United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN United States District Judge.
matter is before the court to memorialize and expand upon
certain oral determinations regarding defendant's
advisory guideline sentencing range made at time of
sentencing, held April 5, 2017. In particular, the court
sustained defendant's objection to his recommended base
offense level of 22, calculated pursuant to United States
Sentencing Guidelines Manual (“U.S.S.G.”)
§2K2.1(a)(3), premised upon one prior conviction of a
crime of violence, and instead imposed a base offense level
of 20, pursuant to § 2K2.1(a)(4)(B), absent prior
conviction of a crime of violence.
16, 2016, defendant pleaded guilty, pursuant to a written
plea agreement, to being a felon in possession of a firearm
and ammunition, a violation of 18 U.S.C. §§
922(g)(1) and 924. Prior to sentencing, the United States
Probation Office (the “probation office”)
prepared a Presentence Investigation Report
(“PSR”), which calculated defendant's
criminal history category as a level III and defendant's
total offense level as 19, yielding an advisory guidelines
range of 37 to 46 months.
relevant here, the probation office calculated
defendant's total offense level by beginning with base
offense level 22, determined pursuant to U.S.S.G.
§2K2.1(a)(3). That provision applies if the defendant
previously has been convicted of either a “crime of
violence” or “controlled substance
offense.” The probation office determined that
defendant's prior conviction under North Carolina law for
“Assault With a Deadly Weapon Inflicting Serious
Injury” (AWDWISI) qualified as a “crime of
violence.” (PSR ¶14 and p. 16).
objected to application of base offense level 22, under
§ 2K2.1(a)(3), contending his base offense level should
be 20, because his prior AWDWISI conviction does not qualify
properly as a “crime of violence” under §
2K2.1(a), as the term is defined in § 4B1.2(a). The
court sustained defendant's objection at his original
sentencing hearing in this matter, on October 6, 2016. At a
second sentencing hearing held December 8, 2016, the court
reversed course and accepted the recommendation in the PSR,
on the basis that the court had reflected on “ever
evolving” developments in the law, particularly in
conjunction with an advisory guidelines calculation
determined on the same date, in the case United States v.
Hakeem Johnson, No. 7:15-CR-54-FL-1, 2016 WL 7168064
(E.D. N.C. Dec. 8, 2016) (hereinafter “Hakeem
Johnson”). The court continued the sentencing
hearing, however, for further development of the record
concerning the government's motion for upward departure.
Ultimately, at final sentencing hearing held April 5, 2017,
the court again reconsidered the base offense level
determination, calculating a base offense level 20, over the
objection of the government. This memorandum opinion explains
the court's basis for reaching that conclusion.
court begins its analysis by using the Guidelines Manual in
effect on the date that the defendant was sentenced, the most
current, 2016, version of the Guidelines Manual. See
U.S.S.G. § 1B1.11(a). As noted above, § 2K2.1(a)
provides for a heightened base offense level where a
defendant has a prior conviction for a “crime of
violence.” See, e.g., § 2K2.1(a)(3).
Section 2K2.1 does not itself define the term “crime of
violence”; rather, it cross references § 4B1.2(a).
See § 2K2.1 n.1 (“‘Crime of
violence' has the meaning given that term in § 4B1.2
(a) and Application Note 1 of the Commentary to §
4B1.2.”). Section 4B1.2(a) defines the phrase
“crime of violence” as follows:
term “crime of violence” means 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 murder, voluntary manslaughter, kidnapping, aggravated
assault, a forcible sex offense, robbery, arson, extortion,
or the use or unlawful possession of a firearm . . . or
explosive material. . . .
§ 4B1.2(a). Hereinafter, the court refers to subsection
(1) of this definition as the “use of force”
provision, and subsection (2) of this definition as the
“enumerated offense” provision. The government
suggests that defendant's prior AWDWISI conviction
qualifies as a crime of violence either under the use of
force provision or as an enumerated offense of aggravated
assault. The court addresses each in turn.
respect to the use of force provision, the Supreme Court,
interpreting the identically worded provision in 18 U.S.C.
§924(e)(2)(B)(I), has held that “[u]se of physical
force” against another requires “a higher degree
of intent than negligent or merely accidental conduct.”
Leocal v. Ashcroft, 543 U.S. 1, 9 (2004). Likewise,
the Fourth Circuit has held that mere “[r]ecklessness,
like negligence, is not enough to support a determination
that a crime is a ‘crime of violence.'”
United States v. Vinson, 805 F.3d 120, 125 (4th Cir.
2015) (quotations omitted); see also United States v.
Travis, 149 F.Supp.3d 596, 599 (E.D. N.C. 2016)
(“defendant must have purposefully or knowingly applied
the requisite force against his victim; negligently or
recklessly applied force falls outside the scope of the
‘use of physical force' provision”). In
addition, “the phrase ‘physical force' means
violent force - that is, force capable of causing
physical pain or injury to another person.” Johnson
v. United States, 559 U.S. 133, 140 (2010).
court previously has held that the offense of AWDWISI does
not meet the threshold intent required to qualify as a crime
of violence under the use of force clause. See United
States v. Geddie, 125 F.Supp.3d 592, 599-601 (E.D. N.C.
2015) (holding that N.C. Gen. Stat. § 14-32(b), is not a
violent felony under the ACCA, because such offense lacks a
specific intent element, and requires only “culpable or
criminal negligence” for a conviction). Absent binding
or persuasive authority to the contrary, the court continues