660 F.3d 771 (4th Cir. 2011), 09-4298, United States v. Vann

• Citation: 660 F.3d 771
• Opinion Judge: PER CURIAM, for the en banc majority:
• Party Name: UNITED STATES of America, Plaintiff-Appellee, v. Torrell Chuvala VANN, Defendant-Appellant.
• Attorney: Eric Joseph Brignac, Office of the Federal Public Defender, Raleigh, North Carolina, for Appellant. Clay Campbell Wheeler, Office of the United States Attorney, Raleigh, North Carolina, for Appellee. Thomas P. McNamara, Federal Public Defender, G. Alan DuBois, Assistant Federal Public Defender, O...
• Judge Panel: Before TRAXLER, Chief Judge, and WILKINSON, NIEMEYER, MOTZ, KING, GREGORY, SHEDD, AGEE, DAVIS, KEENAN, WYNN, and DIAZ, Circuit Judges.[*] Vacated and remanded by published opinion. A PER CURIAM opinion, in which Chief Judge TRAXLER and Judges MOTZ, KING, GREGORY, AGEE, DAVIS, KEENAN, WYNN, and DI...
• Case Date: October 11, 2011
• Court: United States Courts of Appeals, U.S. Court of Appeals — Fourth Circuit

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660 F.3d 771 (4th Cir. 2011)

UNITED STATES of America, Plaintiff-Appellee,

v.

Torrell Chuvala VANN, Defendant-Appellant.

No. 09-4298.

United States Court of Appeals, Fourth Circuit.

October 11, 2011

Argued: May 11, 2011.

ARGUED:

Eric Joseph Brignac, Office of the Federal Public Defender, Raleigh, North Carolina, for Appellant.

Clay Campbell 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,

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Raleigh, North Carolina, for Appellant.

George E.B. Holding, United States Attorney, Jennifer P. May-Parker, Assistant United States Attorney, Office of the United States Attorney, Raleigh, North Carolina, for Appellee.

Before TRAXLER, Chief Judge, and WILKINSON, NIEMEYER, MOTZ, KING, GREGORY, SHEDD, AGEE, DAVIS, KEENAN, WYNN, and DIAZ, Circuit Judges.^[*]

Vacated and remanded by published opinion. A PER CURIAM opinion, in which Chief Judge TRAXLER and Judges MOTZ, KING, GREGORY, AGEE, DAVIS, KEENAN, WYNN, and DIAZ joined, was issued on behalf of the en banc majority. Judge KING wrote a concurring opinion, in which Judges MOTZ, GREGORY, and DAVIS joined. Judge AGEE wrote an opinion concurring in the judgment, concurring in the en banc majority opinion, and concurring in the opinion of Judge KEENAN. Judge DAVIS wrote a concurring opinion. Judge KEENAN wrote a concurring opinion, in which Chief Judge TRAXLER and Judges AGEE, WYNN, and DIAZ joined. Judge Wilkinson wrote an opinion concurring in the judgment. Judge NIEMEYER wrote an opinion concurring in part and dissenting in part, in which Judge SHEDD joined.

OPINION

PER CURIAM, for the en banc majority: ¹

On January 20, 2008, following a domestic altercation, Torrell Vann was arrested in possession of a handgun. In November of that year, the grand jury returned a single-count superseding indictment charging Vann with violating 18 U.S.C. §§ 922(g)(1) and 924. The indictment also alleged that Vann had at least three previous convictions for ACCA violent felonies, rendering him eligible for the sentencing enhancement provided for in § 924(e)(1). On December 15, 2008, Vann pleaded guilty to the offense charged, and his sentencing proceedings were scheduled for the following March.

A § 922(g) offense typically carries a statutory maximum sentence of ten years in prison. See § 924(a)(2). If the accused has three or more previous convictions for ACCA violent felonies, however, he is subject to an enhanced minimum sentence of fifteen years with a maximum of life imprisonment. See § 924(e)(1). Vann's presentence investigation report (the " PSR" ) reflected that he had three previous convictions for violating North Carolina General Statute section 14-202.1 (the " Indecent Liberties Statute" or " Statute" ) that, according to the probation officer, constituted ACCA violent felony convictions and subjected Vann to the sentencing enhancement.

The text of the Indecent Liberties Statute provides, in pertinent part, as follows:

(a) A person is guilty of taking indecent liberties with children if, being 16 years of age or more and at least five years older than the child in question, he either:

(1) Willfully takes or attempts to take any immoral, improper, or indecent liberties with any child of either sex under the age of 16 years for the

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purpose of arousing or gratifying sexual desire [" subsection (a)(1)" ]; or

(2) Willfully commits or attempts to commit any lewd or lascivious act upon or with the body or any part or member of the body of any child of either sex under the age of 16 years [" subsection (a)(2)" ].

N.C. Gen.Stat. § 14-202.1(a). The Statute plainly prohibits a wide range of objectionable acts and was designed to " encompass more types of deviant behavior, giving children broader protection than available under other statutes proscribing sexual acts." State v. Etheridge, 319 N.C. 34, 352 S.E.2d 673, 682 (1987).

Vann objected to the district court's application of the enhancement, asserting that recent Supreme Court and Fourth Circuit decisions undermined the PSR's contention that his previous convictions were for ACCA violent felonies. See Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008) (declining to designate New Mexico felony driving under influence (" DUI" ) offense as ACCA violent felony); United States v. Thornton, 554 F.3d 443 (4th Cir.2009) (same; Virginia statutory rape offense). The government, relying primarily on United States v. Pierce, 278 F.3d 282 (4th Cir.2002), responded that the PSR had correctly counted each of Vann's three previous indecent liberties offenses as ACCA violent felonies. In Pierce, decided six years prior to Begay, we ruled that a conviction under the Indecent Liberties Statute is a " crime of violence" as contemplated by the career offender enhancement of the Sentencing Guidelines. See 278 F.3d at 284. In so ruling, we reasoned that the conduct underlying such a conviction " creates a serious potential risk of physical injury." Id. ²

The district court rejected Vann's characterization of his three previous indecent liberties convictions, concluding that they were for ACCA violent felonies and that he was thus subject to § 924(e)(1)'s sentencing enhancement. As a result, on March 17, 2009, the court sentenced Vann to the statutory minimum of fifteen years in prison.³ Vann filed a timely notice of appeal, and we have appellate jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. A divided panel of this Court affirmed Vann's sentence, employing the " modified categorical approach" first announced in Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), for the purpose of analyzing prior offenses to determine whether they constitute ACCA violent felonies. See United States v. Vann, 620 F.3d 431 (4th Cir.2010). Upon granting Vann's petition for rehearing en banc, we vacated the panel opinion.

I.

A.

If we assume that we may resort to the modified categorical approach employed by

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the panel majority, and also assume that doing so would lead to the ineluctable conclusion that a subsection (a)(2) offense is a violent felony for ACCA purposes, the government nonetheless cannot prove that Vann was convicted of violating subsection (a)(2). Judge Niemeyer's separate opinion, concurring in part and dissenting in part (" the dissent" ), contends that because Vann's indecent liberties convictions arose from guilty pleas to conjunctively drawn indictments tracking the language of both (a)(1) and (a)(2), Vann necessarily pleaded guilty to violating both of those subsections. That position is untenable, however, as demonstrated by the legal principles generally applicable to charging documents.

First, it is settled that a charging document must allege conjunctively the disjunctive components of an underlying statute. See State v. Armstead, 149 N.C.App. 652, 562 S.E.2d 450, 452 (2002) (" Where a statute sets forth disjunctively several means or ways by which the offense may be committed, a warrant thereunder correctly charges them conjunctively." (internal quotation marks omitted)); see also United States v. Rhynes, 206 F.3d 349, 384 (4th Cir.1999) (" Where a statute is worded in the disjunctive, federal pleading requires the Government to charge in the conjunctive." ). ⁴ That Vann's predicate charging documents properly use the conjunctive term " and," rather than the disjunctive " or," does not mean that Vann " necessarily" pleaded guilty to subsection (a)(2). Similarly, in trials by jury, it has been established that a defendant convicted under a conjunctively charged indictment cannot be sentenced— in the absence of a special verdict identifying the factual bases for conviction— to a term of imprisonment exceeding the statutory maximum for the " least-punished" of the disjunctive statutory conduct. See Rhynes, 206 F.3d at 379-81.

Presented with a single charging document alleging alternative types of conduct in the conjunctive, the dissent effectively distinguishes a conviction like the one in Rhynes, obtained as the result of a jury verdict, from one like Vann's, which was entered on a guilty plea. The dissent draws this critical distinction on the basis of its theory that, when a defendant pleads guilty, he necessarily admits all allegations charged conjunctively. See post at 818-19. The opposite conclusion, however, is the better-reasoned view. See Omari v. Gonzales, 419 F.3d 303, 308 n. 10 (5th Cir.2005) (" Indictments often allege conjunctively elements that are disjunctive in the corresponding statute, and this does not require either that the government prove all of the statutorily disjunctive elements or that a defendant admit to all of them when pleading guilty." ); see also Malta-Espinoza v. Gonzales, 478 F.3d 1080, 1082 n. 3 (9th Cir.2007) (" [A] plea of guilty admits only the elements of the charge necessary for a conviction." ); Valansi v. Ashcroft, 278 F.3d 203, 214-17 (3d Cir.2002) (rejecting assertion that defendant's guilty plea to indictment charging embezzlement with " intent to injure and defraud" admitted both states of mind where intent to do either was sufficient to sustain conviction).⁵

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Furthermore, the dissent's theory is incompatible with our Rhynes precedent and its underlying principles, as enunciated in Edwards v. United States, 523 U.S. 511, 118 S.Ct. 1475, 140 L.Ed.2d 703 (1998), and United States v. Quicksey, 525 F.2d 337 (4th Cir.1975). See Rhynes, 206 F.3d at 379-81. The dissent's reliance on United States v. Gosselin World Wide Moving, N.V., 411 F.3d 502 (4th Cir.2005), post at 818-19, is misplaced, as that decision stands only for the proposition that a guilty plea admits " all the elements of a formal criminal charge." Id. at...