USA v. Chuvala Vann

• Decision Date: 24 September 2010
• Docket Number: No. 09-4298.,09-4298.
• Citation: 620 F.3d 431
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Torrell Chuvala VANN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

620 F.3d 431

UNITED STATES of America, Plaintiff-Appellee,

v.Torrell Chuvala VANN, Defendant-Appellant.

No. 09-4298.

United States Court of Appeals,Fourth Circuit.

Argued: Jan. 27, 2010.

Decided: Sept. 24, 2010.

Rehearing En Banc Granted Jan. 6, 2011.

ARGUED: Eric Joseph Brignac, Office of the Federal Public Defender, Raleigh, North Carolina, for Appellant. Clay C. Wheeler, Office of the United States Attorney, Raleigh, North Carolina, for Appellee. ON BRIEF: Thomas P. McNamara, Federal Public Defender, G. Alan DuBois, Assistant Federal Public Defender, Office of the Federal Public Defender, Raleigh, North Carolina, for Appellant. George E.B. Holding, United States Attorney, Raleigh, North Carolina, for Appellee.

Before NIEMEYER, KING, and SHEDD, Circuit Judges.

Affirmed by published opinion. Judge NIEMEYER wrote the majority opinion, in which Judge SHEDD joined. Judge KING wrote a dissenting opinion.

OPINION

NIEMEYER, Circuit Judge:

This appeal presents the question whether Torrell Vann's sentence for possessing a firearm, in violation of 18 U.S.C. § 922(g), was properly enhanced under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), based on three previous convictions in North Carolina for taking indecent liberties with a child, in violation of N.C. Gen.Stat. § 14-202.1. To constitute a predicate offense under ACCA, a conviction must be either for a “serious drug offense” or for a “violent felony,” as defined in § 924(e)(2)(B) and interpreted by Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008). The district court relied on the North Carolina convictions to enhance Vann's sentence, and Vann challenges this ruling on appeal.

Because North Carolina's indecent liberties statute encompasses at least two separate crimes, we employ the modified categorical approach articulated in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), and conclude (1) that Vann's three prior convictions were based on his taking indecent liberties with a child by willfully committing a lewd or lascivious act upon the body of a child under the age of 16 and (2) that, as so formulated, his convictions were for violent felonies that serve as predicate offenses under ACCA. Accordingly, we affirm.

I

In the early morning hours of January 20, 2008, officers in Lumberton, North Carolina, responded to a 911 call from an ex-girlfriend of Torrell Vann, complaining that Vann was insisting that he be let inside her house. By the time officers arrived, however, Vann had left. About an hour later, Vann returned and entered the ex-girlfriend's house through an unlocked back door. When the ex-girlfriend asked him to leave, Vann pulled out a pistol, put it to his head, and threatened to kill himself if she would not talk to him. Although Vann put the weapon away when the ex-girlfriend became upset and eventually left the residence, the ex-girlfriend again called the police. A short time later, officers stopped Vann's vehicle, finding that his speech was slurred, his license had been suspended, and he was in possession of a Bersa .380 pistol and ammunition.

Vann was charged with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and the indictment included the allegation that Vann had three previous convictions for “violent felonies,” as defined in 18 U.S.C. § 924(e)(2)(B). Vann pleaded guilty to the charge pursuant to a written plea agreement.

In the presentence report, the probation officer found that Vann qualified as an armed career criminal under ACCA based on his three previous North Carolina convictions for taking indecent liberties with a child, in violation of N.C. Gen.Stat. § 14-202.1. Taking into account the ACCA enhancement, the probation officer calculated Vann's sentencing range under the Sentencing Guidelines as 180 to 210 months' imprisonment, with a mandatory minimum sentence of 180 months' imprisonment.

Vann objected to being classified as an armed career criminal, arguing that under Begay and United States v. Thornton, 554 F.3d 443 (4th Cir.2009) (holding that Virginia's carnal knowledge offense is not a violent felony under ACCA), his indecent liberties convictions were not for violent felonies for purposes of ACCA. The government argued that the issue was essentially controlled by United States v. Pierce, 278 F.3d 282 (4th Cir.2002) (holding that the offense of taking indecent liberties with a child, in violation of N.C. Gen.Stat. § 14-202.1, was a “crime of violence” for purposes of the career-offender enhancement under U.S.S.G. §§ 4B1.1, 4B1.2(a)).

The district court overruled Vann's objection, applied an enhancement under ACCA, and sentenced Vann to 180 months' imprisonment. This appeal followed.

II

A violation of 18 U.S.C. § 922(g) ordinarily carries a maximum sentence of 10 years' imprisonment. 18 U.S.C. § 924(a)(2). But ACCA provides a sentencing enhancement based on the defendant's criminal history, providing that a person who has “three previous convictions ... for a violent felony or a serious drug offense, or both, committed on occasions different from one another” must be sentenced to at least 15 years' imprisonment. Id. § 924(e)(1). The Act defines a “violent felony” as “any crime punishable by imprisonment for a term exceeding one year” 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 government contends that Vann's three prior convictions for taking indecent liberties with a child, in violation of N.C. Gen.Stat. § 14-202.1, are convictions for violent felonies within the meaning of ACCA, relying on our decision in Pierce, which held that a violation of the North Carolina indecent liberties statute categorically constitutes a “crime of violence,” as that term is defined in the context of the Sentencing Guidelines' career-offender enhancement. See Pierce, 278 F.3d at 284. In Pierce, we found that the offense prohibited by the North Carolina statute involved conduct that, “ ‘by its nature, present[s] a serious potential risk of physical injury to another,’ ” id. at 286 (quoting U.S.S.G. § 4B1.2, cmt. n.1), and also that the offense qualified as a “forcible sex offense”-which the Sentencing Guidelines' application notes explicitly list as a “crime of violence,” see U.S.S.G. § 4B1.2, cmt. n.1-because “[t]he North Carolina courts have consistently held that constructive force may be inferred in sexual abuse cases involving children,” 278 F.3d at 289. The government argues that Pierce's holding, even though made in the context of the Sentencing Guidelines, nonetheless requires us to find that the North Carolina crime “has as an element the use, attempted use, or threatened use of physical force against the person of another,” making it a violent felony under ACCA. 18 U.S.C. § 924(e)(2)(B)(i). The government also maintains that the offense qualifies as a violent felony because, as Pierce recognized, it “involves conduct that presents a serious potential risk of physical injury to another,” which is an alternative definition of a violent felony under ACCA. Id. § 924(e)(2)(B)(ii).

In contrast, Vann asserts that Pierce has been effectively overruled by the Supreme Court's holding in Begay that § 924(e)(2)(B)(ii) does not cover “ every crime that presents a serious potential risk of physical injury to another,” but only those “that are roughly similar, in kind as well as in degree of risk posed, to the examples” included in the definition of “violent felony”-namely, burglary, arson, extortion, and crimes involving the use of explosives. Begay, 553 U.S. at 142-43, 128 S.Ct. 1581 (internal quotation marks omitted). Vann contends further that holdings by North Carolina courts that a defendant need not touch the victim or, indeed, even be in the actual presence of the victim to violate the statute demonstrate that the taking indecent liberties offense does not have “as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i). Vann also argues that we should be guided by Thornton, a post- Begay decision, in which we held that Virginia's carnal knowledge offense-which makes it a crime to “carnally know[ ], without the use of force,” a child who is between 13 and 15 years old-is not a “violent felony” under ACCA. See Thornton, 554 F.3d at 444 (quoting Va.Code Ann. § 18.2-63).

The issue thus framed is whether a violation of North Carolina's indecent liberties statute is a “violent felony,” as defined in § 924(e)(2)(B) and interpreted by Begay.

To make that determination, ACCA requires application of a categorical approach by which the elements of the statute of conviction, not the facts supporting conviction, are evaluated to determine whether the crime qualifies as a predicate offense under ACCA. See Taylor v. United States, 495 U.S. 575, 599-602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990); Chambers v. United States, 555 U.S. 122, 129 S.Ct. 687, 690, 172 L.Ed.2d 484 (2009) (“[ACCA's] defining language, read naturally, uses ‘felony’ to refer to a crime as generally committed. And by so construing the statute, one avoids the practical difficulty of trying to ascertain at sentencing ... whether the present defendant's prior crime, as committed on a particular occasion, did or did not involve violent behavior”). The Supreme Court first announced this principle in Taylor, holding that “the only plausible interpretation of [ACCA] is that ... it generally requires the trial court to look only to the fact of conviction and the statutory definition of the prior offense.” 495 U.S. at 602, 110 S.Ct. 2143. The Court...