.Ct. 1913.- On the the Commis- “involuntary, incompetent, or coerced.” simply interpreting sion is its own work. l(B)(iii). § cmt. n. 2L1.2 Yet See U.S.S.G. 44-45, Stipulations Id. at 113 S.Ct. 1913. thing. did no such Commission commentary in the need “not be contained to majority professes “question” compelled by guideline text.” Id. at of- interpretation Chacon’s of forcible sex added). (emphasis 2L1.2, fenses under even as “reach[es] commentary may give specific form to a Maj. § 4B1.2'” Op. a different result under precisely textual mandate —that broad court, however, would 345. The Chacon why provides the Commission both. ruling be to learn its was a ticket surprised Second, there is no nettlesome conflict only. right for train It is not to cast one use, involving here between felonies “the pre- on such a slim and precedents aside use, attempted physi- or threatened use of carious basis. force,” 4B1.2(a)(l), cal and felo- оffenses,” qualify nies that as “forcible sex C. prose- id. 4B1.2 cmt. n. 1. Whether had sex requires proves statute cution the defendant The North Carolina will, person’s supra state to force. See Section force and the other show however, that, the element of force is fastened majority suggests, I.B. The or whether force, with a proof that the defendant had-sex require even if the statute does victim, insufficient, physically defenseless would still be because the text equal simply alternative but accompanying 4B1.2 and the Guide- these demonstrating “forcible sex pathways offenses” but not the other force.. 14-27.3(a)(l)-(2); supra two crimes. 4B1.2 N.C. GemStat. cmt. n. 1. But here, Pointedly, illegal-reentry I.B. those differences are Section immaterial. specifically equates “forcible sex provision It is true that Chacon involved 2L1.2 “any other offense” offenses” with involv- rather than logic 4B1.2. But the § 2L1.2 ing “physical force.” U.S.S.G. majority turns the old Latin maxim on its l(B)(iii). n. cmt. We should be loath to head: instead of applying expressio unius and, find the Commission at war with itself (i.e., est exclusio alterius expression “the doing, disregard in so the settled maxim of one thing other”), is the exclusion of the instructions, provision specific that the majority the treats the exclusion of one function of conventional Guidelines com- (“statutory rape”) term expression as the mentary, presumptively trumps gen- more (“forcible offenses”) of another term sex Gateway eral statements. Sеe RadLAX meaning. inference, with new The proper — Hotel, Bank, Amalgamated LLC v. rather, simply that Sentencing the Com- -, 2065, 2070-72, U.S. S.Ct. 182 mission deliberately excluded the crime of (2012). L.Ed.2d 967 statutory 4B1.2, rape from see Barnhart Co., 438, v. Sigmon 452-53, Coal 534 U.S. third, And the instances in which this (2002) 941, 122 S.Ct. 151 L.Ed.2d 908 —not part court has invalidated of the commen- modifying the definition of tary as inconsistent with the Guidelines “forcible sex offenses” sub silentio. Stinson, quite text are rare. See 508 U.S. 113 S.Ct. 1913. On what basis is a fact, In the balance of the available indi court, in haruspex, sup- federal the role of suggests cations that the Sentencing Com posed to divine such a delicate inconsisten- mission wanted “forcible sex offenses” to cy among hidden the Commission’s own meaning §§ retain the same in 2L1.2 and “ pronouncements? City Arlington v. 4B1.2. The ‘normal rule of con Cf. ” “ —FCC, U.S.-, 1863, 1871, 133 S.Ct. struction’ is that ‘identical words used — L.Ed.2d-(2013). Presumably, the in parts different of the same act are ” rare occurrences of purported such “incon- intended to meaning.’ have the same sistency” holdings bespeak still an under- Co., Alloyd Gustafson standing by our own and other courts that 115 S.Ct. (quot 131 L.Ed.2d Commission, Sentencing through its Indus., Inc., ing Dep’t Revenue v. ACF commentary, routinely can pro- and does U.S. S.Ct. specific vide elucidation of the Guidelines’ (1994)). matters, L.Ed.2d 165 Context textual general provisions. more be interpretive sure. context is appreciably

not different here. On D. contrary, “forcible sex offenses” ais dis tinct meaning term with a consistent Finally, majority reads too much §§ across 2L1.2 and 4B1.2. into the fact that certain other sex offenses appear 2L1.2 I majority argue but 4B1.2. See doubt that the would Maj. murder, Op. illegal-reentry provi- manslaughter, at 345. The that the crimes of sion, 2L1.2, assault, kidnapping, aggravated' robbery, lists not “forcible sex arson, extortion, “statutory rape” offenses” but also extortionate extension of credit, “sexual of a examples burglary dwelling all, abuse minor” as of a like — offenses, crimes violence. U.S.S.G. 2L1.2 cmt. forcible sex enumerated in both l(B)(iii). n. provision provisions career-offender Guidelines assume a —would Shell, 4B1.2, applied meaning in the substantively mentions different two protect real need to precisely point of So it is here: This is

provisions. unthinking expansion of “crimes of vio- approach mandated categorical to a to restrict them. compare the lence” has led race elements Supreme Court: many If such a restriction makes sense predicate offense particular of the instances, i.e., it does not the case bar. ‘generic’ “the elements crime' — resist; they here cannot can- commonly understood.” The victims offense as — U.S.-, they yet the ca- not consent. But retain v. United Descamps and, yes, the pacity to feel the trauma 186 L.Ed.2d 438 upon their today’s ruling, the of us violence that has been so visited After rest very beings. nevertheless generic how the defini- are left to wonder maintains that the of someone known of “forcible sex offenses” could have tion disabled, mentally incapaci- swiftly to be changed abruptly. so tated, physically helpless is neither a sex offenses” is not The term “forcible forcible sex offense nor a crime violence. majority says it quite the chameleon the is. sentient, victims, they were even fact, advancing a view of Guidelines They not our beg would to differ. know interpretation where identical terms as- They precedents. know our doctrines. blink, meanings sume different at a But somewhere in the recesses of con- majority has started us down the road they they sciousness do know have been contradictory Guidelines confusing we now know that law has wronged, and structure, already diffi- rendering thus duly it. recognize failed to cult exercise more arcane and interpretive sum, byzantine. newly contradicto- respectfully I dissent.

ry precedents, recep- status of our the new

tivity finding text and com- Guidelines odds,

mentary willingness and the new shifting

to imbue the same terms with will,

meanings singly whether taken

combination, rip- create crosscurrents jurisprudence.

tides in Guidelines That does not bode well for those who need or America, UNITED STATES of aspire to understand them. Plaintiff-Appellee,

HI. BASHAM, Brandon Leon Defendant- I do understand the circumstances Appellant. surrounding sexual interactions are often hazy, preservation a fact that makes the No. 13-9. process protections per- due for accused Appeals, United States Court of necessity sons a in all But ‍‌‌‌​​​‌​‌‌‌​‌‌‌‌​‌​‌‌‌‌‌​​‌‌‌‌‌‌‌‌​​​​​‌​‌‌‌‌‌​​‍here settings. Fourth Circuit. essentially has chosen to ab- solve, through its construct of nonviolent Argued: 2015. March rape, full accorded the slate individuals Decided: 2015. June protections justice system. in our criminal judi- analysis indispensable Doctrinal

cial reasoning, upon but occasion it can

lead, increment, increment from sound

beginnings conclusions. toward untenable

Case Details

Case Name: United States v. Aaron Shell

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Jun 12, 2015

Citation: 789 F.3d 335

Docket Number: 14-4211

Court Abbreviation: 4th Cir.