UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CLINTON LEE RUMLEY, Defendant - Appellant.
No. 19-4412
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
March 13, 2020
PUBLISHED
Appeal from the United States District Court for the
Argued: December 11, 2019 Decided: March 13, 2020
Before NIEMEYER, MOTZ, and RICHARDSON, Circuit Judges.
Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge Richardson joined. Judge Motz wrote a separate opinion, concurring in the judgment.
ARGUED: Lisa M. Lorish, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charlottesville, Virginia, for Appellant. Jean Barrett Hudson, OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville, Virginia, for Appellee. ON BRIEF: Juval O. Scott, Federal
NIEMEYER, Circuit Judge:
In 2008, Clinton Rumley was convicted of possession of a firearm by a felon, in violation of
Several years later, the Supreme Court handed down Samuel Johnson v. United States, 135 S. Ct. 2551 (2015), which substantially narrowed the definition of “violent felony” in ACCA. Relying on Samuel Johnson, Rumley filed a petition under
In preparation for resentencing, the probation officer filed a revised presentence report that contained a revised list of ACCA predicate convictions, including a prior conviction that had not been so designated in Rumley‘s 2008 presentence report. Thereafter, the parties had the opportunity to respond to the presentence report and to submit sentencing memoranda. Finally, the district court conducted a sentencing hearing, at which it found that Rumley had three prior violent felony convictions. Therefore, it again sentenced Rumley as an armed career criminal to a mandatory minimum sentence of 15 years’ imprisonment.
On appeal, Rumley argues that reliance in his 2019 sentencing on a prior conviction that had not been designated as an ACCA predicate in his 2008 presentence report violated our decision in United States v. Hodge, 902 F.3d 420 (4th Cir. 2018). In Hodge, we held that in a collateral proceeding in which a predicate offense for an ACCA enhancement was disqualified under Samuel Johnson, the government could not substitute another conviction to replace the disqualified conviction because the defendant had not been given adequate notice so as to give him “an opportunity to contest the validity or applicability of the prior convictions upon which the statutory sentencing enhancement is based.” Id. at 427 (cleaned up). In addition, Rumley argues that the record at his 2019 sentencing was insufficient to demonstrate the fact of the newly designated prior conviction and that, in any event, the offense of that conviction does not qualify as a “violent felony” to support an ACCA sentence enhancement.
We conclude that Hodge does not control the circumstances of this case, and we also reject Rumley‘s other challenges to the newly designated conviction. Accordingly, we affirm.
In preparation for Rumley‘s 2008 sentencing for possession of a firearm by a felon, the probation officer prepared a presentence report that listed, as part of his criminal history, over 20 prior convictions under Virginia law, and at least 5 qualified at that time as violent felonies under ACCA and therefore could have been designated to support a sentencing enhancement under
Some seven years later, in 2015, the Supreme Court handed down its decision in Samuel Johnson, which invalidated the “residual clause” that defined “violent felony” for ACCA purposes, see
Relying on Samuel Johnson and Welch, Rumley sought authorization from this court to file a successive motion under
Before the 2019 resentencing, the probation officer filed a draft revised presentence report, which he finalized after considering the parties’ objections, and the final revised report again concluded that Rumley had three predicate convictions qualifying him as an armed career criminal for an enhanced sentence under ACCA. The paragraph in the final report that addressed ACCA enhancement deleted reference to the 1982 robbery by force and the 1984 abduction convictions but added the 1979 conviction for unlawful wounding. The 1979 conviction, while described in the 2008 presentence report, had not then been designated to support the ACCA enhancement. Rumley objected to the 2019 presentence report‘s inclusion of his 1979
In his memorandum, Rumley argued that, under our decision in Hodge, his 1979 conviction should not be considered in resentencing because it was not designated as an ACCA predicate in the 2008 presentence report. In addition, noting that he was 16 at the time of his 1979 conviction, he argued that there was insufficient evidence to demonstrate that he was tried as an adult. Finally, he argued that, in any event, the Virginia offense of unlawful wounding did not qualify as a violent felony under ACCA. In its memorandum in response, the government referred to three documents to demonstrate the fact of conviction, attaching them as exhibits: (1) a notice dated February 13, 1979, stating that Rumley was indicted for unlawful wounding and scheduling trial for February 22, 1979; (2) a plea agreement dated February 22, 1979, and signed by Rumley, his counsel, and the attorney for Virginia, in which Rumley agreed to plead guilty to unlawful wounding in exchange for a sentence of three years, with two years suspended; and (3) an unsigned judgment dated February 22, 1979, stating that Rumley was tried as an adult and had pleaded guilty to assault “as charged in the indictment.”
At the sentencing hearing on June 6, 2019, the parties argued their positions again. In addition, Rumley challenged the sufficiency of the documents submitted by the government to prove the fact of his 1979 conviction. The government presented testimony from United States Probation Officer Sidney Edwards, who identified the government‘s exhibits as public records from the Powhatan County Circuit Court that had been maintained in the probation office‘s files.
The district court overruled each of Rumley‘s objections to the designation of his 1979 conviction as an ACCA predicate. First, the court rejected Rumley‘s argument that Hodge barred consideration of the conviction. Second, the court found that the documents submitted by the government were “the official records of the circuit court” and were sufficient to meet the government‘s burden to prove the fact of conviction. Finally, the court concluded that unlawful wounding under Virginia law is a violent felony under ACCA‘s “force clause,”
II
Rumley contends first that the government‘s reliance on his 1979 conviction in support of an ACCA enhancement at his 2019 resentencing runs afoul of Hodge because that conviction had not been designated as an ACCA predicate at his original sentencing in 2008. Hodge holds that when the government did not identify a prior conviction as an ACCA predicate at sentencing, it may not do so in a collateral proceeding to preserve the enhancement.
The government contends that Hodge does not control, as it applied to circumstances entirely different from those presented here. It argues, ”Hodge was decided on the pleadings on collateral review, and did not address whether a district court may consider previously unidentified convictions at a de novo resentencing hearing after a successful collateral attack, for which a new [presentence report] was issued that notified the defendant of the potential ACCA predicates.”
The concerns underlying the decision to preclude the government‘s late designation of a prior conviction in Hodge, however, do not arise here. In this case, Rumley, with his
We conclude that because Hodge is grounded on the defendant‘s lack of notice and opportunity to contest an ACCA predicate identified for the first time during a collateral proceeding, Hodge does not govern where, as here, the defendant had both notice and a meaningful opportunity to challenge the designated predicate convictions prior to the resentencing hearing.
Under
Rumley also argues that the government waived its right to designate the 1979 conviction as an additional predicate at the 2019 resentencing by failing to object to the omission of that designation in the 2008 presentence report. But waiver implies knowledge and deliberateness, and in this case, the government could not have predicted the sea change that came in ACCA jurisprudence in the years after 2008 — any more than Rumley could have. At the time of the initial sentencing, it was both reasonable and consistent with existing law for the government to have relied on the four designated predicates — which already exceeded the requisite three — to support the ACCA enhancement without designating yet another duplicative and unnecessary conviction. When the law changed in 2015 (and thereafter), resulting in the invalidation of two of Rumley‘s prior convictions as ACCA predicates, Rumley was entitled to have his 2008 sentence vacated. But so too was the government allowed to adapt to the changing law and respond accordingly when Rumley‘s
III
Rumley next contends that the government did not adequately prove the fact of his 1979 conviction for unlawful wounding because, as he argues, (1) the documents introduced as evidence of the conviction were not certified by a court official as authentic and (2) they did not show conclusively that Rumley was in fact convicted.
Of course, when the government seeks an enhanced sentence under ACCA, it bears the burden of establishing by a preponderance of the evidence that the defendant has three prior convictions for a violent felony or serious drug offense. See United States v. Archie, 771 F.3d 217, 223 (4th Cir. 2014). And the sentencing court is charged with weighing the evidence to determine whether the fact of conviction has been established. See id. at 224. We review that determination for clear error. Id.
At the 2019 resentencing hearing, the government introduced three documents as evidence to prove Rumley‘s 1979 conviction: (1) a notice dated February 13, 1979, stating that Rumley was indicted for unlawful wounding and scheduling trial for February 22, 1979; (2) a plea agreement dated February 22, 1979, and signed by Rumley, his counsel, and the attorney for the Commonwealth of Virginia, in which Rumley agreed to plead guilty to unlawful wounding in exchange for a sentence of three years, with two years suspended; and (3) an unsigned judgment dated February 22, 1979, stating that Rumley was tried as an adult and had pleaded guilty to assault “as charged in the indictment.” In addition, the probation officer testified at the sentencing hearing that these documents were official court records from the Powhatan County Circuit Court, where Rumley was convicted, and that they were maintained in the probation office‘s files. Based on the government‘s evidence, the district court found as fact that the documents were “the official records of the circuit court,” kept “in the state court‘s books as records of conviction,” and it therefore overruled Rumley‘s objection to the sufficiency of the evidence.
Challenging the court‘s finding, Rumley argues that the absence of a certification by a court official undermines the authenticity of the documents. But this argument presumes that certification is the only method by which documents can be authenticated in a sentencing proceeding. Under the Sentencing Guidelines, however, a sentencing court may consider any relevant information to resolve a factual dispute, provided that it “has sufficient indicia of reliability to support its probable accuracy.”
Rumley also argues that because the document identified as the “judgment” in the 1979 case was not signed, it failed to show that he was in fact convicted. While that might otherwise be an available argument, the government‘s exhibit purporting to be the “judgment” was not the only document submitted by the government or relied on by the district court. The information in the signed plea agreement, which was consistent with the unsigned judgment in every respect, supports a reasonable inference that the lack of a signature on the judgment was merely a technical error in recordkeeping. See Archie, 771 F.3d at 225 (“When called upon to determine the existence of a prior conviction for sentencing purposes, a district court can engage in permitted fact-finding in a routine and conscientious sense even if inconsistences and clerical mistakes exist in state records“) (cleaned up). We conclude that the district court did not clearly err in finding that, taken together, the documents demonstrated that Rumley was in fact convicted of unlawful wounding in 1979.
IV
Finally, Rumley contends that, in any event, his 1979 conviction does not qualify as an ACCA predicate under
To address Rumley‘s argument requires first an understanding of how federal law defines “violent felony” for purposes of
Under federal law, “violent felony” is defined for purposes of ACCA to be a crime punishable by imprisonment for more than one year that “has as an element the use, attempted use, or threatened use of physical force against the person of another.”
It is also clear that “the use of physical force” includes force applied directly or indirectly. See United States v. Castleman, 572 U.S. 157, 170-71 (2014) (construing “use of physical force” in
The “use of force” in Castleman‘s example is not the act of “sprinkling” the poison; it is the act of employing poison knowingly as a device to cause physical harm. That the harm occurs indirectly, rather than directly (as with a kick or a punch), does not matter. Under Castleman‘s logic, after all, one could say that pulling the trigger on a gun is not a “use of force” because it is the bullet, not the trigger, that actually strikes the victim.
Id. at 171 (cleaned up).
But not every act that causes bodily injury amounts to the use of physical force as required by
With this understanding of ACCA‘s requirement that a predicate offense involve the use of physical force against a person to qualify as a violent felony, we turn to the elements of Virginia‘s unlawful wounding statute to determine whether the minimum conduct necessary to violate that law involves the use of physical force, as that phrase is used in
The Virginia statute provides:
If any person maliciously shoot, stab, cut, or wound any person or by any means cause him bodily injury, with the intent to maim, disfigure, disable, or kill, he shall, except where it is otherwise provided, be guilty of a Class 3 felony. If
such act be done unlawfully but not maliciously, with the intent aforesaid, the offender shall be guilty of a Class 6 felony.
Indeed, we have already concluded that a very similar offense — a violation of
Therefore, we hold in this case that a conviction of
Rumley argues that the reasoning of those cases is flawed, maintaining that, as a matter of logic, the Virginia unlawful wounding statute can be violated by omission without any force whatsoever and therefore that the crime does not qualify
Second, Rumley‘s hypothetical describing unlawful omission fails to include the mens rea required for a violation of
And third, when the mens rea is included in Rumley‘s hypothetical — that the person specifically intended to cause severe and permanent injury when he injured a dependent child by withholding care — the crime involves the use of physical force. See, e.g., United States v. Peeples, 879 F.3d 282, 286-87 (8th Cir. 2018) (concluding that an offense that can be committed by the intentional withholding of food still categorically involves the use of violent force because, under Castleman, “[i]t does not matter that the harm occurs indirectly as a result of malnutrition“); United States v. Waters, 823 F.3d 1062, 1066 (7th Cir. 2016) (explaining that knowingly withholding medicine to cause physical harm indirectly is analogous to knowingly employing poison to do the same, and “thus qualifies as the use of force under Castleman“). In the case of such an omission, the force, as in all uses of force, is simply the mechanism by which the harm is imposed, and the use of force is the “employing [of that mechanism] knowingly as a device to cause physical harm.” Castleman, 572 U.S. at 171; see also id. at 170-71 (“[T]he word ‘use’ conveys the idea that the thing used (here, ‘physical force‘) has been made the user‘s instrument“). Thus, there is just as much a “use of force” when a murderous parent uses the body‘s need for food to intentionally cause his child‘s death as when that parent uses the forceful physical properties of poison to achieve the same result.
At bottom, we conclude that Virginia unlawful wounding involves the use of force as required by
The judgment of the district court is
AFFIRMED.
DIANA GRIBBON MOTZ, Circuit Judge, concurring in the judgment:
I concur in the judgment. While I agree that Virginia unlawful wounding qualifies as a violent felony under the ACCA, I write separately to express my skepticism that omissions constitute violent force —
The majority misapplies United States v. Castleman, 572 U.S. 157 (2014), which held that force may be effected indirectly — for example, by poisoning one‘s beverage. See id. at 170. The Supreme Court has never held, in Castleman or any other case, that omissions constitute indirect force.* The majority thus “conflate[s] an . . . omission with the use of force, something that Castleman . . . does not support.” United States v. Mayo, 901 F.3d 218, 230 (3d Cir. 2018); Harper v. United States, 780 F. App‘x 236, 245 (6th Cir. 2019) (Moore, J., concurring) (noting that Castleman gave “examples of indirect force, all of which involve affirmative acts rather than omissions“).