United States v. Omar VereenUnited States v. Omar Vereen
Before KING, DIAZ, and FLOYD, Circuit Judges.
PER CURIAM:
Omar Ramone Vereen pled guilty to possession of a firearm and ammunition by a felon, in violation of
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 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, 559 U.S. 133, 138, 140 (2010). Additionally, we have recognized in the context of similar force clauses that an offense involves a “use” of force only when the offense requires a mens rea more culpable than recklessness. See United States v. McNeal, 818 F.3d 141, 154-56 (4th Cir. 2016) (considering
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, 570 U.S. 254, 133 S.Ct. 2276, 2285, 2293, 186 L.Ed.2d 438 (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, 191 N.C.App. 276, 663 S.E.2d 340, 349 (2008) (internal quotation marks omitted); see also
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
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, 351 N.C. 448, 527 S.E.2d 45, 49 (2000); see also State v. Ferguson, 261 N.C. 558, 135 S.E.2d 626, 628 (1964); State v. Irwin, 55 N.C.App. 305, 285 S.E.2d 345, 349 (1982); State v. Christy, 26 N.C.App. 57, 215 S.E.2d 154, 155 (1975); cf. State v. Daniel, 338 N.C. 756, 429 S.E.2d 724, 729 (1993). Further, the North Carolina pattern jury instructions for AWDWIK state that the jury must find “that the defendant had the specific intent to kill.” N.C. Pattern Instructions—Crim. 208.25; see Vinson, 805 F.3d at 126 (citing pattern jury instructions). As North Carolina courts have recognized, proving specific intent requires more than showing the disregard of risk required to demonstrate recklessness or criminal negligence. See State v. Rich, 351 N.C. 386, 527 S.E.2d 299, 304 (2000); State v. Oakman, 191 N.C.App. 796, 663 S.E.2d 453, 457 (2008).
Although Vereen cites dicta from State v. Jones, 353 N.C. 159, 538 S.E.2d 917, 923 (2000), that seems to support his position, we conclude that Vereen cannot demonstrate plain error. In light of the North Carolina precedent cited herein, Vereen cannot clearly show that a person may be convicted of AWDWIK through proof of a mens rea less culpable than recklessness, and therefore, he cannot establish that AWDWIK obviously encompasses conduct that does not involve a “use” of force. Thus, Vereen cannot demonstrate plain error in the conclusion that AWDWIK qualifies as a crime of violence under USSG § 4B1.2(a)‘s force clause.*
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,
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