UNITED STATES of America, Plaintiff-Appellant, v. Donald COVINGTON, Defendant-Appellee.
No. 17-4120
United States Court of Appeals, Fourth Circuit.
January 18, 2018
880 F.3d 129
Argued: October 26, 2017
5.
Appellant argues that the availability of review hearings cures any absurdity. I disagree. To the contrary, review hearings underscore the absurdity in two ways. First, putting a large amount of already strained government resources toward early certification in order to meet the four year statute of limitations, followed by constant recertification review hearings, would be inefficient. Second, the earlier civil commitment proceedings must occur, the more likely the government is to meet its initial burden to show that the individual is a “sexually dangerous person.” See United States v. Springer, 715 F.3d 535, 538 (4th Cir. 2013) (stating that at the committal hearing the government has the burden to show that the individual is a “sexually dangerous person” by clear and convincing evidence). This is so because the government will quite likely have a plethora of damning facts obtained from the individual‘s presentence investigation report. In this way, the system would be skewed in favor of commitment. Correspondingly, after committal, the committed individual is disadvantaged in seeking release because in a review hearing, the committed person carries the burden of showing that he is no longer a “sexually dangerous person” by a preponderance of the evidence. See
Ultimately, these multiple absurdities compel me to conclude that
II.
Therefore, for the foregoing reasons, I concur in the judgment but not in the proposed path to judgment.
ARGUED: Philip Henry Wright, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellant. Philip Bradley Sword, SHUMAN, MCCUSKEY & SLICER, PLLC, Charleston, West Virginia, for Appellee. ON BRIEF: Carol A. Casto, United States Attorney, Monica D. Coleman, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellant.
Before TRAXLER and AGEE, Circuit Judges, and Loretta C. BIGGS, United States District Judge for the Middle District of North Carolina, sitting by designation.
The government appeals the district court‘s determination that the West Virginia criminal offense of unlawful wounding,
I.
Donald Covington pleaded guilty to distribution of heroin, in violation of
At sentencing, the district court concluded that West Virginia‘s unlawful wounding offense did not qualify as a crime of violence and, therefore, Covington was not a career offender. The district court then calculated the advisory sentencing guideline range applicable to Covington as 18-24 months, rather than, a sentence of “at least 12 and a half years . . . if the career offender guideline was applied,” J.A. 106. Since Covington had already been detained on a pretrial basis for about thirty-seven months prior to sentencing, the district court imposed a sentence of time served and ordered Covington‘s release.
II.
The sole issue before this Court is whether the offense of unlawful wounding under West Virginia law is a crime of violence under the Guidelines, as the government contends. This Court reviews
A.
The term “crime of violence” is defined in § 4B1.2 of the Guidelines, which reads as follows:
(a) The term “crime of violence” means any offense under federal or state law, punishable by imprisonment for 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 murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm described in
26 U.S.C. § 5845(a) or explosive material as defined in18 U.S.C. § 841(c) .
U.S.S.G. § 4B1.2(a). Section 4B1.2(a)(1) is generally referred to as the “force clause” and § 4B1.2(a)(2) as the “enumerated clause.” See, e.g., United States v. Riley, 856 F.3d 326, 328 (4th Cir. 2017), cert. denied, --- U.S. ----, 138 S.Ct. 273, 199 L.Ed.2d 175 (2017). Because the government does not argue that the predicate crime at issue in this appeal, unlawful wounding under West Virginia law, is an enumerated offense, we consider whether it qualifies as a crime of violence under the force clause only.
To determine whether a defendant‘s prior conviction qualifies as a crime of violence, this Court applies the “categorical approach.” Salmons, 873 F.3d at 448. The categorical approach directs a court to focus solely on the fact of conviction rather than the facts of the case. See Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). The Court must compare the elements required for conviction of an offense to the element(s) required for application of the sentence enhancement, while ignoring the conduct that gave rise to a particular defendant‘s past conviction. United States v. Wilson, 951 F.2d 586, 588 (4th Cir. 1991). As recognized by the Supreme Court, the categorical approach is straightforward when a statute is indivisible, that is, when the statute defines only a single crime with a single set of elements. Mathis v. United States, --- U.S. ----, 136 S.Ct. 2243, 2248, 195 L.Ed.2d 604 (2016). However, where a statute defines multiple crimes by listing multiple alternative elements, which renders the statute divisible, the categorical approach is made more difficult. Id. at 2249. Where a statute is divisible, the Court generally must first apply a “modified categorical approach” to determine which of the alternative elements are integral to a defendant‘s conviction. Id. This approach allows a court to look at “a limited class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy) to determine what crime, with what elements, a defendant was convicted of,” before proceeding “as the categorical approach commands.” Id. The modified approach acts as a tool, rather than an exception, to “help[] implement the categorical approach when a defendant was convicted of violating a divisible statute.” Descamps v. United States, 570 U.S. 254, 133 S.Ct. 2276, 2285, 186 L.Ed.2d 438 (2013).
The statute at issue here,
If any person maliciously shoots, stabs, cuts or wounds any person, or by any means cause him or her bodily injury with intent to maim, disfigure, disable or kill, he or she, except where it is other-
wise provided, is guilty of a felony and, upon conviction thereof, shall be punished by confinement in a state correctional facility not less than two nor more than ten years. If the act is done unlawfully, but not maliciously, with the intent aforesaid, the offender is guilty of a felony and, upon conviction thereof, shall either be imprisoned in a state correctional facility not less than one nor more than five years, or be confined in jail not less than twelve months and fined not exceeding $500.
B.
The force clause provides that an offense is a crime of violence when it “has 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)(1). The Supreme Court has interpreted the term “physical force” as “violent force—that is, force capable of causing physical pain or injury to another person.” Johnson v. United States, 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010).1 Further, this Court focuses on the “minimum conduct” required for conviction in categorically comparing the offense to the controlling definition of the force clause. See United States v. Gardner, 823 F.3d 793, 803 (4th Cir. 2016). Thus, to qualify as a crime of violence under the force clause, the minimum conduct necessary for conviction of an offense must at least involve violent force. See id. Therefore, “[a] predicate offense qualifies as a crime of violence if all of the conduct criminalized by the statute—‘including the most innocent conduct‘—matches or is narrower than the Guidelines’ definition of ‘crime of violence.‘” Salmons, 873 F.3d at 448 (quoting United States v. Diaz-Ibarra, 522 F.3d 343, 348 (4th Cir. 2008)).
Comparing the elements of the force clause as articulated above, with the elements of the West Virginia offense of unlawful wounding, yields the conclusion that unlawful wounding under
C.
The district court in this case, in concluding that unlawful wounding did not qualify as a crime of violence, relied on this Court‘s decision in United States v. Torres-Miguel, 701 F.3d 165 (4th Cir. 2012). There this Court stated that “a crime may result in death or serious injury without involving the use of physical force,” such as “by threatening to poison another, which involves no use or threatened use of force.” Torres-Miguel, 701 F.3d at 168-69. Based on Torres-Miguel, the district court hypothesized that a defendant could commit unlawful wounding by indirect means, such as “by withholding much-needed medication from someone gravely ill, or by ‘telling the victim he can safely back his car out while knowing an approaching car driven by an independently acting third party will hit the victim.‘”2 J.A. 102. The court thus found that “while West Virginia‘s unlawful wounding statute requires a bodily injury [causally] linked to the conduct of the defendant, it does not require the defendant to have used violent force” as required in the force clause.3 J.A. 102.
The government argued before the district court that United States v. Castleman, --- U.S. ----, 134 S.Ct. 1405, 188 L.Ed.2d 426 (2014), had abrogated the direct versus indirect use of force distinction articulated in Torres-Miguel. In Castleman, the Supreme Court explained that when a defendant uses poison against another person, the relevant “‘use of force’ . . . is not the act of ‘sprinkl[ing]’ 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 punch), does not matter.” Castleman, 134 S.Ct. at 1415. The district court nevertheless rejected the government‘s argument and further concluded that ”Castleman is simply not controlling.” J.A. 100. Since Covington‘s sentencing below, however, this Court has confirmed and reaffirmed in several decisions that the direct versus indirect use of force distinction articulated in Torres-Miguel has been abrogated by Castleman.4 See United States v. Burns-Johnson, 864 F.3d 313, 318 (4th Cir. 2017) (explaining that ”Castleman abrogates [this Court‘s] statement in Torres-Miguel that the use of poison would not constitute
Likewise, the district court erred in considering hypothetical scenarios from cases that did not interpret the criminal offense at issue here. This Court has made clear that its focus on the minimum conduct required for conviction “does not give litigants [or courts] a green light to conjure up fanciful fact patterns in an attempt to find some nonviolent manner in which a crime could be committed.” Salmons, 873 F.3d at 451. Rather, there must be a “‘realistic probability, not a theoretical possibility,’ that a state would actually punish that conduct.” United States v. Doctor, 842 F.3d 306, 308 (4th Cir. 2016) (quoting Gardner, 823 F.3d at 803), cert. denied, --- U.S. ----, 137 S.Ct. 1831, 197 L.Ed.2d 773 (2017). See Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007). Accordingly, “litigants must point to the statutory text or to actual cases in order to demonstrate that a conviction for a seemingly violent state crime could in fact be sustained for nonviolent conduct.” Salmons, 873 F.3d at 451. See Duenas-Alvarez, 549 U.S. at 193 (“To show that realistic probability, an offender . . . must at least point to his own case or other cases in which the state courts in fact did apply the statute in the special . . . manner for which he argues.“). Here, Covington has not identified a single West Virginia case that interprets the offense of unlawful wounding to apply to one who uses force that is not “capable of causing physical pain or injury to another person,” Johnson, 559 U.S. at 140. In contrast, the government has identified scores of cases that confirm that the unlawful wounding offense only criminalizes the degree of force required under Johnson.
III.
The Court concludes, based on the text of the statute as well as the examination of the convictions under the statute, that the crime of unlawful wounding under West Virginia law,
VACATED AND REMANDED
LORETTA COPELAND BIGGS
District Judge