Case Information
*1 Before KING, DIAZ, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon, Assistant Federal Public Defender, Raleigh, North Carolina, for Appellant. John Stuart Bruce, Acting United States Attorney, Jennifer P. May-Parker, Barbara D. Kocher, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Omar Ramone Vereen pled guilty to possession of a firearm and ammunition by a felon, in violation of 18 U.S.C. § 922(g)(1) (2012); possession with intent to distribute cocaine base and marijuana, in violation of 21 U.S.C. § 841(a)(1) (2012); and possession of a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (2012). The district court sentenced Vereen to 106 months’ imprisonment. On appeal, Vereen argues that the district court plainly erred in calculating his Sentencing Guidelines range because the district court incorrectly concluded that his prior conviction for North Carolina assault with a deadly weapon with intent to kill (AWDWIK) is a crime of violence for purposes of U.S. Sentencing Guidelines Manual §§ 2K2.1(a)(4)(A), 4B1.2(a) (2014). We affirm.
To establish plain error, Vereen must demonstrate that (1) the district court committed an error; (2) the error was plain; (3) the error affected his substantial rights; and (4) the error “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Puckett v. United States , 556 U.S. 129, 135 (2009) (internal quotation marks omitted). An error is plain if it is clear or obvious. United States v. Olano , 507 U.S. 725, 734 (1993).
If a defendant has been previously convicted of a “crime of violence” as defined in
USSG § 4B1.2(a), then the Guidelines require an increase in the base offense level for the
crime of possessing a firearm or ammunition as a felon. USSG § 2K2.1(a)(4)(A).
Guidelines § 4B1.2(a) defines a “crime of violence” as an offense punishable by
imprisonment for a term exceeding one year that “(1) has an element the use, attempted
*3
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.” The first clause is
known as the “force clause.” This clause applies to crimes that involve “violent force—
that is, force capable of causing physical pain or injury to another person,” as opposed to
“intellectual force or emotional force.”
Johnson v. United States
,
To determine whether a particular crime meets the force clause criteria, we generally employ the categorical approach. United States v. Montes-Flores , 736 F.3d 357, 364 (4th Cir. 2013); see also Descamps v. United States , 133 S. Ct. 2276, 2285, 2293 (2013). Under the categorical approach, we “focus[] on the elements, rather than the facts, of the prior offense,” asking “whether the full range of conduct covered by [the offense], including the most innocent conduct, would qualify as a crime of violence.” United States v. Shell , 789 F.3d 335, 338-39 (4th Cir. 2015) (alterations and internal quotation marks omitted).
The elements of AWDWIK are: “(1) an assault; (2) with a deadly weapon; (3) with the intent to kill.” State v. Garris , 663 S.E.2d 340, 349 (N.C. Ct. App. 2008) (internal quotation marks omitted); see also N.C. Gen. Stat. § 14-32(c) (2015). Vereen *4 does not dispute that AWDWIK involves violent force. Rather, citing our decision in United States v. Vinson , 805 F.3d 120 (4th Cir. 2015), Vereen argues that AWDWIK does not fall within USSG § 4B1.2(a)’s force clause because a conviction for AWDWIK may be obtained by proving a mens rea less culpable than recklessness, and thus, a person may be convicted of AWDWIK for conduct that does not involve a “use” of force.
In Vinson , we considered whether the defendant’s prior conviction for North Carolina misdemeanor assault on a female categorically qualified as a “misdemeanor crime of domestic violence” under 18 U.S.C. § 922(g)(9). 805 F.3d at 124-26. The statutory definition of “misdemeanor crime of domestic violence” is similar to USSG § 4B1.2(a)’s definition of “crime of violence” in that both include a force clause. See 18 U.S.C. § 921(a)(33)(A)(ii) (2012). We observed that, for conduct to constitute a “use” of force within the meaning of § 921(a)(33)(A)(ii), the conduct must involve a mens rea more culpable than recklessness. Vinson , 805 F.3d at 125. Because North Carolina permits convictions for assault in cases where the defendant’s conduct is criminally negligent—a standard less than recklessness—we concluded that North Carolina permits assault convictions “for conduct that does not amount to a use of force,” and therefore, North Carolina assault on a female did not categorically qualify as a “misdemeanor crime of domestic violence.” Id. at 126 (internal quotation marks omitted).
However, we did not consider in
Vinson
an assault offense with an intent to kill
element, and North Carolina courts have repeatedly observed that AWDWIK “has, as an
element, specific intent to kill.”
State v. Coble
,
Although Vereen cites dicta from
State v. Jones
,
*6
We also acknowledge that this court has repeatedly, albeit without discussion,
accepted that AWDWIK or similar state offenses are crimes of violence under the Armed
Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii) (2012).
See United States v. Smith
,
638 F. App’x 216, 219 (4th Cir. 2016) (No. 15-4218) (malicious assault in a secret
manner, which requires proof of assault with deadly weapon with intent to kill);
United
States v. Townsend
,
Accordingly, we affirm the district court’s judgment. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process.
AFFIRMED convicted of AWDWIK based on criminally negligent behavior. To the contrary, the North Carolina cases cited above explain that AWDWIK is a specific intent crime.
Notes
[*] Furthermore, we conclude that Vereen cannot establish plain error in the
conclusion that AWDWIK qualifies as a crime of violence under USSG § 4B1.2(a)’s
residual clause.
See United States v. Mack
, 855 F.3d 581, 585 (4th Cir. 2017)
(considering residual clause to determine whether offense is crime of violence).
Although the residual clause was removed from the Guidelines in August 2016, the
clause was in effect at the time of Vereen’s sentencing hearing. Vereen argues that
AWDWIK does not fall within the residual clause because the residual clause requires, at
a minimum, a mens rea of recklessness.
See United States v. Martin
,