Lead Opinion
Vаcated and remanded by published opinion. Judge HARRIS wrote the majority opinion, in which Senior Judge DAVIS joined. Judge WILKINSON wrote a dissenting opinion.
Defendantr-Appellant Aaron Eugene Shell (“Shell”) pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g) (2012). At sentencing, the district court applied an enhanced base offense level on the ground that Shell’s prior North Carolina conviction for second-degree rape constituted a crime of violence under the U.S. Sentencing Guidelines Manual (“U.S.S.G.” or the “Guidelines”) § 2K2.1(a)(4)(A) (2014). The district court also applied a two-level enhancement for obstruction of justice pursuant to Guidelines § 3C1.2, concluding that Shell recklessly created a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer. On appeal, Shell challenges the district court’s application of both enhancements. For the reasons that follow, we vacate Shell’s sentence and remand for resentencing.
I.
On December 27, 2012, Shell was driving southbound on Highway 321 in Caldwell
As he fled the scene of the аccident, Shell discarded a bag behind a tree. Officers searched the bag and found a loaded semiautomatic pistol. Several days later, Shell voluntarily submitted to a police interview and admitted that he was the driver of the vehicle and was in possession of the firearm.
Shell was charged with one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g), and pleaded guilty. The presentence report (“PSR”) recommended raising Shell’s base offense level from 14 to 20 under U.S.S.G. § 2K2.1(a)(4)(A), on the ground that Shell committed the instant offense after a prior felony conviction for a “crime of violence” — here, a North Carolina conviction for second-degree rape. The PSR also recommended a two-level enhancement for obstruction of justice, pursuant to U.S.S.G. § 3C1.2, because Shell’s reckless driving in the course of fleeing from a law enforcement officer created a substantial risk of death or serious bodily injury to another person. Applying those provisions, the PSR calculated a Guidelines range of 57 to 71 months’ imprisonment.
Shell objected to both enhancements. At sentencing, the district court overruled Shell’s objections. As to reckless endangerment under § 3C1.2, the district court credited a witness who testified that Shell sped, skidded, and almost hit her vehicle, and thus concluded that Shell created a substantial risk of death in the course of fleеing from a law enforcement officer. The court also held that Shell’s prior second-degree rape conviction qualified as a “crime of violence” under § 2K2.1.
The district court adopted the PSR and sentenced Shell to 57 months’ imprisonment and three years of supervised release. Shell appeals, challenging the district court’s application of both enhancements.
II.
A.
Under' the Guidelines, a defendant convicted of being a felon in possession of a firearm receives an enhanced base offense level of 20 if he or she has committed a prior “crime of violence,” as defined in Guidelines § 4B1.2. U.S.S.G. § 2K2.1 cmt. n. 1. Shell argues that the district court erred in characterizing his North Carolina conviction for second-degree rape as a crime of violence because the state statute does not require the use of physical force, and may instead be violated through constructive force or the absence of legally valid consent. We review de novo that question of law. United States v. Montes-Flores,
The parties agree that in considering whether Shell’s North Carolina conviction constitutes a crime of violence, we must apply what is called the “categorical approach,” which “focus[es] on the elements, rather than the facts,” of the prior offense. United States v. Carthorne,
The question we must decide, then, is whether the full range of conduct covered by North Carolina’s second-degree rape statute, “including the most innocent conduct,” would qualify as a crime of violence for purposes of the § 4B1.2 enhancement. United States v. Diaz-Ibarra,
B.
In comparing the elements of North Carolina second-degree rape to § 4B1.2’s definition of “crime of violence,” we begin with the North Carolina statute and the state precedent construing it. North Carolina’s second-degree rape statute consists of two separate offenses, providing that:
(a) A person is guilty of rape in the second degree if the person engages in vaginal intercourse with another person:
(1) By force and against the will of the other person; or
(2) Who is mentally disabled, mentally incapacitated, or physically helpless, and the person performing the act knows or should reasonably know the other person is mentally disabled, mentally incapacitated, or physically helpless.
N.C. Gen.Stat. § 14-27.3 (West 2004). Because the records of Shell’s conviction do not specify which subsection of the statute formed the basis for his conviction, the parties agree, that conviction may be treated as a crime of violence only if both subsections so qualify.
The first subsection is applicable where “sexual intercourse is effectuated by force and against the victim’s will.” State v. Atkins,
The second subsection, by contrast, does not require the state to prove either force or the absence of consent. Atkins,
C.
Our other point of comparison is the phrase “crime of violence,” as used in the Sentencing Guidelines.
(a) ... any offense under federal or state law, punishable by imprisonment fоr a term exceeding one year, that—
(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
U.S.S.G. § 4B1.2(a). The commentary elaborates, in relevant part:
“Crime of violence” includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling.
U.S.S.G. § 4B1.2 cmt. n. 1 (emphasis added).
In its argument, the government skips past the text of § 4B1.2 to focus on its commentary, and in particular the phrase “forcible sex offenses.” But it is the text, of course, that takes precedence, see Stinson v. United States,
We can dispense relatively quickly with the first clause of the career-offender guideline — the so-called “force clause” — which covers crimes that have “as an element the use, attempted use, or threatened use of physical force against the person of another.” U.'S.S.G. § 4B1.2(a)(l). For these purposes, the Supreme Court held in Johnson v. United States, “physical force” means “violent force — that is, force capable of causing physical pain or injury to another person.”
That precedent governs here. Like the statutory rape offense considered in Thornton, the second subsection of North Carolina’s statute may be violated without the threat or use of physical force, and on the legal presumption that the victim is unable to consent. See Atkins,
At issue in Thornton (and Leshen, as well) was a statute criminalizing adult sexual contact with minors, whereas North Carolina’s statute criminalizes sexual intercourse with those who are mentally disabled or incapacitated. But nothing about that distinction renders the logic of Thornton any less applicable here. Like statutory rape laws, North Carolina’s second-degree rape statute does not require the state to prove force or the absence of consent in fact, Atkins,
D.
. We turn now to the government’s argument on appeal. The government does not contest, at least directly, our holding that a North Carolina second-degree rape conviction does not qualify categorically as a crime of violence under either clause of § 4B1.2’s definition. Instead, the government rests its argument entirely on the commentary to § 4B1.2, which lists “forcible sex offense[]” as an example of a crime of violence. U.S.S.G. § 4B1.2 cmt. n. 1. More specifically, the government contends that because sex offenses resting on legally insufficient consent constitute “forcible sex offenses” under a different section of the Guidelines — Guidelines § 2L1.2 — they must be crimes of violence under the commentary to § 4B1.2, as well. Two other circuit courts have rejected precisely that argument, see Wynn,
Section 2L1.2 of the Guidelines enhances the base offense level for certain immigration violations where the defendant has committed a prior felony “crime of violence” or misdemeanor “crimes of violence.” U.S.S.G. § 2L1.2(b)(l)(A), (E). The text of § 2L1.2 does not define crime
In United States v. Chacon, we applied § 2L1.2 to a subsection of a Maryland statute much like the second subsection of North Carolina’s statute, criminalizing intercourse with a person who is mentally defective, mentally incapacitated, or physically helpless.
“Crime of violence” means any of the following offenses under federal, state, or local law: murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling, or any offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another.
U.S.S.G. § 2L1.2 cmt. n. l(B)(iii) (2006) (emphases added). We held, first, that the Maryland offense did not have “as an element the use, attempted use, or threаtened use of physical force,” and so did not fall within § 2L1.2’s “force clause.” Cha-con,
It is Chacon’s “common meaning” analysis on which the government relies most heavily here. The government argues that once we have established the common meaning of the phrase forcible sex offenses, that common meaning stays the same, traveling with the term wherever it appears in the Guidelines. Appellee’s Br. 25 (“It is difficult to imagine how ... examining the common meaning of the phrase forcible sex offense [] would lead to a different result simply based on where the enumerated offense appears in the guidelines.”). We appreciаte the logic of this position, but, as in Leshen,
As the Supreme Court recently reminded us, when it comes to statutory construction, context matters. See Yates v. United States, — U.S.-,
Both provisions, as the government says, list forcible sex offenses in their commentaries. But critically, while § 2L1.2 defines crime of violence entirely through that commentary, § 4B1.2 provides a separate two-part definition of crime of violence in its text, with the commentary serving only to amplify that definition, and any inconsistency between the two resolved in favor of the text, Stinson,
Moreover, the full text of the two commentaries themselves strongly suggests a broader reading of the term “crime of violence” under the immigration guideline at issue in Chacon than under the career-offender guideline before us today. As we explained in Chacon, the commentary to § 2L1.2 includes not only “forcible sex offenses” but also other offenses that do not require physical force, such as statutory rape and sexual abuse of a minor, in its list of enumerated crimes of violence.
Finally, we think it is clear that the Sentencing Commission intended this result. First, the Commission chose to include multiple and different definitions of “crime of violence” in the Guidelines. Had it wanted that term to have the same scope each time it appeared, then the obvious solution would have been to provide one uniform definition, applicable throughout. Instead, the Commission set out different “crime of violence” enhancements for different underlying crimes. The felon-in-possession guideline under which Shell was
Second, in 2008 and after we decided Chacon, the Sentencing Commission amended the commentary to § 2L1.2’s immigration guideline, adding a parenthetical: “forcible sex offenses (including where consent to the conduct is not given or is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced).... ” U.S.S.G. § 2L1.2 cmt. n. l(B)(iii) (emphasis added). At the same time, the Commission left § 4B1.2 intact, explaining that its purpose was to “clarif[y] the scope of the term ‘forcible sex offense’ as that term is used in the definition of ‘crime of violence’ in § 2L1.1.” U.S. Sentencing Guidelines Manual app. C, vol. Ill, amend. 722, at 302 (2011) (emphases added). “[T]he logical conclusion that we must draw is that the Sentencing Commission did not intend for ‘forcible sex offenses’ under § 4B1.2 to be' defined the same way as ‘forcible sex offenses’ under § 2L1.2.” Wynn,
Following the reasoning of the Sixth and Tenth Circuits, we hold that Shell’s prior conviction for North Carolina second-degree rape is not categorically a crime of violence under § 4B1.2. Our decision should not be understood to minimize in any way the seriousness of the offenses proscribed by the North Carolina statute or the importance of the state’s interest in protecting the most vulnerable of victims. But whether the full range of conduct covered by that state statute constitutes a crime of violence under § 4B1.2, as construed both by our court and the Supreme Court, is a different question, which we аre obliged to answer in the negative. Because the district court erred in characterizing Shell’s prior conviction as a crime of violence and thereby enhancing Shell’s base offense level for illegally possessing a firearm, we vacate Shell’s sentence and remand for resentencing.
III.
The district court also enhanced Shell’s sentence under Guidelines § 3C1.2, for “recklessly creating] a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer.” Shell concedes on appeal that he drove recklessly during the incident leading to his arrest, but argues that the enhancement does not apply because he was not aware that he was being pursued by a law enforcement officer. We evaluate that legal claim de novo and review relevant factual findings by the district court for clear error. United States v. Carter,
A.
Our court has not addressed whether the § 3C1.2 enhancement applies if the defendant was unaware that he was being pursued by an officer. But every circuit to consider the question has concluded that the enhancement is not warranted where an officer is following a defendant but the
This interpretation of § 3C1.2 comports with the Sentencing Commission’s reason for promulgating it. See U.S. Sentencing Guidelines Manual app. C, vol. I, amend. 347, at 196-99 (2008). The provision is a derivative of Guidelines § 3C1.1, the obstruction-of-justice enhancement, which targets defendants who engage in conduct to mislead authorities or otherwise interfere with the disposition of criminal charges. See id. at 196. The Commission found that “reckless endangerment during flight is sufficiently different from other forms” of obstruction of justice that it warranted a separate enhancement, and § 3C1.2 is expressly made applicable to resisting arrest. Id. at 199. Those origins make clear, we believe, that § 3C1.2 is intended to capture “behavior that could be viewed as an obstruction of justice,” and thus requires that a defendant be aware that he or she is fleeing from a law enforcement officer. Hayes,
B.
At sentencing in this case, the parties contested both whether Shell recklessly created a risk of injury and — despite the absence of circuit precedent — whether Shell knew that he was being pursued by the police. As to reckless endangerment, the government relied principally on the testimony of Nicole Smith, who described “screeching tires” and a “blаck car coming sideways” that “missed [her] by about two inches.” J.A. 44-45. Shell sought to rebut that testimony primarily through the absence of skid marks on the road.
The case as to Shell’s knowledge of police pursuit was complicated by the fact that Shell already was speeding at the time Hodges encountered him while traveling in the opposite direction, and that Shell was no longer within Hodges’s sight once Hodges activated his siren and turned around to follow Shell. Shell argued that he was unaware that Hodges had decided to pursue him, and pointed for support to witness testimony that Shell had expressed concern when a bystander to his accident called the police — concern that would have been beside the point, Shell argued, had he believed that the police already were in pursuit. The government, for its part, pointed to Shell’s flight from the scene of the accident and his admission that he had seen Hodges at some point, though it was unclear whether before or after Hodges activated his siren. According to the government, Shell’s concern about the call to the police after his accident could be explained by Shell’s belief that he had eluded Hodges successfully up until that point.
In imposing the § 3C1.2 enhancement at sentencing, the district court made the following finding:
The court credits the testimony of Ms. Smith as to the perception she had at the timе of the approach of the black Mercedes to her car which she described as being sideways in the roadway and making substantial skidding noises and that it missed her car by approximately two inches. And that testimony is fortified by the fact that no — people don’t tend to forget that sort of thing. [An*348 inconsistent detail in Smith’s testimony] is not critical to the analysis under U.S. Sentencing Guidelines 3C1.2. Defendant did create a substantial risk of death or serious bodily injury to her in the course of fleeing from a law enforcement officer.
J.A. 58-59. The final sentence, incorporating the ultimate finding, quotes the language of § 3C1.2, in determining that Shell “created a substantial risk of death or serious bodily injury,” and did so “in the course of fleeing from a law enforcement officer.” U.S.S.G. § 3C1.2. But because the district court did not have the benefit of the ruling we announce today, it had no occasion to make a separate finding that Shell was aware that he was being pursued by Hodges. And given the preceding context, which focuses exclusively on the separate question of whether Shell recklessly endangered Smith, we cannot be certain that the district court in fact did make such a finding. Accordingly, we remand on this issue, as well, so that the district court may apply our newly announced understanding of § 3C1.2 to this case and clarify whether Shell knew that he was being pursued by law enforcement.
IV.
For the foregoing reasons, we vacate the district сourt’s judgment and remand for resentencing consistent with this opinion.
VACATED AND REMANDED
Notes
. To the extent our dissenting colleague suggests that lack of legally valid consent cannot alone sustain a conviction for North Carolina second-degree rape, as opposed to statutory rape, we must respectfully disagree. See Williams,
. As is customary, we rely as well on cases construing the phrase "violent felony" under the Armed Career Criminal Act, "because the two terms have been defined in a manner that is substantively identical.” Montes-Flores,
. As the dissent notes, the North Carolina Supreme Court has held that for purposes of the state's own sentencing laws, felony rape necessarily is a crime of violence. See State v. Holden,
. The dissent chides us .for giving too much attention to the "straw man of the ‘residual clause’ " at the expense of § 4B1.2's force clause. Post at 351. But this is an unusual case in that the government ignores both clauses equally, and that makes it hard for us to say which is the straw man. On the assumption that the government’s argument must be anchored at least implicitly in one of § 4B1.2’s textual clauses, and without further guidance from the government as to which, we feel ourselves obliged to address both.
.Although the Supreme Court refined the Begay approach in Sykes v. United States,U.S. -,
. The dissent argues that offenses under the second-degree rape statute necessarily are "violent” in a way that statutory rape is not because the second subsection of that statute limits its reach to defendants who know — or do not know, but should — that a victim is mentally disabled or otherwise falls within the
. Our conclusion here is limited to the second subsection of North Carolina’s statute. We should note, however, that even if the second subsection could be reconciled with the text of § 4B1.2, there would remain the question of the first. And because that subsection may be violated through force that is constructive rather than physical, it, too, raises significant issues under § 4B1.2. After Johnson,
. The dissent relies heavily on Chacon in arguing that North Carolina second-degree rape falls within § 4B1.2, and presumably its force clause. But if Chacon's construction of the § 2L1.2 commentary directly governed this case, as the dissent urges, then surely this part of Chacon's holding would govern, as well, and eliminate § 4B1.2's force clause as a textual basis for the dissent’s position.
Dissenting Opinion
dissenting:
North Carolina’s, second-degree rape statute punishes predatory acts committed against society’s most vulnerable individuals. To violate the contested portion of this statute, one must have taken advantage of a mentally or physically defenseless person to engage in sexual intercourse — all the while knowing of the victim’s impaired condition. N.C. Gen. Stat. § 14 — 27.3(a)(2). This law protects people considered incapable of volitional acts from such callous conduct.
The majority, however, asks us to accept a disquieting proposition: that a defendant who “engages in vaginal intercourse with another person ... [w]ho is mentally disabled, mentally incapacitated, or physically helpless,” with .knowledge of that vulnerability, has somehow not committed a forcible sex offense. Id. How can that be? A proper reading of the law confirms the common intuition about the nature of this crime. It inherently involves the kind of force that is emblematic of a “crime of violence” under the relevant provision of the United States Sentencing Guidelines. U.S.S.G. § 4B1.2(a)(l) & cmt. n. 1. Both this court and North Carolina’s courts have specifically recognized the forcible nature of these sorts of acts, and rightly so. I do not understand how the knowing, forcible sexual subjugation of helpless human beings fails to qualify as a crime of violence. With all respect for my friends in the majority, I dissent.
I.
Under the Guidelines provisions for firearms offenses, a defendant who previously sustained a felony conviction for a “crime of violence” is subject to a heightened base offense level. U.S.S.G. § 2K2.1(a)(4)(A). A “crime of violence” may refer to any felony that “has as an elеment the use, attempted use, or threatened use of physi
A.
Was Shell’s prior crime a forcible sex offense? We begin with the state statute under which he was convicted.
North Carolina defines the felony of second-degree rape as follows:
(a) A person is guilty of rape in the second degree if the person engages in vaginal intercourse with another person:
(1) By force and against the will of the other person; or
(2) Who is mentally disabled, mentally incapaсitated, or physically helpless, and the person performing, the act knows or should reasonably know the other person is mentally disabled, mentally incapacitated, or physically helpless.
N.C. Gen.Stat. § 14-27.3(a)(l)-(2). Another state provision, in turn, defines each of the three mental or physical conditions identified in the second-degree rape statute:
(1) “Mentally disabled” means (i) a victim who suffers from mental retardation, or (ii) a victim who suffers from a mental disorder, either of which temporarily or permanently renders the victim substantially incapable of appraising the nature of his or her conduct, or of resisting the act of vaginal intercourse or a sexual act, or of communicating unwillingness to submit to the act of vaginal intercourse or a sexual act.
*350 (2) “Mentally incapacitated” means a victim who due to any act committed upon the victim is rendered substantially incapable of either appraising the nature of his or her conduct, or resisting the act of vaginal intercourse or a sexual act.
(3) “Physically helpless” means (i) a victim who is unconscious; or (ii) a victim who is physically unable to resist an act of vaginal intercourse or a sexual act or communicate unwillingness to submit to an act of vaginal intercourse or a sexual act.
Id. § 14 — 27.1(1)—(3). The import of these provisions is plain. The victims under this North Carolina law cannot comprehend thе situation or resist the aggressor’s sexual advances. In one way or another, these persons are helpless.
North Carolina’s second-degree rape statute does not suffer from vagueness. It covers a specific and limited universe of conduct. And each disjunctive variant under the statute entails some form of force. The record of Shell’s conviction does not specify whether he was convicted under subsection (a)(1) or (a)(2). See J.A. 62, 119-20.
The majority could scarcely argue that subsection (a)(1) — which criminalizes sex “[b]y force and against the will of the other person,” N.C. GemStat. § 14-27.3(a)(l)— falls short of a crime of violence. The forcible nature of this crime is self-evident. See U.S.S.G. § 4B1.2(a)(l) & cmt. n. 1. Shell’s only possible refuge lies in subsection (a)(2) of the North Carolina statute. But raping a mentally disabled, mentally incapacitated, or physically helpless person is a forcible sex offense and a crime of violence — so much so that only our esteemed profession could complicate the inquiry.
B.
In addressing the nature of this North Carolina predicate offense, I must first acknowledge the validity of the majority’s concerns. It is important not to let predicate crimes of violence metastasize. I agree with the majority that it is unfair to tag defendants with predicate crimes of violence when a state statute is in reality capable of many nonviolent apрlications. Notwithstanding this, I think the majority is quite wrong to expand the whole concept of nonforcible or nonviolent rape. Even apart from the cognitive jolt delivered by such terms, North Carolina’s statute is limited in all kinds of ways that the majority has failed both to acknowledge and to appreciate.
Second-degree rape in North Carolina involves the three basic elements of (1) “vaginal intercourse,” (2) “force,” and (3) “lack of consent.” State v. Smith,
The history of North Carolina’s laws against rape confirms that force is an indispensable element of the offense. North Carolina’s rape statutes “essentially codify the common law of rape.” State v. Moorman,
The Supreme Court of North Carolina has spoken with utmost clarity about the nature of crimes of rape in that state. In the context of North Carolina’s own sentencing laws, the state’s highest court has stated plainly, “[W]e reject the notion of any felony which may properly be deemed ‘non-violent rape.’ ” State v. Holden,
North Carolina’s highest court has specifically rejected a claim very much like the one endorsed by today’s majority. In Holden, the defendant argued that his pri- or conviction for attempted second-degree rape did not necessarily constitute a crime of violence undеr North Carolina law, because the conviction could have involved sex with a person who was mentally disabled, mentally incapacitated, or physically helpless. N.C. Gen.Stat. § 14-27.3(a)(2). But the court firmly disagreed. Holden,
The key to the Holden court’s ruling was the presence of force, and indeed violence, in any instance of rape. Whether the victim refuses to consent, as in subsection (a)(1), or whether the victim cannot consent because of a mental or physical impairment, as in subsection (a)(2), the analysis is the same. Id. at 884-85. Under North Carolina law, “the force inherent to having sexual intercourse with a person who is deemed by law to be unable to consent is sufficient to amount to ‘violence.’” Id. at 884 (emphasis added). In interpreting North Carolina’s second-degree rape statute, we could hardly ask for a clearer mandate from the state’s highest court. The majority’s novel felony of “non-violent rape” is an oxymoron not recognized in North Carolina law. Id.
This interpretation of North Carolina’s rape statutes is now firmly rooted in the state’s jurisprudence. The Court of Appeals of North Carolina has heeded the dictates of the state’s highest court. “The gravamen of the offense of second[-]degree rape,” the Court of Appeals recently reaffirmed, “is forcible sexual intercourse.” State v. Haddock,
The majority too quickly dismisses the “force clause” of the career-offender Guidelines provision, § 4B1.2(a)(l), and too readily assails the straw man of the “residual clause,” § 4B1.2(a)(2). See Maj. Op. at
C.
The majority maintains that the rape of a mentally disabled, mentally incapacitated, or physically helpless person is analogous to statutory rape. The shared logic of those crimes, according to the majority, is that “the fact of consent is not a defense where the victim is unable to give legally valid consent by virtue of age or by virtue of mental disability.” Maj. Op. at 340. But the analogy is misguided. As a preliminary matter, North Carolina’s second-degree rape statute does not target statutory raрe. See N.C. Gen.Stat. § 14 — 27.3; J.A. 60-66. It makes no mention of the victim’s age. It is instead defined by the victim’s mental or physical defenselessness and an inability to fathom the basic situation or oppose the aggressor’s actions.
I would not equate age and impairment. Some teenagers are mature and responsible; others are decidedly not. But all the victims under North Carolina’s second-degree rape statute are by definition required to be lacking in basic mental or physical capacity. Unlike with statutory rape, the extent of the victim’s disability must be individually established, sometimes with expert testimony. See State v. Hunt,
The differences do not stop there. Compulsion is not the operative factor in the crime of statutory rape. This court has already underscored that distinction in the Guidelines context as well. As we observed in an assessment of § 2L1.2, “it is clear that the Sentencing Commission purposely juxtaposed the neighboring terms ‘forcible sex offense[ ]’ and ‘statutory rape,’ with the former intended to connote rape or other qualifying conduct by compulsion and the latter intended to connote rape on account of the victim’s age.” United States v. Rangel-Castaneda,
Even the cases cited by the majority actually underscore the distinction between second-degree rape and statutory rape. See Maj. Op. at 339-40. The majority quotes a state senator who likened an underlying 1979 bill to “ ‘basically a statutory rape section.’ ” State v. Atkins,
Statutory rape is, finally, a crime of strict liability in North Carolina. State v. Anthony,
The threshold act under subsection (a)(2) is sexual intercourse with a mentally or physically defenseless victim. This is a crime of forcible sexual compulsion. Lack of legally valid consent is but one feature of this offense. One wonders how it has come to be that a perpetrator who acted with guilty knowledge — to take advantage of a profoundly vulnerable victim who is unable to resist — could now escape sanction, for the prior commission of what the Guidelines require: a “forcible” sex offense.
D.
“Force” may involve the exertion of “[p]ower, violence, or pressure” against an
For its own understanding of “force,” the majority relies on the Supreme Court’s pronouncements in Johnson v. United States,
„ The majority fails to grasp any of the multiple ways in which the North Carolina second-degree rape offense is circumscribed and limited. The forcible nature of this particular crime is unmistakable. The differences between this offense and statutory rape or nominal battery are clear. Nor does the majority appreciate the narrow range of mentally or physically defenseless persons to which this statute applies, on a personalized basis. The reality of what is happening to these victims quite eludes the majority’s view. The categorical approach applied by the majority rightly bars our inquiry into the particulars of any single predicate offense. It should not blind us to, in the words of Woody Guthrie, “a picture from life’s other side.”
II.
The problems with the majority’s approach do not end at the borders of North Carolina. Its decision is also inconsistent with precedents that, until now, seemed to speak with a clear and singular voice about the law governing this circuit. Our past pronouncements left no doubt about the inexorably forcible character of this brutal, unfeeling act.
A.
This court has already determined, in the context of a comparable Guidelines provision, that second-degree rape under a parallel state statute did constitute a forcible sex offense and thus qualified as a “crime of violence.” United States v. Chacon,
Contrary to the majority’s suggestion, see Maj. Op. at 343-46, this court’s analysis in Chacon applies with equal if not greater power in this case. As with the Guidelines provisions that applied to Shell, U.S.S.G. §§ 2K2.1, 4B1.2, the illegal-reentry Guidelines provision at- issue in Chacon provided for a sentencing enhancement if the defendant had previously sustained a felony conviction for a “crime of violence,” id. § 2L1.2. In the definition of “crime of violence,” the commentary to the illegal-reentry provision likewise listed “forcible sex offenses.” Id. § 2L1.2 cmt. n. l(B)(iii). This court focused on the “ordinary, contemporary meaning” of the term “forcible sex offenses,” which is not defined in the Guidelines. Chacon,
The Maryland statute in Chacon contained a provision virtually identical to the disputed North Carolina provision in this case. Both states’ second-degree rape laws criminalize sexual intercourse with a person who is mentally or physically defenseless, where the perpetrator knows or reasonably should know of the victim’s condition. See Md.Code Ann. art. 27, § 463(a)(2); N.C. Gen.Stat. § 14-27.3(a)(2). For these crimes, “any noncon-sensual sexual contact is forcible because, if actual physical force is unnecessary, some degree of compulsion is nevertheless required to overcome an unwilling victim or take advantage of a helpless and inca-, pacitated one.” Chacon,
B.
The majority makes much of a technical amendment to the illegal-reentry Guidelines provision that became effective shortly after we handed down Chacon. U.S.S.G. app. C, amend. 722, at 301-03; see Maj. Op. at 345-46. That amendment made clear that “forcible sex offenses” do in fact include instances “where consent to the conduct is not given or is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced.” Id. § 2L1.2 cmt. n. l(B)(iii). As this court later confirmed, the amendment “was intended simply to clarify that the requisite compulsion need not be physical in nature,” and the revised Guidelines language was fully in line with our prior holding in Chacon. United States v. Rangel-Castaneda,
In excluding North Carolina’s second-degree rape statute from the “crime of violence” definition under § 4B1.2, the majority can only grasp at the thin reed of negative implication. The trouble is that the positive indications undercut the majority’s conclusion.
Neither the modified illegal-reentry language in § 2L1.2 nor the unmodified career-offender language in § 4B1.2 supports the majority’s proffered requirement of the use of physical force. The Sentencing Commission has not chosen to alter the language in the career-offender provision to impose such a requirement. S.ee Cha-con
The Commission simply has not restricted the meaning of “forcible sex offenses” as the majority does today. Had it wanted to do so, the Commission could easily have added to § 4B1.2 a phrase excluding from the definition of forcible sex offense cases where consent to the conduct was merely “involuntary, incompetent, or coerced.” See U.S.S.G. § 2L1.2 cmt. n. l(B)(iii). Yet the Commission did no such thing.
The majority professes not to “question” Chacon’s interpretation of forcible sex offenses under § 2L1.2, even as it “reaсh[es] a different result under § 4B1.2'” Maj. Op. at 345. The Chacon court, however, would be surprised to learn its ruling was a ticket for one train only. It is not right to cast aside precedents on such a slim and precarious basis.
C.
The North Carolina statute requires the state to show force. See supra Section I.B. The majority suggests, however, that, even if the statute does require force, that would still be insufficient, because the text of § 4B1.2 and the accompanying Guidelines commentary are fatally inconsistent. The majority stresses that § 4B1.2 requires “physical force,” whereas the commentary omits the word “physical” and alludes only to “forcible sex offenses.” See Maj. Op. at 340-41. The majority’s conclusion of inconsistency not only is incorrect, but will spell trouble down the road in future Guidelines cases.
First, in finding an inconsistency, the majority misconstrues the Supreme Court’s mandate in Stinson v. United States,
Second, there is no nettlesome conflict here between feloniеs involving “the use, attempted use, or threatened use of physical force,” U.S.S.G. § 4B1.2(a)(l), and felonies that qualify as “forcible sex offenses,” id. § 4B1.2 cmt. n. 1. Whether the prosecution proves the defendant had sex by force and against the other person’s will, or whether the element of force is fastened to proof that the defendant had-sex with a mentally or physically defenseless victim, these are simply alternative but equal
And third, the instances in which this court has invalidated part of the commentary as inconsistent with the Guidelines text are quite rare. See Stinson,
D.
Finally, the majority reads too much into the fact that certain other sex offenses appear in § 2L1.2 but not § 4B1.2. See Maj. Op. at 345. The illegal-reentry provision, § 2L1.2, lists not only “forcible sex offenses” but also “statutory rape” and “sexual abuse of a minor” as examples of crimes of violence. U.S.S.G. § 2L1.2 cmt. n. l(B)(iii). The career-offender provision that applied to Shell, § 4B1.2, mentions “forcible sex offenses” but not the other two crimes. Id. § 4B1.2 cmt. n. 1. But here, those differences are immaterial.
It is true that Chacon involved § 2L1.2 rather than § 4B1.2. But the logic of the majority turns the old Latin maxim on its head: instead of applying expressio unius est exclusio alterius (i.e., “the expression of one thing is the exclusion of the other”), the majority treats the exclusion of one term (“statutory rape”) as the expression of another term (“forcible sex offenses”) with new meaning. The proper inference, rather, is simply that the Sentencing Commission deliberately excluded the crime of statutory rape from § 4B1.2, see Barnhart v. Sigmon Coal Co.,
In fact, the balance of the available indications suggests that the Sentencing Commission wanted “forcible sex offenses” to retain the same meaning in §§ 2L1.2 and 4B1.2. The “ ‘normal rule of statutory construction’ ” is that “ ‘identical words used in different parts of the same act are intended to have the same meaning.’ ” Gustafson v. Alloyd Co.,
I doubt that the majority would argue that the crimes of murder, manslaughter, kidnapping, aggravated' assault, robbery, arson, extortion, extortionate extension of credit, or burglary of a dwelling — all, like forcible sex offenses, enumerated in both Guidelines provisions — would assume a substantively different meaning in the two
The term “forcible sex offenses” is not quite the chameleon the majority says it is. In fact, in advancing a view of Guidelines interpretation where identical terms assume different meanings at a blink, the majority has started us down the road of a confusing and contradictory Guidelines structure, thus rendering an already difficult interpretive exercise more arcane and byzantine. In sum, the newly contradictory status of our precedents, the new receptivity to finding Guidelines text and commentary at odds, and the new willingness to imbue the same terms with shifting meanings will, whether taken singly or in combination, create crosscurrents and riptides in Guidelinеs jurisprudence. That does not bode well for those who need or aspire to understand them.
HI.
I do understand that the circumstances surrounding sexual interactions are often hazy, a fact that makes the preservation of due process protections for accused persons a necessity in all settings. But here the majority has chosen essentially to absolve, through its construct of nonviolent rape, individuals accorded the full slate of protections in our criminal justice system. Doctrinal analysis is indispensable to judicial reasoning, but upon occasion it can lead, increment by increment, from sound beginnings toward untenable conclusions. So it is here: the real need to protect the unthinking expansion of “crimes of violence” has led to a race to restrict them. If such a restriction makes sense in many instances, it does not in the case at bar. The victims here cannot resist; they cannot consent. But they yet retain the capacity to feel the trauma and, yes, the violence that has been so visited upon their very beings. The majority nevertheless maintains that the rape of someone known to be mentally disabled, mentally incapacitated, or physically helpless is neither a forcible sex offense nor a crime of violence. The victims, were they even sentient, would beg to differ. They know not our precedents. They know not our doctrines. But somewhere in the recesses of consciousness they do know they have been wronged, and we now know that law has failed to duly recognize it.
I respectfully dissent.
. I agree with the majority that Shell was required to know, for the purposes of an enhancement under U.S.S.G. § 3C1.2, that he was being pursued by a law enforcement officer. While I think the district court’s discussion has already incorporated the fact of such knowledge, I have no objection to remanding for a further finding on the point.
. Of course, the meaning of a federal provision, be it statutory or regulatory or Sentencing Guideline, is a federal question. See Johnson v. United States,
. In its effort to portray many of these crimes as not so very serious, the majority’s discussion of anecdotal evidence about Shell’s earlier conviction, see Maj. Op. at 340 n. 1, impermissibly compromises the categorical approach. "Sentencing courts may look only to the statutory definitions' — i.e., the elements — of a defendant’s prior offenses, and not 'to the particular facts underlying those convictions.' ” Descamps v. United States, - U.S.-,