United States v. Sean Mitchell ( 2019 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-4888
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SEAN GREGORY MITCHELL,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Newport News. Raymond A. Jackson, District Judge. (4:16-cr-00082-RAJ-LRL-1)
Submitted: July 18, 2019 Decided: July 31, 2019
Before DIAZ and FLOYD, Circuit Judges, and HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Geremy C. Kamens, Federal Public Defender, Caroline S. Platt, Appellate Attorney,
Alexandria, Virginia, Suzanne V. Katchmar, Assistant Federal Public Defender, OFFICE
OF THE FEDERAL PUBLIC DEFENDER, Norfolk, Virginia, for Appellant. G.
Zachary Terwilliger, United States Attorney, Alexandria, Virginia, Megan M. Cowles,
Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Newport News, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Sean Gregory Mitchell appeals his 15-year sentence for being a felon in
possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1) (2012).
The district court concluded that Mitchell had three previous convictions that qualified as
predicate violent felonies or serious drug offenses under the Armed Career Criminal Act,
(“ACCA”), 18 U.S.C. § 924(e) (2012), thereby requiring the district court to impose a
mandatory minimum sentence of 15 years. See 18 U.S.C. § 924(e)(1). On appeal,
Mitchell contends that he is not an armed career criminal because his two convictions for
unlawful wounding, in violation of Va. Code Ann. § 18.2-51 (2014), are not predicate
violent felonies. Because we conclude that Virginia unlawful wounding is a violent
felony under the ACCA, we affirm.
We review de novo whether a district court correctly characterized a defendant’s
prior conviction as a violent felony under the ACCA’s force clause. United States v.
Winston, 850 F.3d 677, 683 (4th Cir. 2017). The ACCA defines the term “violent
felony,” in relevant part, as an offense that is punishable by a term of imprisonment
exceeding one year that “has as an element the use, attempted use, or threatened use of
physical force against the person of another” (“force clause”). 18 U.S.C.
§ 924(e)(2)(B)(i).
To determine whether a state crime qualifies as a violent felony under the
ACCA’s force clause, we apply the categorical approach[]. Under the
categorical approach, we examine whether a state crime has as an element
the use, attempted use, or threatened use of physical force against the
person of another, and do not consider the particular facts underlying the
defendant’s conviction. The Supreme Court has defined the term physical
force as used in the ACCA as violent force—that is, force capable of
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causing physical pain or injury to another person. Accordingly, if the
elements of a crime can be satisfied by de minimis physical contact, the
offense does not qualify categorically as a violent felony.
United States v. Burns-Johnson, 864 F.3d 313, 316 (4th Cir., cert. denied, 138 S. Ct. 461
(2017) (citations and internal quotation marks omitted). In determining whether a state
crime is a violent felony under the force clause, we rely on the state courts’ interpretation
of the offense, looking to the minimum conduct required for a conviction and assessing
the realistic probability of a state convicting a defendant for that conduct. Id.
Virginia defines both unlawful wounding and malicious wounding in a single
provision of its code:
If any person maliciously shoot, stab, cut, or wound any person or by any means
cause him bodily injury, with the intent to maim, disfigure, disable, or kill, he
shall, except where it is otherwise provided, be guilty of a Class 3 felony. If such
act be done unlawfully but not maliciously, with the intent aforesaid, the offender
shall be guilty of a Class 6 felony.
Va. Code Ann. § 18.2-51. Unlawful wounding requires proof of a bodily injury with “the
specific intent to maim, disfigure, disable or kill the victim of the attack.”
Commonwealth v. Vaughn, 557 S.E.2d 220, 222 (Va. 2002) (internal quotation marks
omitted). Mitchell contends that, because § 18.2-51 includes the phrase “by any means
cause . . . bodily injury,” a defendant can commit unlawful wounding by means other
than violent force, such as nonviolent force or omission rather than action. But Mitchell,
by his own admission, does not cite any Virginia case where an unlawful wounding
conviction rested on an act of nonviolent force or omission. Moreover, we conclude that,
because unlawful wounding requires “the specific intent to maim, disfigure, disable or
kill,” it is not plausible that a conviction will rest on conduct that is incapable of fulfilling
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that intent, unless that conduct is accompanied by an attempt or threat to do more serious
bodily harm. See United States v James, 733 F. App’x 128 (4th Cir.), cert. denied, 139 S.
Ct. 157 (2018) (argued but unpublished). We decline Mitchell’s request to revisit our
decision in James.
We conclude that the district court correctly determined that Virginia unlawful
wounding is a violent felony under the ACCA’s force clause. The district court thus
properly imposed the 15-year mandatory minimum sentence required by 18 U.S.C.
§ 924(e)(1), and we affirm the district court’s judgment. We dispense with oral argument
because the facts and legal contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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