Affirmed by published opinion. Judge Motz wrote the opinion, in which Judge Wilkinson and Judge Diaz joined.
Shawntanna Lemarus Thompson pled guilty to a drug offense and being a felon in possession of a firearm. The district court increased his sentence, because it found Thompson’s previous state conviction for assault inflicting serious bodily injury constituted a “crime of violence” under § 4B1.2 of the United States Sentencing Guidelines. Thompson appeals, challenging only his sentence. Because the residual clause of § 4B1.2 authorizes the increased sentence, we affirm.
I.
In 2015, Thompson pled guilty to possession of marijuana with intent to distribute and being a felon in possession of a firearm. Pursuant to § 4B1.2, the probation officer recommended imposition of an increased sentence because Thompson had previously been convicted of assault inflicting serious bodily injury (“AISBI”) in violation of N.C. Gen. Stat. Ann. § 14-32.4. Thompson objected to the designation of AISBI as a crime of violence, but the district court rejected Thompson’s contention.
We originally heard oral argument in this case on October 27, 2016. At that time, the Supreme Court had granted certiorari in a case that posed the question, inter alia, of whether the residual clause of § 4B1.2 was void for vagueness. See Beckles v. United States,
“In assessing whether a sentencing court has properly applied the Guidelines; we review factual findings for clear error and legal conclusions de novo.” United States v. Llamas,
II.
The Guidelines, as applicable to this case, define a “crime of violence” as:
[A]ny 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 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 (2015) (emphasis added). The italicized text is colloquially referred to as the “residual clause.”
The definition of crime of violence in § 4B1.2 parallels the definition of “violent felony” in the residual clause of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B). See James v. United States,
In James, the Court considered whether a defendant’s prior Florida conviction for attempted burglary constituted a “violent felony” under the ACCA. The Court held it did, explaining that the enumerated offenses preceding the residual clause “provide a baseline against which to measure the degree of risk that a nonenumerated offense must ‘otherwise’ present in order to qualify” as a “crime of violence.”
A year later, in Begay v. United States, the Court considered whether New Mexico felony convictions for driving under the influence (“DUI”) constituted violent felonies under the ACCA residual clause.
In United States v. Martin,
One year after we issued our opinion in Martin, the Supreme Court decided Johnson v. United States, - U.S. -,
The parties draw very different conclusions from the discussion of the residual clause in Johnson. The Government argues that Johnson overrules the “portion of Martin that ... applies the Begay similar-in-kind test.” Appellee Suppl. Br. 18-19. Thompson contends that “Johnson ... does no such thing.” Appellant Suppl. Reply Br. 6. Thompson further maintains that, notwithstanding Johnson, two completely different analyses guide the “de.-gree-of-risk” inquiry and the Begay “similar-in-kind” inquiry. According to Thompson, a court looks to the “ordinary case” in determining if a predicate offense .involves the same “degree of risk” as the enumerated offenses, but a court looks only to how a predicate offense “may be committed” in determining if it is “similar-in-kind” to the enumerated offenses.
We do not believe that Johnson, which addressed the Begay “similar-in-kind test” only in the course of discussing various failed approaches to interpreting the ACCA residual clause, “overruled” the portion of Martin that applies Begay. Johnson does, however, clarify that when considering whether a prior crime constitutes a crime of violence under the residual clause, courts must look to the ordinary case not only in assessing the “degree-of-risk” posed by the prior crime, but also in assessing whether that crime is “similar-in-kind” to the enumerated offenses.
In many cases, the statutory language will clearly indicate whether—in the ordinary case—an offense is “similar-in-kind” to the enumerated offenses. If a statute requires knowing or intentional conduct, “Begay provides no shelter.” United States v. Rodriguez,
III.
We now turn to the question of whether Thompson’s prior North Carolina' AISBI conviction qualifies as a crime of violence for purposes of the residual clause of § 4B1.2 under both the degree-of-risk test and the similar-in-kind test. Martin,
To determine whether a prior state conviction constitutes a predicate crime of violence justifying an enhanced federal sentence, we follow the categorical approach.
Section 14-32.4(a), the North Carolina statute under which Thompson was previously convicted, defines AISBI as follows:
Unless the conduct is covered under some other provision of law providing greater punishment, any person who assaults another person and inflicts serious bodily injury is guilty of a Class F felony. “Serious bodily injury” is defined as bodily injury that creates a substantial risk of death, or that causes serious permanent disfigurement, coma, a permanent or protracted condition that causes extreme pain, or permanent or protracted loss or impairment of the function of any bodily member or organ, or that results in prolonged hospitalization.
The Court of Appeals of North Carolina has explained that AISBI, as this statutory definition indicates, applies to “those assaults that are especially violent and result in the infliction of extremely serious injuries.” State v. Williams,
As we explained in Martin, however, our conclusion that AISBI has a comparable degree of risk as the enumerated offenses “does not end our inquiry.” Martin,
We cannot agree. The Government asserts that it has reviewed every North Carolina case mentioning AISBI, and not one of the 141 cases supports the notion that AISBI can be committed with anything less than actual intent. Appellee Suppl. Br. 15-16 n.6. See, e.g., State v. Brown,
Thus, unlike the DUI statute in Begay, which “typically” did not involve “purposeful, violent, and aggressive” behavior,
IV.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
Notes
. The Sentencing Commission revised the career offender guideline, effective August 1, 2016, .The new guideline omits the residual clause. Supplement to the 2015 Guidelines Manual § 4B 1.2(a)(2) (U.S. Sentencing Co'mm’n 2016). Thompson, however, was sentenced pursuant to the 2015 guideline quoted above.'
. The holding in Johnson that the ACCA residual clause was unconstitutionally vague overruled numerous Supreme Court and lower court cases interpreting that clause, including James and Begay. But previous precedent interpreting the ACCA residual clause remains persuasive authority for our task here—interpreting the residual clause of § 4B1.2.
. As the Government acknowledges, this " 'ordinary case’ approach is significantly different from the ‘minimum culpable conduct’ examined for the force clause.” Appellee Suppl. Br. at 12 (citing Moncrieffe v. Holder,
. A court can apply a modified categorical approach only if the prior state conviction rests on a statute that "contains divisible categories of proscribed conduct, at least one of which constitutes—by its elements—a violent felony.” United States v. Gomez,
. Indeed, Thompson offers only a single unreported, clearly distinguishable civil case to support his contrary view. See Mitchum v. Gaskill,