United States v. Shell

• Citation: 789 F.3d 335
• Decision Date: 12 June 2015
• Docket Number: No. 14–4211.,14–4211.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Aaron Eugene SHELL, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

789 F.3d 335

UNITED STATES of America, Plaintiff–Appellee

v.Aaron Eugene SHELL, Defendant–Appellant.

No. 14–4211.

United States Court of Appeals, Fourth Circuit.

Argued: March 25, 2015.

Decided: June 12, 2015.

ARGUED:Joshua B. Carpenter, Federal Defenders Of Western North Carolina, Inc., Asheville, North Carolina, for Appellant. William Michael Miller, Office of the United States Attorney, Charlotte, North Carolina, for Appellee. ON BRIEF:Ross Hall Richardson, Acting Executive Director, Federal Defenders of Western North Carolina, Inc., Charlotte, North Carolina, for Appellant. Anne M. Tompkins, United States Attorney, Office of the United States Attorney, Charlotte, North Carolina, for Appellee.

Before WILKINSON and HARRIS, Circuit Judges, and DAVIS, Senior Circuit Judge.

Opinion

Vacated and remanded by published opinion. Judge HARRIS wrote the majority opinion, in which Senior Judge DAVIS joined. Judge WILKINSON wrote a dissenting opinion.

PAMELA HARRIS, Circuit Judge:

Defendant–Appellant Aaron Eugene Shell (“Shell”) pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g) (2012). At sentencing, the district court applied an enhanced base offense level on the ground that Shell's prior North Carolina conviction for second-degree rape constituted a crime of violence under the U.S. Sentencing Guidelines Manual (“U.S.S.G.” or the “Guidelines”) § 2K2.1(a)(4)(A) (2014). The district court also applied a two-level enhancement for obstruction of justice pursuant to Guidelines § 3C1.2, concluding that Shell recklessly created a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer. On appeal, Shell challenges the district court's application of both enhancements. For the reasons that follow, we vacate Shell's sentence and remand for resentencing.

I.

On December 27, 2012, Shell was driving southbound on Highway 321 in Caldwell County, North Carolina. North Carolina Trooper Christopher Hodges (“Hodges”), traveling northbound, saw Shell speeding and turned around to follow him. By the time Hodges was able to complete the turn, Shell had disappeared from vehicle had veered off the road and down an embankment.

As he fled the scene of the accident, Shell discarded a bag behind a tree. Officers searched the bag and found a loaded semiautomatic pistol. Several days later, Shell voluntarily submitted to a police interview and admitted that he was the driver of the vehicle and was in possession of the firearm.

Shell was charged with one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g), and pleaded guilty. The presentence report (“PSR”) recommended raising Shell's base offense level from 14 to 20 under U.S.S.G. § 2K2.1(a)(4)(A), on the ground that Shell committed the instant offense after a prior felony conviction for a “crime of violence”—here, a North Carolina conviction for second-degree rape. The PSR also recommended a two-level enhancement for obstruction of justice, pursuant to U.S.S.G. § 3C1.2, because Shell's reckless driving in the course of fleeing from a law enforcement officer created a substantial risk of death or serious bodily injury to another person. Applying those provisions, the PSR calculated a Guidelines range of 57 to 71 months' imprisonment.

Shell objected to both enhancements. At sentencing, the district court overruled Shell's objections. As to reckless endangerment under § 3C1.2, the district court credited a witness who testified that Shell sped, skidded, and almost hit her vehicle, and thus concluded that Shell created a substantial risk of death in the course of fleeing from a law enforcement officer. The court also held that Shell's prior second-degree rape conviction qualified as a “crime of violence” under § 2K2.1.

The district court adopted the PSR and sentenced Shell to 57 months' imprisonment and three years of supervised release. Shell appeals, challenging the district court's application of both enhancements.

II.

A.

Under the Guidelines, a defendant convicted of being a felon in possession of a firearm receives an enhanced base offense level of 20 if he or she has committed a prior “crime of violence,” as defined in Guidelines § 4B1.2. U.S.S.G. § 2K2.1 cmt. n. 1. Shell argues that the district court erred in characterizing his North Carolina conviction for second-degree rape as a crime of violence because the state statute does not require the use of physical force, and may instead be violated through constructive force or the absence of legally valid consent. We review de novo that question of law. United States v. Montes–Flores, 736 F.3d 357, 363 (4th Cir.2013).

The parties agree that in considering whether Shell's North Carolina conviction constitutes a crime of violence, we must apply what is called the “categorical approach,” which “focus[es] on the elements, rather than the facts,” of the prior offense. United States v. Carthorne, 726 F.3d 503, 511 (4th Cir.2013) (quoting Descamps v. United States, ––– U.S. ––––, 133 S.Ct. 2276, 2285, 186 L.Ed.2d 438 (2013) ). What matters for the categorical approach is how the law defines the offense generically, and not the particulars of how an individual might have committed the offense on a given occasion. Begay v. United States, 553 U.S. 137, 141, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008) ; United States v. Seay,

553 F.3d 732, 737 (4th Cir.2009).

The question we must decide, then, is whether the full range of conduct covered by North Carolina's second-degree rape statute, “including the most innocent conduct,” would qualify as a crime of violence for purposes of the § 4B1.2 enhancement. United States v. Diaz–Ibarra, 522 F.3d 343, 348, 352 (4th Cir.2008). If it is “evident from the statutory definition of the state crime that some violations of the statute are ‘crimes of violence’ and others are not,” then the state offense is deemed “categorically overbroad” and § 4B1.2 does not apply. United States v. Rangel–Castaneda, 709 F.3d 373, 376 (4th Cir.2013) (quoting Diaz–Ibarra, 522 F.3d at 348 ). Whether North Carolina second-degree rape categorically qualifies as a crime of violence under this approach is a question of first impression for our court, and for the reasons that follow, we agree with Shell that it does not.

B.

In comparing the elements of North Carolina second-degree rape to § 4B1.2's definition of “crime of violence,” we begin with the North Carolina statute and the state precedent construing it. North Carolina's second-degree rape statute consists of two separate offenses, providing that:

(a) A person is guilty of rape in the second degree if the person engages in vaginal intercourse with another person:

(1) By force and against the will of the other person; or

(2) Who is mentally disabled, mentally incapacitated, or physically helpless, and the person performing the act knows or should reasonably know the other person is mentally disabled, mentally incapacitated, or physically helpless.

N.C. Gen.Stat. § 14–27.3 (West 2004). Because the records of Shell's conviction do not specify which subsection of the statute formed the basis for his conviction, the parties agree, that conviction may be treated as a crime of violence only if both subsections so qualify.

The first subsection is applicable where “sexual intercourse is effectuated by force and against the victim's will.” State v. Atkins, 193 N.C.App. 200, 666 S.E.2d 809, 812 (2008). Under North Carolina law, that force requirement may be satisfied either by “actual, physical force or by constructive force in the form of fear, fright, or coercion.” State v. Etheridge, 319 N.C. 34, 352 S.E.2d 673, 680 (1987). Constructive force may be demonstrated by proof of compulsion or threats of force, and also will be inferred from certain relationships—such as a parent-child relationship—that are deemed inherently coercive. See id. at 680–82 ; State v. Morrison, 94 N.C.App. 517, 380 S.E.2d 608, 611–12 (1989).

The second subsection, by contrast, does not require the state to prove either force or the absence of consent. Atkins, 666 S.E.2d at 812. Instead, it applies to victims who are deemed by law incapable of validly consenting to intercourse or resisting sexual acts, State v. Williams, 207 N.C.App. 136, 698 S.E.2d 542, 544–45 (2010), and it is used by the state in cases where there is factual but legally insufficient consent, see State v. Ramey, No. COA10–1197, 214 N.C.App. 195, 2011 WL 3276720, at *4–5 (N.C.Ct.App. Aug. 2, 2011) (unpublished) (conviction for second-degree rape of mentally disabled victim who initiated intercourse). In this sense, it is analogous to the age element of North Carolina's statutory rape law: the fact of consent is not a defense where the victim is unable to give legally valid consent by virtue of age or by virtue of mental disability

. See Atkins, 666 S.E.2d at 812 (comparing second-degree and statutory rape and quoting legislative history: “In second degree rape, we are adding persons who are mentally defective, mentally incapacitated, or physically helpless. This is basically a statutory rape section....”); see also State v. Banks, 367 N.C. 652, 766 S.E.2d 334, 339 (2014) (statutory and second-degree rape “separately punish the act of intercourse with a victim who, because of her age, is unable to consent to the act, and the act of intercourse with a victim who, because of a mental disability or mental incapacity, is unable to consent to the act”).¹

C.

Our other point of comparison is the phrase “crime of violence,” as used in the Sentencing Guidelines.² As will become important in this case, different guideline provisions describe “crime of violence” differently. But Shell's sentence was enhanced for a prior crime of violence under U.S.S.G. § 2K2.1, which defines that term by reference to the career-offender guideline, U.S.S.G. § 4B1.2. U.S.S.G. § 2K2.1 cmt. n. 1. Section 4B1.2, in turn, defines a crime of violence as:

(a) ... any offense

...