United States v. Vann

America, UNITED STATES of

Plaintiff-Appellee, VANN,

Torrell Chuvala Defendant-

Appellant.

No. 09-4298.

United States of Appeals, Court

Fourth Circuit.

Argued: May 2011.

Decided: Oct. Joseph Brignae,

ARGUED: Eric Office Defender, of the Federal Public Raleigh, Carolina, for Appellant. Clay Wheeler, Campbell Office of the United Carolina, States Attorney, Raleigh, North for Appellee. ON BRIEF: Thomas P. McNamara, Defender, Federal Public G. DuBois, Alan Assistant Federal Public De- fender, Office of the Federal Public De- Carolina, grand jury returned a Ap- year, of that for fender, Raleigh, North charg- single-count superseding indictment Holding, George E.B. pellant. violating with 18 U.S.C. May-Parker, P. Vann Attorney, Jennifer States also §§ and 924. The indictment Attorney, 922(g)(1) Office States Assistant United previ- three alleged had at least Attorney, Raleigh, that Vann States the United felonies, Carolina, ous for violent Appellee. convictions for eligible sentencing rendering him for TRAXLER, Judge, and Chief Before 924(e)(1). §in provided enhancement NIEMEYER, MOTZ, WILKINSON, 15, 2008, pleaded On Vann December SHEDD, AGEE, GREGORY, KING, his charged, and sen- guilty to the offense WYNN, DIAZ, KEENAN, and DAVIS, scheduled for proceedings were tencing Judges.* Circuit following March. by published and remanded Vacated typically §A carries a 922(g) offense opinion, PER in A opinion. CURIAM years of ten statutory maximum sentence Judges TRAXLER and Judge which Chief 924(a)(2). If the prison. in See accused KING, GREGORY, AGEE, MOTZ, previous has or more convictions for three WYNN, DAVIS, KEENAN, and DIAZ however, felonies, he is sub- ACCA violent behalf of the en banc was issued on joined, ject enhanced minimum sentence of to an Judge wrote a KING majority. im- years fifteen with maximum life Judges which concurring opinion, in 924(e)(1). prisonment. pre- Vann’s GREGORY, joined. MOTZ, DAVIS and (the “PSR”) investigation report sentence opinion concurring an Judge AGEE wrote previous reflected that he had three con- concurring in banc judgment, in the the en violating victions for North Carolina Gen- concurring opinion, and in the majority (the eral section 14-202.1 “Inde- Statute Judge Judge opinion of KEENAN. “Statute”) that, cent Liberties Statute” or opinion. Judge a concurring wrote DAVIS officer, according probation consti- concurring in opinion, KEENAN wrote a felony violent convictions and tuted ACCA Judges Judge TRAXLER and Chief subjected sentencing Vann to the enhance- WYNN, AGEE, joined. Judge and DIAZ ment. in opinion concurring wrote an Wilkinson Liberties Stat- The text Indecent Judge NIEMEYER wrote judgment. pertinent part, ute as follows: provides, concurring part opinion dissenting part, Judge in which SHEDD (a) taking person guilty A indecent joined. if, being years with children liberties five age years or more and at least

OPINION question, older than the child in he ei- ther: CURIAM, PER for the en banc

majority:1 Willfully attempts takes or take immoral, 20, 2008, January following any improper,

On a domes- altercation, of either sex Torrell was arrested child tic Vann age years of 16 for the possession handgun. November * Motz, Judges King, ap- Judge Traxler participate Duncan Chief did not in this Keenan, Davis, peal. Wynn, Gregory, Agee, Diaz. per opinion adopted 1. This curiam joined by nine the en members of banc Court: arousing or sex-

purpose gratifying conviction under the Indecent Liberties (a)(1)”]; ual Statute is a “crime of desire violence” as contem [“subsection plated by the career offender enhancement attempts Willfully commits or Sentencing See Guidelines. 278 commit lewd or any lascivious F.3d at 284. In so ruling, we reasoned any part or with that the underlying conduct such convic the body member of child of tion potential “creates a serious risk of years either 16 age sex under physical injury.” Id.2 (a)(2)”]. [“subsection The rejected district court char- 14-202.1(a). Vann’s § N.C. Gen.Stat. The Statute acterization of his three previous indecent objection- plainly prohibits range wide convictions, concluding they designed “encompass able acts and was were for violent ACCA and that he felonies behavior, types giving more of deviant chil- 924(e)(l)’s § subject was thus sentenc- protection dren broader than available un- ing result, enhancement. As a on March other proscribing der statutes sexual acts.” 17, 2009, the court sentenced to the Vann v. 319 352 Etheridge, State N.C. statutory minimum of years pris- fifteen (1987). 673, 682 on.3 Vann a timely filed of appeal, notice objected Vann court’s ap district and we appellate jurisdiction have pursu- enhancement, plication asserting 3742(a) ant to 18 U.S.C. 28 U.S.C. that recent Supreme Court and Fourth § 1291. A panel divided of this Court Circuit decisions undermined PSR’s sentence, affirmed Vann’s employing the his previous contention that convictions “modified categorical approach” first an- were for violent See ACCA felonies. Be States, nounced in Taylor United gay United U.S. 575, 602, S.Ct. 109 L.Ed.2d (2008) (declin 170 L.Ed.2d 490 for purpose of analyzing ing felony New designate Mexico driv prior offenses they to determine whether (“DUI”) ing under influence offense as constitute violent felonies. See felony); ACCA violent United States v. Vann, (4th United States v. F.3d Thornton, (4th Cir.2009) 554 F.3d 443 Cir.2010). Upon granting petition Vann’s (same; offense). Virginia statutory rape banc, rehearing pan- for en we vacated government, relying primarily opinion. el Pierce, (4th United States v. 278 F.3d Cir.2002), responded that the PSR had I. correctly each of three pre counted Vann’s A. vious indecent liberties offenses ACCA Pierce, violent felonies. six If decided we assume that we may resort to the years prior Begay, we ruled that a modified categorical approach employed by Rivers, felony" 2. The definition of a United ACCA’s "violent States v. 595 F.3d 560 n. 1 nearly materially (4th Cir.2010). identical to and indistin- guishable from the definition "crime of of a violence” under career offender enhance- If the district court had ruled Sentencing Compare ment of the Guidelines. Vann’s indecent liberties convictions were for 924(e)(2)(B), 1.2(a). with USSG 4B We felonies, sentencing violent the ACCA’s en- routinely rely interpreting on decisions either inapplicable. hancement would have been provisions of those ascertain- enhancement Vann advisory would have then faced an prior whether a conviction is crime of months, range of Guidelines 77 to 96 with a violence under a violent Guidelines or ten-year statutory maximum. felony under the ACCA. See States v. Jenkins, (4th Cir.2011); 631 F.3d the absence that ment cannot be sentenced—in also assume majority, and panel the ineluctable con- identifying would lead to of a verdict the factual doing special so is a offense that a subsection impris- clusion bases for conviction—to a term purposes, gov- felony ACCA violent exceeding maximum onment prove cannot nonetheless ernment disjunctive “least-punished” for the violating convicted was Vann Rhynes, 206 F.3d statutory conduct. (a)(2). separate opin- Niemeyer’s at 379-81. dissenting in ion, part concurring (“the dissent”), contends that because part single charging Presented with a arose liberties convictions Vann’s of con alleging types alternative document conjunctively drawn pleas to guilty from dissent effec conjunctive, duct in the language of both tracking indictments like tively a conviction distinguishes (a)(2), necessarily pleaded Vann result of one in obtained as the a Rhynes, both those subsec- guilty violating to Vann’s, verdict, one jury from like however, untenable, position tions. That guilty was on a The dissent plea. entered legal principles as demonstrated critical distinction on the basis draws this charging docu- applicable generally that, pleads when theory of its a defendant ments. guilty, necessarily allegations he admits all First, charging it is settled a charged conjunctively. at 818-19. post See allege conjunctively the must document however, conclusion, The is the opposite underlying components of disjunctive view. v. Gon better-reasoned See Omari Armstead, v. See State statute. (5th zales, Cir.2005) 419 F.3d 308 n. 10 (2002) 562 S.E.2d (“Indictments conjunctively often el allege (“Where disjunctively a sets forth disjunctive that are in the corre ements ways by which the of several means or statute, require sponding and this does not committed, a warrant there fense government prove all of the either that them correctly charges conjunctive or that a statutorily disjunctive elements (internal omitted)); marks ly.” quotation plead to all of them when defendant admit Rhynes, 206 F.3d see also United States ing guilty.”); Malta-Espinoza also see Cir.1999) (“Where (4th a statute is (9th Gonzales, F.3d n. 3 disjunctive, pleading in the federal worded Cir.2007) (“[A] plea guilty only admits in the requires charge the Government necessary charge the elements of a conjunctive.”).4 predicate That Vann’s conviction.”); Ashcroft, Valansi v. properly documents use the con charging (3d Cir.2002) 203, 214-17 (rejecting F.3d “and,” term rather than the dis junctive plea to guilty assertion that defendant’s “or,” not mean junctive does that Vann charging embezzlement with indictment “necessarily” guilty to pleaded injure and “intent defraud” admitted (a)(2). Similarly, jury, in trials it has mind both states of where intent do established that defendant convict been conviction).5 indict- either was sufficient sustain conjunctively charged ed under Indeed, charged” protect disjunctive charge does not in an indict- offence 4. prosecution against "subsequent an accused's for one ment contravenes constitutional See, Cases, offences”). rights. e.g., the several Confiscation 92, 104, 22 L.Ed. 320 20 Wall. acknowledged by disjunctive charge in Valansi foot- (explaining is "whol- The court that a practice” government "necessary ly lacks certain- note the "common insufficient” and "plead conjunctive, prosecutors to in the but ty,” provide as it "definite notice of fails to Furthermore, theory dissent, dissent’s is in Vann on by relied post see 817-18, compatible Rhynes precedent with our merely recite the language of the Statute, Indecent underlying principles, its as enunciated in Liberties provide the dates of the alleged Edwards v. United offenses and identities minor, 1475, 140 of Vann and L.Ed.2d 703 and aver that the age requirements were Quicksey, States v. 525 F.2d satisfied. Each (4th Cir.1975). charging alleges document Rhynes, violation of F.3d at Statute, without specifying 379-81. The dissent’s reliance either sub- on United And, section thereof. consistent with States v. Gosselin World Wide Moving, law, (4th each N.V., properly alleges Cir.2005), post 411 F.3d 502 the indecent liberties 818-19, conjunc- offense in misplaced, as that decision tive fashion. Similarly, each judgment only proposition stands for the that a simply number, specifies the file identifies guilty plea admits “all the elements of a the offense as “Indecent Liberties with formal criminal charge.” Id. at 515. The Minor Child” or “Indecent Liberties with charge,” “formal criminal in explained Child,” pertinent denotes the only Rhynes, nothing is more than the least “14-202.1,” recognizes and that no writ- disjunctive statutory serious of the con findings ten were made. disagree We with duct, entirety not the of the conduct al the dissent that on this evidence we can in leged conjunctive. the

conclude that Vann necessarily violated B. (a)(2) subsection of the Statute. in present materials this case a The dissent’s view that each of Vann’s

much flimsier foundation than that in three contested convictions violated sub- States, (a)(2) Shepard v. 125 section of the Statute is erroneous in (2005), S.Ct. First, L.Ed.2d 205 for multiple respects. it relies on evi- determining the nature of prior the of presented dence never to the district fenses. The charging against documents court.6 It is one thing for a federal court disjunctive.” instruct in the Attempting 278 F.3d at 216 position, to bolster its the dis- (quoting n. Dep’t Still, of Justice Criminal Re- sent also relies on United States v. 227). (5th According Cir.1996). source Manual to the F.3d 124-25 post See at Circuit, However, purpose Third the indicting in the 819-20. the Fifth Circuit’s obser- conjunctive uncertainty only; "[wjhen to just is "avoid vation in that pleaded case that Still may as the guilty Government obtain a if [charging conviction to count three that he used only allegations one of the several linked in and carried a firearm in violation of 18 conjunctive 924(c)(1), the proven, in the indictment prohibits so U.S.C. which such use plead guilty only a defendant carrying], to using one of he admitted both to allegations required prove the to carrying element during firearm in relation (citation crime,” of her crime.” quo- Id. and internal drug trafficking to a inis some ten- omitted). tation marks Viewed in proper its subsequent sion with the court’s decision in context, only Omari, prop- footnote stands for the Omari. We are satisfied that that, respect osition to convictions based application involved the of the modified cate- jury by guilty gorical on verdicts and those obtained Immigration and Na-

pleas, legal tionality effect is the same. The "aggravated felony” latter Act’s exception clause, dissent, quoted post decisions, isolation appellate jurisdiction of removal 818-19, way supports at in no apposite its assertion authority is the more Fifth Circuit guilty pleas scope. are broader Nor this instance. does the Vdlansi court's use of the word "may” any duty part connote on charging of a 6. The state part documents were not record, specify precise defendant basis his of the district court but were obtained conviction, consequences. else suffer the parties following argument from panel in the nor ad- inherent conviction asserting neither court docket at state to look 226. case, defendant.” Id. at or to mitted a removed over jurisdiction in de arson conviction subsequent note it incon- precedent, the Alston Under rescinding a fire termining propriety the dissent to find that Vann sistent for post offer. settlement insurance guilty to the subsec- “necessarily” pleaded Santibañes, 430 (citing Lolavar v. de (subsection (a)(2)) that tion of the Statute (4th Cir.2005); Penn Colonial F.3d concur- Keenan’s dissent (4th Coil, F.2d Cir. Ins. Co. felony rence a violent deem 1989)). It is different to rest a materially Indeed, its to borrow from Alston ACCA. a ten- sentencing transforming from from analogy Shepard decision— derived fifteen-year mini maximum into a year 575, 110 Taylor v. United pre of evidence never mum—on basis if 109 L.Ed.2d 607 Vann court, particularly sented the district cases, underlying trial in the gone had requested un such evidence was when only used resulting conviction could argument. til after oral if the predicate as an conviction (or jury verdict special had returned Moreover, emphasis bears interrogatory) specifically answered an view that basis of dissent’s Vann’s finding guilty violating him “necessarily” rest subsec- convictions (a)(2) Alston, the Statute. See 611 F.3d charging tion is that the documents Instead, would have us dissent simply language recite the of the Indecent very categorical engage in the behavior however, Recently, we Liberties Statute. approach inappropri- is intended to avert: that a under a ruled conviction so-called See judicial factfinding appeal. ate on not plea the defendant does Alford —where Taylor, 110 2143 495 U.S. S.Ct. plea, confirm the basis for the see factual categorical approach (explaining 400 Alford, North Carolina v. 91 difficulty pleaded associated with avoids 160, 27 162 S.Ct. L.Ed.2d —does “there no record of cases in which often is qualify predicate as an offense ACCA facts”). the underlying when the definition contains both qualifying non-qualifying predicate charging Vann’s doc- When we consider Shepard-approved context, crimes and no other we proper legal uments in their documents the offense on which establish cannot determine he was convicted the defendant was convicted. the Statute. violating subsection (4th Alston, States v. 611 F.3d 227-28 of- Vann’s indecent liberties Consequently, Cir.2010). Niemeyer properly As fenses are not ACCA violent felonies. Alston, recognized “Shepard prevents II. sentencing assessing courts from whether vacate the prior foregoing, conviction counts as an Pursuant to the we ACCA by by the court and predicate relying imposed conviction on facts sentence district such, (4th Cir.2010) appeal. (recognizing in this had that "sentenc- As district court ing analysis); Sykes, charging opportunity no to consider the docu- court” conducts ACCA ments, J., ("Su- (Scalia, dissenting) parties opportuni- nor did the have S.Ct. at 2286 place ty litigate validity preme inappropriate are gauge their im- Court briefs their Thus, key nor- plications. propriety develop facts in a case. We to the extent the treating give parties protection, qualifying mally more robust Vann’s convictions as charg- leaving questions depends important factual to district violent felonies on the documents, ing juries by expert aided witnesses court con- courts and the district should discovery.” procedural protections those in the and the sider materials first instance. Alston, See, (citation omitted)). e.g., F.3d United States v. pro- and further vinced that the state court supreme remand such other would ceedings may contrary. rule to the See appropriate. Assicurazioni Generali, Neil, 997, 1002 S.p.A. v. F.3d AND REMANDED

VACATED Cir.1998) (4th Co., AT (citing & T West 223, 237, L.Ed. KING, Judge, concurring: Circuit (1940)). Deference to intermedi Although majority the en banc utilizes appellate especially ate court good makes ana- categorical approach modified jurisdictions Carolina, sense in like North lyze prior whether a conviction for violat- where the decisions of Court Ap Statute Carolina General section peals of binding North Carolina are on all (the Liberties Statute” 14-202.1 “Indecent state highest, panel courts save its “Statute”) qualifies as an ACCA “violent opinions subsequent panels. bind felony,” I am convinced that we are re- Jones, State N.C. 598 S.E.2d quired by precedent to evaluate Vann’s (2004) (“Where panel convictions under the Statute sole re- Appeals Court of has decided same to the categorical approach. sort Either issue, case, in a albeit different a subse approach produces same result quent panel of the same court is bound case, day.1 but Vann’s tomorrow another precedent, it has been unless over stamp I fear that our of approval Court’s (internal aby higher turned court.” quota predicated on future ACCA enhancements omitted)). tion marks the inappropriate invocation of the will contra- II. Supreme precedent vene Court justice. interests of provision The ACCA’s for an enhanced statutory range sentence —a of fifteen I. years to life—is applicable when a defen- an “vio Whether offense constitutes a previous dant has “three convictions ... felony” lent under the ACCA is a question for a felony violent or a drug serious of- of law that we de novo. review See United 924(e)(1). fense.” U.S.C. The ACCA (4th White, 365, v. F.3d States “violent felony” defines a as an offense Cir.2009). Nevertheless, as a federal court punishable imprisonment for a term offense, evaluating a state we are “bound year exceeding one supreme interpreta [state court’s] (i) use, has as an element attempted law, including tion state its determina use, or threatened use of force tion the elements of’ the offense. John another; against person or States, -, son - U.S. (2010). (ii) 1265, 1269, burglary, arson, extortion, 176 L.Ed.2d 1 is in- highest Where state’s court has explosives, volves use otherwise law, decided issue of state presents federal involves conduct that a serious courts defer to appel potential physical injury state intermediate risk of to anoth- decisions, court late unless we are con- er. decision, ground The today’s

1. result of en banc on the that his convictions under expressed judgment, ten the Court's is the Indecent Liberties do not Statute consti- (Chief Judge Judges votes Traxler and Wilkin- felonies, against tute violent ACCA two votes son, Motz, Davis, King, Agee, Gregory, Keen- Shedd) (Judges Niemeyer and to affirm an, Diaz) Wynn, and to vacate Vann’s ACCA- Vann’s sentence. enhanced sentence and remand for resentenc- category of which analysis, to determine appeal in this 924(e)(2)(B). issue id. See underlies conviction. for behavior convictions previous whether Vann’s Statute Liberties Indecent violating the illustrate, might criminalize a statute To felony convictions violent constitute and the building of a burglary both the 924(e)(2)(B)(ii)— §of See, the “residual clause” e.g., motor of a vehicle. burglary of- is, his whether Laws, 266, § 16. Inasmuch ch. Mass. Gen. conduct involve[d] “otherwise fenses is not a violent of a vehicle burglary as the physi- risk potential a serious presents ACCA, felony under the injury to another.” sentencing cal a preclude would conviction under counting any court from

A. enhanced toward an ACCA that statute States, Shepard v. United See sentence. 16-17, 125 S.Ct. 544 U.S. offense previous whether assessing In (2005). categor- The modified L.Ed.2d felo- an ACCA violent constitutes properly however, authorizes approach, ical employ the typically courts ny, the federal conduct prohibited into court to divide we under which approach,” “categorical (an building of a categories: burglary two and the of conviction the fact consider felony) burglary violent offense, partic- but not the elements (not felony). violent See an ACCA vehicle v. United acts. See James underlying ular id. 192, 202, States, 127 S.Ct. 550 U.S. categorical ap- the modified (2007); applying Taylor United L.Ed.2d 532 is entitled to 599-602, sentencing court proach, 110 S.Ct. 495 U.S. records, such (1990). court ele- certain If “the consult 109 L.Ed.2d documents, agreements, plea charging type are of the of the offense ments judicial find- colloquies, transcripts plea the resid- inclusion within justify its would law, jury fact and ings of conclusions spe- inquiry into provision, ual without instructions, Shep- offender,” forms. verdict particular [the] cific conduct of ard, 1254. These 125 S.Ct. felony for a violent previous offense may iden- James, documents” “Shepard-approved sentencing purposes. omitted). underlies category of tify behavior (emphasis conviction, enabling previous defendant’s however, circumstances, In limited determine whether sentencing court to than the may account more courts take an ACCA violent constitutes offense and the bare elements conviction fact of building. a burglary of See felony e.g.,— offense, resorting to the previous id. categorical approach.” “modified' 219, categorical approach thus Harcum, modified F.3d The 587 States United on which Cir.2009). the record a (4th augment serves to Use of the 223 rely, allowing sentencing court only appropriate categorical approach right category” to “choose encompass- court of conviction the statute when previ- to a behavior, respect offending behavior categories of multiple es distinct a broad statute. conviction under categories consti- ous of those at least one and States, 122, 555 U.S. v. United felony. See John- Chambers violent tutes an ACCA — (2009). 687, 690, -, 172 L.Ed.2d States, S.Ct. son v. United however, (2010). categorical approach, Like the 1265, 1273, 176 L.Ed.2d S.Ct. approach does not categorical the modified approach permits The modified Shep- to use sentencing court court, ACCA authorize conducting its sentencing ard-approved documents to consider the conduct makes it “more likely that an of- particular underlying previous fender, acts later possessing gun, will use Thus, regardless conviction. See id. gun deliberately to harm a victim.” analytical approach applies, a con- (internal Id. quota- previous clusion that a offense constitutes omitted). tion marks In order qualify felony solely an ACCA violent must derive as an ACCA violent felony, previous from the category regulated. of behavior offense must be one that is “characteristic See id. criminal,” of the armed career tending to

“show an increased likelihood that the of- fender is the kind of person who might Notably, previous Vann’s indecent liber- deliberately point gun pull and ties offenses do not have element of 145-46, trigger.” Id. at 128 S.Ct. 1581 force, arson, burglary, are neither nor ex- (internal omitted). quotation marks Ap- tortion, and did not explosives. involve plying those principles, the Begay Court offenses, therefore, Those only can consti- felony ruled that a DUI under New Mexi- tute ACCA violent if they felonies fall law, co which the Court considered to be within the ambit of the residual clause.2 crime, similar to a strict liability is not properly analyzing task of ques- “associated with a likelihood of future vio- tion is might more difficult than it first lent, aggressive, purposeful ‘armed ca- appear; ascertaining the breadth of the reer criminal’ behavior.” Id. at residual clause has been a challenging en- S.Ct. 1581. The New felony Mexico DUI deavor for the federal courts. was thus determined the Court to be In Begay v. United outside the scope of the residual clause. 170 L.Ed.2d 490 See id. Supreme explained Court decision, After the Begay our Court had every felony involving offense a risk of occasion to evaluate whether a violation of injury party to a third must be considered Virginia’s rape law—which felony violent under the ACCA. To fall makes it a criminal offense for a person to clause, within the residual the previous “ ], ‘carnally without know[ the use of similar, offense “roughly must be in kind force, a child’” ages between the of thir- as well in degree posed,” risk teen and fifteen —constitutes a violent felo- ACCA-enumerated crimes of burglary, ar- ny son, extortion, residual clause. involving offenses ex- Thornton, (4th plosives. Id. at States v. 128 S.Ct. 1581. The F.3d Cir.2009) (alteration Court elaborated that the enumerated of- in original) (quoting 18.2-63). “typically fenses purposeful, Thornton, involve vio- Ann. Va.Code lent, conduct,” aggressive government such the maintained that all viola- however, panel 2. Before appeal, govern- the in this government the the po- abandoned that that, light ment maintained sition, in of the essential argument having the been foreclosed age disparity between a child victim and an by Supreme the Court’s recent decision in perpetrator adult under the Indecent Liberties There, Johnson. See 130 S.Ct. 1265. the Statute, implies a violation thereof construc- that, explained Court in order to constitute a Thus, contended, government tive force. the 924(e)(2)(B)(i), felony violent under the necessarily such a violation is an ACCA vio- predicate physical offense must have violent element, felony, lent because it has "as an the element; slight force touching, as an "intel- use, use, attempted phys- threatened use of force,” lectual force or emotional is insuffi- against ical person force the of another.” cient. See id. at 1270. 924(e)(2)(B)(i). brief, U.S.C. In its en banc were, in officer similar from a law enforcement Virginia the tions of offenses motor constitutes an ACCA violent the enumerated vehicle — 924(e)(2)(B)(ii), necessarily purposeful, U.S. -, felony. See (2011).3 of confrontation and risk creating recog serious 180 L.Ed.2d 60 The Court and injury (including pregnancy bodily that, on of that nized based the elements diseases). See id. at sexually transmitted offense, in a fleeing police from the vehicle 447. risks of presents is a deliberate that physical injury similar the third-party rejected government’s position the We burglary. crimes arson and enumerated Thornton, however, reasoning that Vir particularly, See id. at 2273-74. More knowledge carnal did ginia’s definition of involve an flight both and vehicular arson that or all support “not an inference force “intentional release a destructive are violent and instances of the offense dangerous 2273. Like to others.” Id. at at 554 F.3d 449. so aggressive.” See wise, flight posed by risks vehicular the that nonforcible ruling, recognized we by burgla presented are similar to those activity does create adult-minor ry, in both “can end con that offenses similar, in “roughly that are kind risks Id. leading frontation to violence.” posed, as in of risk degree well arson, extortion, and examples burglary, rejected Court thus Supreme Id. at 446 involving explosives.” crimes flight Sykes’s contention that his vehicular (internal omitted). marks Nota quotation type offense did not entail the of conduct bly, explained we enumerated “[t]he bring it necessary to within ACCA’s immediate, serious, create fore crimes and at Sykes, residual clause. S.Ct. seeable risks arise concur explained, analysis 2275. As Court with crimes rently the commission on the should focus level of risk associated at 449. On themselves.” Id. the other conviction, previous with the offense of hand, risks associated violent, notwithstanding “purposeful, “are not immediate or violent in na rape aggressive” conduct stressed inherently in support ture and do not in the Begay context of a strict Court that an will later commit ference offender liability Sykes, offense. See 131 S.Ct. at Although a violent Id. did not crime.” we re- Significantly, Sykes decision “minimize the risks associated with adult- iterated that activity,” minor sexual we concluded “typ- the residual to crimes limits clause Virgi Thornton “a conviction under ically committed those whom one knowledge nia’s carnal offense is not ‘asso normally labels career crimi- ‘armed violent, ciated with a likelihood of future ” nals,’ is, that “show an crimes aggressive, purposeful “armed career likelihood increased that the offender is criminal” and cannot behavior’ constitute person might deliberate- kind who felony violent (quot ACCA.” Id. ly trigger.” point gun pull 1581). 148, 128 ing Begay, 553 Begay, Id. (quoting year, Sykes Earlier v. United 1581). Thus, although Sykes the S.Ct. Supreme Court revisited clause, concluding breadth of the said to distance the Court from its earlier residual violent, emphasis purposeful, ag- that the flee- knowingly Indiana offense potential Sykes Supreme Sykes briefing effect of 3. Court issued its decision mental 2011, subsequent in June to our banc appeal. en on this argument. supple- obtained We thereafter conduct, victim, part essential hallmarks gressive the minor the risks Begay reaffirmed. proscribed were associated with its conduct are fundamentally different than those associ-

B. with the ated offenses enumerated in 18 are obliged Vann maintains that we 924(e)(2)(B)(ii). § A U.S.C. violation of approach in employ categorical our the Statute does not categorically involve a analysis, consequence the inevitable release of a force capable destructive which is that his indecent liber- previous another, causing physical injury ties offenses cannot considered ACCA an arson or involving explo- would offense violent felonies. The government entreats Nor sives. does a violation of the Statute contrary, insisting that we should necessarily show a for the disregard safety invoke the approach, others, flight as does vehicular from the which, posits, that Vann’s establishes See police. Sykes, 131 S.Ct. at 2273-74. previous convictions are ACCA violent Similarly, posed by the risks a violation of government alternatively felonies. The as- Statute posed are unlike those that, serts regardless burglary, as there no categorical exists used, we are bound to affirm sentence likelihood that a would violation “end in [a] imposed by the district court. confrontation leading to violence.” Id. at 2273.4 1. Moreover, although an accused must Importantly, a violation the Statute knowingly commit underlying the acts See, require does not physical contact. indecent in North conviction Car Hammett, e.g., State v. 182 N.C.App. olina, good faith of age “mistake is not a (2007). Additionally, S.E.2d taking defense the offense of indecent proximity offender to Video, liberties with a I minor.” Cinema determinative; the victim is not convic v. Thornburg, N.C.App. Inc. tions have been obtained situations (1986). A violation of the merely where the offender been con has Indecent Liberties Statute therefore reso i.e., by structively present, making inap liability, nates strict reminiscent of the propriate telephone secretly calls video Begay offense, DUI is not an which taping change a minor during clothing. felony. violent See 553 U.S. Every, State v. 1581. (2003) (telephone S.E.2d 642 conversa tions); McClees, State v. 108 N.C.App. Unlike the flight offenses of vehicular (1993) (clandestine 424 S.E.2d 687 video those enumerated taping). 924(e)(2)(B)(ii) § “create —each immediate, serious,

Because a violation the Indecent Lib- and foreseeable physi- erties require concurrently Statute does not either cal risks that arise with the touching themselves,” or physical proximity, and does commission of the crimes Thornton, necessarily implicate any awareness on 554 F.3d at 446 —a violation of 14-178; incest, Interestingly, bigamy, § the Indecent Liberties Statute like see id. see id. 14-183; rape— is not codified with crimes § such exposure, see id. 14- including statutory rape, see N.C. Gen.Stat. 190.9; minors, displaying harmful to material (“Offenses Subchapter III 14-27.7A—at 14-190.14; secretly peeping see id. into Instead, Person”). Against the the Statute is occupied by person, a room another see id. ("Offenses Against Subchapter VII Public § 14-202. Morality alongside Decency”), offenses

782 slate, I conclude that a violation of might is not the Statute Indecent Liberties the (a)(1) is a less offense by subsection serious ‘“typically committed of offense type require physical does contact with that not normally labels armed one those whom ” victim, a the minor while violation sub- criminals,’ Sykes, 131 S.Ct. at career (a)(2) 146, more offense is a serious section 553 128 (quoting Begay, 2275 requires some form contact—a (internal quotation marks omit- 1581 S.Ct. upon body of lewd or lascivious act the a ted)). bottom, the Stat- a violation of At offense, child. ute, although unlikely is a serious “ that the increased likelihood ‘show an courts, however, The North Carolina might person kind of who is the offender the interpret have declined to so Statute. deliberately gun pull and the point [a] of federalism principles And time-tested ” Begay, 553 U.S. at trigger.’ (quoting Id. it construing us from otherwise. See bar 1581). result, 146, As a such a 916, Fankell, 911, Johnson felo- not a -violent categorically violation (ex- (1997) 1800, 138 L.Ed.2d 108 under the ACCA. ny any that no “federal tribunal has plaining

authority on a place construction state from the statute different one rendered State”). the As highest court of Jus- indecent Having concluded Vann’s explained tice Stevens for the unanimous categorically are not convictions Johnson, foregoing “proposi- meaning within the Court violent felonies ACCA, reject system tion is fundamental to our of feder- government’s I would alism.” Id. result to reach different invitation cate- through application The have courts of North Carolina ruled categorical ap- gorical approach. that, enacting again time Stat it does here— applies when it proach, —as ute, the not to legislature state chose “dis dispositive. See mandatory types tinguish between the of indecent lib (4th Rivers, 595 F.3d States Jones, erties,” N.C.App. State v. Cir.2010) that, (instructing where “the 393 S.E.2d and instead only one category contains of crime made crime of indecent liberties ... “[t]he vary categor- ... a court from Hartness, offense,” single State v. Importantly, there is approach”). ical no (1990); N.C. 391 S.E.2d see that the cate- precedent proposition for the Jones, also State v. approach is a tool of gorical convenience (2005) (rejecting proposition that can discarded when the other “[sjubsections (a)(1) (a)(2) are methodology might govern- advance the separate criminal with offenses different ment’s interest. omitted)). (emphasis elements” order Statute, prove an offense On the face of the Indecent Liberties State must establish five elements: Statute, may appear its subsection (1) (a)(1) any liberty years with a the defendant was least 16 (taking (2) arousing grati- age; years child for he was five older than purpose desire) (3) victim; fying willfully his he took or its at- liberty an indecent (committing tempted lewd or lascivious to take child) (4) victim; the victim was under act or with the could regulate years age alleged at the act sufficiently distinct behaviors to time occurred; and justify attempted our of the modified use pur- a blank action the defendant was for approach. writing If we were

783 pose arousing gratifying of Deference to North Carolina courts desire. in this instance is consistent the ap- proach by followed Coleman, Supreme Court in 696, N.C.App. v. 200 State 684 (internal (2009) James, 513, similar quotation cases. consid- S.E.2d 519 Court omitted). In prosecutions marks under ered whether attempted burglary under (a)(2) involving subsection a lewd or lasciv categorically Florida law qualified as an “[h]owever, act, be logically ious felony. began ACCA violent Court acts assumed that described ‘lewd’ and face, noting that its attempt “[o]n Florida’s purpose ‘lascivious’ are committed ‘for the requires only statute that defendant take ” arousing gratifying of sexual desire.’ ‘any act toward the commission’ burgla- Wilson, 399, N.C.App. State v. 87 361 ry.” 202, 550 U.S. at 127 S.Ct. 1586. The (1987). Nonetheless, S.E.2d 108 nei Court, however, then consulted the inter- requires ther subsection the Statute pretation attempt statute Florida proof of an element essential kind courts, which “considerably narrowed” its touching or otherwise. See Ham —sexual application by requiring that the “act” be mett, 642 at (rejecting S.E.2d conten toward entry “directed of a structure.” “that, in order tion to be convicted under Id. The Court analysis conducted similar (a)(2)], the accused must actu [subsection regarding the scope “curtilage” under victim”); ally Every, touch S.E.2d 212-13, the burglary law. See id. at (a)(1) (recognizing at 648 that subsection (“We again S.Ct. 1586 must turn state not require touching). does law in order to this question.”); answer see Although theoretically distinguishable, Johnson, also (relying 1269-70 the Indecent Liberties Statute’s two sub on the state courts’ construction of the sections have been interchangeably treated required degree of “touching” under the courts, by the North Carolina and those law). battery state The Supreme Court consistently recognized courts have has rejected therefore prosecuted the same behavior can be un simply considers the text and See, e.g., der either v. subsection. State grounded instead analysis has its on the Banks, 322 N.C. 370 S.E.2d state courts’ construction of the statute. (1988) (prosecuting kissing” “acts of under (a)(2)). subsection and subsection Thus, particular “the act performed is Indeed, persons engaging in the same ob immaterial,” “purpose and the accused’s behavior, jectionable involving physical committing gravamen such act is the contact, prosecuted are sometimes under Hartness, this offense.” 391 S.E.2d at (a)(1), subsection but otherwise under sub Because, law, under (a)(2). Hammett, section 642 S.E.2d the Indecent Liberties Statute’s two sub- 459 (prosecuting masturbation in anoth are interchangeable sections do not (a)(2)); presence er’s under subsection elements, have different regu- Statute Turman, State v. 52 N.C.App. only one category lates of behavior. (1981) Cf. (same; subsection Rivers, apply 595 F.3d at 564 (declining to (a)(1)); McClees, State 108 N.C.App. categorical approach to South (1993) (prosecuting 424 S.E.2d 687 light Carolina blue “[t]here because videotaping disrobing teenager is no varied underlying behavior ele- (a)(1)); Kistle, State offense”). light ments of blue A violation (pros S.E.2d 626 Statute, therefore, ecuting fall in photographing of unclothed child does not (a)(2)). range under subsection “narrow cases” where the is the of which number inquiries, the nent one beyond to mere “go is entitled court single in a state felo encapsulated a violent of offenses making conviction” fact of provided If the have 495 U.S. at state courts Taylor, See statute. ny determination. question, 602, 110 2148. the answer that subordinate S.Ct. it. See Johnson obliged accept are we — U.S. -, III. v. United 1269, 1265, (citing 1 176 L.Ed.2d A. Fankell, 911, 916, v. 117 Johnson friends, well (1997)). as dissenting My good 1800, 138 L.Ed.2d 108 in the en my colleagues banc case, several the subordinate answer to are bound disagree that we majority, of the of offenses set question number precedent to conclude that Carolina North has forth in the Indecent Liberties Statute (a)(1) (a)(2) of the Inde- and subsections Supreme Court of provided by been regulate Statute same Liberties cent Hartness, v. 326 North in State Carolina behavior, thereby foreclosing category 391 S.E.2d and N.C. ap- categorical to the modified resort courts, appellate the State’s intermediate Indeed, a violation of whether proach.5 Jones, N.C.App. see State (a)(2) felo- constitutes a violent subsection (1990); also 5.E.2d see State quintessentially a the ACCA is ny under Jones, question. federal (2005). That is “one.” Because answer more,” the is not “two or modi the answer question federal of whether The ultimate however, cannot only apply fied applies, can be the ACCA compo- through the Vann’s situation.6 resolution answered Niemeyer properly proved good Judge denomi- would somehow conclude a My friend 5. "concurring part opinion as nates his violation of an ACCA subsection part,” amorphous dissenting in but it is rather felony, certainly majority no violent there is Judge nomenclature means. Niem- what that emanating today our decision consensus from certainly dissenting en eyer from the banc why may as to be so. vacating and re- judgment Vann’s sentence however, manding resentencing, he non-precedential The decision of the Court per curiam does not concur either Moss, Appeals of in State v. North Carolina opinion majority en banc COA07-607, (N.C.Ct. WL 435095 No. judgment opinions. Court's several other The 19, 2008) trumpeted App. (unpublished), Feb. unitary, vacate of the Court to and remand is dissent, 816-17, way post is in no at Niemeyer parsed may not be contrary to the consistent authorita- 1-2, though suggests, post at & nn. 808-09 The case law. court in tive supporting judgment judges may various Moss vacated the defendant’s conviction un- through separate opinions express different Statute der the Indecent Liberties because agree doing, for so even reasons "fatal at trial amounted to so-called variance” judges opposed judgment as plain error. variance occurred because propositions constituent or conclusions short charged solely the indictment the defendant R.App. of the ultimate issue. Fed. P. 36 (a)(1), jury in- under subsection but was upon (specifying "judgment” that clerk enters only specific if it found the structed to convict receiving "opin- conceptually court’s distinct (a)(2). underlying conduct See id. instructions); 41(a) R.App. P. ion" or Fed. premised, *2. The was not of, court’s decision (defining comprised court’s mandate as it, upon two alia, as the dissent would have judgment copy "a inter certified offenses, describing different but subsections any”). copy opinion, court’s if [and] Thus, deprivation pro- might of fundamental due although Judge Niemeyer accu- rights theory supported by rately predict, post majority cess "on a n. that a Court, case, added). (emphasis indictment.” at *3 hypothetical of this in a future Id. court in Hartness ventured be- onstrates Had the essential elements of the pure construction of law to yond a state two are provisions materially dissimilar. question the broader federal address pertinently, Most sexual assault under impli- violation of the Statute whether as an Code has element “sexual con ACCA, be of cates the its decision would another,” tact with “any defined as touch here and would little moment the dissent ing of the or other sexual intimate parts point. See Johnson v. United have a person purpose for the arousing States, 130 S.Ct. at 1269 conten- (rejecting desire.” gratifying sexual Model Penal federal are state tion that courts bound violation Code 213.4. A of the via Statute in fed- interpretation court of terms found statute). (a)(2), But the Hartness hand, court subsection on the eral did other re is, domain, stray not outside its there quires touching no or physical at contact therefore, point no to be had. Hammett, See State all. 182 N.C.App. (2007) (masturbat 642 S.E.2d accept

The dissent’s reluctance to ing in presence minor violates subsec interpreted Liberties Indecent Statute as Kistle, (a)(2)); State v. tion 59 N.C.App. by the North Carolina courts well- flouts (1982) 297 S.E.2d (photo principles sys- settled of federalism. Our graphing nude minor government violates unequivocally tem of dual des- subsection (a)(2)). the state courts ignates as the arbiters law, state and it demands that federal All fury the sound and summoned forth John- See usurp courts not that function. dissent, by the spewing statistics docu Fankell,

son v. 520 U.S. at menting injury rate for sexual assault (underscoring that no tribu- “federal victims, signifies hence nothing. The dis any authority place nal has a construc- sent frankly admits that the study it cites a state tion on statute different from the “included higher conduct have a highest one rendered court harm, incidence post physical rape,” like State”). 823, illustrating at one problem using pinpoint statistics to “the ordinary case— B. i.e., the most common form” of an offense accommodating Even position for the purpose determining poten its the two subsections of the Indecent Liber- physical injury tial risk of to another. offenses, are separate ties Statute howev- — Sykes v. United U.S. -, er, prevails cate- Vann under the modified 4,180 n. L.Ed.2d 60 gorical approach.7 The offense of J., dissenting). Even the Sykes (Kagan, assault contained within Penal the Model majority acknowledged that “statistics are not, as Code is the dissent supposes, dispositive,” merely but are useful (a)(2). post stand-in subsection at an appropriate context to inform a court’s Although text portions 814-15. de- conclusion” regarding “commonsense scribing Code’s sexual assault offense offense’s character as an superficial similarity bear subsec- ACCA violent some (a)(2), Id. at 2274. tion dem- precedent felony. Notwithstanding my Niemey- friend entitled and we are not to reach and address post my opinion, characterization of er’s categorical approach. the modified Assum- 808, my unabashedly appeal view of this ap- the modified uncomplicated. categorical approach re- however, plies, prevails Vann event. sentencing solves the issue in Vann's favor. as a factor in its calculus indicates the conclu- violenee

Here, sense dictates common consider, least at we should exist be- differences significant sion felony margins, particular what makes a injury occa- risk of tween all, is, principled There after by violations of “violent.” ordinary case in the sioned hangnail and a homi- pre- difference between a typically risk and the flight cide. vehicular by the intentional sented Committing Sykes. at issue offense vein, understating In that and without body of upon or lascivious act lewd despicability underlying of the conduct a law enforcement “def[y] does not minor Liberties Stat- violations of the Indecent release intentional “entail[ ] command” propensity to inflict ute or conduct’s to oth- dangerous force a destructive I target, harm its cannot psychic vehicular at 2273. 131 S.Ct. Unlike ers.” to the commonsense help pay but heed immediate confrontation is police flight, is far more flight notion that vehicular a subsection “expected the result” of not violently end in or debilitat- likely to death (a)(2) violation, inevitably “placing] prop- Moreover, injury. dissimilar ing physical injury.” at risk of erty persons and serious dynamic perpetrator/victim to the discrete Court, Sykes According at 2274. Id. invariably associated with a violation of “[rjisk violence” inheres in the offense a of (a)(2), of effect with sphere subsection the no similar flight. vehicular Id. I discern of emanating risk of from injury attendant in violations of sub- ordinary risk inherent flight beyond far whoev- vehicular extends (a)(2), notwithstanding the worst- section occupies passenger envelop the seat to er dissent, post paraded by the case scenarios driver, police, innocent by- the the and 823-24, aspects the of at most sinister Sykes, at standers. See vio- empty physical

which entail threats of concurring opin- (citing Justice Thomas’s lence.8 of emphasize to that violations the ion the risk of Indiana statute “are effected with vehi- Sykes The mention violence, way that can be in a apart physical from the risk of cle used cause injury hardly light potential physical serious risk of injury, surprising is another,” deciding expressing whether and concern that Court’s ultimate task of a “vio- kill more than flight vehicular should be deemed “chase-related crashes every felony.” nonsuspects year” (emphasis chides me for add- lent dissent ed)). putative Engaging whether a in this sort intentional daring to determine “lack of con- felony purposeful, evidencing flagrant ... conduct violent “involve[s] conduct,” violent, per- and aggressive post safety property and cern for drivers,” pedestrians think common- and other id. prescribed but I sons 2273, distinguishes flight vehicular just that sort of sense counsels in Begay sim- from the driver inquiry. speaks The residual clause defendant drunk 137, 128 injury,” without S.Ct. ply of the “risk L.Ed.2d and we degree, but specifying injury’s kind likely that the is more of the risk of conclude former Sykes Court’s recitation omitted). Surely quotation Writing separately Sykes, Justice Thomas ternal marks Sykes imag- that can ”[t]he observed fact proposition also true: converse nonrisky way ine a Indiana [the to violate risky ways can to violate dissent illustrate disprove that intentional ve- does statute] establish that such does not flight dangerous ordinary in the hicular dangerous are in their most com- violations J., (Thomas, Sykes, 131 at 2281 case.” mon form. (citation concurring judgment) in the in- person might “the kind of who deliber- Onee application enhance ately point pull gun trigger.” ment from departs clarity 924(e)(2)(B) Sykes, Begay, 2275 (quoting arson, 131 S.Ct. at (ii) “burglary, or ex — (inter- 145-46, 128 tortion, U.S. at S.Ct. 1581 explosives”— involves the use of omitted)).9 quotation nal marks prior seeks ascertain criminal con victions that “otherwise involve[] conduct

IV. presents potential serious risk of said, All that I in the judgment concur physical injury another,” we enter a Court, in the curiam per as reflected judicial morass that systemic defies solut opinion regard. disagree in that I with ion.* Id. The dockets of our court and all my colleagues banc several en federal are clogged courts now with these however, in majority, that I believe Congress cases. to provide Unless acts categorical approach ap- resolves this statute, clarity to its intent for this peal categorical ap- and that the modified problem only will continue.

proach should therefore not be reached. I All my colleagues who have written in pleased am and honored to confirm that this case have made good faith effort to Motz, Judge Judge Gregory, bring sense of some order and direction to join in opinion. Davis this a congressional expression, however well

AGEE, Judge, concurring intentioned, Circuit in the poorly was drafted and in judgment, concurring the en banc defies seemingly the best efforts of us all majority opinion, concurring and in the apply to the “residual clause” within the opinion Judge of KEENAN: of Congress. intendment the While dilem- ma in adjudication we face our task of

“Only can Congress rescue the federal enough, pales comparison difficult it in to courts from the mire into which ACCA’s what is stake for parties: be it the draftsmanship Taylor’s ‘categorical and general defendant or the as public repre- us,” approach’ pushed have Alito Justice sented by the Government. The doubling presciently observed Chambers v. Unit- (or more) of a States, sentence to the ACCA mini- ed 555 U.S. 129 S.Ct. mandatory mum (2009) years sentence im- (Alito, J., of 172 L.Ed.2d 484 concur- prisonment grave should be of ring). multiple opinions As the concern in this reflect, when that decision is case no matter how based diligently my colleagues language Supreme that member of painstakingly and I labor mystery give per- over of ACCA “residual Court has concluded “does clause,” ordinary a black hole of un- son of intelligence confusion and fair notice of certainty stymies our best efforts. its yield reach ...” and “is too to vague I appreciate admire and power authority characteristi- es no do otherwise. cally good separate opinion my well-crafted my good concern friend should there- Wilkinson, friend concurring colleagues, fore not be directed at his court judgment, especial but I take issue one with governmental but to the bodies that created aspect Employing categorical ap- of it. said, controlling legal principles. That I not, proach in would separate this case as the pleased my agrees am with friend opinion prognosticates, “have the unintended our Court result that has reached this case. visiting effect of serious harms on children.” * equal results, applies The same concern force to opinion simply Post at 806. This indistinguishable application opinions, of similar separate do the various from consci- apply applicable entious efforts to law to enhancements United States Sentenc- Indeed, possess- ing the relevant facts. our Court Guidelines 4B1.2. liber- “nongeneric” in the overall Sykes v. United principle.”

intelligible Keenan, J.); U.S. -, (Op. ties statute (2011) (Scalia, J., dissent the indecent liberties 180 L.Ed.2d the assertion that ing). “gener- contains “substantive” two offenses, the “more ic” indecent Alito concluded Chambers: As Justice as a matter of law poses, violent” which tenable, long- only point, [a]t instances, potential in all a “serious risk Congress is for formu- term solution injury” under the residual clause expressly list of defined specific late a J.). Niemeyer, With (Op. worthy that are deemed to crimes respect my colleagues’ differ- genuine sentencing enhancement. That

ACCA’s views, following I for the rea- believe took in approach Congress is the each these constructs is in- sons that applied it ACCA two enu- when firm. expressly defined felonies. merated way only

And that ship. right ACCA’s A. (Alito, J., S.Ct. 687 forthrightly to Judge Wilkinson seems concurring). acknowledge ap- the North Carolina Congress timely fail to act Should always courts treated the two pellate have comprehensible statute in a rewrite this subsections of the indecent liber- discrete way, only it will have itself to practical ways and in interchangeably ties statute Supreme majority blame should that, shows, render im- Judge King find Scalia’s Court come to Justice conclu- logic legal as a anal- possible, matter only constitutionally valid course. sion the among to the two sub- ysis, differentiate DAVIS, concurring: Judge, Circuit as a matter. categorical sections other words, viewed there no pragmatically, are join Judge King’s pleased I am fine “categories” discrete of offense behaviors opinion in full. He demonstrates ante from which to “choose.” See at 778- in approach doubt the without correct this J.). Thus, King, Judge (Op. Wilkin- (and to the North indecent case Carolina effectively Judge King with agrees son categori- generally) statute is the liberties liberties has that as indecent statute categor- and not approach cal interpreted applied, I to offer no matter approach. separately ical write been following additional observations. by particular the acts committed defen- dant, categorically that defendant ame- I. both prosecution nable to under (a)(2) or subsection statute. my I efforts of thoughtful admire Any of a “risk of plausible determination authoring colleagues to rationalize injury” contemplation within of the challenging legal confronting standards us. residual is not driven clause the opinions As I understand that contend prosecutor subsection a applies the modified published opinions invokes. The of the case, three constructs seem distinct appellate courts demon- (1) legis- forward: put presumed be prosecutors regular- strate that state’s (Op. underlying lative intent the ACCA prosecu- Wilkinson, ly generous take J.); advantage supposed existence by the discretion afforded indecent “categorically of a violent” subsection with- torial Moreover, statute. ante at 783 (Op. Judge Wilkinson acknowl J.). King, edges, agreement Judge King, with provisions other of North Carolina Nevertheless, law although Judge Wilkinson myriad seemingly the contention that cover a of despicable, eschews heinous acts on its “alternative based elements” physical sexual depredation committed can be indecent liberties statute treated against adults as well as children. See proscribed categories if it two offense J.); n. 4 (Op. King, ante at 781 see also behaviors, he that Congress concludes Ill, N.C. Gen.Stat. Ch. Subch. Art. 7A should be deemed have intended Offenses”). (“Rape and Other Sex There who have convicted of offenders been what can be little doubt that such offenses will physical amounts to assaults under inevitably captured by the ACCA resid mi- against the indecent liberties ual as creating potential clause “a serious nors should receive enhanced sentences (if risk physical injury to victims” not and if later they when are convicted likely the more “use of force” federal court for a violation of 18 U.S.C. clause). It is not easy to discern the need § 922(g)(1). for a judicially-created supplement to Con difficulty Judge Wilkinson’s gress’s (admittedly optimal) less than stat presumed-legislative-intent construct, of utory design. course, is that there neither evidence principle nor established legal support But Wilkinson defends his conclu nothing it. we know If else about Con- sion as based on his belief that federalism gress, Congress we know that understands require concerns judges federal to step in fully punish repeat wrongdoers how who gaps to fill the law left the drafting pose danger community. 21Cfi legislators, decisions of state charging de (2006). Congress did list U.S.C. state prosecutors, cisions of and the law “sexual assault of a child” along with “bur- making of Congress decisions itself. See “arson,” “extortion,” glary,” “explo- (“Other post at 805 [prosecuted defendants sives offenses” as one enumerated solely and convicted offenses included in ACCA sentenc- liberties statute] have been convicted of enhancement, although it so has done assault, see, more serious forms of sexual elsewhere. See n. 1 (discussing ap- infra Askew, e.g., v. State plication pornogra- possession of child that a of the North Carolina inde- violation phy). cent statute "sexual liberties constituted Deeming imperative perceived close abuse of a minor" under U.S.S.G. by gap punishments in the the authorized Salas, 2L1.2(b)(1)(A)); United States v. 372 resulting the from residual clause of (4th Cir.2010) curiam) Fed.Appx. (per 355 Supreme the of doc- Court's "intricate webs (same); (unpublished) see States United v. crafting trine” in its the cate- thereunder of Gonzalez-Michel, 261, (4th Fed.Appx. 112 262 ACCA, gorical approach Judge Wilkinson Cir.2004) curiam) (per (unpublished) (noting effectively mi- imports a "sexual assault of a defendant did not contend that conviction Sentencing from the Guide- nor” refinement under the North indecent liberties analysis lines into the ACCA in this case. statute did not constitute abuse of a "sexual minor”); Respectfully, judicial me it seems to that such Ashcroft, v. also Bahar 264 F.3d see 1309, 1311, (11th Cir.2001) lawmaking proper exceeds the bounds of our (holding 1313 minor,” that term abuse as used role. "sexual

791 (1) Hartness, S.E.2d years v. 326 N.C. defendant was at 16 least (2) age; years he was five indecent older than that victim; (3) his willfully he took at- consists of “alternative elements.” id. tempted an liberty to take with Hartness, 180). (citing 391 S.E.2d at She (4) victim; the victim was under 16 “plain then language” examines years age alleged time the statute, undertaking analyze as if it for (5) occurred; or attempted act time, concludes, the first like the action pur- the defendant was for did, Hartness court that the statute con- pose arousing or gratifying sexual tains “alternative elements.” Unlike Hart- desire. ness, however, Judge Keenan is convinced Rhodes, State N.C. that those “alternative elements” are nice- (1987); State Thaggard, ly aligned in two structural subsections. 608 S.E.2d 786-87 (2005); Khouri, There are several unresolved difficulties COA10-1030, State v. No. — First, 1, 5-6, approach. Judge N.CApp. -, this Keen- 716 S.E.2d WL at *4 (N.C.CtApp. Aug. an we acknowledges, reject are not free to 2011). Furthermore, in our nonpreceden the state courts’ clear instruction as to the per tial curiam opinion United States v. extent, elements of the statute. To (4th Fernando, 291 Fed.Appx. 494 Cir. therefore, Judge rejection that Keenan’s 2008), we specifically identified the ele statutory implicitly elements is based ments of the North Carolina indecent lib on the that the conclusion “fixed elements” erties statute as the five discrete elements identified North courts are Carolina’s Fed.Appx. listed above. 291 495 n. 2 limited only, ap- to subsection her 786-87).2 (citing Thaggard, 608 S.E.2d at proach fundamentally is There is flawed. sure, To be one reading no the North no evidence so that elements are limit- Carolina indecent liberties statute could ed, and, importantly, more there is over- deny plainly that it criminalizes “lewd and whelming evidence this is not so. lascivious or with acts of a King As Judge correctly explains, the But, child.” King persuasively Supreme North Carolina and the Court demonstrates, the better view that the North Appeals Carolina Court of have statutory understood, provision, properly been consistent in unfailingly their identifi- reasonably support cannot application cation of the elements of the indecent lib- the modified

erties statute: ease.3 prosecution Femando was which the defendant has been convicted con 2422(b) (prohibiting phrases U.S.C. use of inter- tains cover several dif crimes, generic require state ferent commerce coerce or entice a minor to some which not," engage violent illegal activity). Under and some which do force statute, categorical approach underly- author a conviction rest on States, - U.S. -, (or of) ized. attempted Johnson v. violation of violation 1265, 1273, as, Fernando, law, state L.Ed.2d such Johnson, course, added). (emphasis was a Carolina indecent liberties statute. Taylor "use Shepard of force” case and and out, Importantly, King points 3. were It "enumerated offenses” cases. is sur government therefore, prising, arguing has abandoned contention that its those in favor physical prong applying that the categorical approach "use of force" of the modified ACCA applicable support in this Ante at 779 case. have failed to reconcile their view J.). King, 2 (Op. n. of with pos As Justice Scalia ex- difference manifest between Johnson, plained application it is law physical "when the under sible the "use of of force” impli- § sage Gen.Stat. 14-202.1 indecent liberties of N.C. genealogy The attempt edly of to repealed The was offense statute is instructive. statute against nature” or re- a “crime legislature in 1955 commit by the state enacted misdemeanor); felony it from a to April on or about duced effective and became enacted, Lance, (holding that S.E.2d at 339 the statute originally As 1955. against nature” was not offense of “crime follows: read as § Gen.Stat. 14- impliedly repealed N.C. years over of Any person Section as the concerns the 202.1 insofar former who, to commit an un- age with intent against nature” commission of “crime take, act, attempt or shall natural years over sixteen when the defendant is immoral, take, or inde- any improper, years age of the child is under sixteen and any child of either liberties with cent age). of sex, years, of 16 or who age under the intent, commit, shall, at- or with such contention, In this the North rejecting commit, or any lewd lascivious tempt explained that Supreme Carolina Court body, or any part or with § N.C. Gen.Stat. 14-177 condemns “crimes thereof, child, shall, of such or member nature,” ani- against including acts with offense, guilty first be of a mis- for the mals acts between humans whether a second or subse- demeanor and for adults, against committed while children guilty felony, be of a quent offense shall statute, liberties N.C. Gen. imprisoned in the and shall fined 14-202.1, of Stat. condemns offenses of Sec. 2. All laws the court. discretion against sexual nature children “unnatural” in conflict this and clauses of laws years by those age under sixteen over hereby repealed. Act are age years sixteen that could “be to Provide for Protection of

An Act the “crime punished” reached and Psychopaths from Sexual Children statute, against nature” as well “other Perverts, Laws ch. 1955 N.C. Sess. acts children than unnatural sex against (amended 1975). 708, 708 Lance, 339; Harward, acts.” 94 S.E.2d at on, argued drawing at 691-92. In its con- Early defendants S.E.2d legislative pass- im- that the intent in enactment of the statute effected an clusion existing was to plied repeal sup- Carolina N.C. Gen.Stat. 14-202.1 nature, against plement against “crime nature” prohibiting crimes statute See, children, protection e.g., give N.C. Gen.Stat. 14-177. State broader Harward, 746, 142 “The Law Supreme S.E.2d 691 the Court relied on N.C. Lance, Nature,” (1965); an article Against State v. 94 Crime N.C. (1956). covering The North for a law “the entire sub- S.E.2d called rejected ject Supreme flatly that conten- of unnatural intercourse” and drafted Court Harward, statute, incorporated at 694 a proposed tion. See pas- provision contention that child molestation from a District (rejecting defendant’s event, Judge heavy prong physical injury prong.” Keenan’s "risk of reli- Thus, They rely heavily Johnson. their says Shep- ance on what Chambers "about” (but unmistakable) unspoken underlying as- ard, physical Johnson s force” and on "use sumption force is inherent analysis, justify application of the modified violating manner the "lewd and lascivious” categorical approach injury” in this "risk the indecent statute. North Car- case, provides support applica- scant for the throughout precedents spread olina our raft tion of the modified soundly opinions case rebut Keenan, J.). post (Op. here. See at 798-801 assumption. treating statute felony Columbia lib- offense a rather than a misdemean Harward, with a minor. erties 142 S.E.2d or. 1105; 1975 N.C. Sess. Laws State v. 694; R. Spence, The Law of Banks, James 753, 398, N.C. 370 S.E.2d Nature, Against 313, Crime 82 N.C.L.Rev. (1988). But, Supreme Court of North (1954) (citing § 323-24 D.C.Code Ann. 22- Carolina noted when considering the 1975 (1951)). The Supreme Court ex- statute, change to the “[t]he substantive plained that it was “reasonable to infer features of the statute have remained un the [North General Assem- Carolina] Banks, changed since this rewrite.” bly fully considered the recommendations S.E.2d at (explaining what the State made” the article in passing the North (a)(1) (a)(2) prove must under to sus liberties statute. Har- Carolina indecent tain a conviction under the indecent liber ward, 142 S.E.2d at Notably, 694. statute). ties statute, District of Columbia on which gist The of this historical account is that modeled, N.C. Gen.Stat. 14-202.1 was the essential elements of the North Car contained wholly elements consistent with olina indecent liberties statute are today contemporary elements of the North they what have always been. See Rivers See Carolina indecent statute. Inc., Roadway Express, Allison v. 409 F.2d 312-13, 128 L.Ed.2d 274 (D.C.Cir.1969) “(1) immoral, (listing taking (1994) (“A judicial construction of a statute (2) improper, or indecent liberties with is an authoritative statement of what (3) age child under with the statute meant before as well as after the to, arousing, intent of appealing gratify- decision of the case giving rise to that lust, passions, or sexual desires of construction.”) (cited in United States v. the child or of the accused” as the ele- Baxter, (4th 642 F.3d 478 n. 3 Cir. ments the indecent liberties with a mi- 2011) that, (holding the modified offense). nor child categorical approach ACCA, to the mentioned, As original North Car- Virginia Supreme Court’s authoritative in olina indecent liberties statute consisted of terpretation of the burglary state single statutory provision without sub- in 1985 applied to the defendant’s 1976 sections. See N.C. Gen.Stat. 14-202.1 conviction, burglary where the defendant 1969). Indeed, (Replacement the legisla- was sentenced in federal court in 2010 for ture did not create what are separate now violation of 18 922(g)(1))). U.S.C. (a)(1) (a)(2) subsections until Thus, twenty years after the enactment of difficulty fundamental I per- statute. An Act to Amend ceive in Judge G.S. 14- Keenan’s effort lies in its 202.1, 1975 promotion N.C. Sess. Laws 1105. This of the interchangeable use of amendment also removed the requirement the terms “elements [of indecent liber- of intent to commit an statute],” unnatural sexual “behaviors,” “acts,” ties “means,” and increased the punishment, making the and “theories.”4 Contrary reading of Hartness ad- Carolina demonstrate correctness by Judge vanced Judge Niemey- Keenan and Judge King’s reading of that case. North er, to the extent that subsections Supreme ambiguous Court’s refer- (a)(2) of the indecent liberties statute create ence to "alternative elements” in Hartness has (1) overarching, either nongeneric offense clearly been elaborated: (a having generic a subsumed Tay- offense la Hartness, opinion our recent in State v. Keenan), Shepard) (Judge lor and two 326 N.C. 391 S.E.2d 177 (a Johnson) generic offenses la Chambers and Court held that it was not error to instruct (Judge Niemeyer), subsequent cases satisfy the third element of the me, simply is that is upshot the

For (i.e., “he or willfully offense took at- composed of “the statute is true that liberty tempted take an indecent in manner in the elements” alternative victim”), one which is the but not of neces- (and Niemey- Judge Judge Keenan which (or attempted sarily required to be an act er) insist; five are the the elements act) of,” or “a “upon” or “with” “the they say are. For the state courts the of,” child, a a let alone or member a part Judge what by King, is explained reasons inevitably leading or act violent forceful an offense proof true of surely of, inherently posing or a the infliction be the statute can sustained proscribed by ” injury required by “risk as of beyond a reasonable showing evidence by clause of the ACCA. One residual one committed that the defendant doubt might say prosecutor also that a is author- acts,” in “alter- engaged more “alternative proceed against culpable ized to defen- a behaviors,” or that the defendant native theories,” dant on “alternative which one by “alternative violated statute appellant argued federal court has could means,” might many as 16.5 any or more of which number as one Hartness, 564, 567, jury disjunctively as various 326 N.C. at 391 S.E.2d alterna- acts, reasoning 180.... The which establish Hartness tive either of would an applies equally well Although here. charged. the offense element of Lyons, N.C. State may jurors find the defendant some of the J., (em- (Meyer, dissenting) 316-17 guilty on their belief that the defen- based Almond, added); phases see also State v. may act A dant committed and some base (1993) ("In 435 S.E.2d par- guilty their vote of on the defendant’s Lyons, Justice Whichard on to stress the went B, findings ticipation act such alternative in examining importance gravamen of of jury's do not render verdict nonunani- legislature pre- offense which the intended to long as as the alternative acts found mous 'grava- Lyons, vent. In it was that the held of establish an element the offense do assaulting maliciously men of the offense of themselves, not, sepa- a in and of constitute assaulting particu- a secret manner is the aof Hartness, rate offense.... As the defen- lar individual in that manner.’ Id. at was dant this case convicted gravamen S.E.2d at 314. single proscribing may offense offense in was Hartness not the conduct by finding one be established defendant, Id."). purpose. intent but his several alternative acts---- Just as in Hart- Thus, the focus of Hartness was on the ness, wherein we concluded that the offense alternative acts or means which violation may proved of indecent liberties sev- be prov- of the indecent liberties statute could be acts, eral different a violation of N.C.G.S. en. proved by showing 14-31 as- battery upon sault and one or more victims. holdings In contrast actual Hartness, courts, we that it was concluded im- North Carolina Keenan would jurors may material that the have differed apparently identify 16 discrete offenses based they specific as to sexual act believed "alternative elements” of the indecent statute, long apparently along the defendant to have committed as liberties the follow- jurors all of the found that the defendant lines:

had committed a sexual act. We stated: 1) pur- Did immoral for the take liberties desire; The risk verdict of a nonunanimous does pose arousing sexual 2) not arise in cases such as the one at bar improper pur- Did take for the liberties desire; proscribing because the statute pose arousing sexual list, 3) does not elements of the pur- liberties Did take indecent liberties for offense, desire; arousing discrete criminal activities pose of sexual disjunctive.... 4) purpose attempt Defendant’s Did to take immoral liberties for desire; committing gravamen arousing act is purpose such sexual offense; 5) particular performed attempt improper Did to take desire; arousing purpose for the immaterial. 712, (1989). Notably, very statutory terms which 325-N.C. 388 S.E.2d 467 Such Judge circularity Keenan identifies as “alternative el- meaning entirely is not sur ements” of the indecent prising liberties offense under the circumstances. More over, Specifically, are elastic the extreme. judge the trial duty has no Judge Keenan’s suppositions regarding North Carolina law even to define the (a)(2) of the indecent liberties essential terms the indecent liberties statute, the supposedly discrete elements Stell, See State v. jury. statute for the 75, of “lewd” and “lascivious” harken N.C.App. (1978); back to 249 S.E.2d 480 State Jenkins, old, legal the venerable redundancies of 758, 35 N.C.App. 242 S.E.2d see, e.g., void,” 505, “null denied, (1978), disc. review “cease and 506-07 desist,” provide scant reason to devi- State v. (1978); N.C. 246 S.E.2d 11 Withers, holdings ate from clear of the state 2 N.C.App. courts 162 S.E.2d 638 (1968). as to the “elements and character” of the unguided kind of jury fact- liberties statute and the clear finding fostered historical practice un command of our Supreme Court that we der the North Carolina indecent liberties apply categorical statute, approach under an “all things to all people” ap ACCA. proach adjudication, to criminal presents a poor candidate for application of the modi fact, in construing the indecent liber categorical fied approach under the residu statute, ties at least one North Carolina al clause of the ACCA. appellate court has defined the word as, “broadly” “lewd” among reasons, other things, For all these with sincere re- “lascivious.” State v. Manley, 95 N.C.App. spect Judge effort, for Keenan’s I am un- 381 S.E.2d (citing convinced that the case has been made for Webster’s Third New International Dictio the application of the disc, nary denied, (1968)), review at 1301 approach here. 6) attempt Did to take indecent liberties for violate one of the elements of the North Car- desire; purpose arousing statute). sexual olina indecent liberties 7) Did pur- take immoral liberties entirely for the It is not clear which of the above 16 desire; pose gratifying sexual clusters of "alternative elements” are encom- 8) improper Did take pur- passed liberties for by Judge ap- Keenan's “blank slate” desire; pose gratifying sexual proach, presumably only but convictions rest- 9) Did take indecent pur- liberties for the qualify. clusters 13 and 14 would desire; pose gratifying Thus, sexual presume, I would even if a defendant 10) attempt offense,” Did pled to take immoral guilty liberties to a "subsection desire; purpose gratifying for the open sexual would be to that defendant in a subse- 11) attempt Did improper quent show, to take prosecution federal court desire; purpose gratifying for the through sexual application categori- of the modified 12) attempt Did to take indecent liberties cal by my colleagues, favored desire; purpose for the gratifying he in fact committed "catego- one of the other 13) Did upon body commit a lewd act ries” of offenses under the indecent liberties child; (i.e., pose one that did not a risk of 14) Did upon commit a injury), lascivious ineligible and therefore was child; body of the for a sentence enhancement or an increase in 15) attempt Did upon guidelines to commit a lewd act his post base offense level. See child; body Keenan, J.). (Op. 800 n. 1 16) attempt Did to commit a questions lascivious act open by These are left the en banc case, of the child. surely decision in my colleagues but Appellant Brief of at 15 n. United States v. suggest do not mean to the modified

Ramirez-Garcia, (11th Cir.2011) categorical approach 646 F.3d 778 applies only when it (No. 10-13279-FF), government, 2010 WL 5622138 at *15 aids the but not when it aids (describing foregoing n. 5 ways as 16 defendant.

C. the statute “states proposition dissenting opinion Niemeyer’s disjunctively two alternative means of categorical ap- that the modified contends offense”). In proving one element of the but, Judge unlike Keenan’s applies proach event, any that the to the extent dissent would that it find concurring opinion, equates a “lewd and lascivious or liberties statute “North Carolina’s or of body any part with the member generic of- separate at least two contains any the North the child” under purposes.” Post at fenses for ACCA statute with a Carolina indecent liberties J.). Niemeyer, already What has (Op. of assault,” plainly it act” or a “sexual “sexual Judge ap- regarding Keenan’s been said clear law. deviates from North Carolina Judge the difficulties with proach identifies (observing Manley, 381 S.E.2d at 902 Furthermore, Niemeyer’s approach. necessarily “a not ‘lewd or lascivious act’ is dissent, “whether Vann’s say, as does ”). a act’ Resort to ostensible ana ‘sexual that he was convicted guilty pleas establish North indecent lib logues of the Carolina two set more violent of the offenses from the Model Penal Code does erties act 14-202.1, as stat- forth in N.C. Gen.Stat. post not at change this result. See 814-15 (a)(2),” post (Op. at 811 ed in subsection J.). (Op. Niemeyer, J.) added), ques- Niemeyer, (emphasis regrettable tion-begging of the most sort. D. Supreme authority no for There is Court my good colleagues’ heroic surgery Despite on a state statute discover faithfully their struggles apply is the under- which of two subsections violent,”6 area, of the law in difficult I standing “more when that statute has find So far as authoritatively interpreted by wanting. been their efforts I can discern, perhaps excep- not an one or two supreme having state court as as tions, every a use one of more than 25 feder- perpetrator’s element violence Indeed, al have how dissenting colleague ac- courts that examined our force. tually very regarding identifies the rule indecent liberties statute applied varying offense assessed applied the elements of the should be King. See 815-16 n. 4 enhancement Judge post (Op. ap- sentence contexts have J.) Jones, Niemeyer, (quoting plied categorical approach, State v. as does not, uncertain, dissenting jus- injury I am as were tional or involves risk but Sykes violence.”). Sykes, precisely majori- tices in how aggression or approach actually ty’s "risk assessment” event, emphasis, it as bears likely future employed to be cases. See (Op. King explains, King, ante at 781-82 J., (Scalia, Sykes, dissenting) 131 S.Ct. at 2285 J.), just Begay a kind of involved strict ("But what the test that determined the about statute, liability so the North Car- too does in this outcome in our case "series”— second olina indecent liberties statute sound strict violent, aggressive” "purposeful, test liability. say, good That is to a faith mistake incompatible Begay? Fear not. That vari- age the victim’s a defense to is not such has been neither nor re- ation overlooked Breathette, charge. State today’s opinion.”); nounced in tutti-frutti id. (N.C.Ct.App.2010). Although the statute is J., ("I dissenting) (Kagan, at 2289 n. 1 under- commonly "specific in- understood to be majority ‘purposeful, to retain the stand crime, violent, test, requiring as it does that tent” aggressive’ but to conclude case____ purpose prohibited defendant’s acts be it is ‘redundant’ in this I as- gratification, there is nonetheless resurgence test sume this will make —that requirement no rea as to element of will be declared nonredundant —the next time mens crime, age. the Court inten- the victim’s considers whether 1; Judge King. supra n. see also sentencing court to use Shepard-approved Baza-Martinez, United States 464 F.3d documents to consider the particular acts (9th Cir.2006) (applying categori underlying previous conviction.” (citing reentry cal approach illegal case and Chambers, 690)). 129 S.Ct. at In the case finding that violation of North Carolina’s bar, I fear that the proponents of the categorically statute was not a crime of vi modified fall into an olence the child sexual provi abuse easily that, trap by avoidable insisting de- 2L1.2(b)(1)(A)(ii)); sion of U.S.S.G. spite the controlling state precedents court Witscher, United States v. 2011 WL to the contrary, subsection (W.D.Pa. 2011) 2261022 June (finding indecent liberties statute can be disaggre- North Carolina indecent liberties convic gated from the statute as a whole tion was not a “crime of violence” as “sex treated as a separate offense characterized ual of a abuse minor” under the “Career by perpetrator’s use of against force 4B1.1). guideline, Offender” U.S.S.G. child iterations, victims all its such that And, course, we did likewise in our now potential “serious physical risk of injury” decision, superseded United States v. is inherent in their commission. (4th Pierce, Cir.2002) (con 278 F.3d 282 struing the “Career Offender” guideline, At the day, end of the well be 4B1.1).7 I regret S.G. the en banc that Justice Scalia is right: that the resid- court’s adopt refusal to the sound analysis ual clause of the Armed Career Criminal reflected in those cases. Act is unconstitutionally vague.8 This

business of adjudicating by “levels of risk” II. “intuition” problematic, is say to the least. Chambers, (“[T]he 129 S.Ct. at 692 For might say all that one in critiquing study strongly supports the intuitive belief Supreme “weaving Court’s of] intri- report that failure to does not involve a cate webs of juris- doctrine” its ACCA potential serious physical risk of injury.” Wilkinson, prudence, post at (Op. 801 added)); (emphasis Sykes, 131 S.Ct. J.), thing one is certain: we are not to J., (“But (Kagan, dissenting) the ma- concern ourselves with the manner or jority’s dangerous intuition that flights means which a generic crime was com- outstrip mere stop mitted failures to particular instance. Ante at —that J.) (“Like aggravated 778-79 (Op. of King, activity cate- form the is also the however, gorical approach, ordinary the modified form—seems consistent with categorical approach does not authorize a common sense and experience.” (emphasis exception appears 7. The sole to ever-evolving interpretation Court’s Martinez-Vazguez, keep States v. residual clause will Fed.Appx. defendants and judges guessing years (9th Cir.2010) to come. The (stating that Baza-Martinez reality phrase is "otherwise in- apply categorical to ap- declined volves presents po- conduct a serious proach "only Shepard-approved because” no tential injury risk of to another” record, documents going were in the clearly does not define the crimes that will apply to the modified approach to subject greatly defendants to the increased find a North Carolina indecent penalties. job It is not the of this supported an conviction offense level increase impose clarity Court to which the text 2L1.2). under U.S.S.G. honestly itself does not contain. And even job, if that were our reality the further (Scalia, J., Sykes, 8. See 131 S.Ct. at 2287 that we have now demonstrated our dissenting): inability accomplish the task. (b) with chil- added)).9 per- indecent liberties Taking Scalia until Justice But F felony. punishable dren a Class colleagues of his at least four suades view, lower court his we correctness § 14-202.1. N.C. GemStat. fealty Supreme Court’s owe

judges in his concur King As observes Con- teaching implement we are on how appellate ring opinion, North Carolina’s less-than-erystal-clear design. gress’s courts have construed the indecent liber only one encompassing ties statute as of analysis manifests that Judge King’s fense, multiple rather than offenses. See opinion. pleased join and I his fealty am (discussing

ante at 782-83 State Hart ness, (1990); S.E.2d N.C. KEENAN, Judge, concurring: Circuit Jones, 172 N.CApp. State v. opinion curiam per I concur in the Jones, (2005); State of this I majority of the members Court. (1990)). 393 S.E.2d 585 But explain I separately why conclude write of the statute as a characterization are the “modified permitted that we use offense, more, single oversimplifies without determining in approach” Supreme the Court North Carolina’s convic- whether Vann’s indecent liberties in analysis in Hartness. The court Hart qualify violent felonies within the tions that, in the ness stated indecent liberties meaning of the Armed Criminal Career statute, “single by established wrong the is 924(e) (the ACCA). Act, 18 U.S.C. finding of various alternative elements.” “taking The indecent liberties offense added). (emphasis 391 S.E.2d at 180 Ad children,” forth in Section 14- with set ditionally, explained the the court sin 202.1 of the North Carolina General Stat- by “may offense gle proscribed (the statute), pro- utes indecent liberties proved by evidence of the commission that: vides any one of a number of acts.” Id. (a) person guilty taking A analysis, explaining The Hartness if, years being children with composed of alternative ele- statute is age years or and at five more least ments, is supported plain language he older than the child ei- question, statute, throughout cast ther: disjunctive. to the two addition (a)

(1) paragraph that are stat- subsections of Willfully attempts takes or take in the immoral, disjunctive, ed each subsection con- any improper, or indecent disjunctive reference, tains than one any either more liberties with child of sex providing alternative elements serve age years of 16 statutory prohibi- to establish the different purpose arousing sex- gratifying or wrong desire; comprising single recog- tions ual highest nized North Carolina’s court. (2) Willfully attempts commits or any commit lewd or lascivious The task in whether Vann determining body felony,” any part or with the or was convicted of a “violent within ACCA, any child starts with meaning member of the years. “categorical ap- either of 16 consideration under age sex under courts, evidence, Harrison, empirical are left to 9. See also United States v. 558 F.3d without 1280, Cir.2009) (“In (11th 1294-95 some rely on own about whether their intuition crimes, rape, robbery, such as armed poten- pose certain behavior serious kinds of arson, potential physical risk of serious injury.”). tial risks of crimes, injury But is obvious. in lesser the fact of Vann’s proach” single, separately conviction “within a numbered stat- utory and the alternative elements of section entitled ‘Breaking and enter- States, Taylor night,’ burglary the offense. See United ‘building, ship, of a ” 575, 599-602, 495 U.S. S.Ct. 109 vessel or vehicle.’ Chambers v. United (1990). States, approach, L.Ed.2d 607 Under this 555 U.S. 129 S.Ct. only court considers various elements 172 L.Ed.2d 484 (discussing Shep- offense, States, of the indecent liberties not the ard v. 16-17, United 544 U.S. leading (2005)) facts to Vann’s conviction under 161 L.Ed.2d 205 (citation omitted). that statute. See Chambers Supreme Court ex- 122, 125, plained Chambers although the var- (2009). 172 L.Ed.2d 484 I agree with ious proscribed behaviors were located that, Judge King’s in employing conclusion within a single section of the Massachu- case, categorical approach statute, in this setts the different natures of the government cannot establish that of behaviors were the determinative factor previous Vann’s convictions were for a “vi- analyzing whether the statute encom- felony.” olent passed more than one crime for purposes Thus, of the ACCA. Id. the Court stated however, I disagree, Judge King’s that because “the underlying, behavior conclusion that we not employ the say, breaking into a building differs so categorical approach in analyzing significantly from the underlying, behavior prior Although Vann’s convictions. say, vehicle[,] breaking into a that for King correctly principles states that of fed- purposes sentencing court must eralism require apply us to the North Car- treat the two as different crimes.” Id. olina courts’ construction of the indecent added). (emphasis being composed liberties statute as of a offense,” “single this statement is incom- The holding ultimate of Chambers in- Here, plete. principles of federalism re- volved the Court’s consideration of an Illi- quire that analysis we conduct our ACCA nois statute that proscribed the different (cid:127)within the structural context of a statute failing behaviors of to report periodic for composed offense, that single is of a imprisonment but and of intentionally escaping has been recognized by North penal Carolina’s from a Supreme institution. The highest having court as alternative ele- Court concluded that the statute stated ments describing different behaviors con- distinct constituting criminal acts two an stituting offense under the statute. crimes for purposes of the ACCA. Id. at These 126-27,129 alternative elements are found S.Ct. 687. (a)

both paragraph subsections of Chambers, The above discussion in statute. holding, its ultimate reflect the fact that an In determining statutory whether this essential function of analysis the ACCA is framework of determine, alternative elements permits subject to constitutional re- employ strictions, us to ap- which proscribed criminal be- proach in prior consideration of Vann’s disjunctively-worded havior statute convictions, the Supreme Court’s decision formed the basis of a defendant’s convic- provides Chambers helpful guidance. tion. part analysis This of the ACCA is There, Supreme Court discussed a in identifying proscribed rooted the acts by elements, Massachusetts statute at issue in an earli- statutory the various case, States, Shepard er v. United depend does not on whether those behav- contained placing alternative elements iors are listed in one or several different (a), Thus, the statute is paragraph if a subsection of statute.1 particular of a

sections committing an adult’s act of violated alternatively proscribes different statute “any part lewd or lascivious constitute different essentially acts the child.” N.C. member of the crimes, qualify which would only some of 14-202.1(a)(2). meaning of Gen.Stat. felony” within “violent as a categorical” ap- ACCA, the “modified analy- with the accordance Chambers help a sentenc- employed be proach sis, although proscribed both behaviors category of identify the correct court under alter- would violations of which the defen- behavior proscribed statute, in the native elements stated Chambers, 555 was convicted. dant above distinct natures of the two radically 687; 126-27, Taylor, 495 129 S.Ct. U.S. require they be treat- proscribed acts 602,110 U.S. pur- crimes for ACCA ed as different elements the first violation poses. liber- of the indecent Upon examination elements, statutorily-pro- above reference identified its alternative ties merely “improp- scribed behavior is proscriptions that the apparent contrast, and, thus, By statute, er” is non-violent. pro- like behavioral the various in the of the second violation iden- statutes discussed elements scriptions Chambers, proscribe tified that under the encompass behaviors that differ above acts violent in they con- ACCA would be considered na- significantly so constitute situations, ture.2 In such use of the modi- ceptually purposes distinct crimes example, appropriate fied categorical For applying ACCA. statute, analyze proscribed an adult’s act the different behaviors the indecent which statuto- taking an as distinct from the statute determine “improper,” “indecent,” ry formed of the defen- liberty “immoral” or with a elements the basis v. United arousing grati- child “for the dant’s conviction. See Johnson purpose — -, fying sexual desire” constitutes a violation (2010). Thus, L.Ed.2d be- of the indecent liberties statute under (a) the encom- paragraph first subsection of of cause the liberties statute 14-202.1(a)(l). § passes radically N.C. so different statute. Gen.Stat. behaviors Conversely, portion single statutory of that offense covers under a the second the cussed, disagree Judge King's I that the indecent must be committed 1. conclusion whole, the indecent liberties statute as in- "upon body any part or with the or or mem- (a)(1) cluding both subsection subsection body” ber the of minor. N.C. Gen.Stat. (a)(2), my sets forth five fixed elements. In 14-202.1(a)(2). Just as the "risk vio- view, cannot be this conclusion reconciled flight,” Sykes, inherent lence is vehicle 131 analysis highest with the court North S.Ct. at so too the risk of violence is in Hartness that the is com- Carolina statute in an adult’s of a "lewd inherent commission posed See of alternative elements. 391 S.E.2d "upon the lascivious act” or with at 180. body” part or member of the of the minor Id.; Sykes, see also 131 S.Ct. at victim. view, (a)(2) my 2. violation subsection (observing flight, burglary, that vehicle like statute, of the indecent liberties "in the ordi- dangerous end in because can confronta- case,” States, nary U.S. James v. United Thus, violence). leading a violation of tion 192, 208, S.Ct. L.Ed.2d (a)(2) of liberties the indecent stat- requisite "degree carries of risk” the ordinarily "presents potential ute a serious comparable to enumerated in 18 crimes injury 924(e)(2)(B)(ii). Sykes another” within the risk of U.S.C. See v. United - -, 2267, 2273, meaning S.Ct. clause. U.S. of the ACCA’s residual See (2011). 924(e)(2)(B)(ii). 180 L.Ed.2d Under subsection 18 U.S.C. statute, dis- Therefore, different crimes for Vann’s convictions. I conceptually ACCA conclude I convic- that are purposes, permitted conclude Vann’s we not to consider fur- may tions be examined under modified ther previously whether Vann was convict- approach approved the Su- felony ed of a violent under ACCA. Chambers, 555 preme U.S. at Accordingly, Court. I judgment concur in the 126, 129 S.Ct. 687. vacating the Court Vann’s sentence and remanding the case district court for This conclusion is altered fact I proceedings. pleased further am to state that North Carolina’s courts have held that Traxler, Judge Judge Chief Agee, may prosecuted same conduct be un Wynn, Judge join Diaz in this der different alternative elements of the opinion. may statute. The issue whether we apply categorical approach WILKINSON, Judge, Circuit depends on an examination concurring in judgment: criminal of a different elements The North Carolina indecent stated behaviors these singularly statute is broad and the proscribe, any particular Shep-

elements not on ard-approved documents singularly are may encompassed by conduct unedifying. given For these statutory proscription. See John reasons and in son, 1273; Chambers, circumstances, these narrow 180 S.Ct. at I cannot find 125-27, 129 predicate the three crimes of violence nec- essary support an Armed Career Crimi- illustrates, As the above discussion (“ACCA”) nal Act enhancement. Because liberties, single offense of indecent as set I too many believe courts are too deep in statute, forth in the North Carolina can the weeds on the matter of the ACCA’s qualify felony” as a “violent under the clause, residual I reluctantly required feel ACCA, depending on which of the statute’s to write separately. alternative elements are satisfied in a par Therefore, view, my ticular case. I much appreciate very we the conscientious must my consider whether Shepard-ap colleagues attention to this case. proved here, however, profusion opinions documents Vann’s case establish The which of the conceptually different crimes illustrates obvious difficulties that Only Vann committed. if are experiencing those documents courts in applying the yield question a clear answer to this residual clause U.S.C. (2)(B)(ii). 924(e) proceed § we to step the next to determine Whether is this due to whether for Vann Congress vague crime was fondness formu- was a felony,” convicted “violent within the lations or the propensity judges to doctrine, meaning Shepard, weave ACCA. See intricate webs of I do not 24-26, 1254; Taylor, reason, U.S. at 125 S.Ct. 495 know. Whatever the when an in- 602, 110 U.S. at quiry overly S.Ct. 2143. becomes complex, the best to to repair simplicity, course is which in per For the reasons stated in the curiam is congressional this case intent under- opinion the en I majority, banc conclude lying the ACCA. that, upon examining the applicable Shep- ard-approved documents under the modi- It cannot have been the intent of Con- categorical approach, government gress categorically fied sweep up to all sorts of satisfy establishing cannot its burden of non-violent indecent liberties offenses as Neither, proscription predicate distinct ACCA crimes. howev- er, underlying possibly indecent statute can it have been the intent of 202.1(a)(1) 14-202.1(a)(2) help much— predi- and exclude as categorically Congress to terms as sweeping vic- are written in such were both where minors those crimes cates categorical analysis confound a For to assaults. by violent timized follow, “typical” presented by the violation. I the court risk believe the reasons (a)(1) “immoral, im- criminalizes case Section adopt to in this no choice but has liberties,” or but those proper, indecent approach. virtually are imprecise terms so to offer I. what an inher- guidance no as to conduct is 14-202.1(a)(l) violation. part ent of a sought implies, its the ACCA As name Lawrence, N.C.App. See State types of crimes—seri- punish particular (2005) (“While S.E.2d some and drug -violent felonies. ous offenses is part action on the of the defendant have the ACCA Congress could attached immoral, necessary, improp- are what acts of felo- larger to a universe enhancement defined.”) er, statutorily or is not felonies, it did not or to all but nies indeed Instead, violent felo- so. it addressed do For Section is not much better. nies, nec- inclusion that conduct the term example, repeatedly uses the exclusion of some oth- essarily means “any,” reaching “any lewd or lascivious 98-1073, No. at 3 H.R.Rep. er. See body any part or with the 3661, 3662 reprinted in 1984 U.S.C.C.A.N. N.C. member child.” this (“Having need enhance [to established 14-202.1(a)(2) (emphasis Gen.Stat. add repeat generally, sentences for offenders] ed). well-accepted is a It question then remained for Com- term, broadening although but a “catchall seg- mittee to what particular determine is; ... phrase surely say this is not population ment of career criminal to define what it catches.” Flora v. Unit target.”).1 Federal should Government States, 145, 149, 630, 4 ed (1960) (discussing L.Ed.2d 623 the mean II. sum”). “any precise Nor do the scope: terms of the statute narrow its case, unusually, In this somewhat Vann’s dic adopted courts North Carolina have alleged predicates all involved viola “in tionary meaning definitions of tions of the same indecent liberties statute. “lewd”— citing imagination”— desire or sensual 14-202.1, statute, That N.C. Gen.Stat. meaning “tending to broad, making it more diffi staggeringly “lascivious”— See, e.g., arouse sexual desire.” State v. cult determine whether “[s]erious Hammett, akin physical injury substantial risks” of (2007). 454, 458 by the presented those enumerated crimes “are an part” typical inherent offense. Thus, in the repeated addition to use of — U.S. -, Sykes United many in the “any,” adjectives the word (2011). L.Ed.2d fuzzy are en- expansive, both sepa- compassing

Nor into a from the parsing spectrum does statute acts immensely rate 14- serious to more innocuous. offenses subsections States, 295, 1571, It that the Vann's 544 125 161 bears note status of con- U.S. S.Ct. States, (2005); qualifying predicates victions ACCA is all as L.Ed.2d 542 Daniels v. United validity 374, 1578, is here. The of those at issue S.Ct. L.Ed.2d 121 149 question, not in nor could that States, convictions is (2001); v. United 511 U.S. Custis validity into in this be drawn doubt federal (1994). L.Ed.2d 517 sentencing proceeding. v. United See Johnson The extraordinary §of any breadth 14-202.1 is act with prurient done intent either by design: legislature “the in enacted or out presence [it] of a minor. The encompass more types [wrongful] be- liberties offense also differs sub- havior, giving stantially children protection prohibitions broader from other on sexu- (and al abuse likely than available under other more pro- statutes candidates for treatment) categorical scribing sexual acts.” State v. Etheridge, Car- Statutes, olina (1987). General N.C. such N.C. Gen. § 14-27.5A(a),2 Stat. provides The statute has achieved that: this remarkable (a) scope by making person A pur- guilty is “[defendant’s of sexual battery if pose person, for committing such act ... for the gra- purpose of sexual offense; arousal, vamen of gratification, this sexual particular act or sexual abuse, performed engages immaterial.” State v. sexual contact Hart- with ness, person: another N.C. 391 S.E.2d (1990). not, however, (1) mayWe take By such a against force and the will of the shortcut our analysis; we other person; must or determine whether an indecent liberties disabled, Who is mentally mentally offense “involves particular conduct”—the incapacitated, or physically helpless, and performed in committing a generic vio- the person performing the act knows or lation of the poses statute —that a risk should reasonably know that the other comparable to presented by any of the person mentally disabled, mentally in- enumerated ACCA predicates. capacitated, or physically helpless. Significantly,

It bears note only this incorporates does the statute highly specific breadth definition complicate our task of “sexual con- “(i) of determining touching anus, organ, what is a sexual typical indecent tact” — breast, groin, offense, or any buttocks person, but it also stands (ii) a person touching sharp person contrast to the another with notably specific ele- their own organ, anus, breast, ments the crimes ACCA does list. For groin, buttocks, (iii) or or example, person Supreme ejacu- Court has held that lating, emitting, semen, or placing urine, “burglary” necessarily “contains at least or feces part of person.” another following elements: an unlawful or un- N.C. Gen.Stat. 14-27.1.5. privileged into, entry in, or remaining building structure, other with intent to It is these sort of specific requirements commit a crime.” Taylor v. United us to say enable certainty some 575, 598, 109 of a crime that the standard offense car- (1990). L.Ed.2d 607 Similarly, the federal ries a serious risk injury to Hobbs Act defines extortion as “the ob- another or “can end in confrontation lead- taining another, of property from with his ing to Sykes, violence.” 131 S.Ct. at 2269. consent, induced wrongful use of Thus, actual approach will be the threatened force.” 18 U.S.C. one courts most frequently utilize. But in 1951(b)(2) (2006). These precise case, formu- arewe left with a broad statute diverge lations remarkably from the crimi- that North Carolina courts have described 14-202.1(a)(2) nalization in -virtually virtually tautologically. See, e.g., State v. provides 2. This statute punishment just as a easily classify felony. this crime aas Class A1 up It is of misdemeanor. course to Compare 14-27.5A(a), § N.C. Gen.Stat. with legislature the North Carolina how it chooses 13, 3252(a). Vt. Stat. Ann. tit. categorize its offenses—another state could 648, Although McClees, in the course. arising usual (“Indecent (1998) Sykes physical risk of liberties are de- clarifies that 687, 690 necessarily “pur- not from as the common harm need arise as liberties fined such violent, aggressive” conduct regard poseful, as and society of would sense (internal at 2275 qualify predicate, as an id. quotation marks ACCA improper.” and omitted) 145, Dictionary (quoting Begay, 553 U.S. 128 S.Ct. Black’s Law (quoting Ohio, 1581), (6th ed.1991))); statutory require- it reaffirmed Osborne cf. 135-36, be In posed physical. 109 ment that the risk 110 S.Ct. U.S. (“At (1990) law, Sykes, no need to differentiate common there was L.Ed.2d 98 risk; types part “an inherent any gross indecency term ‘lewd’ included flight law en- corrupt offense” of vehicular from as to tend to commu- so notorious morals, is a “lack of concern for subjec- that was forcement nity an entirely safety property persons pedestri- on a and dependent speaker’s tive and (internal social, But moral, other drivers.” Id. at 2269. and cultural bias.” ans and omitted)). stat- marks and citations the breadth the indecent liberties quotation that, ute includes forms of risk while terri- say typical I cannot that a viola- simply ble, outside statute. State v. fall neces- tion of the indecent liberties statute Breathette, (N.C.Ct.App. 5-6 690 S.E.2d sarily physical injury a risk of when entails 2010) (“Undoubtedly 14- Gen.Stat. [N.C. so little to define the the statute does recognition of the breadth is 202.1’s] necessary to a violation. I conduct commit significantly greater psychological risk no many have doubt crimes an from damage impressionable child are punished repugnant, 14-202.1 Banks, (quoting overt acts.” State emotionally and traumatiz- many 322 N.C. 370 S.E.2d young for the victims—North Carolina (alteration in original))). punish does well to such conduct. But vile conduct, sum, I necessarily conduct not violent In cannot see how an indecent alone, psychological injury though prong no liberties offense under either physical injury required categorically less real can than Carolina statute statute, predicate for be an crime adequate an basis deemed ACCA See Johnson v. Unit- n violence. conclude, an I further as the Su- predicate. ACCA — -, instructed, preme ed Court has that when a (2010) (“The adjective categorically 176 L.Ed.2d statute is too broad to serve ap- ‘physical’ plainly predicate, proper ... refers to force exert- an ACCA through proach up ed concrete is not throw hands and bodies—distin- our from, statute, guishing example, purpose force abandon the but physical force.”) cate- proceed intellectual force or emotional It rather to emotionally gorical approach. is an but un- tempting legally acceptable use the ACCA’s residual III.

clause to draw within it criminal con- judges understandably duct that we as say that North Carolina’s indecent To deplore truly do not like. preclude broad is so “Congress gen- only chose to frame classification is thus a first ACCA qualitative, ency- step. eral rather than It does not mean a violation of terms,” 2277, § clopedic, Sykes, predi- can never be an S.Ct. at 14-202.1 ACCA dealing quality predicates but the share is cate under residual clause. one, injury such as this the Su- unacceptable risk of with statutes 805 proscribed by the use of the statute approved Court has Vermont that the preme Second Circuit held as an categorical approach,” using qualified ACCA “modified documents, colloquies, jury predicate Daye, United States v. charging plea 571 (2d Cir.2009) instructions, F.3d 225 (addressing “conclusive court statute and other documents,” that defined sexual as any assault to assess whether defendant “contact vulva, penis between the and the penis crime that in in fact convicted of a its was anus, penis, the mouth and the generic predicate. form would be an ACCA vulva, States, any intrusion, mouth and the or Shepard v. 544 United U.S. slight, by part however person’s (2005); S.Ct. 161 L.Ed.2d 205 125 any object the genital into 599-600, anal Taylor, 495 U.S. at opening of another.” Id. at 230 (quoting analysis Such appropriate 2143. is when 3251(1)).). 13, § Stat. Ann. tit. Vt. say, behavior underlying, breaking “the building significantly differs so from into a Here, however, Shepard docu- say, underlying, breaking into behavior ments —a 1991 indictment and a in- purposes a a vehicle that for ACCA sen- parrot formation —do no than more back tencing two as court must treat the differ- wide-ranging words North Car- ent v. United crimes.” Chambers itself, olina statute and so do not describe 687, 690, nature of the likely behavior that “[t]he (2009). course, whether L.Ed.2d Of statutory phrase.” underlies [the] Cham- susceptible categori- is to modified bers, result, 129 S.Ct. at As a analysis under the is a cal ACCA federal modified categorical approach this case answer question, but one whose is often illuminating no more than categori- is by analysis only of the informed not stat- one, cal and we are left with the bare accompanying ute itself but of state deci- of a is words statute that written about as law. sional broadly possibly as it could be. Given the here, pattern misconduct I suspect the Here, the categorical approach qualifying violations, defendant committed apply. should Under the insufficient, suspicions but are and the rec- statute, clearly it is for possible defendants ord, like proverbial cupboard, is too convicted for forms of con various bare.3 duct would constitute “different crimes,” Thus, some generically though application of which would even predicates. categorical be ACCA Some defendants modified is appropri- ate, been charged yields victory have 14-202.1 with no govern- see, amounting rape, My conduct ment here. dear friend King’s McLean, e.g., N.C.App. concurring State v. opinion I hereinafter —which (N.C.Ct.App.2003), 580 S.E.2d 431 to as goes refer “the fur- concurrence” — ther, however, previously have held not to serve as we and declares that modified predicate States analysis is suitable. The (4th Thornton, Cir.2009). 554 F.3d rejecting gov- concurrence insists on defendants have convicted Other been of ernment’s contention that the modified assault, see, categorical approach implicated here, more serious forms of sexual is Askew, e.g., State and reiterates that “the ante modi- akin (N.C.Ct.App.2007), categorical approach to that fied cannot apply to 775-77, per opinion’s holding unnecessary ante at disposi- 3. Because curiam conclusion, ultimately premised on I be- tion of the case. guilty pleas, lieve discussion of Vann’s J.). Davis, situation,” I have quarrel at 784. .With the But no ante Vann’s duly pre- these categori- I think that the either of two enacted respect, greatest My of the concurrence would statutes. reserva- approach sumptively valid cal visiting effect of seri- with the that ruling have the unintended tions have do fact children. all ous harms on indecent liberties offenses non-violent gives neither the state nor federal approach strips also categorical This A every statute real effect. state has all effect. statute of While North Carolina its convictions will expectation that predictability agree purposes that for I respected under properly treated and fed- resources, conserving trial court law, and this is no less true of North eral preferred, to be categorical approach is protect efforts here to the most Carolina’s respect legislative for the efforts society. members of our The vulnerable require recognize that we branch repeatedly principles concurrence invokes in- through approach modified those federalism, recognize its refusal to but that a of violent conduct stances here the North any role for Carolina stat- might A different case to reach. seeks antithesis what very ute is dual differently; specific a more set of come out sovereignty is Under the concur- about. documents could reveal Shepard charging analysis, rence’s ACCA even the most sav- necessarily plea “whether had rested age against sexual assault even the young- that general- sexual assault on” sort of nothing nothing—just est child counts for — potential phys- risk of ly presents a serious prosecuted because it was a violation at injury. Shepard, ical 544 U.S. why 14-202.1. I not do understand 1254. I cannot understand how the is so. properly note the concurrence can breadth recognize fail it of the statute and that categorical approach, as described makes very is that breadth that further concurrence, by the immunizes from the inquiry Shepard strict standards reach range ACCA’s a wide of violent appropriate. that, although punished crimes under this statute, that suggests my undoubtedly The concurrence dif- broad could serve as governmental be with “the predicates generic ferences must their form. If, legal example, bodies created the controlling judge that federal district principles.” Judge persuaded by charge Ante 787 n. 9. plea was collo- charges I similarly quy young Davis have “con- that a child had been bruised important law-making aggres- tasks beaten in the course of fuse[d] sion, by committed our constitutional structure how can that act not im- generieally See, plicate ... legislature e.g., North Carolina ACCA? Model Penal Code (2001) (Deviate adjudicative with the tasks committed to 213.2 Sexual Intercourse judges.” (Op. Imposition).4 federal Ante at Force or Davis, J.). dispositive misap- The concurrence considers Both of these statements precedent prehend purpose "North demonstrates whole of the modified approach, applies that the essential elements of 14-202.1 and in- [§ stances, one, parallel provisions of the Model Penal such as this where the Code] materially are Ante crime is than dissimilar.” at 785. definition broader Taylor, posits categori- generic Davis definition. ("A unacceptable burglary here few cal because States’ statutes, however, required burglary the North Carolina courts have ... define more eliminating broadly, e.g., requirement an act of element of inde- violence an entry (Op. We cent liberties offense. Ante at be unlawful.... therefore NIEMEYER, Judge, IV. Circuit concurring in part dissenting in part: Congress wanted violent crimes to count presents This case the question whether the non- predicates under ACCA and Torrell sentence for possessing Vann’s a count. A violent crimes not to modified § firearm in violation of 922(g) 18 U.S.C. here best its categorical approach honors properly was enhanced under ACCA for Hewing to absolutes intent. previous his three convictions under the Ruling have the most effects. will serious statute, North indecent liberties Carolina categorically indecent offenses N.C. Gen.Stat. More specifical- 14-202.1. non-violent will allow brutal acts commit- ly, we must determine whether each of against ted children under a state statute previous Vann’s three convictions consti- protect recog- to to designed escape them felony,” tutes a “violent as that term is ACCA, eviscerating under the nition all 924(e)(2). used 18 U.S.C. the reach while of a federal statute that The district court that concluded Vann’s designed protect just to itself citizens from three previous under the convictions North depredations. Conversely, in- ruling such liberties statute consti- to categorically decent liberties violations tuted accordingly violent felonies and sen- will predicates impermissibly be ACCA tenced him to a statutory minimum sen- up prurient, who what but sweep knows 15-years’ tence imprisonment. I would non-violent, I ens- acts. fear we are so affirm the district court’s sentence. (federal by our nared doctrine or state North Because Carolina’s indecent liber- offense, question, single or conjunc- dual ties separate statute contains at least two etc.) disjunctive charges, tive or we that generic purposes, offenses for ACCA it is both forget Congress those whom appropriate, majority as the of this court of North state Carolina are attempting concludes, to employ the modified categori- protect and the nature of the from acts approach cal Taylor articulated in v. Unit- law trying to shield them. There ed 110 S.Ct. way to safeguard is a defendants from 109 L.Ed.2d 607 to determine enactment, breadth of this require whether the offenses used to enhance Shep- the evidence as to them meet strict Vann’s sentence were “violent felonies.” standards, preserve ard still some Under the modified categorical approach, I special place children as wards (1) would conclude that each of Vann’s law and state. Because modified cate- previous three necessarily convictions en- approach gorical applied cap- herein best compassed both of the set forth offenses aims, each happy tures of these three I am § 14-202.1, given N.C. Gen.Stat. the con- judgment: to concur junctive wording of charging docu- whether, question must address the those circumstances is "to determine whether guilty plea a by of a defined [a crime] case defendant who has been convicted nongeneric necessarily statute, admitted ele- nongeneric-burglary under Gov- generic ments of offense” reference to ernment seek enhancement on the document, charging "the plea the terms of a ground actually generic he committed a agreement transcript colloquy or between burglary.”) judge and defendant in which the factual ba- categor- is thus It irrelevant to plea sis for the was confirmed the defen- ical dant, that the Carolina statute comparable judicial to some or record perfectly gener- does track elements of Shepard, of this information.” 544 U.S. at assault; proper ic sexual course three in which King’s opinion, guilty pleas unqualified Vann’s ments and however, concludes, concur, stated; judges so charges that Vann will- §in 14-202.1— if were determined offenses even two latter attempt[ing] to commit committing] or attempted “[wjillfully fully committed upon or act body or lascivious any lewd commit lascivious lewd of n or member any part 14- child, Gen.Stat. of N.C. in violation under either sex of any of child not constitute 202.1(a)(2), the crime would classi properly years” age of In purposes. for felony” ACCA —was a “violent 18 U.S.C. felony” under as a “violent fied conclusion, Judge King’s reaching this analysis 924(e)(2)(B)(ii), applying § analysis, Sykes to conduct the fails opinion in its Supreme Court by the prescribed that Vann’s concluding ipse dixit simply Sykes in v. United recent decision at serious his place victims crimes did - U.S. -, 180 L.Ed.2d ante, 781- injury. of risk potential (2011). Sykes anal- conducting Instead court of this judges majority A and discarded an irrelevant he ysis, applies the modified though even conclude that that, requires that suggests, he standard applied be in categorical approach felony, violent crime, to be a in order con- previous determining whether Vann’s “touching” or a contact” “physical involve felonies, Shep- for violent victions were violent, and purposeful, even perhaps or the dis- documents before ard-approved 780-81, 782, Ante, at conduct. aggressive to determine were not sufficient trict court 782-83, 785-86. quali- previous convictions whether Vann’s purposes. for ACCA we can deter- fied as violent felonies I conclude that Because Judge Keenan’s holding, In this supporting pleas included guilty mine that Vann’s concur, con- judges four in which opinion, in encompassed generic crime pleas (a)(1) of N.C. Gen. cludes that subsection attempting committing or “willfully statutorily- § “reference[s] 14-202.1 Stat. or or lascivious a lewd commit merely ‘im- that proscribed behavior child, prohibited body” of a with the and, thus, By con- is non-violent. proper’ 14-202.1(a)(2), question reach the I (a)(2) trast, ] of [subsection the elements convictions were previous whether these ACCA would that under the proscribe acts conclude, under ACCA violent felonies nature,” citing violent be considered concludes, they that were majority as the 800-01, Ante, Judge n. 2. Sykes. violent felonies. agree generally more appears Wilkinson portions those I concur in Accordingly, defendants to clearly possible “it is for the modified holding that the judgment various of conduct forms be convicted may be used this categorical approach constitute ‘different crimes’ that would a violation concluding that case1 and statute], some liberties the indecent [under 14-202.1(a)(2) constitutes N.C. Gen.Stat. pred- generically ACCA of which would ACCA,2 and I dis- under felony Ante, a violent at 805. icates.” Diaz). opinion, representing five her joined In judgment is portion of the 1. This Judges (Chief Judge viola- Judge Keenan concludes eight judges Wilkinson, judges, Traxler Keenan, Shedd, 14-202.1(a)(2) Agee, Niemeyer, ais Gen.Stat. tion of N.C. Diaz). Wynn and stating, of subsec- felony, "a violation violent (a)(2) liberties statute of the indecent tion joined judgment is portion 2. This potential risk ordinarily ‘presents a serious (Chief Judges judges Traxler seven within the mean- injury to another' Keenan, Shedd, Wynn, Agee, Niemeyer, (a) insofar A judgment person from the as it holds guilty taking sent if, liberties with Shepard-approved being years documents in children age or more least justify years case do not determination and at five older question, than the child he ei- pleaded guilty Vann to violations of ther: of the statute.

(1) Willfully attempts takes or to take immoral, any improper, or indecent I child of either sex early hours of morning January years age of for the 20, 2008, Lumberton, officers in purpose of arousing gratifying sex- Carolina, responded a 911 call from desire; ual Torrell Vann’s who com- ex-girlfriend, (2) Willfully commits or attempts insisting that plained Vann was he be commit any or lewd lascivious act By the let inside her house. time officers body or any part with the arrived, however, left. Vann had About an member of the of any child of later, hour Vann returned and entered the either age sex under the years. of 16 ex-girlfriend’s through house an unlocked (b) Taking indecent liberties with chil- ex-girlfriend door. back When asked punishable dren is aas Class F felony. leave, out pulled pistol, put him Vann a probation The officer concluded that head, to his to kill him- it threatened indecent Vann’s liberties convictions were if she to him. Although self would not talk felonies,” “violent and thus classified Vann put away when weapon Vann the ex- ACCA, an armed career criminal under girlfriend upset eventually became left subjecting Vann to Sentencing Guide- residence, ex-girlfriend again range lines imprison- 180 to 210 months’ later, police. called the A short time offi- ment and a mandatory minimum sentence vehicle, stopped finding cers Vann’s imprisonment. months’ slurred, speech his was his license had At sentencing, objected pro- Vann suspended, possession been was in and he application bation officer’s of the ACCA pistol of a Bersa .380 and ammunition. enhancement, his arguing that indecent Vann was charged being with a felon in liberties convictions were violent felo- firearm, of a in violation possession of 18 States, Begay v. United nies under § 922(g)(1), the indictment in- U.S.C. U.S. L.Ed.2d 490 cluded the he allegation that had three Thornton, and United States v. felonies,” previous convictions for “violent (4th Cir.2009) (holding Virgi- F.3d 924(e)(2)(B). § defined in 18 U.S.C. statutory rape nia’s offense is not a violent pleaded guilty charge pursu- Vann ACCA). felony government, in plea ant to written agreement. contrast, argued matter that the was con- Pierce, presentence report Vann’s United States v. described his trolled (4th history, Cir.2002), extensive criminal including three F.3d which held that a taking prior § convictions for liber- violation of N.C. Gen.Stat. 14-202.1 is a child, with a purposes ties violation N.C. Gen. “crime of violence” for § provides: Sentencing Stat. 14-202.1. The statute Guidelines’ career offender en- (a judges sitting clause. en majority ACCA's residual See 18 of the twelve Ante, case) 924(e)(2)(B)(ii).” U.S.C. at 800 n. 2. conclude that a violation of subsec- Thus, I, (a)(2) because tion felony concurrence would a violent constitute Shedd, conclusion, purposes reach the same sev- of ACCA. 4B1.2(a). 4B1.1, and the other in §§ forth subsection hancement, U.S.S.G. (a)(2), that the “modified subsection such objec- overruled Vanris The district court appropriate categorical approach” was armed career tion, held that Vann of the offenses formed determine which ACCA, him and sentenced criminal under prior convictions. the basis for Vanris appeal This imprisonment. 180 months’ See Chambers followed. 172 L.Ed.2d 484 (applying the modified II to “place[d] approach to a statute 922(g) ordi- of 18 U.S.C. A violation gether single numbered maximum sentence narily carries different kinds of behav section several 18 U.S.C. years’ imprisonment. ior”). Second, that Vann was maintains 924(a)(2). a sen- provides But ACCA con committing convicted of both offenses defen- based on the tencing enhancement liberties statute be tained the indecent history, that a providing dant’s criminal docu pleaded guilty charging cause he § 922(g) and has who violates person alleged ments which he had violated ... for a vio- previous convictions “three (a)(2). (a)(1) and subsection offense, or felony drug or a serious lent States, 544 Shepard v. United both, on occasions different committed 25, 1254, 13, 125 L.Ed.2d S.Ct. 161 205 must be sentenced to at from one another” (2005) (plurality opinion) (indicating that imprisonment. Id. years’ least 15 nature conviction prior the of a 924(e)(1). § The Act defines a “violent own ad determined “the defendant’s punishable by crime im- felony” “any as missions”). third, And that claims the year” exceeding a term one prisonment for (a)(2), offense described subsection that: “[w]illfully or commit[ting] attempting]

(i) any upon or or use, commit lewd lascivious attempted element the has as an any with the ... of ... under body child use, use of or threatened force qualifies a “vio age years,” the of 16 as another; of against person or felony” it ordinarily lent because involves (ii) arson, extortion, in- burglary, is or degree required by risk the residu explosives, volves use of or otherwise Supreme al clause deci Court’s presents involves that conduct serious that interpreting sions clause. 18 physical injury to anoth- potential risk 924(e)(2)(B)(ii); § Sykes v. United U.S.C. er!;.] — U.S. -, 2267, 180 924(e)(2)(B). §Id. (2011); L.Ed.2d 60 James v. United government contends that Vanris States, 1586, 550 127 U.S. S.Ct. 167 qualify liberties convictions three indecent (2007). 532 L.Ed.2d final, felonies” or as “violent under all three points. Vann contests of these (ii) “residual” clause in subparagraph argues categorical He the modified 924(e)(2)(B), § qualifies which crimes that approach inapplicable because potential phys- risk of “present[ ] a serious courts have construed the inde injury to another” as “violent felonies.” ical “a sin containing cent liberties statute conclusion, reach it makes three To Hartness, v. gle offense.” State N.C. points. (1990); 561, 391 S.E.2d see State Jones, First, 616 S.E.2d government asserts N.C. (2005). maintains these Gen.Stat. 14-202.1 contains two distinct He state us, upon are such binding offenses one set court decisions purposes, for ACCA 14-202.1, (a)(2); evaluate the indecent liber- as stated that we must (3) whole, using “[wjillfully commit[ting] as a the more ties statute whether or approach.” He “categorical any traditional to commit lascivi- attemptpng] lewd or under that his con- approach, upon body any claims that or with part ous act violent felonies qualify victions cannot of any member child of because the indecent liberties statute’s two age years” either sex subsections, together, taken cover a broad qualifies felony” as a “violent under 18 conduct, range 924(e)(2)(B)(ii). some which is not I U.S.C. address each violent, aggressive.” Be- “purposeful, questions of these seriatim. 1581; 143-44,

gay, 553 U.S. Etheridge, see State 319 N.C. A (stating Taylor, Beginning Supreme liberties statute intended Court has held that determining whether behavior). range cover a broad previous convictions fel qualify as “violent Vann that the remains the insists result onies” under “generally requires [a same if the modified sentencing] only court to look to the fact of either apply, does because records conviction and the definition of prior properly his are not be convictions prior Taylor, offense.” 495 U.S. at court, leaving fore the thus us without “categorical ap 110 S.Ct. 2143. This that he basis conclude was proach” essentially requires courts to con convicted the more violent subsection only sider elements offense of (a)(2) offense; guilty pleas, or because his conviction and not facts giving rise to verdict, jury like a could not establish Chambers, the conviction. See which alternative element (“[ACCA’s] 125, defining 129 S.Ct. 687 lan formed the basis for his convictions. See guage, naturally, ‘felony read uses refer Gonzales, v. Maltar-Espinoza 478 F.3d generally to a crime as committed. And (9th Cir.2007). 1080, 1082-83 & n. 3 statute, construing so the one avoids the practical difficulty trying to ascer

Finally, even Vann contends that if both sentencing tain ... present at whether the of the issues described above are resolved crime, favor, prior defendant’s as committed on a in the government’s his convictions occasion, particular or did did not involve qualify still do not felonies violent be- behavior”). Thus, 14-202.1(a)(2) violent when confront cause N.C. Gen.Stat. does question in ing the James whether an at physical not require contact between the tempted burglary convictionwas a “violent victim, the defendant and see State v. “examine[d], the felony,” Court the Hammett, 316, not 182 642 the 454, (2007), burglary unsuccessful defendant at 458 and therefore does occasion, tempted particular on a but categorically aggressive involve violent and generic crime behavior, 143-44, attempted burglary.” Begay, U.S. at see 553 Chambers, 555 U.S. at S.Ct. 128 S.Ct. 1581. James, 204-06, (characterizing 550 U.S. at parties’ positions raise three thus 1586). 127 S.Ct. (1) questions: whether the modified cate- gorical approach classify should used to qualified general The Court has this (2) convictions; however, Vann’s principle, by adding indecent liberties that the cat- guilty pleas egorical approach may “per- whether Vann’s establish that be modified to go beyond he was convicted of the violent of mit the sentencing more court range two offenses set forth in N.C. Gen.Stat. mere fact conviction” a narrow 5/31-6(a) (West Stat., ch. Comp. Ill. the statute of conviction eases where Stressing that nature multiple Supp.2008). “[t]he offenses. See essentially contains likely 2143; underlies a stat of the behavior at 110 S.Ct. Taylor, 495 U.S. matters,” Holder, 29, utory phrase the Chambers Nijhawan see also ap 2294, 2299, applied the modified L.Ed.2d 22 Court “at (2009). instances, the statute contained proach the modified because these to re two “failure helps separate “choose least crimes”: courts categorical approach hand, Chambers, from “escape on the one port,” 555 U.S. at right category,” Chambers, custody” on the other. and therefore “which S.Ct. 126-27, support S.Ct. To com- 687. within a statute defendant U.S. crime (1) Woods, conclusion, mitted,” reasoned 576 F.3d Court United States (7th Cir.2009). likely less report” “failure “seem[ed] than involve a harm risk cases decided Two recent ACCA as aggressive behavior” passive, less more Court, Johnson v. Supreme Chambers and (2) crimes, escape sociated with — -, failure report the statute listed demonstrate 176 L.Ed.2d body. escape separately in its title and Id. categorical approach how 127,129 S.Ct. 687. cases, In each those practice. works Likewise, in assessed Johnson Court potentially subject to a the defendant was a defendant’s conviction under Florida ACCA, de- sentence enhancement under battery proscribed statute on one of the defendant’s pending how touch[ing] Actually intentionally 1. was classified. Iden- previous convictions person against another striking] required classification tifying proper other; will of the however, analysis, further because the Intentionally bodily harm causing] previous conviction underlying person. to another face, was, multiple divisible into its 784.03(l)(a) (2003). offenses, Fla. Stat. Because single it listed in that within elements, the statute’s elements were stated groupings section two or more dif- disjunctive qualitatively and covered conceptually each of which covered a behavior, (2) types con- ferent of the Court criminal act and was sufficient distinct separate cluded it consisted of three complete to constitute a offense. (1) for intention- purposes: offenses ACCA Chambers, prior In the defendant’s con- (2) harm; intentionally ally causing bodily viction under an Illinois arose statute (3) victim; striking actually a or and inten- provided: which Johnson, tionally a touching victim. See [Any intentionally escapes application felon 130 S.Ct. at 1269. With this of who] any categorical from penal approach from institution or the modified conviction, custody employee battery an the Court of institu- defendant’s however, using 2 felony; provided general tion rule for commits Class knowingly approach when con- report categorical felon] who fails to to modified [a penal report peri- having institution or for fronted with a statute alternative imprisonment at or the law which the any odic time know- elements: “When under furlough ingly fails to return from or defendant has been convicted contains statutory day phrases from work and who that cover several differ- release or know- ... cate- ingly generic to abide ent crimes the ‘modified fails the terms home felony. approach’ permits ... a court to guilty gorical confinement is Class statutory phrase Willfully attempts was the takes determine or to take (in- immoral, any or improper, Id. at for the conviction.” lib- basis erties with omitted). any child of either sex under citation ternal the age years of 16 the purpose for Johnson, keeping with Chambers desire; arousing or gratifying or applied court has modified cate- this (2) Willfully or attempts commits approach types when “different gorical commit any lewd or upon lascivious act satisfy behavior an element of the offense or with the body any part or member proscribed and the behaviors constitute at of the body child either sex two for separate pur- least crimes age years. of 16 Rivers, 595 poses,” United States v. F.3d 14-202.1(a) N.C. Gen.Stat. (emphasis (4th Cir.2010), 562-63 or when “the added). The indecent liberties statute is fact conviction and the defini- regard quite in this similar the Florida unduly vague of the offense tion are Johnson, battery law at issue in as “the Harcum, ambiguous,” States v. elements are [each] offense” stated in Cir.2009). (4th F.3d Johnson, “disjunctive.” 130 S.Ct. at case, Applied prece- to the instant these 1269. North Carolina have courts made initial, binary up dents set decision for point repeatedly, this observing that a de- court to make: if the indecent liberties guilt may fendant’s be “established only statute contains substantive one of- finding elements,” of various alternative fense, categorical approach applies. Hartness, 391 S.E.2d 180 (emphasis at ifBut it contains two or more added); substantive that “G.S. 14-202.1 states dis- offenses, the categorical approach modified junctively two of prov- alternative means be must used instead. one element of the offense of indecent liberties,” Jones, (empha- 616 S.E.2d at 20 The North Carolina indecent liberties omitted); added sis “the stat- at no issue here is different than sets forth ute two theories which a laws at issue in Johnson Cham- for conviction indecent liberties bers, as it multiple, contains alternative based,” Moss, COA07-607, State v. No. elements, each of which addresses a differ- *2, 2008 WL form of ent criminal behavior. As does LEXIS (N.C.Ct.App. *5 Feb. court, conclude, majority of I as a 2008) added).3 (emphasis law, matter of federal The North Carolina indecent proper device statute, 14-202.1, N.C. Gen.Stat. is also evaluating prior Vann’s convictions. analogous provision to the escape ad- face, On its the indecent liberties statute Chambers, “placet dressed both to- ] that a who provides years defendant is “16 in a gether single numbered sec- age years of or more and at least five older tion several kinds behavior.” different of question” guilty Chambers, 126, than child in is 555 129 U.S. at S.Ct. 687 added). “taking indecent liberties with children if (emphasis Just as behavior “[t]he he either ”: likely ... report underlies a failure to [is] Although normally by passed we are bound Court has upon all of the relevant issues, Supreme North Carolina Court’s construction we consider and defer to North offense, underlying of the elements of the see decisions, Carolina intermediate court see As- -, Johnson v. United - U.S. 130 Generali, Neil, S.p.A. v. 160 F.3d sicurazioni 1265, 1269, 176 L.Ed.2d 1 997, (4th Cir.1998). 1002 where, here, Supreme Carolina North

814 grat- or person purpose arousing for the involve risk of a likely less passive, aggres more together, less Id. Taken ifying harm than the sexual desire.” escape from underlying sive behavior closely approximate sub- these elements 127, 687, the custody,” 129 S.Ct. id. (a)(2)’scoverage of “lewd or lascivi- section acts photography, and other flashing, illicit any upon body with or ous or act[s] (a)(1) of North covered subsection child part any member of the or present a lower risk statute Carolina age years.” 16 either sex under in than instances physical harm las- gratification have a or provisions Both ‘“willfully attempts or commits defendant require both a sim- component, civiousness lewd or lascivious act to commit [a] differential, and focus on age ilar both ” body of a child covered or with the intimate physical contact of a sexual or (a)(2) of subsection Strickland, 77 See v. nature. State added). Compare State (emphasis (1985) 454, 74, N.C.App. 335 S.E.2d 75 200, Every, 578 S.E.2d N.C.App. v. 157 (“Section (a)(2) or ... concerns a lewd (2003) 642, typical (cataloging subsec or on a attempted lascivious act committed (a)(1) offenses, of which can be tion some ” added)). (emphasis child distance), with State v. committed at Wilson, 105, N.C.App. 361 S.E.2d (a)(1), in The crime contained subsection (1987) and Byrd, 106-07 State contrast, closely aligned in is more with (1984) 312 S.E.2d Penal of “inde- the Model Code’s definition garden-variety (describing A is of inde- exposure.” person guilty cent (a)(2) involving physical contact violations exposure cent under the Model Penal Code occurring quar or sexual conduct close “if, purpose of arousing gratify- for the ters). ing sexual desire of himself or of (a)(1) (a)(2) Subsections person spouse, exposes other than his he correspond North Carolina statute also genitals his under circumstances in which the Model Penal two different sections of he his is likely knows conduct to cause Code, Supreme on which both the Court Model affront alarm.” Penal Code our have court relied to differentiate (1962). (a)(1) § 213.5 Subsection contains “generic” between various crimes a nearly gratification identical arousal or purposes. Taylor, element, and, proscribes while it a broader 2143; n. United States conduct, it also range unquestionably (4th Cir.2011). Peterson, 629 F.3d applies exposure to indecent of the kind Specifically, offense defined subsec- See, described the Model Penal Code. quite tion similar what Lawrence, e.g., State v. N.C. Model Penal Code “sexual assault.” labels (describing S.E.2d Code, “A person Under the Model Penal “game” exposed which the defendant who has sexual contact with another not “specific himself to a child as a ] incident spouse, other his or causes such to have minor”); with him, guilty sexual contact Strickland, 335 at 75 (holding person assault ... if ... is less the other than ^[16] years old and the actor is at least masturbating outdoors, 62 feet away from (a)(1)). children, minor violated years older than the other person.” [four] not, hand, It (1962) (brackets does the other contain a Model Penal Code 213.4 “sexual contact” element akin to that found original). in The Penal Model Code de- in Model Penal Code’s definition of “any fines contact” touching “sexual Strickland, parts or other intimate “sexual assault.” (1993). (differentiating time, S.E.2d at 75 subsections At the same state court deci- (a)(1) (a)(2) basis). on this sions cannot questions bind us on of feder- law, al such as whether a crime contains (a)(1) (a)(2)

Because subsections more than one offense and requires thus substantially correspond to two different that we use the modified categorical ap- provisions, precedent Model Penal Code proach in analysis. our ACCA Even if the they dictates that should be treated as North Carolina courts had answered this presumptively different generic crimes question they have not—we would mandating application of the modified cate- —which not be by bound their Peterson, conclusion. gorical approach. 629 F.3d Cf.

at 436-37. Johnson, the Supreme Court ob-

Vann a superficially appealing, offers al- served that it by was “bound the Florida flawed, beit syllogism response. He Supreme Court’s interpretation of state (1) reasons that federal courts are “bound law, including its determination of the ele- by interpretation [state courts’] of state ments of’ battery Florida’s statute. law, including determination of [their] [a S.Ct. at 1269. The Court thus relied on elements,” Johnson, statute’s] 130 S.Ct. at the Florida Supreme interpreta- Court’s (2) 1269; the North Supreme tion of the “actually statute’s and inten- Court has stated that crime inde- “[t]he tionally touching” element as encompass- cent single liberties is a which may offense ing “any physical contact, intentional ‘no ” proved by evidence of the commission matter slight,’ how in determining wheth- any acts,” Hartness, one of a number of er the prior defendant’s battery conviction added); (emphasis S.E.2d at 180 qualified as an predicate. ACCA Id. at therefore we must treat the indecent (quoting Hearns, 1269-70 State v. single liberties statute as a offense and (Fla.2007)). So.2d At the same apply categorical approach in our time, however, rejected the Johnson Court analysis. ACCA argument defendant’s it was argument This rests a mistaken by “bound the Florida Supreme Court’s understanding of the role state court deci- conclusion in Hearns that phys- [unwanted sions, Hartness, such as play the ACCA ical touching] does not ‘physical constitute ” analysis. by We are bound North Car- force’ purposes. Id. at 1269. 14-202.1, olina’s construction of includ- It explained: instance, ing, for its definition of various meaning The “physical force” terms, its identification necessary 924(e)(2)(B)(i) question is a of federal offense, elements of an application or its law, not state law. And answering us, exceptions. This rule requires for ex- question we are not bound ample, to adhere to state court decisions state court’s interpretation of a simi- which interpret the phrase “with lar —or even identical —state statute. child” in subsection to encompass Id.4 both the pres- and “constructive” McClees, ence of the child. See State v. Supreme handling Court’s of state 108 N.CApp. 424 S.E.2d Shepard law in point reinforces this for the Judge King’s opinion, purporting apply inappropriate. This law, conclusion, however, North Carolina states that is flawed. Carolina courts have ruled that the indecent Once the elements of a state-law crime have law, single liberties statute constitutes a offense question been defined state wheth- and that therefore the use of the modified er the statute contains two crimes so as to 816 not to be labeled by happened crimes that Shepard, In the Court us. case before ” at 588- ‘burglary.’ or prior ‘robbery’ a convictions

analyzed defendant’s 89, not 2143. a 110 S.Ct. Whether Massachusetts statute arising under through sentence, subject explication crime proscribed two is which, single in a categorical thus turns “generic” approach bur modified burglary: types of different than the “characteristics” rather “non-generic” bur its buildings and glary way by it is state law.” in which “labeled Shepard, boats. See of cars and glary 589, Id. at 110 S.Ct. 2143. Under this 1254. The Court at Supreme North ap principle, categorical that the modified concluded that defendant’s convic Court’s conclusion Hartness applied to the proach ele liberties statute contains “various tions, statute’s alternative indecent given the elements,” ments, 26, 125 391 S.E.2d id. S.Ct. and did alternative see argument. disposes that Massachusetts of Vann’s federalism despite so the fact burglary single courts treat state further, presses yet arguing Vann that Rudenko, Commonwealth offense, see even if the contains two different 396, 907 N.E.2d Mass.App.Ct. elements, the North Carolina courts none- crime of break (referring “[t]he “interchange- each of theless treat them added)). entering” (emphasis ing and contends, ably.” This practice, Vann Johnson, collapse that the two elements into rest of means Shepard, Although deci- practical law make that it one as a matter. body of ACCA case clear offense, sions one do occasion- applying of an and not elements it, ally involving puts upon rely upon precedents label state law that deter- Kistle, other, ap- State v. categorical mines whether the see in 297 that the two applies. explained As the Court S.E.2d state proach circumstances, “Congress overlap intended the en- some Taylor, that subsections Wilson, provision by see 361 S.E.2d at the North triggered hancement elements, have having specified Carolina courts nonetheless consis- crimes certain Jones, Jones, justify application the modified 616 S.E.2d at the defen- 20. federal, question charged taking with dant was two counts Carolina, Johnson, law. See 130 S.Ct. at single act liberties based on a 1269-70; Taylor, U.S. at See id. sexual intercourse a child. charges attempted justify State both Furthermore, do the North Carolina courts "[sjubsections (a)(1) (a)(2) arguing that recognize in- that the two subsections of the separate are criminal with different offenses provide decent el- liberties statute alternative logically reject- But the elements.” Id. court Jones, See ements of one offense. "although argument, holding ed this that (noting S.E.2d at that statute "states might out acts that statute sets alternative disjunctively prov- two alternative means of offense, single element establish an (emphasis one element of the offense” only support act can one conviction.” Id. Hartness, omitted)); (not- 391 S.E.2d at 180 Thus, proposition stands not Jones for that ing the indecent liberties statute’s "alterna- (a)(1) (a)(2) constitute a sin- subsections Strickland, elements”); tive at 75 offense, gle, rather undifferentiated but (a)(2) (treating subsections separate not support one incident convic- distinctively). indecent liberties statute Indeed, under each subsection. Jones tions Indeed, Judge King support cites Jones to Judge King’s argument explicitly undercuts statement crime of indecent liber- its that the pronouncement N.C. Gen.Stat. its offense, single recognizing ties is a without disjunctively two 14-202.1 "states alterna- same case also holds that the inde- proving tive means of one element cent liberties ele- statute contains alternative single indecent liberties.” Id. violating ments offense of offense. tently approach between subsections right differentiated “choose the (a)(1) (a)(2), so, by emphasiz- category”). instance And do we consult a respective their ele- narrow class of “conclusive differences records made ments, Strickland, which, see, adjudicating or used in guilt,” 335 S.E.2d at when e.g., the Any pleads guilty, doubt that textual the defendant includes “the lingering (a)(1) document, charging differences between subsections and terms the the terms (a)(2) plea surely put by agreement matter is to rest State transcript collo Moss, quy judge a recent case in which between in which defendant that a Appeals Carolina Court held trial the factual for the plea basis was con defendant, plain using court committed error firmed any] compa [and jury judicial instruction based on subsection rable Shepard, record[s].” 21, 26, 125 charged when the was under at defendant S.Ct. 1254. (a)(1). COA07-607, See No. Here, on district court relied *1-3,

2008 WL at presentence report’s descriptions of Vann’s (N.C.Ct.App. LEXIS *4-7 Feb. convictions, three indecent liberties refer- 2008). ring to an indictment and “court records.” bottom, At conviction, case involves routine As the report stat- application the rule expressed John- ed:

son: “When the law under which the de- indictment, According to the on Decem- fendant convicted statu- has been contains 17, 1991, ber willfully Vann did take and tory phrases cover several different immoral, attempt to take improper, and ... generic categori- the ‘modified crimes indecent liberties with a ... for child cal ... approach’ permits a court to de- purpose arousing gratifying sexu- statutory termine phrase which was the al desire and did commit a lewd and basis for the conviction.” 130 S.Ct. at lascivious act said (internal omitted). citation The child. North Carolina indecent liberties statute added). (emphasis report J.A. 51 in- elements, disjunctively states two each of pleaded dicated that guilty Vann to this relates criminal behavior that is charge. Although paragraphs Id. “different in-kind” from the other. Unit- presentence report describing Vann’s Bethea, ed States v. 258 n. F.3d 3 two other liberties convictions (4th Cir.2010). arising from in July conduct 1998 and Au-

The North Carolina indecent gust which were also obtained calls for undoubtedly ap- therefore through guilty they pleas, state that were plication categorical ap- of the modified records,” on based “court id. at law, proach majority federal as a of descriptions of these offenses materi- were today. this court holds ally first, description identical to the again tracking in- language,

B dicating they too were based concluding On categor- charging presen- the modified documents. Because the ical report should underlie the ACCA Shepard- tence was derived from here, analysis next step approved object is to determine sources Vann did not possible which of during the two offenses formed to its substance sentencing hearing, Vann’s basis of convictions. See the district court entitled to was Chambers, rely classifying 129 S.Ct. 687 on it in prior Vann’s of- (stating that courts must use the modified fenses as violent felonies.

818 (4th 278, Arg. to court.” 421 285 duced the district Oral Thompson, F.3d States however, Cir.2005). Our does not precedent, 9:13:11. ap- his claim. We have held support so, request, accommodating our Even “may judicial pellate properly courts take actual us with the parties provided the proceedings of court notice” state judgment and forms charging documents record, part were not of the district court convictions, which are prior from Vann’s proceedings such are particularly when court the record in this and part now of to matter on “relevant and critical the report presentence that the which confirm Coil, Penn appeal.” Colonial Ins. Co. to which accurately charges the described (4th Cir.1989); 1236, F.2d 1239 see 887 No. See ECF 46 pleaded guilty. Vann Santibanes, 430 also Lolavar v. de F.3d 2010). (Feb. 22, Decem- Specifically, (4th Cir.2005) 221, (taking “judi- 224 n. 2 alleged that Vann ber 1991 indictment notice a court cial of the records of of take willfully feloniously and did and record”). immoral, attempt improper, take and to with the child named indecent liberties Thus, Shepard-approved materials arousing purpose below for the of and previous documenting Vann’s convictions desire and did commit gratifying sexual “necessarily demonstrate that Vann admit- commit and attempt and to a lewd las- violating to both of ted” subsections upon child civious statute each time he named below. At time of this of- (in guilty charges December pleaded fense, named was under the child below 1998). July August and All age years and the defendant alleged charging three documents age over years named was above “did take and to take im- attempt Vann years and at five older than the least moral, improper, and indecent liberties” [SLH], child. The name of the child is with a “for the purpose arousing child (an July charging in- The document gratifying and sexual desire” and “did formation) included the somewhat more a lewd attempt commit and commit and detailed statement —that Vann upon body” lascivious act child. Further,

willfully feloniously take and did and case Vann pleaded guilty each immoral, attempt improper, to take charged offenses without reser- with the child indecent liberties named charges against vation. as the Vann Just purpose arousing below for the covered violations of North Gen- 14-202.1(a)(l) did com- gratifying (a)(2), desir[e] eral Statutes attempt admissions, mit and commit a lewd and so too did his as embodied in [ENL], a child lascivious act unqualified pleas. Shepard, his guilty years being age, defendant more (plurality 544 U.S. at 125 S.Ct. 1254 years than six older than the child and opinion) (noting prior that the nature of lawfully was married vic- may “the conviction determined de- admissions”). .... tim fendant’s own (also August charging document verdict, jury contrast to a information) included a statement simi- rely on either alternative ele- July lar to that included in the 1998 charg- finding ment to support guilt, ing document and named the same victim. logical result that the verdict cannot “nec- essarily” depend oral either argument,

At Vann’s counsel assert- be said ele- appeals particular, cannot con- ment in see States v. ed “the court (4th Robinson, Cir.2010); pro- sider an that was not first 627 F.3d indictment Gonzales, United States v. 484 F.3d olina courts have interpreted guilty pleas, (5th Cir.2007), case, in a pleaded it is see State v. Thompson, 314 N.C. (1985) (“A who controls the basis for S.E.2d guilty valid plea defendant conviction, see, ... serves e.g., United States v. as an admission of all the facts White, (8th Cir.2005) 399, alleged 408 F.3d 402 in the indictment or other criminal added)); (holding process” (emphasis Cobb, that a guilty plea defendant’s did State N.C.App. 295, 187 699, constitute an to 652 admission facts the 701 (2007) (same), expressly point defendant during disavowed least one his other circuit has found plea hearing); significant Ashcroft, applying Valansi v. when 278 (3d 203, Cir.2002) approach, F.3d 216 (indicating see United Morales-Martinez, States v. “may a defendant ... plead guilty to 496 only (5th 356, Cir.2007). F.3d 358-60 allegations one of the required prove crime”). element of her The Fifth Circuit’s decision in Still well illustrates how principle this applies to sit- Because the defendant holds that control uations such as the one presented here. pleading guilty, when routinely courts have Still, the defendant “pleaded guilty to a held that when a plead defendant does conjunctive charge of ‘using and reservation, carrying guilty without necessarily he a firearm ... during and in relation to the admits all of the material alleged facts in ” commission of a drug trafficking crime.’ See, charging e.g., document. United Still, 102 F.3d at guilty 124. This plea, the States v. Gosselin World Moving, Wide court explained, N.V., (4th operated differently 502, than Cir.2005); 411 F.3d 515 a jury verdict: White, 402; 408 F.3d at United States v.

Still, (5th 118, Cir.1996); disjunctive 102 F.3d 124 A pleaded 152, Kelsey, conjunctively United States v. proven F.3d and disjunctively. (10th Cir.1994); words, Tolson, United In other despite States v. having charged (7th Cir.1993); 988 F.2d Still “using and carrying” United a firearm Parker, (3d during States v. F.2d relation to a drug traffick- Cir.1989); crime, ing government see also 1A only Charles Alan had Wright prove & Andrew Leipold, D. Still “used or Federal carried” a fire- (4th Practice arm to Procedure convict Still of count three. ed.2008) (recognizing pleaded three, When Still position guilty this count rule). majority But he admitted using see United both to carry- States v. and to Cazares, (9th 121 F.3d a firearm during 1246-48 and in relation Cir. to a 1997) drug (concluding guilty plea trafficking that a crime. admits only “the facts essential to the validity of (final added). Id. at 124-25 emphasis conviction”). Each of guilty pleas Vann’s precisely

This comports Still, with the Su- like the one at issue in as Vann preme Court’s observation in pleaded guilty to the compound charges Broce, States against him without any reservation. As a result, L.Ed.2d 927 “[b]y guilty his pleas establish that he entering plea guilty, the accused is not “necessarily admitted” to all allega simply stating that he did ie., the discrete acts tions the charging documents — indictment; (a)(1) described in the he is admit- he violated subsections ting guilt of a substantive crime.” Id. at the indecent liberties statute each time he added). (emphasis 109 S.Ct. 757 It is was Shepard, convicted. See 544 U.S. at also way 26, 125 consistent with the North Car- S.Ct. 1254. 1586). analysis thus

C be- comparison a “commonsense” involves pleaded guilty to both Because Vann subject and the enumerat- tween the crime set forth in North offenses substantive of risk. Id. at ed crimes terms statute, he Carolina’s the Court concluded Using approach, an armed career classified as must be sufficiently was simi- flight that vehicular qualifies offenses if either of those criminal burglary arson degree lar in risk to felony” ACCA. See as a “violent under so to make a crime of violence 924(e)(2)(B). Thus, conducting U.S.C. burglary, respect It noted with ACCA. on the analysis, it makes sense focus instance, “danger- for that crime was offense set forth more violent apparently it end in confrontation ous because can 14-202.1(a)(2), § involv- in Gen.Stat. N.C. to The same is true leading violence. “lewd or lascivious commission of a flight, greater but to an even de- vehicle body” of a child. act or with the gree.” explained: Id. at 2273. It a “vio- previous qualifies A conviction capture direct attempt The elude is a in 18 felony” lent under the residual clause challenge authority. to an It is officer’s 924(e)(2)(B)(ii) long § so U.S.C. that provocative dangerous and a imprisonment for a term “punishable by dares, and in a case typical requires, “involves year” one and conduct exceeding The con- give officer to chase. felon’s risk of presents potential that a serious gives the officer reason to believe duct injury another.” U.S.C. something that the defendant has more 924(e)(2)(B). § Supreme Two recent a hide. serious than traffic violation to James, decisions, Sykes and provide Court Id. analysis determining the relevant for when Sykes “involves The Court also used a statistical previous

a conviction conduct a to confirm these “commonsense presents potential analysis serious risk physical injury Specifical- to another.” Id. at 2274-75. conclusion[s].” ly, pointed indicating the Court data Sykes, In the Court held a defen- injuries flight that vehicular results “4 using dant’s conviction for a mo- previous nonsuspects to ... per pursuits,” “knowingly intentionally tor vehicle to and arson burglary whereas account a ... from law enforcement officer” flee[ ] incidents, only injuries per 3.2 and 3.3 and thus fell within the residual clause was rough- increase in risk of respectively —an felony.” at Sykes, a “violent S.Ct. id.; ly also id. 2279-80 25%. see (internal quotation marks omit- (Thomas, J., concurring in the judgment). ted). Explaining analysis, the relevant James, statutory key Court on the In the other residual clause language focused was, case, subject Supreme held viola determine whether a crime Court that a risk, degree sufficiently comparable attempted burglary tion of Florida’s stat felony” offenses enumerated ute was “violent 924(e)(2)(B)(ii). extortion, § ar- 924(e)(2)(B)(ii) burglary, See 550 U.S. — son, The involving explo- crimes the use of S.Ct. 1586. stressed that Court subject sives. stated that crime clause not “requir[e] It residual does requisite every risk when” that conceivable factual offense covered “involves “ necessarily crime injury ‘compara- present involves risk of a statute must injury ble to posed by analog potential its closest serious risk before ” felony.” among Sykes, the enumerated offenses.’ offense can deemed violent James, 208, 127 Instead, Id. a crime (quoting S.Ct. at 924(e)(2)(B)(ii). only required degree need present Begay phrase is ordinary risk “in the case.” Id. The Court an addition to the text. concept by noting: violent, many purposeful, illustrated cases the will aggressive inquiry be redundant could, course, imagine a situation One risk, with the into inquiry for crimes burglary attempted might in which not that fall within the former formulation pose a realistic risk of confrontation or present and those that serious potential anyone example, injury to a break- —for physical injury risks of to others tend to unoccupied in of an structure located far be one and the same. As between the path away off the from beaten inquiries, provide two risk levels a cate- potential intervenors. But ACCA does gorical and manageable standard that certainty. require metaphysical to resolve the case us. Rather, 924(e)(2)(B)(ii)’s residual pro- suffices before of a speaks “potential vision terms involved Begay a crime akin to strict inherently probabilis- These are risk.” liability, negligence, and recklessness Indeed, concepts. crimes; tic the combination of violent, purposeful, and the suggests Congress the two terms that aggressive formulation was used in that encompass possibilities intended to even explain felony case to the result. The at contingent than simple more or remote is liability, negli- issue here not a strict “risk,” certainty. less a much gence, or recklessness crime and be- is, cause it for the reasons stated and as 207-08, essence, Id. at 127 1586. In S.Ct. matter, a categorical similar in risk to James directs courts to on the focus heart- crimes, the listed it is a crime that “oth- when particular analyzing land of a crime involves presents erwise conduct that it purposes reaffirmed point ACCA —a potential physical injury serious risk of in Sykes by the on Court’s focus the risk 924(e)(2)(B)(ii). to another.” posed by “typical” instances of vehicular flight. Sykes, See at added). S.Ct. (emphasis 2275-76 Vann, Sykes

Like the defendant in ar- indicated, As the Court most crimes gued “Begay that and require Chambers analyzed must now be according to the violent, predicates purposeful, ACCA to be present, risk they rather than whether in aggressive ways and that” his crime was they violent, “purposeful, aggres- are and Sykes, not. (emphasis S.Ct. at 2275 sive,” was Begay. the case under added). Court, however, Sykes The ex- course, Sykes, 131 S.Ct. at 2275-76. Of claim, pressly rejected explaining that will language Begay likely continue Sykes had the Court’s prior “over-read[ ]” to be applying relevant when the ACCA precedents, ACCA one all but of which to standard offenses “akin to strict liabili- focused the level risk as the deter- ty, negligence, and recklessness crimes.” (“In mining general, factor. id. levels Sykes, 131 S.Ct. at 2276. But id. at see qualify risk divide crimes that vio- [as (Thomas, J., concurring judg- not”). lent from that those do felonies] ment) (“The majority by errs implying The Court observed: violent, ‘purposeful, that the aggres- violent, phrase “purposeful, ag- may

The apply sive’ test still to liabili- [strict offenses”); J., gressive” (Scalia, precise ty] has no textual link to id. dis- clause, requires the residual which senting) (disapproving majority’s J., predicate implication); “otherwise id. (Kagan, at 2289 n. 1 involv[e] presents potential dissenting) “pur- conduct that a serious to retain (preferring violent, risk of injury poseful, another.” when aggressive” test who are outside over children analysis). risk exercise with the not redundant it is here, analysis (quoting of home or school” protection not resort needWe Hicks, an el- intent is however, “specific because State v. taking (1986))). the offense

ement Craven, State children.” with compounded by risk is subsection This (1985).5 324 S.E.2d 312 N.C. (a)(2)’s element, requires the second by Sykes framed thus question attempted or commis- willful commission “[w]illfully whether analysis is James’ or act” sion a “lewd lascivious attempting] or to commit committing] N.C. Gen.Stat. 14- perpetrator. or with or lascivious any lewd 202.1(a)(2). any Inherent “lewd or las- ordinarily a de- child involves of a body” is a drive for sexual satisfac- civious act” that posed comparable of risk gree tion, by an abdica- frequently accompanied crimes contained example and self control. thought tion of rational (2)(B)(ii). 924(e) surely I submit unpredictabil- control injects Such a loss of does. ity into the encounter and increases (a)(2) of subsection violations Typical perpetrator will resort odds that physical injury risk of potential present objective to achieve his if violent behavior at least as serious as child resistance, just perpetrator met as a arson, facing burglary, a victim of risk might burglary extortion resort with, begin extortion. To violence to overcome resistance. Cf. only perpetrator when the applies James, 203-04, at 127 S.Ct. 1586. age more and at least five years of “16 Finally, pres- violations in than the child question.” older years potential injury ent a serious risk be- age 14-202.1. That differ- Gen.Stat. N.C. they cause must involve a sexual com- disparity rise a be- gives power to ential body” of a “upon or with the minor mitted adult the child perpetrator tween the 14-202.1(a)(2). child. N.C. Gen.Stat. which, in like the threat element victim Perpetrators ordinarily satisfy this ele- cases, naturally a that poses risk extortion in by engaging physical ment intimate con- employ will coercive con- perpetrator the victim, fondling, tact child as with the such escalate readily physical that can to duct kissing, penetration. French or sexual Banks, 370 at 407 violence. S.E.2d Cf. See, Baker, 325, (‘We v. e.g., State 333 N.C. 426 pow- bear in mind enhanced also 73, (1993); Banks, adults, v. strangers, even S.E.2d 75-76 State er and control that Ante, King's continuing Begay DUI opinion, its mis- offense.” at 781. conclusion, however, clearly application Begay wrong. placed standard to This see, case, ante, ("[A]Ithough specific e.g., at 18 The North statute is intent statute, liability Sykes may distance the from not a strict statute. As the be said to Court violent, clear, emphasis purposeful, statutory text makes indecent earlier its conduct, "[w]illfully” by aggressive hall- must be committed essential offenses ante, 14-202.1(a). reaffirmed”); N.C. Begay at the offender. Gen.Stat. marks of were Moreover, courts ("Importantly, the North Carolina have [North 781 a violation point, stating "specific require amplified this that in- physical does not Carolina] Statute contact”), analy- taking offense of recognizes Begay’s tent is an element of the also children.” v. of the kind indecent liberties with State sis is limited crimes before 580, 599, Craven, Begay, involving N.C. 602 ones strict 312 324 Court in such as Creech, ante, (1985); justify N.C.App. v. 128 liability, application see also 780. To State 752, (same); standard, 592, (1998) Judge King Begay 495 S.E.2d State concludes Connell, v. 493 S.E.2d that the North Carolina liberties stat- (same). (1997) liability, ute "resonates in strict reminiscent (1988). child” “the nature of 370 S.E.2d because the conduct 322 N.C. physical and the child’s relative weákness presents potential Such contact often children, may give rise to substantial who be likelihood risk of harm may employ the adult sexual with- force coerce unable to endure adult contact F.3d child’s accession.” 571 at 232. The Daye, injury. out See United States (2d Cir.2009); “no engaging court thus had doubt” David F.3d cf. minor, ah, proscribed by sexual act with a Department et of Jus- Finkelhor U.S. law, tice, posed at least as much of a Vermont Programs, Sexually Office Justice injury burglary: risk of National Assaulted Children: Estimates available at Characteristics involve, Both may crimes often but do http://www.ncjrs.gov/pdffilesl/ojjdp/ necessarily require, the intentional 214383.pdf (stating juvenile that 17% of Indeed, use of given peculiar force. injuries). sexual victims sustain assault6 susceptibility of minors coercion juvenile A rate as- injury 17% for sexual acts, adults sexual we into think it more greater sault victims is far than the 3.2% likely aggressive that violent and force victims, injury burglary rate for as found will actually employed in the course Sykes. study While the con- included of committing the crime at here issue higher duct that have a incidence of assault of a than [sexual child] harm, physical like it is rape, surely indica- course of bur committing ordinary potential physical Garner, tive harm glary. See Tennessee 21-22, 105 generally. Even assault crimes 85 L.Ed.2d perpetrator actually (citing when the does not statistical evidence to the victim, “upon touch or with the effect “burglaries only in rarely violence”). the of- volve body” requirement dictates that fending place conduct will take in such 234; Pierce, Id. accord 278 F.3d at 290 physical proximity close to the victim that (“[C]hild ... presents] abuse a serious ability the adult has the to restrict physical injury potential risk movement, thereby child’s freedom of cre- child, a in danger quite is similar ating a risk that the will be serious child potential injury per- character to the to injured escape. attempts if he or she burglary”). in sons involved arson or Pierce, way, 278 F.3d at 289. Either A law of subsection case potential for to the inher- injury victim Banks, points. reinforces these In State v. easily ent in surpasses the encounter 370 322 N.C. S.E.2d 398 for “low baseline level risk” associated [of] instance, defendant, man, year-old a Sykes, at burglary. See all “waited until the other adults were (Thomas, J., concurring judg- in the part got another the house” and then ment). eight year-old into bed with a Mend’s twin daughters. at point, Id. 407. At that

Other same courts have come defendant assessing conclusion when similar statutes. Daye, example, them, Second Circuit putting tongue kissed each of his mouths,

observed that “a sexual inflicted in their and He ears noses. ordinarily by genitals, child an adult seri- touched in- creates and rubbed their serting finger each potential physical ous risk of harm his several times into engage in study 6. The defined assault include child is coerced to such contact. attempted rape actual or or other sexual con- at Id. 11 n. 1. tact, including through when contact clothes encounter, power relation the sexual The victims asked area. vaginal twin’s victim, persisted. stop but he perpetrator ship defendant between them, hurting he They him was told physical perpetra nature of the and the and cried. Defen- asked him to leave Wilson, See, e.g., State v. tor’s conduct. their his over mouths put dant hand 106-07 N.C.App. He they cry tried to out. threat- when (1987) (adult a for defendant “inserted] kill moth- slap them and to their ened to during eign vagina” into child’s object [a] if her had they happened. er told what which their “shared incident occurred Askew, Likewise, residence”).7 in State Id. COA06-507, 1246409, 2007 2007 WL No. together, Taken these considerations (N.C.Ct.App. May LEXIS 863 N.CApp. conclusion, major- reached aby lead to the

2007), convicted of six the defendant was court, ity pro- of this conduct (a)(2), all separate violations of subsection 14-202.1(a)(2) § scribed N.C. GemStat. physical which involved contact between in risk”—if not categorically “similar victim. See id. at the defendant crimes,” greater in risk—“to the listed *1-2, 4, *3-5, N.C.App. LEXIS Sykes, 131 S.Ct. at and therefore included instances 10. These convictions 14-202.1(a)(2) “pok[ed] [his which the defendant that a conviction under daughter’s] part,” private “thr[ew] [her] felony” under 18 qualifies as “violent ground,” her after com and molested 924(e)(2)(B)(ii). U.S.C. “get of the shower.” manding her out counter-arguments, raises two Vann *2, *4- Id. at LEXIS 863 at N.C.App. Judge King accepts. But neither 5. The advances were defendant’s sexual can persuasive. First he asserts that one accompanied physical also abuse 14-202.1(a)(2) making without violate threats, daugh “hit” his defendant victim, and that contact with stairs,” ter, flight her down “threw (a)(2) violations are therefore be to “a subsection told her she would sent they kill categorically aggressive.”8 bad foster home where would “violent and anyone case, if she told about the abuse. [her]” he on a support, single For focuses *2, Id. at LEXIS at *6. Hammett, State v. which the rejected a de- Appeals Carolina Court of (a)(2) cases, Other while not argument that “to convicted fendant’s always involving threats or vio- express 14-202.1(a)(2), §G.S. the accused under lence, a present “potential nonetheless the victim.” 642 physically must touch injury, risk” see U.S.C. 924(e)(2)(B)(ii), § at 459. based on location Indeed, noted, Pierce, injury Surely, exposure in to risk of 7. it can be *. 98% passes Sykes to the risk in muster under show court an exhaustive statistical anal- conducted Sykes, "typical” S.Ct. at convictions. See ysis danger physical presented to chil- 2273, 2275. dren 14- ail violations of N.C. Gen.Stat. 202.1, (a)(1) including both subsections notes, Judge King repeatedly, ab- also (a)(2), on a and found that based review See, touching. physical contact or sence reported convictions between 1980 and 780-81, 782, 782-83, 785-86. e.g., ante at cases, "in the crime [was] 98% But, explain, we is imma- as that observation where victim committed in situations potential it analysis to the because is the terial proximity perpetra- close to the [was] in such injury critical. 18 U.S.C. risk of that is See James, 207-08, 924(e)(2)(B)(ii); exposed tor victim that the was serious at U.S. Pierce, injury.” & n. 127 S.Ct. 1586. risk of 278 F.3d proble- involved reliance on Hammett sexual contact between an Vann’s adult with, child, To respects. begin amply demonstrating “po- matic in several strongly suggests that a Sykes decision physical risk” of injury tential to the child. “aggres- crime need not be “violent” or Furthermore, involving the one count no qualify felony sive” to as a violent in physical contact Hammett is the exact 924(e)(2), poses requi- long so kind of outlier Supreme scenario that the Sykes, degree site risk. See 131 S.Ct. in James directed lower Court courts to Thus, absolutely at 2275-76. it is immate- There, discount. the Court stressed that actual or rial that there was no violence proper focus in residual clause cases is Hammett, physical in because un- contact “typically” on the risk associated with an ACCA, “potential der it is the risk” of is, present offense—that the risk “in typical violence—in the case—that counts. ordinary case.” 550 atU.S. 127 S.Ct. James, 207-08, See added); (emphasis see United States (“[T]he combination of the two terms (7th Cir.2008) Billups, 536 F.3d [‘potential’ suggests that Con- ‘risk’] (“The potential ‘serious risk’ language of gress encompass possibilities intended the residual clause ... is indicative of contingent even or remote than a more probability, inevitability; rather than ‘risk,’ much simple certainty”). less therefore, an offense pose need not a seri Moreover, exemplifies itself Hammett risk of in every ous harm fac conceivable potential risk of harm serious tual manifestation in order to constitute a in typically present subsection violence”). James, crime of Under it sim (a)(2) There, eases. defendant was ply does not matter that one can commit convicted of seven counts of indecent liber- burglary or arson creating any without ties, all which occurred a residence others, risk of appreciable injury to shared the adult defendant and his by breaking unoccupied instance into “an who daughter, was between five and ten structure located far off the beaten path years when old the violations were com- intervenors,” away any potential from Hammett, mitted. See 625 S.E.2d at 169. 207, 127 550 U.S. at or that one One of these counts—the one on which imagine can violations Vann all of focuses his attention —involved might fairly characterized as nonri incident which the defendant forced sky. What matters is that when an adult young daughter porno- his “watch perpetrator “[w]illfully commits or at graphic with him” while mastur- DVD he tempts to commit or lewd lascivious Particulars, Hammett, bated. Bill of body” of a minor 2004). at *3-4 filed (N.C.CtApp. Feb. child, the ordinarily encounter involves a however, counts, The other six all involved safety, substantial risk to the child’s either intimate, physical contact the de- between itself, through the through sexual abuse fendant and his such instanc- daughter, perpetrator’s actions securing es which the defendant forced his child’s accession to the act and subsequent daughter to him straddle in bed and silence Daye, about matter. Cf. him,” upon “bounce and up down simulat- Banks, 232; F.3d at 370 S.E.2d at 400. intercourse, or in which the counter-argument Vann’s second daughter’s defendant touched relies genitalia his lay heavily a holding “while she naked on bed.” at *2- on our Id. Thornton. Hammett, decision, 3. Virginia’s Thus even the case Vann that we held that car- offense, highlights physicali- knowledge for its lack of risk and nal a which makes it ty, ], charges “carnally 85% of indecent liberties crime to without the use know[ law, appears case it years of and North Carolina force, age thirteen a child

of relevant risk under the North Va. that years age,” fifteen older under but For 18.2-63, qualify greater. as a statute is even does Carolina Code Ann. Thornton, reasons, difficulty I have little under ACCA. these felony violent a Virginia’s majority, carnal that Although concluding, 444. does F.3d at 14-202.1(a)(2) overlaps to some extent typical violation of would knowledge offense indecent felony” for purposes with North Carolina’s a “violent constitute material differences offense, and important of ACCA. distinguish that statute from the exist that ap to In addition to the need notably, here. Most the Vir- one at issue sentence, the to enhance Vann’s ply ACCA terms, is, by its own commit- ginia offense that context of Vann’s conduct confirms force,” the use of while

ted “without Congress designed in this need case. crime is not so limited. North Carolina incapacitate to individuals whose above, Indeed, noted the North Car- likely more that prior conduct “makes [it] coercive conduct olina often involves crime possessing gun, later a will use [they], readily physical vio- escalate can gun deliberately harm a victim.” Be also lence. The North statute gay, 1581. the defendant be at least 16 requires that history precisely criminal is of Vann’s years than years and least older old guilty taking pleaded nature. Vann has victim, power heightening differen- three liberties with child on reducing tial and risk child occasions, separate two of which involved a semblance, any im- however likelihood only years victim who was old. J.A. 50- of “consent.” The result possible give, 56. crime pow This involves substantial typical that a viola- differences is these perpetrator er differential between greater tion involves a of subsection victim, necessarily and the was perpetrator ordinary than injury risk of violation to the victim. proximity close considered in Thorn- Virginia who commit this of crime type Individuals ton, as a violent qualifies and therefore just type people are ACCA means to ACCA, though felony Virgi- even possessing gun. from dissuade knowledge nia’s offense does not.9 carnal bottom, legally factually At Vann is an armed career criminal should be who

Ill accordingly. sentenced burglary, attempted burglary, Just as arson, poten- extortion “a pose serious Judge Shedd has authorized me to indi- others, physical injury” tial joins risk opinion. cate that he 14- typical violation N.C. GemStat.

202.1(a)(2), “a lewd or involving lascivious child, body” Indeed, risk

poses a similar to the victim.

based on a canvas of the statute’s elements 2274-75; al., Moreover, Sykes, may no David Finkelhor et after Thornton cf. Justice, longer good Sykes heavily law. relied Programs, Dept, of Justice Office risk, regarding evidence and statis- statistical Sexually National Esti- Assaulted Children: might tical evidence show the risk available mates and Characteristics Virginia’s injury violating from conduct stat- http://www.ncjrs.gov/pdffiles 1/ojjdp/ actually higher ute asso- than 3.2% risk 214383.pdf. burglary. Sykes, ciated with notes U.S.S.G. 2L1.2(b)(l)(A)). S.E.2d 678 (N.C.Ct.App.2007)....”) § (Op. could do It so tomor- J.).1 it Wilkinson, row if wished. of This notion is troubling. ute, Judge 1326(a) (b)(2), gap-filling approach § Wilkinson’s ef 8 U.S.C. if the de- fectively collapses open-ended but the distinct prior fendant had a conviction a "crime of requirements of the residual clause of the application violence.” Id. at 781 & The n. 1. ACCA, hand, on the and the one more refined 2L1.2(b)(1)(A) notes to U.S.S.G. defined a Guidelines, requirements Sentencing crime of violence to “sexual include abuse of See, e.g., on the other hand. v. United States a Rejecting minor.” Id. at 781 & 2. n. Ramirez-Garcia, (11th 646 F.3d 778 Cir. categorical approach in favor of the 2011). Ramirez-Garcia, In the same North approach, the Eleventh Circuit Carolina indecent liberties statute before us held that a violation of the North Carolina was before the Circuit. Eleventh Id. at 779. indecent liberties statute indeed constituted presented issue was whether a violation "sexual abuse Critical minor.” to its of the indecent liberties "constituted holding, precedents the court relied on its and, thus, ‘sexual abuse of a minor’ awas that "sexual abuse of a minor” is evidenced Sentencing pursuant 'crime of violence' "by perpetrator's physical nonphysical 'a applicable guideline, Guidelines.” Id. The 2L1.2(b)(1)(A), pur- misuse or minor increased the base maltreatment of a for a offense ” illegal reentry pose level for a gratification.’ violation of stat- associated with sexual judges. Wil- argu- Judge committed to federal Judge Wilkinson’s respect, With poses questions the modified more application kinson’s ment in favor of case seems to than answers. categorical approach notion of heavily on novel rely me to agree that federalism in- All federalism. B. such our work in cases as terests inform Nevertheless, I believe it do not this one. “im- In contrast Wilkinson’s Congress enacting purpose ap- was plied-legislative-intent/gap-filing” types of punish particular the ACCA “to on rely Keenan seems to proach, Judge drug offenses and violent crimes—serious might what be described a “blank slate” Wilkinson, (Op. J.) Post at felonies.” (Op. King, ante at 782 approach. Cf. J.). Rather, plain of the stat- (“If slate, as the text I writing we were blank reveals, of the ACCA is to purpose ute might conclude that a violation of subsec- punishments for certain federal increase (a)(1) tion is a less serious offense unlawfully a fire- possess offenders who physical with require does contact arm. victim, minor while a violation of subsec- tion is a more serious offense judges roving III Nor are Article physical requires some form contact—a children, every con- all from protectors of upon of a lewd lascivious harm, everywhere. ceivable encountered child.”). Judge readily Keenan concedes Rather, quintessentially po- that role is that, under presented the circumstances by the power lice individual sover- retained here, accept she does not authoritative eign our union. It would be wise states of appellate re- courts’ important law-making not to confuse that the indecent liber- peated admonitions by constitutional tasks committed our ties statute consists of “five fixed ele- legislature North Car- structure to the (as Keenan, n. 1 (Op. ments.” Post at 800 implemented olina its Executive J.). officials, Rather, Judge Keenan seizes including prosecuting Branch its authorities) patently ambiguous in State adjudicative tasks statement 1101(a)(43)(A), (quoting at 782 v. Padilla- in 8 U.S.C. includes all of Id. States Cir.2001)). (11th Reyes, proscribed 247 F.3d the conduct the North Carolina particular, plain statute); court "noted that United States meaning Gilbert, (4th Cir.2011) ‘abuse’ includes ‘acts involve Fed.Appx. (per perpetrator between the curiam) contact (unpublished) (holding that North " Id.; acts that do victim and not.' accord triggers Carolina’s indecent liberties statute Izaguirre-Flores, United States F.3d sentencing enhancement 18 U.S.C. Cir.2005) curiam) (5th (per (holding 2252A(b)(2),

Case Details

Case Name: United States v. Vann

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Oct 11, 2011

Citation: 660 F.3d 771

Docket Number: 09-4298A

Court Abbreviation: 4th Cir.