United States v. Simmons

• Decision Date: 04 March 2019
• Docket Number: No. 17-4618,17-4618
• Citation: 917 F.3d 312
• Parties: UNITED STATES of America, Plaintiff – Appellee, v. Tomonta SIMMONS, Defendant – Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

917 F.3d 312

UNITED STATES of America, Plaintiff – Appellee,

v.Tomonta SIMMONS, Defendant – Appellant.

No. 17-4618

United States Court of Appeals, Fourth Circuit.

Argued: December 13, 2018

Decided: March 4, 2019

Amended: March 6, 2019

ARGUED: Randolph Marshall Lee, Charlotte, North Carolina, for Appellant. Anthony Joseph Enright, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. ON BRIEF: R. Andrew Murray, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

Before GREGORY, Chief Judge, DUNCAN, and DIAZ, Circuit Judges.

Vacated and remanded by published opinion. Chief Judge Gregory authored the opinion, in which Judge Duncan and Judge Diaz joined. Judge Duncan wrote a concurring opinion.

GREGORY, Chief Judge:

Appellant Tomonta Simmons had his supervised release revoked and was sentenced to 36 months’ imprisonment after the district court determined that he committed the North Carolina offense of assault with a deadly weapon on a government official ("AWDWOGO") and four other violations of his release. Simmons’s revocation sentence was predicated on the district court’s determination that AWDWOGO is a "crime of violence" under the 2016 Sentencing Guidelines and, thus, a Grade A supervised release violation. Because we conclude that AWDWOGO is categorically not a "crime of violence," we find that the district court erred in classifying Simmons’s supervised release violations as a Grade A violation. This error anchored Simmons’s revocation sentence to an improperly calculated Guidelines range. Therefore, we vacate his revocation sentence and remand for resentencing.

I.

After a high-speed car chase on February 12, 2017 by North Carolina State Highway Patrol Trooper Gary Altman, during which Trooper Altman’s police vehicle was sideswiped, Tomonta Simmons and another male were arrested. At the time, Simmons was on supervised release after having served a term of federal imprisonment for conspiracy to commit bank fraud. One of the conditions of his supervised release was that he "not commit another federal, state, or local crime."

After the February 12 incident, the United States Probation Office petitioned the United States District Court for the Western District of North Carolina for revocation of Simmons’s supervised release. According to the Probation Office, Simmons had committed various supervised release violations. The most serious violation was the crime of AWDWOGO, N.C. Gen. Stat. § 14–34.2, which, Probation argued, Simmons committed while fleeing from Trooper Altman.

At a revocation hearing, Simmons argued that he had been a passenger, not the driver of the car involved in the alleged assault. The district court heard testimony from Trooper Altman and from Simmons’s mother and godmother. The court determined that Simmons was in fact driving the vehicle that sideswiped Trooper Altman’s vehicle and that the Government had proven each of the alleged supervised release violations.

Of relevance to this appeal, the district court found that Simmons had committed a Grade A supervised release violation when he committed North Carolina AWDWOGO. See U.S.S.G. § 7B1.1(a) (classifying supervised release violations into Grades A, B, and C). The district court revoked Simmons’s supervised release. See U.S.S.G. § 7B1.3(a)(1) ("Upon a finding of a Grade A or B violation, the court shall revoke probation or supervised release."). With Simmons’s criminal history category of V, the applicable Guidelines range for Simmons’s revocation sentence was 30 to 36 months. See U.S.S.G. § 7B1.4(a)(1) ; U.S.S.G. § 7B1.4(b)(1) ; 18 U.S.C. §§ 1344, 1349, 3559(a)(2), 3583(e)(3). The district court sentenced Simmons to the top of that range: 36 months’ imprisonment.

Simmons’s counsel initially filed a brief pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting that he was unable to present a meritorious argument on appeal because none of the evidence submitted during the revocation hearing contradicted Trooper Altman’s testimony that Simmons was driving the vehicle at the time of the police chase.¹ Fulfilling our obligation under Anders , we reviewed the record and identified one nonfrivolous issue on appeal: whether the North Carolina offense of AWDWOGO is a "crime of violence" under the 2016 Sentencing Guidelines such that it constituted a Grade A violation of Simmons’s supervised release.

Counsel for Simmons and the Government submitted supplemental briefing on this narrow issue. We now conclude that North Carolina AWDWOGO does not meet the definition of a "crime of violence" for purposes of U.S.S.G. § 7B1.1.

II.

Generally, we review de novo the issue of whether a predicate offense constitutes a "crime of violence" under the Sentencing Guidelines. United States v. Carthorne , 726 F.3d 503, 509 (4th Cir. 2013) ; United States v. Jenkins , 631 F.3d 680, 682 (4th Cir. 2011). However, when, as here, a defendant fails to object below to the district court’s determination that his predicate offense is a "crime of violence," we review the question for plain error. Carthorne , 726 F.3d at 509. We will find plain error "if the settled law of the Supreme Court or this circuit establishes that an error has occurred." United States v. Ramirez-Castillo , 748 F.3d 205, 215 (4th Cir. 2014).

III.

A.

As we alluded to earlier, the Sentencing Guidelines classify supervised release violations into three categories: Grades A, B, and C. U.S.S.G. § 7B1.1(a). A Grade A violation, as relevant here, involves "conduct constituting [ ] a federal, state, or local offense punishable by a term of imprisonment exceeding one year that [ ] is a crime of violence." Id. § 7B1.1(a)(1)(A)(i). The Guidelines define "crime of violence" as any federal or state offense punishable by imprisonment for a term exceeding one year that either "has as an element the use, attempted use, or threatened use of physical force against the person of another" (the force clause) or "is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. § 5845(a) or explosive material as defined in 18 U.S.C. § 841(c)" (the enumerated offenses clause). U.S.S.G. § 4B1.2(a) ; U.S.S.G. § 7B1.1 cmt. n.2.

To determine whether North Carolina AWDWOGO is a "crime of violence" under the Sentencing Guidelines, we apply the familiar categorical approach. Under this approach, if the offense "can be committed without satisfying the definition of ‘crime of violence,’ then it is overbroad and not a categorical match." United States v. Salmons , 873 F.3d 446, 448 (4th Cir. 2017) (citing Taylor v. United States , 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) ). In considering whether North Carolina AWDWOGO satisfies the definition of "crime of violence," we look only to the elements of AWDWOGO and not the particular facts of Simmons’s case. Mathis v. United States , ––– U.S. ––––, 136 S.Ct. 2243, 2248, 195 L.Ed.2d 604 (2016).

North Carolina’s statute provides in relevant part that "any person who commits an assault with a firearm or any other deadly weapon upon an officer or employee of the State or of any political subdivision of the State, ... in the performance of his duties shall be guilty of a Class F felony." N.C. Gen. Stat. § 14–34.2. Thus, an individual is guilty of AWDWOGO under North Carolina law if he (1) commits an assault; (2) with a firearm or deadly weapon; (3) on a government official; (4) who is performing a duty of his or her office. State v. Spellman , 167 N.C.App. 374, 605 S.E.2d 696, 701 (2004), appeal dismissed , 359 N.C. 325, 611 S.E.2d 845 (2005).²

Simmons does not dispute that the vehicle he drove qualifies as a deadly weapon. See State v. Jones , 353 N.C. 159, 538 S.E.2d 917, 922 (2000) ("It is well settled in North Carolina that an automobile can be a deadly weapon if it is driven in a reckless or dangerous manner." (citation omitted)). Rather, Simmons argues that his assault on Trooper Altman cannot be a "crime of violence" under the Guidelines because the offense may be committed with a mens rea lesser than that required by the Guidelines. The Government disagrees and argues that the offense satisfies both the enumerated offenses clause and the force clause. Because Simmons’s crime constitutes a Grade A supervised release violation if it satisfies either clause of the "crime of violence" definition, we examine both.

1.Enumerated Offenses Clause

In applying the categorical approach to determine if an offense falls within the scope of the enumerated offenses clause, we follow a "well-established procedure." United States v. McCollum , 885 F.3d 300, 304 (4th Cir. 2018). First, we must determine the " ‘generic, contemporary meaning’ of the crime, which will typically correspond to the ‘sense in which the term is now used in the criminal code of most states.’ " Id. (quoting Taylor , 495 U.S. at 598, 110 S.Ct. 2143 ). The generic definition may be gleaned from the Model Penal Code, modern criminal law textbooks, or from a survey of the states’ definitions of the crime. See Taylor , 495 U.S. at 598 n.8, 110 S.Ct. 2143 ; United States v. Barcenas-Yanez , 826 F.3d 752, 756 (4th Cir. 2016) ; United States v. Alfaro , 835 F.3d 470, 474 (4th Cir. 2016).

After the generic definition is identified, we must decide whether the elements of the prior conviction, AWDWOGO, categorically match the elements of the generic offense. United States v. Peterson , 629 F.3d 432, 436 (4th Cir. 2011). We will find a categorical match if the least culpable conduct punished by the state criminal statute falls within the scope of the generic offense. United States v. King , 673 F.3d 274, 278 (4th Cir. 2012). In conducting this comparison, we "look[ ] only to the statutory definitions of the prior offenses, and not to the particular facts underlying those convictions." Peterson , 629...