U.S. v. Peterson

• Decision Date: 14 January 2011
• Docket Number: No. 08-4889,08-4889
• Citation: 629 F.3d 432
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John Anthony PETERSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

629 F.3d 432 UNITED STATES of America, Plaintiff-Appellee, v. John Anthony PETERSON, Defendant-Appellant. No. 08-4889. United States Court of Appeals, Fourth Circuit. Argued: Sept. 24, 2010. Decided: Jan. 14, 2011.

ARGUED: Slade Culli Trabucco, The Trabucco Law Firm, PA, Raleigh, North Carolina, for Appellant. Kristine L. Fritz, Office of the United States Attorney, Raleigh, North Carolina, for Appellee. ON BRIEF: George E.B. Holding, United States Attorney, Anne M. Hayes, Jennifer P. May-Parker, Assistant United States Attorneys, Office of the United States Attorney, Raleigh, North Carolina, for Appellee.

Before NIEMEYER, MOTZ, and GREGORY, Circuit Judges.

Vacated and remanded by published opinion. Judge NIEMEYER wrote the opinion, in which Judge MOTZ and Judge GREGORY joined.

OPINION

NIEMEYER, Circuit Judge:

After a jury convicted John Peterson on six counts of drug trafficking and firearms charges, the district court sentenced him to 420 months' imprisonment. In making its sentencing decision, the district court found that Peterson was a career offender under U.S.S.G. § 4B1.1(a), because he had two prior felony convictions of a crime of violence, one of which was a North Carolina conviction for involuntary manslaughter.

Peterson contends that his North Carolina manslaughter conviction was not a crime of violence, as defined in U.S.S.G. § 4B1.2(a) and that, therefore, he should not have been sentenced as a career offender.

We agree. Because Peterson's prior involuntary manslaughter conviction did not have any requirement of intent or mens rea, we conclude that it was not a crime of violence, as defined by U.S.S.G. § 4B1.2(a). Accordingly, we vacate Peterson's sentence and remand for resentencing.

I

A jury convicted Peterson in April 2008 of (1) conspiracy to distribute and possess with intent to distribute more than 50 grams of crack cocaine, in violation of 21 U.S.C. § 846; (2) distribution of more than five grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1); (3) distribution of more than 50 grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1); (4) possession of more than 50 grams of crack cocaine and quantities of cocaine powder, marijuana, and MDMA ("Ecstasy") with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1); (5) possession of firearms in furtherance of a drug trafficking offense, in violation of 18 U.S.C. § 924(c); and (6) unlawful possession of firearms by a felon, in violation of 18 U.S.C. § 921(g)(1).

In calculating Peterson's sentencing range for counts 1 through 4 and 6, the district court found that Peterson was a career offender, based on two prior convictions,one of which was a North Carolina conviction in 2001 for involuntary manslaughter. That conviction arose from an incident in which Peterson accidentally shot his close friend, William Reid, while the two were playing with what they believed (mistakenly) was an unloaded pistol. Overruling Peterson's objection to use of this conviction, the district court determined that the Guidelines sentencing range for these counts was 360 months to life imprisonment. The sentence for Count 5 was an additional, consecutive 60 months' imprisonment.

If the North Carolina conviction had not been used as a predicate offense under U.S.S.G. § 4B1.1(a), Peterson's Guidelines range would have been 168 to 210 months' imprisonment for Counts 1 through 4 and 6 and 60 consecutive months' imprisonment for Count 5.

The district court acknowledged that use of the North Carolina involuntary manslaughter conviction presented a "close call," but the court determined that it was bound by our decision in United States v. Payton, 28 F.3d 17 (4th Cir.1994), holding that a South Carolina conviction for involuntary manslaughter qualified as a predicate crime of violence under the predecessor to U.S.S.G. § 4B1.2(a).

The court sentenced Peterson to 420 months' imprisonment, which included concurrent 360-month terms of imprisonment on Counts 1 through 4, a concurrent 120-month sentence on Count 6, and a consecutive 60-month sentence on Count 5.

This appeal followed.

II

Peterson contends that his prior North Carolina conviction for involuntary manslaughter does not qualify as a "crime of violence," as defined by U.S.S.G. § 4B1.2(a), so as to make him a career offender under § 4B1.1(a). He argues that our 1994 decision in Payton, on which the district court relied, was implicitly overruled by the Supreme Court's 2008 decision in Begay v. United States, 553 U.S. 137, 144-45, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), holding that a conviction for a violent felony under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), had to involve conduct that was "purposeful, violent, and aggressive." He asserts that a North Carolina conviction for involuntary manslaughter was categorically not purposeful.

The government argues that Payton is still binding precedent and that Begay construed ACCA, not the Sentencing Guidelines, which have their own binding interpretive rubrics. Because Application Note 1 to U.S.S.G. § 4B1.2(a) includes "manslaughter" as a "crime of violence," without distinguishing voluntary from involuntary manslaughter, the government contends that Peterson's involuntary manslaughter conviction qualifies as a predicate offense, making him a career offender under U.S.S.G. § 4B1.2(a)(2).^*

Because resolution of the issue involves interpretation of the Sentencing Guidelines, we begin with the text. The Guidelines provide for a sentencing enhancement if the defendant is a "career offender." U.S.S.G. § 4B1.1(a). A career offender is defined as a defendant (1) who is "at least eighteen years old at the time the defendant committed the instant offense of conviction"; (2) whose instant offense is "a felony that is either a crime of violence or a controlled substance offense"; and (3) who "has atleast two prior felony convictions of either a crime of violence or a controlled substance offense." U.S.S.G. § 4B1.1(a) (emphasis added). The term "crime of violence" is, in turn, defined in § 4B1.2(a) as follows:

The 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 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). Application Note 1 to § 4B1.2(a) explains:

"Crime of violence" includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling. Other offenses are included as "crimes of violence" if (A) that offense has as an element the use, attempted use, or threatened use of physical force against the person of another, or (B) the conduct set forth ( i.e., expressly charged) in the count of which the defendant was convicted involved use of explosives (including any explosive material or destructive device) or, by its nature, presented a serious potential risk of physical injury to another.

U.S.S.G. § 4B1.2(a) cmt. 1 (emphasis added).

It is now established that this commentary to the Sentencing Guidelines is authoritative and binding, "unless it violates the Constitution or a federal statute, or is inconsistent with, or plainly erroneous reading of" the Guideline itself. Stinson v. United States, 508 U.S. 36, 38, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993). Because we find no inconsistency here, we treat the commentary as binding. See United States v. Seay, 553 F.3d 732, 737 (4th Cir.2009) (finding no inconsistency between U.S.S.G. § 4B1.2 and its commentary).

The parties' arguments suggest two ways by which a North Carolina conviction for involuntary manslaughter might be a crime of violence under U.S.S.G. § 4B1.1(a). North Carolina involuntary manslaughter might be "manslaughter" as explicitly included in § 4B1.2(a) cmt. 1, or it might be an offense that "otherwise involves conduct that presents a serious potential risk of physical injury to another" under § 4B1.2(a)(2). We address these two questions in order.

A

The first question, whether a North Carolina conviction for involuntary manslaughter is "manslaughter," raises two subsidiary questions: (1) what constitutes "manslaughter," as the term is used in the Sentencing Guidelines commentary, and (2) whether the North Carolina conviction for involuntary manslaughter qualifies as "manslaughter."

Courts employ a categorical approach in determining whether a prior conviction will lead to a sentence enhancement under the Sentencing Guidelines. Seay, 553 F.3d at 737 ("In determining whether a conviction qualifies as a crime of violence under the Sentencing Guidelines, we use the 'categorical approach' "); see also Taylor v. United States, 495 U.S. 575, 588, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) ("[T]he enhancement provision always has embodied a categorical approach to the designation of predicate offenses").

As described in Taylor, the categorical approach involves two steps. First, a court must distill a "generic" definition of the predicate offense based on how the offense is defined "in the criminal codes of most states." Taylor, 495 U.S. at 598, 110 S.Ct. 2143. The Taylor Court borrowed the "generic," "contemporary," and "modern" definition of burglary from the Model Penal Code and a modern criminal law textbook, which provided similar definitions. See id. & n. 8. Pointing out the necessity of distilling the generic crime of burglary, the Court rejected simply applying a single State's form of burglary. It explained that any definition of a predicate offense that would be determined by a single State's criminal law could result in unacceptable differences in applying federal law in sentencing defendants. Id. at 590-91, 110 S.Ct. 2143. "That would mean that...