United States v. Aaron Shell , 789 F.3d 335 ( 2015 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4211
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
AARON EUGENE SHELL,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:13-cr-00054-RLV-DSC-1)
Argued: March 25, 2015 Decided: June 12, 2015
Before WILKINSON and HARRIS, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Vacated and remanded by published opinion. Judge Harris wrote
the majority opinion, in which Senior Judge Davis joined. Judge
Wilkinson wrote a dissenting opinion.
ARGUED: Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Asheville, North Carolina, for Appellant.
William Michael Miller, OFFICE OF THE UNITED STATES ATTORNEY,
Charlotte, North Carolina, for Appellee. ON BRIEF: Ross Hall
Richardson, Acting Executive Director, FEDERAL DEFENDERS OF
WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for
Appellant. Anne M. Tompkins, United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for
Appellee.
PAMELA HARRIS, Circuit Judge:
Defendant-Appellant Aaron Eugene Shell (“Shell”) pleaded
guilty to being a felon in possession of a firearm, in violation
of 18 U.S.C. § 922(g) (2012). At sentencing, the district court
applied an enhanced base offense level on the ground that
Shell’s prior North Carolina conviction for second-degree rape
constituted a crime of violence under the U.S. Sentencing
Guidelines Manual (“U.S.S.G.” or the “Guidelines”)
§ 2K2.1(a)(4)(A) (2014). The district court also applied a two-
level enhancement for obstruction of justice pursuant to
Guidelines § 3C1.2, concluding that Shell recklessly created a
substantial risk of death or serious bodily injury to another
person in the course of fleeing from a law enforcement officer.
On appeal, Shell challenges the district court’s application of
both enhancements. For the reasons that follow, we vacate
Shell’s sentence and remand for resentencing.
I.
On December 27, 2012, Shell was driving southbound on
Highway 321 in Caldwell County, North Carolina. North Carolina
Trooper Christopher Hodges (“Hodges”), traveling northbound, saw
Shell speeding and turned around to follow him. By the time
Hodges was able to complete the turn, Shell had disappeared from
2
sight. But in short order, Hodges discovered that Shell’s
vehicle had veered off the road and down an embankment.
As he fled the scene of the accident, Shell discarded a bag
behind a tree. Officers searched the bag and found a loaded
semiautomatic pistol. Several days later, Shell voluntarily
submitted to a police interview and admitted that he was the
driver of the vehicle and was in possession of the firearm.
Shell was charged with one count of being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g), and
pleaded guilty. The presentence report (“PSR”) recommended
raising Shell’s base offense level from 14 to 20 under U.S.S.G.
§ 2K2.1(a)(4)(A), on the ground that Shell committed the instant
offense after a prior felony conviction for a “crime of
violence” – here, a North Carolina conviction for second-degree
rape. The PSR also recommended a two-level enhancement for
obstruction of justice, pursuant to U.S.S.G. § 3C1.2, because
Shell's reckless driving in the course of fleeing from a law
enforcement officer created a substantial risk of death or
serious bodily injury to another person. Applying those
provisions, the PSR calculated a Guidelines range of 57 to 71
months’ imprisonment.
Shell objected to both enhancements. At sentencing, the
district court overruled Shell’s objections. As to reckless
endangerment under § 3C1.2, the district court credited a
3
witness who testified that Shell sped, skidded, and almost hit
her vehicle, and thus concluded that Shell created a substantial
risk of death in the course of fleeing from a law enforcement
officer. The court also held that Shell’s prior second-degree
rape conviction qualified as a “crime of violence” under
§ 2K2.1.
The district court adopted the PSR and sentenced Shell to
57 months’ imprisonment and three years of supervised release.
Shell appeals, challenging the district court’s application of
both enhancements.
II.
A.
Under the Guidelines, a defendant convicted of being a
felon in possession of a firearm receives an enhanced base
offense level of 20 if he or she has committed a prior “crime of
violence,” as defined in Guidelines § 4B1.2. U.S.S.G. § 2K2.1
cmt. n.1. Shell argues that the district court erred in
characterizing his North Carolina conviction for second-degree
rape as a crime of violence because the state statute does not
require the use of physical force, and may instead be violated
through constructive force or the absence of legally valid
consent. We review de novo that question of law. United States
v. Montes-Flores, 736 F.3d 357, 363 (4th Cir. 2013).
4
The parties agree that in considering whether Shell’s North
Carolina conviction constitutes a crime of violence, we must
apply what is called the “categorical approach,” which
“focus[es] on the elements, rather than the facts,” of the prior
offense. United States v. Carthorne, 726 F.3d 503, 511 (4th
Cir. 2013) (quoting Descamps v. United States, 133 S. Ct. 2276,
2285 (2013)). What matters for the categorical approach is how
the law defines the offense generically, and not the particulars
of how an individual might have committed the offense on a given
occasion. Begay v. United States, 553 U.S. 137, 141 (2008);
United States v. Seay, 553 F.3d 732, 737 (4th Cir. 2009).
The question we must decide, then, is whether the full
range of conduct covered by North Carolina’s second-degree rape
statute, “including the most innocent conduct,” would qualify as
a crime of violence for purposes of the
§ 4B1.2 enhancement. United States v. Diaz-Ibarra, 522 F.3d
343, 348, 352 (4th Cir. 2008). If it is “evident from the
statutory definition of the state crime that some violations of
the statute are ‘crimes of violence’ and others are not,” then
the state offense is deemed “categorically overbroad” and
§ 4B1.2 does not apply. United States v. Rangel-Castaneda, 709
F.3d 373, 376 (4th Cir. 2013) (quoting Diaz-Ibarra, 522 F.3d at
348). Whether North Carolina second-degree rape categorically
qualifies as a crime of violence under this approach is a
5
question of first impression for our court, and for the reasons
that follow, we agree with Shell that it does not.
B.
In comparing the elements of North Carolina second-degree
rape to § 4B1.2’s definition of “crime of violence,” we begin
with the North Carolina statute and the state precedent
construing it. North Carolina’s second-degree rape statute
consists of two separate offenses, providing that:
(a) A person is guilty of rape in the second degree if
the person engages in vaginal intercourse with another
person:
(1) By force and against the will of the other
person; or
(2) Who is mentally disabled, mentally
incapacitated, or physically helpless, and the
person performing the act knows or should
reasonably know the other person is mentally
disabled, mentally incapacitated, or physically
helpless.
N.C. Gen. Stat. § 14-27.3 (West 2004). Because the records of
Shell’s conviction do not specify which subsection of the
statute formed the basis for his conviction, the parties agree,
that conviction may be treated as a crime of violence only if
both subsections so qualify.
The first subsection is applicable where “sexual
intercourse is effectuated by force and against the victim’s
will.” State v. Atkins, 666 S.E.2d 809, 812 (N.C. Ct. App.
2008). Under North Carolina law, that force requirement may be
6
satisfied either by “actual, physical force or by constructive
force in the form of fear, fright, or coercion.” State v.
Etheridge, 352 S.E.2d 673, 680 (N.C. 1987). Constructive force
may be demonstrated by proof of compulsion or threats of force,
and also will be inferred from certain relationships - such as a
parent-child relationship – that are deemed inherently coercive.
See id. at 680–82; State v. Morrison, 380 S.E.2d 608, 611–12
(N.C. Ct. App. 1989).
The second subsection, by contrast, does not require the
state to prove either force or the absence of consent. Atkins,
666 S.E.2d at 812. Instead, it applies to victims who are
deemed by law incapable of validly consenting to intercourse or
resisting sexual acts, State v. Williams, 698 S.E.2d 542, 544–
45 (N.C. Ct. App. 2010), and it is used by the state in cases
where there is factual but legally insufficient consent, see
State v. Ramey, No. COA10–1197, 2011 WL 3276720, at *4–5 (N.C.
Ct. App. Aug. 2, 2011) (unpublished) (conviction for second-
degree rape of mentally disabled victim who initiated
intercourse). In this sense, it is analogous to the age element
of North Carolina’s statutory rape law: the fact of consent is
not a defense where the victim is unable to give legally valid
consent by virtue of age or by virtue of mental disability. See
Atkins, 666 S.E.2d at 812 (comparing second-degree and statutory
rape and quoting legislative history: “In second degree rape,
7
we are adding persons who are mentally defective, mentally
incapacitated, or physically helpless. This is basically a
statutory rape section . . . .”); see also State v. Banks, 766
S.E.2d 334, 339 (N.C. 2014) (statutory and second-degree rape
“separately punish the act of intercourse with a victim who,
because of her age, is unable to consent to the act, and the act
of intercourse with a victim who, because of a mental disability
or mental incapacity, is unable to consent to the act”). 1
C.
Our other point of comparison is the phrase “crime of
violence,” as used in the Sentencing Guidelines. 2 As will become
important in this case, different guideline provisions describe
1
To the extent our dissenting colleague suggests that lack
of legally valid consent cannot alone sustain a conviction for
North Carolina second-degree rape, as opposed to statutory rape,
we must respectfully disagree. See Williams, 698 S.E.2d at 544-
45. Nor is the prospect of prosecution in cases of factual but
legally insufficient consent so fanciful that we may overlook it
under the categorical approach. See Ramey, 2011 WL 3276720, at
*4-5. Indeed, at his sentencing hearing, Shell adduced
testimony that his own conviction under the statute was for
engaging in sexual intercourse with his stepsister by marriage
when both were young and with factual consent. The particulars
of Shell’s offense, of course, do not control the analysis under
the categorical approach we apply. But they may help to
illustrate the practical scope of the North Carolina statute at
issue.
2
As is customary, we rely as well on cases construing the
phrase “violent felony” under the Armed Career Criminal Act,
“because the two terms have been defined in a manner that is
substantively identical.” Montes-Flores, 736 F.3d at 363
(internal quotation marks omitted).
8
“crime of violence” differently. But Shell’s sentence was
enhanced for a prior crime of violence under U.S.S.G. § 2K2.1,
which defines that term by reference to the career-offender
guideline, U.S.S.G. § 4B1.2. U.S.S.G. § 2K2.1 cmt. n.1.
Section 4B1.2, in turn, defines a crime of violence as:
(a) . . . any offense under federal or state law,
punishable by imprisonment for a term exceeding one
year, that—
(1) has as an element the use, attempted use, or
threatened use of physical force against the
person of another, or
(2) is burglary of a dwelling, arson, or
extortion, involves use of explosives, or
otherwise involves conduct that presents a
serious potential risk of physical injury to
another.
U.S.S.G. § 4B1.2(a). The commentary elaborates, in relevant
part:
“Crime of violence” includes murder, manslaughter,
kidnapping, aggravated assault, forcible sex offenses,
robbery, arson, extortion, extortionate extension of
credit, and burglary of a dwelling.
U.S.S.G. § 4B1.2 cmt. n.1 (emphasis added).
In its argument, the government skips past the text of
§ 4B1.2 to focus on its commentary, and in particular the phrase
“forcible sex offenses.” But it is the text, of course, that
takes precedence, see Stinson v. United States, 508 U.S. 36, 43
(1993) (where commentary is inconsistent with text, text
controls), and so that is where we begin. And like two other
9
circuit courts, as well as our own court in an unpublished
opinion, we conclude that offenses that may be committed without
physical force and predicated instead on the absence of legally
valid consent – as under the North Carolina second-degree rape
statute – are not categorically crimes of violence under either
clause of § 4B1.2. See United States v. Wray, 776 F.3d 1182,
1187–91 (10th Cir. 2015) (conviction for sexual assault with a
10-year age difference not categorically a crime of violence
under § 4B1.2); United States v. Wynn, 579 F.3d 567, 572–75 (6th
Cir. 2009) (sexual battery based on coercive nature of
relationship not categorically a crime of violence under
§ 4B1.2); United States v. Leshen, 453 F. App’x 408, 412–16 (4th
Cir. 2011) (unpublished) (third-degree rape and aggravated
sexual assault based on age of victim not categorically crimes
of violence under § 4B1.2).
We can dispense relatively quickly with the first clause of
the career-offender guideline – the so-called “force clause” -
which covers crimes that have “as an element the use, attempted
use, or threatened use of physical force against the person of
another.” U.S.S.G. § 4B1.2(a)(1). For these purposes, the
Supreme Court held in Johnson v. United States, “physical force”
means “violent force - that is, force capable of causing
physical pain or injury to another person.” 559 U.S. 133, 140
(2010); see also United States v. Aparicio-Soria, 740 F.3d 152,
10
154–55 (4th Cir. 2014) (en banc) (applying Johnson). We think
it clear that the second subsection of North Carolina’s second-
degree rape statute, which does not require the state to prove
force at all and may instead be violated if there is legally
insufficient consent, does not meet this “violent force”
standard, and indeed, the government does not argue otherwise. 3
Nor do we believe that North Carolina’s second-degree rape
offense qualifies as a crime of violence under § 4B1.2’s
“residual clause” or “otherwise clause,” covering any crime that
“is burglary of a dwelling, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another.” U.S.S.G.
§ 4B1.2(a)(2). 4 Sex offenses are not among the enumerated
3
As the dissent notes, the North Carolina Supreme Court has
held that for purposes of the state’s own sentencing laws,
felony rape necessarily is a crime of violence. See State v.
Holden, 450 S.E.2d 878, 884 (N.C. 1994). But the meaning of
“physical force” under § 4B1.2(a)(1) is a question of federal
law, not state law, and in answering that question, we “are not
bound by a state court’s interpretation of a similar – or even
identical – state statute.” Johnson, 559 U.S. at 138. Instead,
we follow Johnson and other Supreme Court and Fourth Circuit
precedent that bears on the relevant federal provision before
us.
4
The dissent chides us for giving too much attention to the
“straw man of the ‘residual clause’” at the expense of § 4B1.2’s
force clause. Post at 9. But this is an unusual case in that
the government ignores both clauses equally, and that makes it
hard for us to say which is the straw man. On the assumption
that the government’s argument must be anchored at least
implicitly in one of § 4B1.2’s textual clauses, and without
11
crimes. And the final clause, the Supreme Court instructs, does
not reach every crime that “otherwise . . . presents a serious
potential risk of physical injury,” U.S.S.G. § 4B1.2(a)(2), but
only those “that are roughly similar [] in kind” to the listed
examples – involving conduct that is “purposeful, violent and
aggressive” – as well as similar in the “degree of risk” of
physical injury they pose. Begay, 553 U.S. at 142-45. 5 That
standard, we have held already, is not met by sex offenses that
do not require the use of physical force and may be predicated
instead on the legal insufficiency of purported consent. See
United States v. Thornton, 554 F.3d 443, 446–49 (4th Cir. 2009)
(conviction for statutory rape does not fall within residual
clause); see also Leshen, 453 F. App’x at 413–14 (same).
That precedent governs here. Like the statutory rape
offense considered in Thornton, the second subsection of North
Carolina’s statute may be violated without the threat or use of
physical force, and on the legal presumption that the victim is
further guidance from the government as to which, we feel
ourselves obliged to address both.
5
Although the Supreme Court refined the Begay approach in
Sykes v. United States, 131 S. Ct. 2267, 2275–76 (2011), we
continue to require that an offense be similar to the listed
examples both in kind and in degree of risk before it can
qualify as a crime of violence under the residual clause. See
United States v. Martin, 753 F.3d 485, 490 (4th Cir. 2014).
12
unable to consent. See Atkins, 666 S.E.2d at 812. That does
not mean, of course, that the crime is not serious; but it does
mean, we held in Thornton, that unlike the crimes enumerated in
the career-offender guideline, it “does not support an inference
that any or all instances of the offense are violent and
aggressive.” 554 F.3d at 449; see also Leshen, 453 F. App’x at
414; Wynn, 579 F.3d at 574. Similarly, we do not doubt that sex
offenses committed without physical force and against vulnerable
victims can present physical as well as psychological risks, in
the form of sexually transmitted diseases or health concerns
attendant to pregnancy. But we have concluded that those risks
are not comparable to the physical risks generated by the crimes
listed in § 4B1.2(a)(2), both because they are more attenuated
and because they are not “violent in nature.” Thornton, 554
F.3d at 449; see Leshen, 453 F. App’x at 414.
At issue in Thornton (and Leshen, as well) was a statute
criminalizing adult sexual contact with minors, whereas North
Carolina’s statute criminalizes sexual intercourse with those
who are mentally disabled or incapacitated. But nothing about
that distinction renders the logic of Thornton any less
applicable here. Like statutory rape laws, North Carolina’s
second-degree rape statute does not require the state to prove
force or the absence of consent in fact, Atkins, 666 S.E.2d at
812, and there is at least a “realistic probability,” Diaz-
13
Ibarra, 522 F.3d at 348, that the statute would apply in
situations in which a victim is presumed unable to give legally
valid consent, Williams, 698 S.E.2d at 544–45; Ramey, 2011 WL
3276720, at *4–5. Those are precisely the features that led us
to conclude in Thornton that statutory rape is not a crime of
violence under § 4B1.2. See 554 F.3d at 448 (“[A] victim’s lack
of ability to give legal consent” does not make statutory rape
“inherently violent and aggressive.”); see also Leshen, 453 F.
App’x at 414. In applying § 4B1.2’s definition of crime of
violence, we see no grounds for distinguishing between sexual
intercourse with a victim whose consent is legally invalid
because he or she is fourteen years old, and sexual intercourse
with an adult victim whose consent is legally invalid because he
or she has the mental capacity of a fourteen-year-old. Indeed,
as noted above, North Carolina law itself draws precisely this
parallel, treating the second subsection of its second-degree
rape statute as analogous to its statutory rape law. See
Atkins, 666 S.E.2d at 812 (“This is basically a statutory rape
section . . . .”); Banks, 766 S.E.2d at 339. 6 Thornton controls
6
The dissent argues that offenses under the second-degree
rape statute necessarily are “violent” in a way that statutory
rape is not because the second subsection of that statute limits
its reach to defendants who know – or do not know, but should –
that a victim is mentally disabled or otherwise falls within the
protected category. We cannot agree. A defendant’s “guilty
knowledge” that a victim is mentally disabled, post at 13 – or
14
on this question, and we are bound to find that North Carolina’s
second-degree rape statute is not categorically a crime of
violence under § 4B1.2(a)(2)’s residual clause. 7
his failure to discern mental disability when it is found that
he should, see Williams, 698 S.E.2d at 546-47 (despite his own
mental impairments, defendant “reasonably should have
discovered” victim’s mental disability) – of course may bear on
culpability, and, again, we do not doubt the gravity of offenses
under North Carolina’s statute. But that is a distinct question
from whether all such offenses are “inherently violent and
aggressive,” Thornton, 554 F.3d at 448, and as we have held, sex
offenses committed against victims who give factual (but legally
invalid) consent are not “inherently violent” in that sense, id.Moreover, because North Carolina second-degree rape, like
statutory rape, presumes invalid any consent, it may be
committed even when a defendant lacks the intent to override the
will of a factually consenting victim, and is in that way akin
to a strict liability, recklessness, or negligence offense. See
Sykes, 131 S. Ct. at 2275-76; Begay, 553 U.S. at 144-45;
Thornton, 554 F.3d at 448.
7
Our conclusion here is limited to the second subsection of
North Carolina’s statute. We should note, however, that even if
the second subsection could be reconciled with the text of
§ 4B1.2, there would remain the question of the first. And
because that subsection may be violated through force that is
constructive rather than physical, it, too, raises significant
issues under § 4B1.2. After Johnson, 559 U.S. at 140 (“physical
force” under § 4B1.2(a)(1) means “violent force”), we doubt that
a statute requiring only constructive force in the form of an
inherently coercive relationship, like the first subsection of
the North Carolina law, can be brought within the force clause.
See United States v. Vann, 660 F.3d 771, 779 n.2 (4th Cir. 2011)
(en banc) (King, J., concurring). And there is room to question
whether an offense under the first subsection that is predicated
on an inherently coercive relationship could fall within the
residual clause, as sufficiently similar in kind and degree of
risk of physical injury to § 4B1.2(a)(2)’s listed examples. See
Thornton, 554 F.3d at 448 (rejecting government argument that
sex offense involves constructive force and therefore falls
within residual clause); see also Leshen, 453 F. App’x at 415
15
D.
We turn now to the government’s argument on appeal. The
government does not contest, at least directly, our holding that
a North Carolina second-degree rape conviction does not qualify
categorically as a crime of violence under either clause of
§ 4B1.2’s definition. Instead, the government rests its
argument entirely on the commentary to § 4B1.2, which lists
“forcible sex offense[]” as an example of a crime of violence.
U.S.S.G. § 4B1.2 cmt. n.1. More specifically, the government
contends that because sex offenses resting on legally
insufficient consent constitute “forcible sex offenses” under a
different section of the Guidelines – Guidelines § 2L1.2 – they
must be crimes of violence under the commentary to § 4B1.2, as
well. Two other circuit courts have rejected precisely that
argument, see Wynn, 579 F.3d at 574–75 (Sixth Circuit); Wray,
776 F.3d at 1187–88 (Tenth Circuit); see also Leshen, 453 F.
App’x at 415–16 (Fourth Circuit, unpublished), and we join them
now.
(constructive force “no longer satisfies either prong” of
§ 4B1.2’s definition of crime of violence). But we need not
resolve those issues today. As we have explained, North
Carolina’s second-degree rape statute can qualify categorically
as a crime of violence only if both its subsections are covered
by § 4B1.2, and so our determination that the second subsection
reaches offenses that fall outside the terms of § 4B1.2 is
enough to dispose of this case.
16
Section 2L1.2 of the Guidelines enhances the base offense
level for certain immigration violations where the defendant has
committed a prior felony “crime of violence” or misdemeanor
“crimes of violence.” U.S.S.G. § 2L1.2(b)(1)(A), (E). The text
of § 2L1.2 does not define crime of violence and, unlike the
provision under which Shell was sentenced, it does not
incorporate by reference § 4B1.2’s two-clause definition of
crime of violence. Instead, § 2L1.2 includes commentary listing
“forcible sex offense[]” as an example of a crime of violence.
Id. at cmt. n.1(B)(iii).
In United States v. Chacon, we applied § 2L1.2 to a
subsection of a Maryland statute much like the second subsection
of North Carolina’s statute, criminalizing intercourse with a
person who is mentally defective, mentally incapacitated, or
physically helpless. 533 F.3d 250, 255 (4th Cir. 2008). At
the time, § 2L1.2’s commentary provided:
“Crime of violence” means any of the following
offenses under federal, state, or local law: murder,
manslaughter, kidnapping, aggravated assault, forcible
sex offenses, statutory rape, sexual abuse of a minor,
robbery, arson, extortion, extortionate extension of
credit, burglary of a dwelling, or any offense under
federal, state, or local law that has as an element
the use, attempted use, or threatened use of physical
force against the person of another.
U.S.S.G. § 2L1.2 cmt. n.1(B)(iii) (2006) (emphases added). We
held, first, that the Maryland offense did not have “as an
element the use, attempted use, or threatened use of physical
17
force,” and so did not fall within § 2L1.2’s “force clause.”
Chacon, 533 F.3d at 255-56. 8 We went on to find, however, that
it nevertheless qualified as a “forcible sex offense[]” within
the meaning of § 2L1.2. Id. at 256–58. In the absence of a
textual definition, we relied on the “ordinary, contemporary”
meaning of “forcible” and concluded that it reaches not only
physical force but also compulsion effectuated through “power”
or “pressure,” id. at 257, as when a rape is “accomplished by
taking advantage” of someone who cannot give legal consent, id.
at 258. And extending “forcible sex offenses” to statutes that
do not require physical force and instead presume the inability
to consent, we held, is consistent with § 2L1.2’s commentary as
a whole, which expressly enumerates the similar offenses of
“statutory rape” and “sexual abuse of a minor.” See id.
It is Chacon’s “common meaning” analysis on which the
government relies most heavily here. The government argues that
once we have established the common meaning of the phrase
forcible sex offenses, that common meaning stays the same,
traveling with the term wherever it appears in the Guidelines.
8
The dissent relies heavily on Chacon in arguing that North
Carolina second-degree rape falls within § 4B1.2, and presumably
its force clause. But if Chacon’s construction of the § 2L1.2
commentary directly governed this case, as the dissent urges,
then surely this part of Chacon’s holding would govern, as well,
and eliminate § 4B1.2’s force clause as a textual basis for the
dissent’s position.
18
Appellee’s Br. 25 (“It is difficult to imagine how . . .
examining the common meaning of the phrase forcible sex offense
[] would lead to a different result simply based on where the
enumerated offense appears in the guidelines.”). We appreciate
the logic of this position, but, as in Leshen, 453 F. App’x at
414–16, we must disagree.
As the Supreme Court recently reminded us, when it comes to
statutory construction, context matters. See Yates v. United
States, 135 S. Ct. 1074, 1082 (2015) (“In law as in life, [] the
same words, placed in different contexts, sometimes mean
different things.”). Section 4B1.2’s career-offender guideline,
at issue here, and § 2L1.2’s immigration guideline, construed in
Chacon, are different provisions, with significantly different
texts and structures. Accordingly, while we of course do not
question Chacon’s conclusion that offenses presuming the
inability to consent qualify as forcible sex offenses under
§ 2L1.2’s commentary, we reach a different result under § 4B1.2.
Both provisions, as the government says, list forcible sex
offenses in their commentaries. But critically, while § 2L1.2
defines crime of violence entirely through that commentary,
§ 4B1.2 provides a separate two-part definition of crime of
violence in its text, with the commentary serving only to
amplify that definition, and any inconsistency between the two
resolved in favor of the text, Stinson, 508 U.S. at 43. So in
19
interpreting “forcible sex offenses” in § 4B1.2’s commentary, we
do not write on a blank slate; instead, we have a carefully
reticulated definition of crime of violence to which we must
adhere. See Leshen, 453 F. App’x at 415 (under § 4B1.2,
“‘[f]orcible sex offenses’ does not have freestanding
definitional power,” but must instead be linked to a prong of
the textual definition of crime of violence); see also United
States v. Benkahla, 530 F.3d 300, 312 (4th Cir. 2008)
(recognizing courts’ “duty to harmonize Guidelines and
commentary”). And as discussed above, that textual definition
comes to us glossed by Supreme Court and Fourth Circuit
precedent that precludes its application to offenses committed
without “violent” force and predicated on the legal invalidity
of consent. Chacon, on the other hand, interpreted “forcible
sex offenses” as a freestanding phrase, without the constraints
imposed by § 4B1.2’s text, and so had the leeway to canvas
outside sources in search of ordinary meaning. 533 F.3d at 257(“When a word is not defined by statute, we normally construe it
in accord with its ordinary or natural meaning.” (quoting Smith
v. United States, 508 U.S. 223, 228 (1993))). Those are
markedly different interpretive enterprises, driven by the
different structures of the provisions, and it should be no
surprise that we end up in different places.
20
Moreover, the full text of the two commentaries themselves
strongly suggests a broader reading of the term “crime of
violence” under the immigration guideline at issue in Chacon
than under the career-offender guideline before us today. As we
explained in Chacon, the commentary to § 2L1.2 includes not only
“forcible sex offenses” but also other offenses that do not
require physical force, such as statutory rape and sexual abuse
of a minor, in its list of enumerated crimes of violence. 533
F.3d at 258 (citing U.S.S.G. § 2L1.2 cmt. n.1(B)(iii)). Section
4B1.2’s commentary, on the other hand, does not list statutory
rape or sexual abuse of a minor, but only offenses that plainly
involve physical force, such as murder and aggravated assault.
U.S.S.G. § 4B1.2 cmt. n.1. On its face, the commentary to the
immigration guideline sweeps further and “expressly cover[s]
more sex crimes” than the career-offender commentary. Wynn, 579
F.3d at 575; see Leshen, 453 F. App’x at 415–16. Reading
“forcible sex offenses” to include offenses committed without
physical force and predicated on legally invalid consent makes
sense under § 2L1.2’s commentary in a way it would not under
§ 4B1.2’s commentary.
Finally, we think it is clear that the Sentencing
Commission intended this result. First, the Commission chose to
include multiple and different definitions of “crime of
violence” in the Guidelines. Had it wanted that term to have
21
the same scope each time it appeared, then the obvious solution
would have been to provide one uniform definition, applicable
throughout. Instead, the Commission set out different “crime of
violence” enhancements for different underlying crimes. The
felon-in-possession guideline under which Shell was sentenced,
§ 2K2.1, by cross-referencing § 4B1.2’s definition, provides for
an enhancement if Shell is a “career offender” – the “kind of
person who might deliberately point the gun and pull the
trigger.” Begay, 553 U.S. at 146. If the Commission had wanted
to enhance felon-in-possession sentences for a broader range of
crimes of violence, including misdemeanor crimes, then it simply
could have cross-referenced § 2L1.2, instead. See Wray, 776
F.3d at 1188.
Second, in 2008 and after we decided Chacon, the Sentencing
Commission amended the commentary to § 2L1.2’s immigration
guideline, adding a parenthetical: “forcible sex offenses
(including where consent to the conduct is not given or is not
legally valid, such as where consent to the conduct is
involuntary, incompetent, or coerced) . . . .” U.S.S.G. § 2L1.2
cmt. n.1(B)(iii) (emphasis added). At the same time, the
Commission left § 4B1.2 intact, explaining that its purpose was
to “clarif[y] the scope of the term ‘forcible sex offense’ as
that term is used in the definition of ‘crime of violence’ in
§ 2L1.1.” U.S. Sentencing Guidelines Manual app. C, vol. III,
22
amend. 722, at 302 (2011) (emphases added). “[T]he logical
conclusion that we must draw is that the Sentencing Commission
did not intend for ‘forcible sex offenses’ under § 4B1.2 to be
defined the same way as ‘forcible sex offenses’ under § 2L1.2.”
Wynn, 579 F.3d at 575; see Wray, 776 F.3d at 1188 (citing maxim
of expressio unius est exclusio alterius and concluding that the
express inclusion of invalid-consent offenses in § 2L1.2
“suggests, at a minimum,” that those offenses are not covered by
§ 4B1.2); Leshen, 453 F. App’x at 415–16 (relying on
Commission’s decision to amend § 2L1.2 but not § 4B1.2).
Following the reasoning of the Sixth and Tenth Circuits, we
hold that Shell’s prior conviction for North Carolina second-
degree rape is not categorically a crime of violence under
§ 4B1.2. Our decision should not be understood to minimize in
any way the seriousness of the offenses proscribed by the North
Carolina statute or the importance of the state’s interest in
protecting the most vulnerable of victims. But whether the full
range of conduct covered by that state statute constitutes a
crime of violence under § 4B1.2, as construed both by our court
and the Supreme Court, is a different question, which we are
obliged to answer in the negative. Because the district court
erred in characterizing Shell’s prior conviction as a crime of
violence and thereby enhancing Shell’s base offense level for
23
illegally possessing a firearm, we vacate Shell’s sentence and
remand for resentencing.
III.
The district court also enhanced Shell’s sentence under
Guidelines § 3C1.2, for “recklessly creat[ing] a substantial
risk of death or serious bodily injury to another person in the
course of fleeing from a law enforcement officer.” Shell
concedes on appeal that he drove recklessly during the incident
leading to his arrest, but argues that the enhancement does not
apply because he was not aware that he was being pursued by a
law enforcement officer. We evaluate that legal claim de novo
and review relevant factual findings by the district court for
clear error. United States v. Carter, 601 F.3d 252, 254 (4th
Cir. 2010).
A.
Our court has not addressed whether the § 3C1.2 enhancement
applies if the defendant was unaware that he was being pursued
by an officer. But every circuit to consider the question has
concluded that the enhancement is not warranted where an officer
is following a defendant but the defendant does not know that
the officer is in pursuit, and is driving recklessly for some
other reason. See United States v. Martikainen, 640 F.3d 1191,
1193–94 (11th Cir. 2011) (per curiam); United States v. Moore,
24
242 F.3d 1080, 1082 (8th Cir. 2001); United States v. Hayes, 49
F.3d 178, 183–84 (6th Cir. 1995). At argument, the government
conceded that this is the correct reading of § 3C1.2. We agree,
and now adopt that reading, joining our sister circuits in
holding that the § 3C1.2 enhancement does not apply where a
defendant was unaware that he was being pursued by a law
enforcement officer.
This interpretation of § 3C1.2 comports with the Sentencing
Commission’s reason for promulgating it. See U.S. Sentencing
Guidelines Manual app. C, vol. I, amend. 347, at 196–99 (2008).
The provision is a derivative of Guidelines § 3C1.1, the
obstruction-of-justice enhancement, which targets defendants who
engage in conduct to mislead authorities or otherwise interfere
with the disposition of criminal charges. See id. at 196. The
Commission found that “reckless endangerment during flight is
sufficiently different from other forms” of obstruction of
justice that it warranted a separate enhancement, and § 3C1.2 is
expressly made applicable to resisting arrest. Id. at 199.
Those origins make clear, we believe, that § 3C1.2 is intended
to capture “behavior that could be viewed as an obstruction of
justice,” and thus requires that a defendant be aware that he or
she is fleeing from a law enforcement officer. Hayes, 49 F.3d
at 183.
25
B.
At sentencing in this case, the parties contested both
whether Shell recklessly created a risk of injury and – despite
the absence of circuit precedent – whether Shell knew that he
was being pursued by the police. As to reckless endangerment,
the government relied principally on the testimony of Nicole
Smith, who described “screeching tires” and a “black car coming
sideways” that “missed [her] by about two inches.” J.A. 44-45.
Shell sought to rebut that testimony primarily through the
absence of skid marks on the road.
The case as to Shell’s knowledge of police pursuit was
complicated by the fact that Shell already was speeding at the
time Hodges encountered him while traveling in the opposite
direction, and that Shell was no longer within Hodges’s sight
once Hodges activated his siren and turned around to follow
Shell. Shell argued that he was unaware that Hodges had decided
to pursue him, and pointed for support to witness testimony that
Shell had expressed concern when a bystander to his accident
called the police – concern that would have been beside the
point, Shell argued, had he believed that the police already
were in pursuit. The government, for its part, pointed to
Shell’s flight from the scene of the accident and his admission
that he had seen Hodges at some point, though it was unclear
whether before or after Hodges activated his siren. According
26
to the government, Shell’s concern about the call to the police
after his accident could be explained by Shell’s belief that he
had eluded Hodges successfully up until that point.
In imposing the § 3C1.2 enhancement at sentencing, the
district court made the following finding:
The court credits the testimony of Ms. Smith as to the
perception she had at the time of the approach of the
black Mercedes to her car which she described as being
sideways in the roadway and making substantial
skidding noises and that it missed her car by
approximately two inches. And that testimony is
fortified by the fact that no – people don’t tend to
forget that sort of thing. [An inconsistent detail in
Smith’s testimony] is not critical to the analysis
under U.S. Sentencing Guidelines 3C1.2. Defendant did
create a substantial risk of death or serious bodily
injury to her in the course of fleeing from a law
enforcement officer.
J.A. 58–59. The final sentence, incorporating the ultimate
finding, quotes the language of § 3C1.2, in determining that
Shell “created a substantial risk of death or serious bodily
injury,” and did so “in the course of fleeing from a law
enforcement officer.” U.S.S.G. § 3C1.2. But because the
district court did not have the benefit of the ruling we
announce today, it had no occasion to make a separate finding
that Shell was aware that he was being pursued by Hodges. And
given the preceding context, which focuses exclusively on the
separate question of whether Shell recklessly endangered Smith,
we cannot be certain that the district court in fact did make
such a finding. Accordingly, we remand on this issue, as well,
27
so that the district court may apply our newly announced
understanding of § 3C1.2 to this case and clarify whether Shell
knew that he was being pursued by law enforcement.
IV.
For the foregoing reasons, we vacate the district court’s
judgment and remand for resentencing consistent with this
opinion.
VACATED AND REMANDED
28
WILKINSON, Circuit Judge, dissenting:
North Carolina’s second-degree rape statute punishes
predatory acts committed against society’s most vulnerable
individuals. To violate the contested portion of this statute,
one must have taken advantage of a mentally or physically
defenseless person to engage in sexual intercourse -- all the
while knowing of the victim’s impaired condition. N.C. Gen.
Stat. § 14-27.3(a)(2). This law protects people considered
incapable of volitional acts from such callous conduct.
The majority, however, asks us to accept a disquieting
proposition: that a defendant who “engages in vaginal
intercourse with another person . . . [w]ho is mentally
disabled, mentally incapacitated, or physically helpless,” with
knowledge of that vulnerability, has somehow not committed a
forcible sex offense. Id. How can that be? A proper reading of
the law confirms the common intuition about the nature of this
crime. It inherently involves the kind of force that is
emblematic of a “crime of violence” under the relevant provision
of the United States Sentencing Guidelines. U.S.S.G.
§ 4B1.2(a)(1) & cmt. n.1. Both this court and North Carolina’s
courts have specifically recognized the forcible nature of these
sorts of acts, and rightly so. I do not understand how the
knowing, forcible sexual subjugation of helpless human beings
29
fails to qualify as a crime of violence. With all respect for
my friends in the majority, I dissent. 1
I.
Under the Guidelines provisions for firearms offenses, a
defendant who previously sustained a felony conviction for a
“crime of violence” is subject to a heightened base offense
level. U.S.S.G. § 2K2.1(a)(4)(A). A “crime of violence” may
refer to any felony that “has as an element the use, attempted
use, or threatened use of physical force against the person of
another.” Id. § 4B1.2(a)(1); see id. § 2K2.1 cmt. n.1 (cross-
referencing the provision for career offenders). As the
Guidelines commentary explains, the term “crime of violence”
also covers a number of enumerated offenses, including “murder,
manslaughter, kidnapping, aggravated assault, forcible sex
offenses, robbery, arson, extortion, extortionate extension of
credit, and burglary of a dwelling.” Id. § 4B1.2 cmt. n.1; see
id. § 2K2.1 cmt. n.1. This list of crimes by the Sentencing
Commission is “authoritative.” Stinson v. United States, 508
1
I agree with the majority that Shell was required to know,
for the purposes of an enhancement under U.S.S.G. § 3C1.2, that
he was being pursued by a law enforcement officer. While I
think the district court’s discussion has already incorporated
the fact of such knowledge, I have no objection to remanding for
a further finding on the point.
30
U.S. 36, 38 (1993). The term “crime of violence” thus expressly
encompasses forcible sex offenses.
A.
Was Shell’s prior crime a forcible sex offense? We begin
with the state statute under which he was convicted. 2 Our charge
is to determine the range of actions that North Carolina would
realistically classify as second-degree rape. This is a
practical exercise, not a dreamy one about every conceivable
scenario to which the statute might apply. See United States v.
Diaz-Ibarra, 522 F.3d 343, 348 (4th Cir. 2008) (requiring “‘a
realistic probability, not a theoretical possibility,’ that the
state would apply its statute to conduct that falls outside the
2
Of course, the meaning of a federal provision, be it
statutory or regulatory or Sentencing Guideline, is a federal
question. See Johnson v. United States, 559 U.S. 133, 138
(2010). But the elements of a predicate state offense are
obviously a question of state law, see id., and determining
those elements is obviously a critical step here: our express
charge is to compare the elements of the predicate state offense
with the elements of the “generic” crime, see Descamps v. United
States, 133 S. Ct. 2276, 2281 (2013). In fact, in construing
this North Carolina statute, we are bound by the interpretations
and decisions of the Supreme Court of North Carolina. See
Johnson, 559 U.S. at 138; United States v. Aparicio-Soria, 740
F.3d 152, 154 (4th Cir. 2014) (en banc). No federal court “has
any authority to place a construction on a state statute
different from the one rendered by the highest court of the
State.” Johnson v. Fankell, 520 U.S. 911, 916 (1997).
Examining North Carolina’s case law is an essential part of the
inquiry before us.
31
definition of ‘crime of violence’” (quoting Gonzales v. Duenas-
Alvarez, 549 U.S. 183, 193 (2007))).
North Carolina defines the felony of second-degree rape as
follows:
(a) A person is guilty of rape in the second degree if
the person engages in vaginal intercourse with another
person:
(1) By force and against the will of the other
person; or
(2) Who is mentally disabled, mentally
incapacitated, or physically helpless, and the
person performing the act knows or should
reasonably know the other person is mentally
disabled, mentally incapacitated, or physically
helpless.
N.C. Gen. Stat. § 14-27.3(a)(1)-(2). Another state provision,
in turn, defines each of the three mental or physical conditions
identified in the second-degree rape statute:
(1) “Mentally disabled” means (i) a victim who suffers
from mental retardation, or (ii) a victim who suffers
from a mental disorder, either of which temporarily or
permanently renders the victim substantially incapable
of appraising the nature of his or her conduct, or of
resisting the act of vaginal intercourse or a sexual
act, or of communicating unwillingness to submit to
the act of vaginal intercourse or a sexual act.
(2) “Mentally incapacitated” means a victim who due to
any act committed upon the victim is rendered
substantially incapable of either appraising the
nature of his or her conduct, or resisting the act of
vaginal intercourse or a sexual act.
(3) “Physically helpless” means (i) a victim who is
unconscious; or (ii) a victim who is physically unable
to resist an act of vaginal intercourse or a sexual
act or communicate unwillingness to submit to an act
of vaginal intercourse or a sexual act.
32
Id. § 14-27.1(1)-(3). The import of these provisions is plain.
The victims under this North Carolina law cannot comprehend the
situation or resist the aggressor’s sexual advances. In one way
or another, these persons are helpless.
North Carolina’s second-degree rape statute does not suffer
from vagueness. It covers a specific and limited universe of
conduct. And each disjunctive variant under the statute entails
some form of force. The record of Shell’s conviction does not
specify whether he was convicted under subsection (a)(1) or
(a)(2). See J.A. 62, 119-20.
The majority could scarcely argue that subsection (a)(1) --
which criminalizes sex “[b]y force and against the will of the
other person,” N.C. Gen. Stat. § 14-27.3(a)(1) -- falls short of
a crime of violence. The forcible nature of this crime is self-
evident. See U.S.S.G. § 4B1.2(a)(1) & cmt. n.1. Shell’s only
possible refuge lies in subsection (a)(2) of the North Carolina
statute. But raping a mentally disabled, mentally
incapacitated, or physically helpless person is a forcible sex
offense and a crime of violence -- so much so that only our
esteemed profession could complicate the inquiry.
B.
In addressing the nature of this North Carolina predicate
offense, I must first acknowledge the validity of the majority’s
33
concerns. It is important not to let predicate crimes of
violence metastasize. I agree with the majority that it is
unfair to tag defendants with predicate crimes of violence when
a state statute is in reality capable of many nonviolent
applications. Notwithstanding this, I think the majority is
quite wrong to expand the whole concept of nonforcible or
nonviolent rape. Even apart from the cognitive jolt delivered
by such terms, North Carolina’s statute is limited in all kinds
of ways that the majority has failed both to acknowledge and to
appreciate.
Second-degree rape in North Carolina involves the three
basic elements of (1) “vaginal intercourse,” (2) “force,” and
(3) “lack of consent.” State v. Smith, 626 S.E.2d 258, 261
(N.C. 2006); see N.C. Gen. Stat. § 14-27.3(a)(1)-(2). The
critical issue in the present case is force. The Supreme Court
of North Carolina’s binding case law interpreting this state
statute is exceptionally clear. See United States v. Aparicio-
Soria, 740 F.3d 152, 154 (4th Cir. 2014) (en banc). The
Guidelines require “forcible sex offenses.” Second-degree rape
of any kind in North Carolina requires an element of force.
Force may assume various legal labels in different cases --
actual, constructive, implied -- but, under any name, it is
still exactly that: force.
34
The history of North Carolina’s laws against rape confirms
that force is an indispensable element of the offense. North
Carolina’s rape statutes “essentially codify the common law of
rape.” State v. Moorman, 358 S.E.2d 502, 506 (N.C. 1987). The
common law “implied in law the elements of force and lack of
consent,” with the result that the crime of rape was “complete
upon the mere showing of sexual intercourse with a person who is
asleep, unconscious, or otherwise incapacitated.” Id. at 505.
Under the modern second-degree rape statute, “it makes no
difference whether the indictment alleges that the vaginal
intercourse was by force and against the victim’s will,” as in
§ 14-27.3(a)(1), “or whether it alleges merely the vaginal
intercourse with an incapacitated victim,” as in § 14-
27.3(a)(2). Id. at 506 (emphasis added). In the instances
covered by subsection (a)(2), “sexual intercourse with the
victim is ipso facto rape because the force and lack of consent
are implied in law.” Id. As a legal matter, the threshold force
required for a conviction under either subsection is the same.
The Supreme Court of North Carolina has spoken with utmost
clarity about the nature of crimes of rape in that state. In
the context of North Carolina’s own sentencing laws, the state’s
highest court has stated plainly, “[W]e reject the notion of any
felony which may properly be deemed ‘non-violent rape.’” State
v. Holden, 450 S.E.2d 878, 884 (N.C. 1994) (emphasis added)
35
(discussing N.C. Gen. Stat. § 15A-2000(e)(3)). In North
Carolina, “rape is a felony which has as an element the use or
threat of violence to the person.” Id. at 883. Indeed, even
“the crime of attempted rape always involves at least a ‘threat
of violence.’” Id. at 884.
North Carolina’s highest court has specifically rejected a
claim very much like the one endorsed by today’s majority. In
Holden, the defendant argued that his prior conviction for
attempted second-degree rape did not necessarily constitute a
crime of violence under North Carolina law, because the
conviction could have involved sex with a person who was
mentally disabled, mentally incapacitated, or physically
helpless. N.C. Gen. Stat. § 14-27.3(a)(2). But the court
firmly disagreed. Holden, 450 S.E.2d at 883-84.
The key to the Holden court’s ruling was the presence of
force, and indeed violence, in any instance of rape. Whether
the victim refuses to consent, as in subsection (a)(1), or
whether the victim cannot consent because of a mental or
physical impairment, as in subsection (a)(2), the analysis is
the same. Id. at 884-85. Under North Carolina law, “the force
inherent to having sexual intercourse with a person who is
deemed by law to be unable to consent is sufficient to amount to
‘violence.’” Id. at 884 (emphasis added). In interpreting
North Carolina’s second-degree rape statute, we could hardly ask
36
for a clearer mandate from the state’s highest court. The
majority’s novel felony of “non-violent rape” is an oxymoron not
recognized in North Carolina law. Id.
This interpretation of North Carolina’s rape statutes is
now firmly rooted in the state’s jurisprudence. The Court of
Appeals of North Carolina has heeded the dictates of the state’s
highest court. “The gravamen of the offense of second[-]degree
rape,” the Court of Appeals recently reaffirmed, “is forcible
sexual intercourse.” State v. Haddock, 664 S.E.2d 339, 344
(N.C. Ct. App. 2008). The stipulated conditions of mental
disability, mental incapacity, and physical helplessness simply
constitute “alternative means by which the force necessary to
complete a rape may be shown.” Id. at 345; see, e.g., State v.
Washington, 506 S.E.2d 283, 290 (N.C. Ct. App. 1998); State v.
Martin, 485 S.E.2d 352, 354 (N.C. Ct. App. 1997) (Wynn, J.);
State v. Aiken, 326 S.E.2d 919, 926 (N.C. Ct. App. 1985).
The majority too quickly dismisses the “force clause” of
the career-offender Guidelines provision, § 4B1.2(a)(1), and too
readily assails the straw man of the “residual clause,”
§ 4B1.2(a)(2). See Maj. Op. at 10-16. The residual clause
covers any felony that is a “burglary of a dwelling, arson, or
extortion, involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of physical
injury to another.” U.S.S.G. § 4B1.2(a)(2). The majority
37
relies on United States v. Thornton, 554 F.3d 443 (4th Cir.
2009). But the differences between that case and this are night
and day. The Virginia law in Thornton criminalized “‘carnal
knowledge’” of a minor “‘without the use of force,’” 554 F.3d at445 n.2 (emphasis added) -- quite unlike North Carolina’s
forcible crime of second-degree rape. Because the force clause
obviously did not apply, id. at 446, all that remained was the
residual clause, which the court understandably deemed a poor
fit, id. at 446-49. The majority’s discussion of Thornton and
the residual clause is thus inapposite.
C.
The majority maintains that the rape of a mentally
disabled, mentally incapacitated, or physically helpless person
is analogous to statutory rape. The shared logic of those
crimes, according to the majority, is that “the fact of consent
is not a defense where the victim is unable to give legally
valid consent by virtue of age or by virtue of mental
disability.” Maj. Op. at 7. But the analogy is misguided. As
a preliminary matter, North Carolina’s second-degree rape
statute does not target statutory rape. See N.C. Gen. Stat.
§ 14-27.3; J.A. 60-66. It makes no mention of the victim’s age.
It is instead defined by the victim’s mental or physical
38
defenselessness and an inability to fathom the basic situation
or oppose the aggressor’s actions.
I would not equate age and impairment. Some teenagers are
mature and responsible; others are decidedly not. But all the
victims under North Carolina’s second-degree rape statute are by
definition required to be lacking in basic mental or physical
capacity. Unlike with statutory rape, the extent of the
victim’s disability must be individually established, sometimes
with expert testimony. See State v. Hunt, 722 S.E.2d 484, 491-
92 (N.C. 2012). Such circumstances, based on a person’s
particular mental or physical characteristics, differ markedly
from legally insufficient consent based on age alone.
The differences do not stop there. Compulsion is not the
operative factor in the crime of statutory rape. This court has
already underscored that distinction in the Guidelines context
as well. As we observed in an assessment of § 2L1.2, “it is
clear that the Sentencing Commission purposely juxtaposed the
neighboring terms ‘forcible sex offense[]’ and ‘statutory rape,’
with the former intended to connote rape or other qualifying
conduct by compulsion and the latter intended to connote rape on
account of the victim’s age.” United States v. Rangel-
Castaneda, 709 F.3d 373, 380 (4th Cir. 2013) (emphasis added).
Indeed, we specifically held that a Tennessee statutory rape
conviction did not qualify as a forcible sex offense. Id.39
Before today, at least, the distinction between forcible sex
offenses and statutory rape was sharply defined.
Even the cases cited by the majority actually underscore
the distinction between second-degree rape and statutory rape.
See Maj. Op. at 7-8. The majority quotes a state senator who
likened an underlying 1979 bill to “‘basically a statutory rape
section.’” State v. Atkins, 666 S.E.2d 809, 812 (N.C. Ct. App.
2008) (emphasis added). But the legislator goes on to note a
key distinction: this law would apply “‘in cases where someone
engages in a sex act with a person who is, in fact, incapable of
resisting or communicating resistance’” -- against the
perpetrator’s forcible actions. Id. Atkins itself provides a
telling example: the victim was a severely arthritic eighty-
three-year-old woman who was deemed “physically helpless” based
on her apparent inability “to actively oppose or resist her
attacker.” Id. at 812-13; see also State v. Huss, 734 S.E.2d
612, 615 (N.C. Ct. App. 2012) (noting that the “factors and
attributes” examined in Atkins “were unique and personal to the
victim”), aff’d by an equally divided court, 749 S.E.2d 279(N.C. 2013) (per curiam). The majority cites another case
comparing second-degree rape and statutory rape. State v.
Banks, 766 S.E.2d 334 (N.C. 2014). In fact, that was a double
jeopardy case -- and the Supreme Court of North Carolina
expressly found them to be separate and distinct offenses. Id.40
at 339; see Blockburger v. United States, 284 U.S. 299, 304
(1932).
Statutory rape is, finally, a crime of strict liability in
North Carolina. State v. Anthony, 528 S.E.2d 321, 323-25 (N.C.
2000). Laws against statutory rape traditionally lack a mens
rea requirement. 2 Wayne R. LaFave, Substantive Criminal Law
§§ 5.5, 17.4 (2d ed. 2014). Unlike with statutory rape, this
provision contains a strong mens rea requirement. To be
convicted under subsection (a)(2), the perpetrator must have
known, or reasonably should have known, that the victim was
mentally disabled, mentally incapacitated, or physically
helpless. N.C. Gen. Stat. § 14-27.3(a)(2). This knowledge
forms part of the element of force that is present in virtually
all crimes of rape under North Carolina law -- besides the
strict liability offense of statutory rape.
The threshold act under subsection (a)(2) is sexual
intercourse with a mentally or physically defenseless victim.
This is a crime of forcible sexual compulsion. Lack of legally
valid consent is but one feature of this offense. One wonders
how it has come to be that a perpetrator who acted with guilty
knowledge -- to take advantage of a profoundly vulnerable victim
who is unable to resist -- could now escape sanction for the
41
prior commission of what the Guidelines require: a “forcible”
sex offense. 3
D.
“Force” may involve the exertion of “[p]ower, violence, or
pressure” against another person. Black’s Law Dictionary 717
(9th ed. 2009). This conception of force is integral to the
North Carolina statute. Yet the majority’s argument suggests that
3
In its effort to portray many of these crimes as not so
very serious, the majority’s discussion of anecdotal evidence
about Shell’s earlier conviction, see Maj. Op. at 8 n.1,
impermissibly compromises the categorical approach. “Sentencing
courts may ‘look only to the statutory definitions’ -- i.e., the
elements -- of a defendant’s prior offenses, and not ‘to the
particular facts underlying those convictions.’” Descamps v.
United States, 133 S. Ct. 2276, 2283 (2013) (quoting Taylor v.
United States, 495 U.S. 575, 600 (1990)). Despite its
disclaimers, the majority nevertheless proceeds to sift through
the scant and fragmentary indications in the record to try to
ascertain highly questionable “facts” underlying Shell’s
predicate offense. Its efforts illustrate why the categorical
approach obliges courts to examine “elements, not facts.” Id.The alternative is this sort of attempted factfinding from the
remove of the appellate bench -- here, without the benefit of
the state court’s or the sentencing court’s findings as to those
“facts,” without adequate elucidation of the surrounding
circumstances, and without any indicia of the transparently
self-serving testimony’s reliability. What we do know is that
Shell was convicted of North Carolina’s forcible crime of
second-degree rape, which criminalizes vaginal intercourse with
someone known to be mentally disabled, mentally incapacitated,
or physically helpless. The categorical approach turns on those
statutory elements. The majority, however, slides by that
approach, notwithstanding the heartbreaking instances of second-
degree rape that lie in the weeds of predicate convictions
through which federal courts in the course of Guidelines
calculations such as this are not permitted to trek.
42
second-degree rape is somehow not “forcible” enough to be a
forcible sex offense, or not “violent” enough to be a crime of
violence.
For its own understanding of “force,” the majority relies
on the Supreme Court’s pronouncements in Johnson v. United
States, 559 U.S. 133 (2010). See Maj. Op. at 10-11. But
Johnson is not like this case. Johnson involved a prior Florida
conviction for battery. 559 U.S. at 136-37. With the common
law crime of battery, the element of “force” was “satisfied by
even the slightest offensive touching.” Id. at 139. For the
Court, that threshold was too low when applied to a “violent
felony.” Id. at 140; see also Aparicio-Soria, 740 F.3d at 154-
55. In modern parlance, the various definitions of “force”
generally do not denote slight touching. Johnson, 559 U.S. at
138-41. The degree of power or pressure indicated by the term
“force” is not infinitely expansive. Context does matter. Id.
at 139-40. And de minimis contact is assuredly not the issue
with the pertinent forms of second-degree rape punished under
North Carolina law. Forcible intercourse is light-years removed
from nominal battery.
The majority fails to grasp any of the multiple ways in
which the North Carolina second-degree rape offense is
circumscribed and limited. The forcible nature of this
particular crime is unmistakable. The differences between this
43
offense and statutory rape or nominal battery are clear. Nor
does the majority appreciate the narrow range of mentally or
physically defenseless persons to which this statute applies, on
a personalized basis. The reality of what is happening to these
victims quite eludes the majority’s view. The categorical
approach applied by the majority rightly bars our inquiry into
the particulars of any single predicate offense. It should not
blind us to, in the words of Woody Guthrie, “a picture from
life’s other side.”
II.
The problems with the majority’s approach do not end at the
borders of North Carolina. Its decision is also inconsistent
with precedents that, until now, seemed to speak with a clear
and singular voice about the law governing this circuit. Our
past pronouncements left no doubt about the inexorably forcible
character of this brutal, unfeeling act.
A.
This court has already determined, in the context of a
comparable Guidelines provision, that second-degree rape under a
parallel state statute did constitute a forcible sex offense and
thus qualified as a “crime of violence.” United States v.
Chacon, 533 F.3d 250, 252 (4th Cir. 2008). The pertinent parts
44
of the Maryland second-degree rape statute at issue in Chacon
were functionally identical to those in the North Carolina law
here. The Maryland statute criminalized “vaginal intercourse”
committed (1) “[b]y force or threat of force against the will and
without the consent of the other person”; (2) with a victim who
is “mentally defective, mentally incapacitated, or physically
helpless,” when the perpetrator “knows or should reasonably
know” of the condition; or (3) with a victim “under 14 years of
age,” when the perpetrator is “at least four years older than
the victim.” Md. Code Ann. art. 27, § 463(a)(1)-(3) (repealed
2002) (current version at Md. Code Ann., Crim. Law § 3-
304(a)(1)-(3)).
In Chacon, we recognized the fundamentally forcible nature
of this crime. Examining the Guidelines provision for illegally
reentering the United States, U.S.S.G. § 2L1.2, this court
concluded that a violation of Maryland’s second-degree rape
statute was categorically a forcible sex offense within the
ambit of a “crime of violence,” Chacon, 533 F.3d at 252. The
court’s reasoning was this: even without a requirement of the
use of physical force, a crime under the Maryland statute was
necessarily achieved through some form of compulsion. Id. at
255-56.
Contrary to the majority’s suggestion, see Maj. Op. at 17-
23, this court’s analysis in Chacon applies with equal if not
45
greater power in this case. As with the Guidelines provisions
that applied to Shell, U.S.S.G. §§ 2K2.1, 4B1.2, the illegal-
reentry Guidelines provision at issue in Chacon provided for a
sentencing enhancement if the defendant had previously sustained
a felony conviction for a “crime of violence,” id. § 2L1.2. In
the definition of “crime of violence,” the commentary to the
illegal-reentry provision likewise listed “forcible sex
offenses.” Id. § 2L1.2 cmt. n.1(B)(iii). This court focused on
the “ordinary, contemporary meaning” of the term “forcible sex
offenses,” which is not defined in the Guidelines. Chacon, 533
F.3d at 257; see Smith v. United States, 508 U.S. 223, 228
(1993). Perusing dictionary definitions of “force” and
“forcible,” the court gleaned a significant insight: “a
‘forcible sex offense’ may be accomplished in the absence of
physical force” per se. Chacon, 533 F.3d at 257 (emphasis
added). Properly understood, “the use of force necessarily
involves a degree of compulsion.” Id. And that compulsion “can
be effected through ‘power’ or ‘pressure,’ which do not
necessarily have physical components.” Id.The Maryland statute in Chacon contained a provision
virtually identical to the disputed North Carolina provision in
this case. Both states’ second-degree rape laws criminalize
sexual intercourse with a person who is mentally or physically
defenseless, where the perpetrator knows or reasonably should
46
know of the victim’s condition. See Md. Code Ann. art. 27,
§ 463(a)(2); N.C. Gen. Stat. § 14-27.3(a)(2). For these crimes,
“any nonconsensual sexual contact is forcible because, if actual
physical force is unnecessary, some degree of compulsion is
nevertheless required to overcome an unwilling victim or take
advantage of a helpless and incapacitated one.” Chacon, 533
F.3d at 255-56. The only difference between this case and
Chacon is that this statute comes from North Carolina, while the
statute in Chacon came from Maryland. That point of distinction
embodies no neutral principle.
B.
The majority makes much of a technical amendment to the
illegal-reentry Guidelines provision that became effective
shortly after we handed down Chacon. U.S.S.G. app. C, amend.
722, at 301-03; see Maj. Op. at 22-23. That amendment made
clear that “forcible sex offenses” do in fact include instances
“where consent to the conduct is not given or is not legally
valid, such as where consent to the conduct is involuntary,
incompetent, or coerced.” Id. § 2L1.2 cmt. n.1(B)(iii). As
this court later confirmed, the amendment “was intended simply
to clarify that the requisite compulsion need not be physical in
nature,” and the revised Guidelines language was fully in line
with our prior holding in Chacon. United States v. Rangel-
47
Castaneda, 709 F.3d 373, 380 (4th Cir. 2013). The amendment did
not alter the governing analysis. If anything, the language of
the amendment specifically reinforces the interpretation that
the term “forcible sex offenses” here does refer to crimes of
compulsion.
In excluding North Carolina’s second-degree rape statute
from the “crime of violence” definition under § 4B1.2, the
majority can only grasp at the thin reed of negative
implication. The trouble is that the positive indications
undercut the majority’s conclusion.
Neither the modified illegal-reentry language in § 2L1.2
nor the unmodified career-offender language in § 4B1.2 supports
the majority’s proffered requirement of the use of physical
force. The Sentencing Commission has not chosen to alter the
language in the career-offender provision to impose such a
requirement. See Chacon 533 F.3d at 257-58.
The Commission simply has not restricted the meaning of
“forcible sex offenses” as the majority does today. Had it
wanted to do so, the Commission could easily have added to
§ 4B1.2 a phrase excluding from the definition of forcible sex
offense cases where consent to the conduct was merely
“involuntary, incompetent, or coerced.” See U.S.S.G. § 2L1.2
cmt. n.1(B)(iii). Yet the Commission did no such thing.
48
The majority professes not to “question” Chacon’s
interpretation of forcible sex offenses under § 2L1.2, even as
it “reach[es] a different result under § 4B1.2.” Maj. Op. at 19.
The Chacon court, however, would be surprised to learn its
ruling was a ticket for one train only. It is not right to cast
aside precedents on such a slim and precarious basis.
C.
The North Carolina statute requires the state to show
force. See supra Section I.B. The majority suggests, however,
that, even if the statute does require force, that would still
be insufficient, because the text of § 4B1.2 and the
accompanying Guidelines commentary are fatally inconsistent.
The majority stresses that § 4B1.2 requires “physical force,”
whereas the commentary omits the word “physical” and alludes
only to “forcible sex offenses.” See Maj. Op. at 9-11. The
majority’s conclusion of inconsistency not only is incorrect,
but will spell trouble down the road in future Guidelines cases.
First, in finding an inconsistency, the majority
misconstrues the Supreme Court’s mandate in Stinson v. United
States, 508 U.S. 36 (1993). The commentary generally deserves
“‘controlling weight.’” Id. at 45 (quoting Bowles v. Seminole
Rock & Sand Co., 325 U.S. 410, 414 (1945)). After all, the very
same Sentencing Commission promulgates both the Guidelines text
49
and the accompanying commentary. Id. at 40-41. This is not an
instance where an agency rule purports to interpret the work of
a different instrumentality such as Congress. Id. at 44. On
the contrary, the Commission is simply interpreting its own
work. Id. at 44-45. Stipulations contained in the commentary
need “not be compelled by the guideline text.” Id. at 47
(emphasis added). The commentary may give specific form to a
broad textual mandate -- that is precisely why the Commission
provides both.
Second, there is no nettlesome conflict here between
felonies involving “the use, attempted use, or threatened use of
physical force,” U.S.S.G. § 4B1.2(a)(1), and felonies that
qualify as “forcible sex offenses,” id. § 4B1.2 cmt. n.1.
Whether the prosecution proves the defendant had sex by force
and against the other person’s will, or whether the element of
force is fastened to proof that the defendant had sex with a
mentally or physically defenseless victim, these are simply
alternative but equal pathways for demonstrating force. See
N.C. Gen. Stat. § 14-27.3(a)(1)-(2); supra Section I.B.
Pointedly, the illegal-reentry provision specifically equates
“forcible sex offenses” with “any other offense” involving
“physical force.” U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). We should
be loath to find the Commission at war with itself and, in so
doing, to disregard the settled maxim that the provision of
50
specific instructions, a conventional function of Guidelines
commentary, presumptively trumps more general statements. See
RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 132 S. Ct. 2065,
2070-72 (2012).
And third, the instances in which this court has invalidated
part of the commentary as inconsistent with the Guidelines text
are quite rare. See Stinson, 508 U.S. at 38. On what basis is
a federal court, in the role of haruspex, supposed to divine
such a delicate inconsistency hidden among the Commission’s own
pronouncements? Cf. City of Arlington v. FCC, 133 S. Ct. 1863,
1871 (2013). Presumably, the rare occurrences of such purported
“inconsistency” holdings still bespeak an understanding by our
own and other courts that the Sentencing Commission, through its
commentary, can and routinely does provide specific elucidation
of the Guidelines’ more general textual provisions.
D.
Finally, the majority reads too much into the fact that
certain other sex offenses appear in § 2L1.2 but not § 4B1.2.
See Maj. Op. at 21. The illegal-reentry provision, § 2L1.2,
lists not only “forcible sex offenses” but also “statutory rape”
and “sexual abuse of a minor” as examples of crimes of violence.
U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). The career-offender
provision that applied to Shell, § 4B1.2, mentions “forcible sex
51
offenses” but not the other two crimes. Id. § 4B1.2 cmt. n.1.
But here, those differences are immaterial.
It is true that Chacon involved § 2L1.2 rather than
§ 4B1.2. But the logic of the majority turns the old Latin
maxim on its head: instead of applying expressio unius est
exclusio alterius (i.e., “the expression of one thing is the
exclusion of the other”), the majority treats the exclusion of
one term (“statutory rape”) as the expression of another term
(“forcible sex offenses”) with new meaning. The proper
inference, rather, is simply that the Sentencing Commission
deliberately excluded the crime of statutory rape from § 4B1.2,
see Barnhart v. Sigmon Coal Co., 534 U.S. 438, 452-53 (2002) -–
not that it was modifying the definition of “forcible sex
offenses” sub silentio.
In fact, the balance of the available indications suggests
that the Sentencing Commission wanted “forcible sex offenses” to
retain the same meaning in §§ 2L1.2 and 4B1.2. The “‘normal
rule of statutory construction’” is that “‘identical words used
in different parts of the same act are intended to have the same
meaning.’” Gustafson v. Alloyd Co., 513 U.S. 561, 570 (1995)
(quoting Dep’t of Revenue v. ACF Indus., Inc., 510 U.S. 332, 342
(1994)). Context matters, to be sure. But the interpretive
context is not appreciably different here. On the contrary,
52
“forcible sex offenses” is a distinct term with a consistent
meaning across §§ 2L1.2 and 4B1.2.
I doubt that the majority would argue that the crimes of
murder, manslaughter, kidnapping, aggravated assault, robbery,
arson, extortion, extortionate extension of credit, or burglary
of a dwelling -- all, like forcible sex offenses, enumerated in
both Guidelines provisions -- would assume a substantively
different meaning in the two provisions. This is precisely the
point of the categorical approach mandated by the Supreme Court:
we compare the elements of the particular predicate offense with
“the elements of the ‘generic’ crime -- i.e., the offense as
commonly understood.” Descamps v. United States, 133 S. Ct.
2276, 2281 (2013). After today’s ruling, the rest of us are
left to wonder how the generic definition of “forcible sex
offenses” could have changed so swiftly and abruptly.
The term “forcible sex offenses” is not quite the chameleon
the majority says it is. In fact, in advancing a view of
Guidelines interpretation where identical terms assume different
meanings at a blink, the majority has started us down the road
of a confusing and contradictory Guidelines structure, thus
rendering an already difficult interpretive exercise more arcane
and byzantine. In sum, the newly contradictory status of our
precedents, the new receptivity to finding Guidelines text and
commentary at odds, and the new willingness to imbue the same
53
terms with shifting meanings will, whether taken singly or in
combination, create crosscurrents and riptides in Guidelines
jurisprudence. That does not bode well for those who need or
aspire to understand them.
III.
I do understand that the circumstances surrounding sexual
interactions are often hazy, a fact that makes the preservation
of due process protections for accused persons a necessity in
all settings. But here the majority has chosen essentially to
absolve, through its construct of nonviolent rape, individuals
accorded the full slate of protections in our criminal justice
system. Doctrinal analysis is indispensable to judicial
reasoning, but upon occasion it can lead, increment by
increment, from sound beginnings toward untenable conclusions.
So it is here: the real need to protect the unthinking
expansion of “crimes of violence” has led to a race to restrict
them. If such a restriction makes sense in many instances, it
does not in the case at bar. The victims here cannot resist;
they cannot consent. But they yet retain the capacity to feel
the trauma and, yes, the violence that has been so visited upon
their very beings. The majority nevertheless maintains that the
rape of someone known to be mentally disabled, mentally
incapacitated, or physically helpless is neither a forcible sex
54
offense nor a crime of violence. The victims, were they even
sentient, would beg to differ. They know not our precedents.
They know not our doctrines. But somewhere in the recesses of
consciousness they do know they have been wronged, and we now
know that law has failed to duly recognize it.
I respectfully dissent.
55