United States v. Lewis Jackson ( 2018 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-6166
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LEWIS CARNELL JACKSON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. Louise W. Flanagan, District Judge. (5:07-cr-00110-FL-1; 5:16-cv-00353-FL)
Submitted: September 11, 2018 Decided: September 13, 2018
Before DUNCAN and WYNN, Circuit Judges, and SHEDD, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
G. Alan Dubois, Federal Public Defender, Eric Joseph Brignac, Chief Appellate
Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina,
for Appellant. Robert J. Higdon, Jr., United States Attorney, Jennifer P. May-Parker,
Assistant United States Attorney, Seth M. Wood, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lewis Carnell Jackson appeals from the district court’s order denying relief on his
28 U.S.C. § 2255 (2012) motion challenging his sentencing under the Armed Career
Criminal Act (ACCA), 18 U.S.C. § 924(e) (2012). The district court determined that
Jackson had three ACCA predicate convictions and therefore was properly sentenced as
an armed career criminal but granted a certificate of appealability on the issue of whether
Jackson’s prior North Carolina state conviction for assault with a deadly weapon with
intent to kill (AWDWIK) qualifies as an ACCA predicate violent felony. Jackson argues
on appeal that AWDWIK does not qualify as an ACCA predicate violent felony because
it may be accomplished with mere culpable negligence and thus does not have as an
element the intentional application of force. We affirm.
To prevail on a § 2255 motion to vacate, the movant must show that his sentence
is unlawful on one of the grounds specified in § 2255(b). United States v. Pettiford,
612 F.3d 270, 277 (4th Cir. 2010). Specifically, the movant must demonstrate that “the
judgment was rendered without jurisdiction,” “the sentence imposed was not authorized
by law or otherwise open to collateral attack,” or “there has been such a denial or
infringement of the constitutional rights of the prisoner as to render the judgment
vulnerable to collateral attack.” 28 U.S.C. § 2255(b). A sentence is unlawful within the
meaning of § 2255 when it was enhanced under the ACCA based on three ACCA
predicate convictions and one or more of those predicates is invalid. See United States v.
Newbold, 791 F.3d 455, 457, 461, 464 (4th Cir. 2015).
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Under the ACCA, a defendant convicted of violating 18 U.S.C. § 922(g)(1) (2012)
is subject to a statutory minimum sentence of 15 years’ imprisonment if he has sustained
3 prior convictions for either violent felonies or serious drug offenses committed on
occasions different from one another. 18 U.S.C. § 924(e). A violent felony is an offense
that “(i) has as an element the use, attempted use, or threatened use of physical force
against the person of another; or (ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a serious potential risk of physical
injury to another.” Id. § 924(e)(2)(B). The first clause is known as the “force clause,”
and the second clause consists of several enumerated crimes as well as a “residual
clause.” United States v. Gardner, 823 F.3d 793, 801-02 (4th Cir. 2016)
(internal quotation marks omitted).
In Johnson v. United States, 135 S. Ct. 2551, 2556-63 (2015), the Supreme Court
determined that the residual clause of the ACCA’s definition of a violent felony is
unconstitutionally vague. Therefore, for a prior conviction to qualify as a violent felony
under the ACCA following Johnson, it must qualify either under the enumerated offenses
clause or under the force clause. We review de novo whether a prior conviction qualifies
as a violent felony under the ACCA. United States v. Hemingway, 734 F.3d 323, 331
(4th Cir. 2013); see United States v. Carthorne, 878 F.3d 458, 464 (4th Cir. 2017)
(noting that a district court’s legal conclusions in denying a § 2255 motion are reviewed
de novo).
The elements of AWDWIK are: “(1) an assault; (2) with a deadly weapon;
(3) with the intent to kill.” State v. Garris, 663 S.E.2d 340, 349 (N.C. Ct. App. 2008)
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(internal quotation marks and alteration omitted); see N.C. Gen. Stat. § 14-32(c) (2017).
North Carolina courts consistently have observed that AWDWIK “has, as an element,
specific intent to kill.” State v. Coble, 527 S.E.2d 45, 49 (N.C. 2000).
We recently held that assault with a deadly weapon with intent to kill inflicting
serious injury (AWDWIKISI) under North Carolina law is categorically a violent felony
under the force clause of the ACCA. United States v. Townsend, 886 F.3d 441, 448
(4th Cir. 2018). We noted that “[u]se of force” under the force clause of the ACCA
“means to act with a mens rea more culpable than negligence or recklessness.” Id. at
444-45 (internal quotation marks omitted). Under North Carolina law, the elements of
AWDWIKISI are: “(1) an assault, (2) with the use of a deadly weapon, (3) with an intent
to kill, and (4) inflicting serious injury, not resulting in death.” State v. Tirado,
599 S.E.2d 515, 534 (N.C. 2004). In determining that proving the intent to kill under the
statute requires proving a mens rea greater than negligence or recklessness, we noted that
“the intent to kill element of AWDWIKISI requires proof of a specific intent to kill.”
Townsend, 886 F.3d at 445; see also State v. Tate, 239 S.E.2d 821, 826 (N.C. 1978)
(AWDWIKISI requires proof of a specific intent). This court thus expressly rejected
Townsend’s argument that AWDWIKISI requires merely culpable negligence.
Townsend, 886 F.3d at 446-48.
Given this court’s rejection of the argument Jackson uses to assert that his
AWDWIK conviction is no longer a violent felony, the decision in Townsend controls
and AWDWIK remains a violent felony after Johnson. We therefore affirm the district
court’s judgment denying § 2255 relief to Jackson. We dispense with oral argument
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because the facts and legal contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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