United States v. Geddie

Decision Date27 August 2015
Docket NumberNo. 5:14–CR–284–FL.,5:14–CR–284–FL.
Citation125 F.Supp.3d 592
CourtU.S. District Court — Eastern District of North Carolina
Parties UNITED STATES of America, v. Roger Alvester GEDDIE, Defendant.

Lauren Harrell Brennan, Robert E. Waters, Federal Public Defender, Raleigh, NC, for Defendant.

MEMORANDUM OPINION

LOUISE W. FLANAGAN, District Judge.

This matter comes before the court in furtherance of oral rulings made on defendant's objection to his classification as an armed career criminal, pursuant to the Armed Career Criminal Act of 1984 ("ACCA"), at time of sentencing, held August 11, 2015. More expansive basis for the court's decision to sustain defendant's objection is memorialized herein.

BACKGROUND

On February 12, 2015, without benefit of a written plea agreement, defendant pleaded guilty to a one count indictment wherein he was charged with possession of a firearm and ammunition by a convicted felon, a violation of 18 U.S.C. §§ 922(g)(1) & 924. The United States Probation Office calculated defendant's criminal history category to be a V and total offense conduct level to be a 30. Based on those calculations, the advisory Sentencing Guidelines recommended a sentence of 151–188 months.

In the usual case, defendant's sentence would have been statutorily capped at 120 months, the advice of the Guidelines notwithstanding. See 18 U.S.C. § 924(a)(2). However, defendant previously had been convicted of what the government contended were three violent felonies as that term is defined by the ACCA. The ACCA requires imposition of a mandatory minimum 15 year prison term for persons convicted of unlawful possession of a firearm under 18 U.S.C. 922(g), who have three prior state and/or federal convictions for violent felonies. 18 U.S.C. § 924(e)(1).1 "Violent felony" means any crime punishable by imprisonment for a term exceeding one year that has 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).

DISCUSSION

Defendant, age 48, has had multiple contacts with the criminal justice system, as described in the pre-sentence report ("PSR"), beginning at the age of 16. The PSR illuminates a rapidly escalating trend of criminal activity with commentary that four qualifying predicate convictions for violent felonies appear on his record. Defendant effectively concedes that he has two ACCA predicate convictions. The case devolves around import of conviction for assault with a deadly weapon inflicting serious injury ("AWDWISI"), in violation of N.C. Gen.Stat. § 14–32(b). Defendant argues that neither of the two convictions appearing on his record for AWDWISI may serve as the critical third predicate conviction, because these are not "violent felonies" for purposes of the ACCA.

Defendant relies upon this court's decision in United States v. Jones, No. 4:15–CR–5, 2015 WL 4133747 (E.D.N.C. July 8, 2015). In rejoinder, the government contends that N.C. Gen.Stat. § 14–32(b) is divisible in light of United States v. Vinson, 794 F.3d 418 (4th Cir.2015), an argument not previously raised before this court and well deserving of scrutiny.

A. Violent Felony

The ACCA's violent felony language follows closely the language of the advisory Guidelines' "career offender enhancement," which is triggered where defendant "has at least two prior felony convictions of either a crime of violence or controlled substance offense." U.S.S.G. § 4B1.1(a). In pertinent part, "crime of violence" is defined in the same manner as "violent felony," "any offense under federal or state law ... [that] has as an element the use, attempted use, or threatened use of physical force against the person of another." Compare U.S.S.G. § 4B1.2(a)(1)with 18 U.S.C. § 924(e)(2)(B). In fact, the language of the two statutes is so similar that the Fourth Circuit has instructed courts to "rely upon precedents evaluating whether an offense constitutes a violent felony under the [ACCA] interchangeably with precedents evaluating whether an offense constitutes a crime of violence under U.S.S.G. § 4B1.2(a)." United States v. Clay, 627 F.3d 959, 965 (4th Cir.2010).

B. Divisibility

This court previously decided that AWDWISI is not a "crime of violence" under the advisory Guidelines, which suggests the appropriate outcome in this case. United States v. Jones, No. 5:15–CR–5–FL, 2015 WL 4133747 (E.D.N.C. July 8, 2015) ("Jones (E.D.N.C.) "). In Jones (E.D.N.C.), as in every case, the court approached the issue categorically, looking "only to the fact of conviction and to the statutory definition of the prior offense." United States v. Montes–Flores, 736 F.3d 357, 364 (4th Cir.2013) (citing Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) ).

The government contends in this instance for the first time that N.C. Gen.Stat. § 14–32(b) is divisible and asks the court to apply a "modified categorical" analysis to the statute. A modification to the "categorical approach" is required when a statute is "divisible." See Descamps v. United States, ––– U.S. ––––, 133 S.Ct. 2276, 2283–84, 186 L.Ed.2d 438 (2013) ; Vinson, 794 F.3d at 421–22. When the statute of conviction for the underlying crime "consists of multiple, alternative elements creating several different crimes, some of which would match the generic federal offense and others that would not" then the court may examine a limited universe of documents to determine whether the defendant was convicted for committing the underlying crime in a manner that categorically qualifies as a violent felony. See Vinson, 794 F.3d at 421–22. As such, the "modified categorical approach" is not a deviation from the categorical approach but a "tool for implementing the categorical approach." Descamps, 133 S.Ct. at 2284.

The government contends that the statute is divisible in two respects. First, the government contends the statute is divisible in light of Vinson's determination that the term "assault" is divisible, and that one of the constituent crimes comprising "assault" categorically can be a "misdemeanor crime of domestic violence" under a similar statute. See Vinson, 794 F.3d at 424–27. Second, the government argues that the statute is divisible because it criminalizes a broad spectrum of culpable conduct, including conduct that either is purposeful or is criminally negligent. See State v. Jones, 353 N.C. 159, 164–65, 538 S.E.2d 917 (2000) ("Jones (N.C.) "). For the reasons that follow, the court finds that the statute is not divisible.

1. United States v. Vinson

Turning first to the government's contention that the statute is divisible along its "assault" element, the court is not persuaded. To obtain a conviction for AWDWISI the state must demonstrate 1) an assault, 2) with a deadly weapon, 3) inflicting serious injury, 4) not resulting in death. Jones (N.C.), 353 N.C. at 164, 538 S.E.2d 917. The government would have the court carve the element of assault into three constituent crimes, as the Fourth Circuit did in Vinson. However, this statute is not susceptible to the same divisibility analysis as the statute before the court in Vinson.

In that case, the government charged defendant with possession of a firearm by a prohibited person, in violation of 18 U.S.C. § 922(g)(9). Vinson, 794 F.3d at 420–21. The government contended that the defendant was a prohibited person because he had "been convicted ... of a misdemeanor crime of domestic violence." Id. See generally 18 U.S.C. § 922(g)(9). "Misdemeanor crime of domestic violence," ("MCDV"), is a term of art defined, as relevant here, as any crime that "has, as an element, the use or attempted use of physical force ... committed by a current or former spouse." 18 U.S.C. § 921(a)(33)(A). In Vinson the government argued that the defendant had been convicted of a MCDV because he had been convicted of a violation of N.C. Gen.Stat. § 14–33, which provides in pertinent part "any person who commits any assault ... is guilty of a Class A1 misdemeanor if, in the course of the assault, assault and battery, or affray, he or she ... [a]ssaults a female, he being a male person at least 18 years of age" N.C. Gen.Stat. § 14–33(c)(2) ; see also Vinson, 794 F.3d at 424–27. The district court dismissed the indictment, concluding the offense did not categorically qualify as a misdemeanor crime of violence. Vinson, 794 F.3d at 420–21 ; see also United States v. Vinson, No. 5:13–CR–121–FL, 2013 WL 6843013 (E.D.N.C. Dec. 27, 2013).

The Fourth Circuit reversed, and held that the term "assault," as used in N.C. Gen.Stat. § 14–33(c)(2) was divisible into three constituent crimes: 1) assault by a show of force causing reasonable apprehension in the victim; 2) assault by an attempted battery; and 3) assault by a completed battery. See Vinson, 794 F.3d at 424–27. The court reasoned that these were separate crimes and held that the crime of assault by a completed battery qualified as a misdemeanor crime of domestic violence in light of the Supreme Court's decision in United States v. Castleman, ––– U.S. ––––, 134 S.Ct. 1405, 1413, 188 L.Ed.2d 426 (2014). Vinson, 794 F.3d at 420–21.2

Strictly speaking, the nature of N.C. Gen.Stat. § 14–32(b) and its attendant elements foreclose on the government's divisibility argument. Assault with a deadly weapon inflicting serious injury, as the title implies, actually contemplates a completed battery that inflicts serious injury short of death. See Jones (N.C.), 353 N.C. at 164–65, 538 S.E.2d 917. Thus, the statute technically cannot be divisible despite its explicit "assault" element.

Regardless of semantics, the import of the government's argument is clear. The government contends that because AWDWISI actually is a battery and because Vinson held that a battery categorically qualifies as a MCDV under 18 U.S.C. § 921(a)(33)(A)'s "use of force" clause, it naturally must follow that AWDWISI categorically qualifies as a "violent felony" under the ACCA's own "use of force" clause. See 18 U.S.C. § 924(e)(2)(B).

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