United States v. Collins

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JEROME COLLINS, Defendant - Appellant.

No. 18-4525

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Argued: December 11, 2019

March 31, 2020

UNPUBLISHED

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad, Jr., District Judge. (3:17-cr-00239-RJC-DCK-1)

Before GREGORY, Chief Judge, and FLOYD and THACKER, Circuit Judges.

Affirmed by unpublished opinion. Judge Thacker wrote the opinion, in which Judge Floyd joined. Chief Judge Gregory wrote a dissenting opinion.

ARGUED: Melissa Susanne Baldwin, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. Anthony Joseph Enright, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. ON BRIEF: Anthony Martinez, Federal Public Defender, Charlotte, North Carolina, Joshua B. Carpenter, Appellate Chief, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North Carolina, for Appellant. R. Andrew Murray, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

THACKER, Circuit Judge:

Jerome Collins ("Appellant") pled guilty to possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g). Because the district court determined Appellant had two prior convictions for crimes of violence, it calculated Appellant's base offense level as 24 pursuant to section 2K2.1(a)(2) of the United States Sentencing Guidelines ("Guidelines"). But, on appeal, Appellant argues the district court erred in classifying one of his prior convictions -- a New York conviction for attempted assault in the first degree -- as a crime of violence because, according to Appellant, New York attempt is broader than generic attempt. Because we conclude Appellant's prior New York conviction for attempted assault in the first degree is a crime of violence as defined by the Guidelines' "force clause," we affirm.

I.

In 2017, Appellant pled guilty to possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g). Prior to sentencing, the probation officer prepared a Presentence Investigation Report ("PSR") which identified relevant conduct attributable to Appellant. The PSR identified Appellant had two prior convictions for crimes of violence pursuant to Guidelines section 4B1.2 -- a North Carolina common law robbery conviction and a New York conviction for attempted assault in the first degree, in violation of N.Y. Penal Law section 110.00 and section 120.10(1). Based on these two prior crimes of violence, the Guidelines specified a base offense level of 24. See U.S.S.G. § 2K2.1 (2018) (prescribing a base offense level of 24 "if the defendant committed any part of the instant offense subsequent to sustaining at least two felony convictions" for crimes of violence).Appellant challenged the PSR calculation, arguing his prior New York conviction does not qualify as a crime of violence.¹ Without this crime of violence, Appellant's base offense level would decrease to 20.

At sentencing, the district court overruled Appellant's objection. The district court held the New York conviction "ha[s] the elements sufficient to meet the force clause, and also appears to be largely consistent with aggravated assault so that it meets the enumerated clause provision." J.A. 40-41.² After calculating a Guidelines range of 77 to 96 months of imprisonment, the district court sentenced Appellant to 84 months. Appellant timely appealed.

Because Appellant challenges his criminal sentence, we possess jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

II.

Ordinarily, this Court considers "de novo whether a defendant's prior offense qualifies as a crime of violence under the career offender guidelines." United States v. Riley, 856 F.3d 326, 327-28 (4th Cir. 2017). However, when an appellant fails to preserve the error by properly objecting below, we review only for plain error. See United States v. Bennett, 698 F.3d 194, 200 (4th Cir. 2012). To preserve an issue for appeal, "an objection [or argument] must be timely and state the grounds on which it is based." In re UnderSeal, 749 F.3d 276, 287 (4th Cir. 2014) (alteration in original) (internal quotation marks omitted).

The parties disagree as to whether Appellant properly preserved this issue for appeal. In the district court, Appellant argued New York attempted assault is not a crime of violence because New York assault is not a categorical match for generic assault. In this Court, however, Appellant abandoned that argument and argues only that New York attempt is broader than generic attempt. Appellant argues his objection to the classification of the offense as a crime of violence was sufficient to preserve the issue. The Government, on the other hand, argues the objection was too generic to properly alert the district court to the true "grounds on which it [was] based." In re Under Seal, 749 F.3d at 287.

Because Appellant does not prevail even under the preserved error standard, we need not decide whether Appellant's objection was sufficient to preserve the error. We assume the standard of review is de novo. See United States v. Zayyad, 741 F.3d 452, 459 (4th Cir. 2014) (assuming the appellant preserved the issue where he could not prevail even under the presumed error standard of review); see also United States v. Palacios, 677 F.3d 234, 245 n.6 (4th Cir. 2012) (same).

III.

A.

The base offense level for a conviction pursuant to 18 U.S.C. § 922(g) is level 24 "if the defendant committed any part of the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense." U.S.S.G. § 2K2.1(a)(2). To define a "crime of violence," the relevant section of theGuidelines cites directly to the career offender Guidelines. Id. at § 2K2.1 cmt. n.1. There, a crime of violence is defined as any state or federal offense punishable by imprisonment for a term exceeding one year, that

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another [the force clause], or

(2) is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion or the use or unlawful possession of a firearm . . . or explosive material [the enumerated offense clause].

Id. § 4B1.2(a). A crime of violence "include[s] the offenses of aiding and abetting, conspiring, and attempting to commit such offenses." Id. at cmt. n.1.

To determine whether the offense is a crime of violence under either the force clause or the enumerated clause, we employ the "categorical approach." See Taylor v. United States, 495 U.S. 575, 600 (1990); United States v. Hammond, 912 F.3d 658, 661 (4th Cir. 2019). The categorical approach "focus[es] solely on . . . the elements of the crime of conviction . . . while ignoring the particular facts of the case." Mathis v. United States, 136 S. Ct. 2243, 2248 (2016) (citation omitted). "The point of the categorical inquiry is not to determine whether the defendant's conduct could support a conviction for a crime of violence, but to determine whether the defendant was in fact convicted of a crime that qualifies as a crime of violence." United States v. McCollum, 885 F.3d 300, 304 (4th Cir. 2018) (emphases in original) (internal quotation marks omitted).

Applying the categorical approach first requires us to determine "what crime, with what elements, [Appellant] was convicted of." Mathis, 136 S. Ct. at 2249. This task issimplest when the prior offense comes from a statute setting forth a single set of elements, otherwise called an "indivisible" statute. Id. at 2248. However, when a statute "list[s] elements in the alternative, and thereby define[s] multiple crimes," the statute is considered "divisible." Id. at 2249. When faced with a divisible statute, we apply the modified categorical approach, which allows us to look to a limited class of documents to determine "which statutory phrase was the basis for the conviction." Johnson v. United States, 559 U.S. 133, 144 (2010). After determining which elements make up Appellant's crime of conviction, we determine whether the offense categorically matches the federally defined "generic" offense. Mathis, 136 S. Ct. at 2249.

For purposes of the force clause, we consider whether the state crime at issue has as an element the "use, attempted use, or threatened use of physical force against the person of another." U.S.S.G. § 4B1.2(a)(1). Because our analysis is limited to the conduct the state offense "necessarily involved, . . . we must presume that the conviction 'rested upon [nothing] more than the least of th[e] acts' criminalized." Moncrieffe v. Holder, 569 U.S. 184, 190-91 (2013) (quoting Johnson, 559 U.S. at 137) (alterations in original). In evaluating whether a state offense meets this definition, "we look to state law and the interpretation of [the] offense articulated by that state's courts." United States v. Bell, 901 F.3d 455, 469 (4th Cir. 2018) (internal quotation marks omitted) (alteration in original). The definition of the term "physical force," however, and the separate question of whetherthe elements of a state offense satisfy that definition, present issues of federal law. Johnson, 559 U.S. at 138.

B.

Appellant's prior conviction was for attempted first degree assault. In New York, a person is guilty of assault in the first degree when,

1. With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument; or

2. With intent to disfigure another person seriously and permanently, or to destroy, amputate or disable permanently a member or organ of his body, he causes such injury to such person or to a third person; or

3. Under circumstances evincing a

...