United States v. Carthorne

• Citation: 726 F.3d 503
• Decision Date: 13 August 2013
• Docket Number: No. 11–4870.,11–4870.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Jolon Devon CARTHORNE, Sr., Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

726 F.3d 503

UNITED STATES of America, Plaintiff–Appellee,

v.Jolon Devon CARTHORNE, Sr., Defendant–Appellant.

No. 11–4870.

United States Court of Appeals, Fourth Circuit.

Argued: Jan. 29, 2013.

Decided: Aug. 13, 2013.

ARGUED:Matthew McGavock Robinson, Robinson & Brandt, PSC, Covington, Kentucky, for Appellant. Anand P. Ramaswamy, Office of the United States Attorney, Greensboro, North Carolina, for Appellee. ON BRIEF:Ripley Rand, United States Attorney, Greensboro, North Carolina, for Appellee.

Before DAVIS and KEENAN, Circuit Judges, and JOHN A. GIBNEY, JR., United States District Judge for the Eastern District of Virginia, sitting by designation.

Affirmed by published opinion. Judge KEENAN wrote the majority opinion, in which Judge GIBNEY joined. Judge DAVIS wrote a separate opinion concurring in part and dissenting in part.

BARBARA MILANO KEENAN, Circuit Judge:

Jolon Devon Carthorne, Sr. was convicted upon his plea of guilty to possession with intent to distribute cocaine base and possession of a firearm in furtherance of a drug trafficking crime. The district court sentenced Carthorne to a term of 300 months' imprisonment, after determining that Carthorne had two predicate offenses rendering him a “career offender” under the Sentencing Guidelines. The issue before us on appeal is whether the district court committed plain error in holding that Carthorne's prior conviction for assault and battery of a police officer, in violation of Virginia Code § 18.2–57(C), categorically qualified as a “crime of violence,” and constituted a predicate offense for the career offender enhancement.

Upon our review, we hold that a conviction under Virginia Code § 18.2–57(C) is not categorically a crime of violence, because the offense of assault and battery referenced in that statute is defined by the common law, the elements of which do not substantiate a serious potential risk of injury in the usual case. However, we further hold that the district court did not commit plain error in reaching a contrary conclusion, given the absence of controlling authority and the divergence of opinion among our sister circuits. Accordingly, we affirm the district court's judgment.

I.

The facts of Carthorne's present offenses are not disputed. In December 2009, agents of the United States Marshals Service arrested Carthorne at a residence in Greensboro, North Carolina, pursuant to a warrant for an offense unrelated to the present case. While the agents were at the residence, they observed certain items in plain view that appeared to be cocaine base and digital scales. Law enforcement officers later returned to the residence with a search warrant, and seized a firearm, ammunition, a digital scale, 489.8 grams of cocaine base, and a shoe box containing $9,915. Carthorne later waived his Miranda rights, and admitted that he had possessed the cocaine base and had “handled” the firearm.

In June 2010, Carthorne pleaded guilty to two counts of a five-count indictment, namely, possession with intent to distribute 489.8 grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A) (the narcotics count), and possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i) (the firearm count). The government agreed to dismiss the remaining counts upon the district court's acceptance of Carthorne's guilty plea.

Although the parties' plea agreement did not contain any stipulations concerning calculations under the Sentencing Guidelines, the government agreed to recommend a three-level reduction in Carthorne's offense level based on acceptance of responsibility. The district court accepted Carthorne's guilty plea, and ordered the preparation of a presentence report.

In November 2010, a probation officer filed a final presentence report (the PSR).¹ In the PSR, the probation officer recommended that Carthorne be sentenced as a “career offender,” pursuant to U.S.S.G. § 4B1.1.² The probation officer identified two predicate offenses in support of the recommended career offender enhancement:(1) a felony conviction in 2003 for distribution of cocaine base; and (2) a felony conviction in 2002 for assault and battery of a police officer (the Virginia ABPO conviction), in violation of Virginia Code § 18.2–57(C). The district court determined that under the Guidelines, the cocaine distribution offense was a “controlled substance offense” under Section 4B1.2(b), and that the Virginia ABPO conviction was a “crime of violence,” within the meaning of Section 4B1.2(a).

The Virginia ABPO conviction arose after an incident in which, apparently without provocation, Carthorne spit in a police officer's face. The PSR provided the following description of the incident, to which Carthorne raised no objection: “On May 7, 2002, Lynchburg, Virginia, police officers were on foot patrol in the White Rock area of the city when the defendant walked toward the officers. An officer asked the defendant, ‘What's up?’, to which Defendant Carthorne replied, ‘What's up with your mother?’ and spit in the officer's face. The defendant was placed under arrest after a brief struggle.” As set forth in the PSR, Carthorne was found guilty in a Virginia state court of the felony offense of assault and battery of a law enforcement officer under Virginia Code § 18.2–57(C), and was sentenced to a term of three years' imprisonment, with all but six months suspended.

As a result of the district court's determination that Carthorne qualified as a “career offender” under the Guidelines, Carthorne's Guidelines range for the present offenses increased greatly. The probation officer initially stated in the PSR an adjusted offense level of 32 for the narcotics count but, based on Carthorne's career offender status, his offense level was increased to 37. U.S.S.G. § 4B1.1. Taking into account the three-point downward adjustment for acceptance of responsibility, Carthorne was assigned a total offense level of 34. The PSR also indicated that Carthorne had nine criminal history points for qualifying offenses, which otherwise would have resulted in a criminal history category of IV. However, Carthorne's career offender status automatically placed him in the highest criminal history category of VI.

Accordingly, based on an offense level of 34 and a criminal history category of VI on the narcotics count, as well as the consecutive mandatory minimum term of 60 months' imprisonment on the firearm count, the probation officer calculated Carthorne's Guidelines range as being between 322 and 387 months' imprisonment. Without the career offender enhancement, however, Carthorne's Guidelines range would have been between 181 and 211 months' imprisonment. ³ Carthorne did not file an objection to the PSR's conclusion that he should be classified as a career offender.⁴

At the sentencing hearing, the district court adopted the findings in the PSR. The district court determined that Carthorne qualified as a career offender, and that his Guidelines range was between 322 and 387 months' imprisonment.

The district court also heard argument from the parties regarding the sentencing factors set forth in 18 U.S.C. § 3553. Carthorne requested a downward departure or variance to achieve a total sentence of 180 months' imprisonment for both offenses, citing his cooperation with law enforcement officials and his family obligations.

Although the parties did not raise any issue at sentencing regarding whether the Virginia ABPO conviction qualified as a crime of violence, the district court asked Carthorne's counsel whether the court needed to reach any conclusions about the nature of the offense. Carthorne's counsel responded that he had researched the matter, and “would like to have been lucky to have found a case that says spitting on an officer is not an assault,” given that Carthorne “didn't hurt” the officer and that “[t]here was no violence.” However, counsel stated that he believed that such an argument would be “without merit,” based on his understanding of the categorical approach used to determine whether a particular offense constituted a crime of violence.

The district court found that the career offender enhancement was proper, especially in view of the Virginia ABPO conviction, which the court described as “almost an unfathomable offense.” The district court did not specify which clause of Section 4B1.2(a) the court relied on in determining that the Virginia ABPO conviction qualified as a crime of violence. However, the court stated that, “in light of Mr. Carthorne's cooperation, I will go to the low end of the guideline range and vary slightly in recognition of his unusual and extraordinary acceptance of responsibility.” Accordingly, the district court varied downward by 22 months from the low end of Carthorne's Guidelines range, and sentenced him to a term of 300 months' imprisonment.

II.

A.

We first consider the applicable standard of review. Carthorne contends that the issue whether a predicate offense qualifies as a crime of violence under the Guidelines is an issue of statutory construction that we review de novo. The government, however, asserts that because Carthorne failed to preserve this challenge in the district court, we should review the issue only for plain error.

Generally, we review de novo an issue of law whether a prior offense qualifies as a crime of violence for purposes of the Guidelines' career offender enhancement. United States v. Jenkins, 631 F.3d 680, 682 (4th Cir.2011). However, when a defendant has not objected to that classification before the district court, we review such a question for plain error. SeeFed.R.Crim.P. 52(b); United States v. Olano, 507 U.S. 725, 731–32, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).

Carthorne did not object to the district court's classification of the Virginia ABPO conviction as a crime of violence, even after the district court inquired about the issue, nor did Carthorne object to the court...