United States v. Townsend

• Decision Date: 30 March 2018
• Docket Number: No. 16-6443,16-6443
• Citation: 886 F.3d 441
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Corey Fleamon TOWNSEND, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

886 F.3d 441

UNITED STATES of America, Plaintiff–Appellee,

v.Corey Fleamon TOWNSEND, Defendant–Appellant.

No. 16-6443

United States Court of Appeals, Fourth Circuit.

Argued: December 5, 2017

Decided: March 30, 2018

ARGUED: Michael Allen McIntosh, SKADDEN, ARPS, SLATE, MEAGHER & FLOM, LLP, Washington, D.C., for Appellant. Kyle David Pousson, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee. ON BRIEF: Sandra J. Hairston, Acting United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.

Before NIEMEYER and DUNCAN, Circuit Judges, and SHEDD, Senior Circuit Judge.

Affirmed by published opinion. Senior Judge Shedd wrote the opinion in which Judge Niemeyer and Judge Duncan joined.

SHEDD, Senior Circuit Judge:

Corey Townsend filed a motion under 28 U.S.C. § 2255 challenging the lawfulness of his sentence under the Armed Career Criminal Act ("ACCA") in light of Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), which held that the residual clause of the ACCA was unconstitutionally vague. The district court dismissed Townsend's motion. Because Townsend's prior conviction for North Carolina assault with a deadly weapon with intent to kill inflicting serious injury is categorically a violent felony under the force clause of the ACCA, we affirm.

I.

In 2010, Townsend was indicted for possession of a firearm by a felon under 18 U.S.C. § 922(g)(1). The indictment also charged Townsend as an armed career criminal under the ACCA, 18 U.S.C. § 924(e), alleging three prior instances of predicate felony conduct: (1) a 1998 conviction for robbery with a firearm; (2) 1998 convictions for assault with a deadly weapon with intent to kill inflicting serious injury ("AWDWIKISI") and assault with a deadly weapon inflicting serious injury ("AWDWISI"); and (3) 1989 convictions for breaking and entering, breaking and entering of a motor vehicle, larceny, possession of burglary tools, and possession of stolen goods. Prior to trial, Townsend pled guilty to the § 922(g)(1) charge.

Before sentencing, probation prepared a presentence investigation report ("PSR") recommending that Townsend receive an enhanced sentence under the ACCA because of his three prior instances of felony conduct. Townsend challenged his classification as an armed career criminal at sentencing, but he did not contest the representation in the PSR that he was convicted of AWDWIKISI or whether AWDWIKISI was categorically a violent felony. Over Townsend's objection, the district court found that Townsend qualified for the enhanced sentence under the ACCA based on his three prior instances of qualifying felony conduct and sentenced Townsend to 225 months of incarceration. Townsend appealed both his conviction and sentence, and we affirmed. United States v. Townsend , 453 Fed.Appx. 425 (4th Cir. 2011).

In 2013, Townsend filed a § 2255 motion challenging his sentence and specifically challenging the applicability of the ACCA. In 2015, the United States Supreme Court issued its opinion in Johnson , and Townsend amended his § 2255 motion to add a Johnson claim. The Government moved to dismiss and produced state court sentencing sheets to show each of Townsend's predicate felonies under the ACCA. After Townsend amended his complaint, a magistrate judge issued a Report and Recommendation ("R&R") recommending dismissal of Townsend's § 2255 petition but failing to specifically address whether Townsend's two North Carolina assault convictions qualified as ACCA predicates. The district court adopted the R&R, declined to issue a certificate of appealability, and dismissed the petition with prejudice. Townsend then appealed, and this court granted a certificate of appealability on the issue of whether Townsend's prior felony convictions for North Carolina AWDWIKISI and AWDWISI qualify as violent felonies under 18 U.S.C. § 924(e)(2)(B)(i).

II.

As a threshold matter, Townsend asserts for the first time in this appeal that he has two convictions for AWDWISI rather than one for AWDWIKISI and one for AWDWISI. Townsend did not dispute the existence of his AWDWIKISI conviction in his underlying criminal case, on direct appeal, or while his § 2255 motion proceeded in the district court. Assuming without deciding that Townsend may challenge the factual basis of his conviction for AWDWIKISI for the first time in this appeal, we hold the record clearly shows that Townsend has one conviction for AWDWIKISI and one conviction for AWDWISI rather than two convictions for AWDWISI.

The sentencing sheet at issue shows the two assault convictions and lists the same statute number ("G.S. No.")—14-32(b)—for both convictions.¹ However, the sentencing sheet also describes one conviction as "Assault with Deadly Weapon W/Int to Kill Inflicting Serious Injury" and the other as "Assault W/Deadly Weapon Inflicting Serious Injury" under "Offense Description," lists felony classes ("C" and "E," respectively) for each offense, and shows a sentence of 110 to 141 months. (J.A. 101.)

Townsend argues the sentencing sheet is ambiguous because it lists the statute criminalizing AWDWISI for both convictions and the alleged ambiguity must be resolved under Shepard v. U.S. , 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), by finding that Townsend has two AWDWISI convictions. Townsend's reliance on Shepard is misplaced. Shepard establishes which documents we may review when applying the modified categorical approach, but it does not limit courts in deciding whether a conviction actually exists. See United States v. Washington , 629 F.3d 403, 412 (4th Cir. 2011) (" Shepard 's strictures do not fully apply when determining the bare offense to which [the defendant] pled guilty."). Moreover, while this appeal was pending, the government notified the court pursuant to Federal Rule of Appellate Procedure 28(j) that a North Carolina state court amended the sentencing sheet and corrected the statute of conviction for the offense described as AWDWIKISI from 14-32(b) to 14-32(a), the statute that criminalizes AWDWIKISI. We may take judicial notice of facts outside the record where the fact may not be reasonably disputed and is "relevant and critical to the matter on appeal." See Colonial Penn Ins. Co. v. Coil , 887 F.2d 1236, 1239 (4th Cir. 1989) (citing Fed. R. Evid. 201 ) (also noting that court records are the most common type of judicially noticed records); see also United States v. McDonald , 617 Fed.Appx. 255, 258 (4th Cir. 2015) (taking judicial notice of state court judgments where the class of felony for a state conviction was disputed on appeal). There is no basis to dispute the fact of Townsend's AWDWIKISI conviction in light of the amended sentencing sheet.² Accordingly, we take judicial notice of the amended sentencing sheet showing that Townsend has one conviction for AWDWIKISI and one conviction for AWDWISI.³

III.

We next address whether AWDWIKISI is a violent felony under the ACCA, a question we review de novo. United States v. Doctor , 842 F.3d 306, 308 (4th Cir. 2016). "In determining whether an offense is a [violent felony] under [the ACCA], we utilize the categorical approach, which focuses solely on the elements of the offense, rather than on the facts of the case." United States v. McNeal , 818 F.3d 141, 152 (4th Cir. 2016).

A.

As relevant here, the ACCA provides for an enhanced mandatory minimum sentence of 15 years if the convicted person has three previous convictions for violent felonies. See 18 U.S.C. § 924(e)(1). A "violent felony" under the ACCA is "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."⁴ 18 U.S.C. § 924(e)(2)(B)(i) (the "force clause"). To determine whether a state offense is a violent felony, we examine the elements of the state offense as determined by the state's highest court and then decide whether those elements require the use, attempted use, or threatened use of physical force. See United States v. Burns–Johnson , 864 F.3d 313, 316 (4th Cir. 2017). "Use" of force means to act with a mens rea more culpable than negligence or recklessness. See Leocal v. Ashcroft , 543 U.S. 1, 11, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004) ; United States v. Vinson , 805 F.3d 120, 125–26 (4th Cir. 2015) (applying Leocal to the similarly-worded "use or attempted use of physical force" of 18 U.S.C. § 921(a)(33)(A) ). We look to the minimum conduct necessary to obtain a conviction under the statute and assure ourselves that there is a "realistic probability ... that a state would actually punish that conduct." Burns–Johnson , 864 F.3d at 316.

In this case, Townsend's statute of conviction, N.C. Gen. Stat. § 14-32(a), states that "[a]ny person who assaults another person with a deadly weapon with intent to kill and inflicts serious injury shall be punished as a Class C felon." The Supreme Court of North Carolina has interpreted the statute to include the following elements: 1) an assault, 2) with a deadly weapon, 3) an intent to kill, and 4) inflicting a serious injury not resulting in death. See State v. Grigsby , 351 N.C. 454, 526 S.E.2d 460, 462 (2000). Accordingly, to determine if AWDWIKISI has "use" of force as an element, we must decide whether proving intent to kill requires proving a mens rea greater than negligence or recklessness.

B.

Applying this framework, we conclude that AWDWIKISI is categorically a violent felony under the force clause of the ACCA because the intent to kill element of AWDWIKISI requires proof of a specific intent to kill.⁵ Two cases in particular illustrate that AWDWIKISI is a specific intent crime in North Carolina. In Grigsby , the Supreme Court of North Carolina reversed the Court of Appeals of North Carolina and held that the evidence established the defendant's intent to kill where the defendant attempted to rob a convenience store,...