United States v. Pratt

1

UNITED STATES OF AMERICA v. JAMES PRATT

CRIMINAL ACTION No. 5:22-cr-00106

United States District Court, S.D. West Virginia, Beckley

April 13, 2023

MEMORANDUM OPINION AND ORDER

Frank W. Volk, Judge.

Pending is the Government's objection to the Presentence Investigation Report (“PSR”).

On February 3, 2023, the Court convened for sentencing but ultimately continued the matter and directed the parties to submit briefing on whether Mr. Pratt's 2013 conviction for child abuse resulting in injury, in violation of West Virginia Code § 61-8D-3(a), categorically qualifies as his second predicate crime of violence offense, which would warrant a four-level increase to his base offense level under U.S.S.G. § 2K2.1(a)(2). The parties timely filed their briefs and responses. [Docs. 74-76].

I.

On October 20, 2022, Mr. Pratt pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C §§ 922(g)(1) and 924(a)(2). The PSR calculated Mr Pratt's base offense level as 20 pursuant to U.S.S.G § 2K2.1(a)(4)(A)^[1] inasmuch as he committed the instant offense subsequent to sustaining a 2011 felony conviction for first degree robbery in violation of W.Va. Code § 61-2-12, which qualifies as a predicate crime of violence offense. See United States v. Salmons, 873 F.3d 446, 449 (4th Cir. 2017).^[2]

The Government objects to this calculation and contends Mr. Pratt's base offense level is properly determined pursuant to Section 2K2.1(a)(2), which increases the base offense level to 24 if “the defendant committed the instant offense subsequent to sustaining at least two felony convictions of . . . a crime of violence . . . offense.” U.S.S.G. § 2K2.1(a)(2) (emphasis added). The Government avers Mr. Pratt's 2013 child abuse resulting in injury conviction in violation of W.Va. Code § 61-8D-3(a) -- in addition to his first degree robbery conviction -constitutes a second qualifying predicate crime of violence offense under the force clause set forth in Section 4B1.2(a)(1). Based upon the statutory definitions of “abuse” and “bodily injury,” the Government contends “the minimum conduct required to convict a defendant of child abuse resulting in injury is a non-accidental infliction of physical injury that impairs a child's physical condition,” which necessarily “involve[s] the use of physical force against the child.” [Doc. 74 at 4].

The Government further avers a conviction under the child abuse statute requires proof of a mens rea more culpable than reckless or negligent conduct inasmuch as “a defendant must act purposefully or intentionally in a way that is not an accident” to be convicted of the offense. [Id. at 5]. The Government thus maintains Mr. Pratt's child abuse resulting in injury conviction qualifies as a second predicate crime of violence offense, warranting a base offense level of 24 under U.S.S.G. § 2K2.1(a)(2).

Mr. Pratt, however, contends his child abuse resulting in injury conviction is not a qualifying predicate crime of violence offense inasmuch as the statute itself and the statute's definition of “abuse” is silent as to the mens rea necessary to complete the offense and thus can be violated with reckless or negligent conduct. [Doc. 75 at 3-4]. In support of this position, Mr. Pratt cites two other child endangerment statutes -- W.Va. Code § 61-8D-2(a)^[3] and W.Va. Code § 61-8D-4(c)^[4] -- each of which explicitly specify a means rea necessary for a violation thereof either in the statute itself or its accompanying definitions unlike Mr. Pratt's statute of conviction. Accordingly, Mr. Pratt avers the PSR properly calculated his base offense level as 20 pursuant to U.S.S.G. § 2K2.1(a)(4)(A) based upon his single crime of violence conviction for first degree robbery. [Id. at 5].

II.

The phrase “crime of violence” in U.S.S.G. § 2K2.1(a) has the same meaning given that term in Section 4B1.2(a) of the Guidelines, which pertinently defines a “crime of violence” as “any offense under federal or state law, 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 another.” U.S.S.G. § 4B1.2(a)(1). This is commonly referred to as the force clause. “The Supreme Court has interpreted the term ‘physical force' as ‘violent force-that is, force capable of causing physical pain or injury to another person.'” United States v. Covington, 880 F.3d 129, 133 (4th Cir. 2018) (quoting Johnson v. United States, 559 U.S. 133, 140 (2010) (emphasis in original)). In determining whether a defendant's prior conviction qualifies as a crime of violence under the Guidelines, the Court applies the “categorical approach.” United States v. Rice, 36 F.4th 578, 580 (4th Cir. 2022).

Application of the categorical approach “directs a court to focus solely on the fact of conviction rather than the facts of the case,” which resulted in the conviction at issue. Covington, 880 F.3d at 132. “An offense qualifies as a crime of violence if all of the conduct criminalized by the statute - ‘including the most innocent conduct' - matches or is narrower than the Guidelines' definition of ‘crime of violence.'” Rice, 36 F.4th at 580 (internal citations omitted). In other words, “to qualify as a crime of violence under the force clause, the minimum conduct necessary for conviction of an offense must at least involve violent force.” Covington, 880 F.3d at 133.

Additionally, “[o]ne of the elements that a predicate crime of violence must match is the mens rea element of a crime of violence.” Rice, 36 F.4th at 580. “A predicate offense must require proof of a mens rea more culpable than recklessness and negligence to qualify as a crime of violence.” Id. (citing Borden v. United States, U.S., 141 S.Ct. 1817, 1824-25 (2021)). Indeed, in Borden, a plurality of the Supreme Court concluded that crimes committed with only a reckless state of mind do not qualify as crimes of violence under the force clause inasmuch as “the phrase ‘against another,' when modifying the ‘use of force,' demands that the perpetrator direct his action at, or target another individual[;]' whereas, “reckless conduct is not aimed in that prescribed manner.” 141 S.Ct. at 1824-25; see also id. at 1835 (Thomas, J. concurring) (reasoning “a crime that can be committed through mere recklessness does not have as an element the ‘use of physical force' because that phrase has a well-understood meaning applying only to intentional acts designed to cause harm”) (citation omitted)).

III.

The Court first compares the offense of child abuse resulting in injury, in violation of W.Va. Code § 61-8D-3(a), with the elements of the force clause set forth in U.S.S.G. § 4B1.2(a)(1) in order to determine if the former constitutes a crime of violence. If the most innocent conduct criminalized by W.Va. Code § 61-8D-3(a) matches or narrows the Guidelines' definition of “crime of violence,” and thus the mens rea required to complete the offense exceeds mere recklessness or negligence, a conviction will constitute a qualifying predicate crime of violence offense. “As with all cases involving statutory interpretation, [the Court] begin[s] [its] analysis with the text of the governing statute.” United States v. Perez, 22 F.4th 430, 436 (4th Cir. 2022) (internal quotations omitted).

The applicable version of West Virginia Code § 61-8D-3(a) in existence at the time Mr. Pratt committed the offense provides as follows:

If any parent, guardian, or custodian shall abuse a child and by such abuse cause such child bodily injury as such term is defined in section one, article eight-b of this chapter, then such parent, guardian, or custodian shall be guilty of a felony and, upon conviction thereof, shall be fined not less than one hundred nor more than one thousand dollars and committed to the custody of the division of corrections for not less than one nor more than five years, or in the discretion of the court, be confined in the county or regional jail for not more than one year.

W.Va. Code § 61-8D-3(a) (2013).^[5] The term “abuse” is defined as “the infliction upon a minor of physical injury by other than accidental means.” Id. § 61-8D-1(1). “Bodily injury” is defined as “substantial physical pain, illness or any impairment of physical condition.” Id. § 61-8B-1(9). Thus, to be convicted of the offense, a parent, guardian, or custodian must inflict non-accidental physical injury on a child, which impairs a child's physical condition or causes such child substantial physical pain or illness.

The minimum conduct necessary for conviction of the offense must at least involve violent force capable of causing physical pain or injury to a child. This is so inasmuch as West Virginia law punishes the abuse of a child separate and apart from the neglect of a child. Compare W.Va. Code § 61-8D-3(a) (2013) (child abuse resulting in injury) with W.Va. Code § 61-8D-4(a) (2013) (child neglect resulting in injury); see also State v. Sykes, No. 13-1283, 2015 WL 508188, at *2 (W.Va. Feb. 6, 2015) (upholding defendant's convictions for both child abuse resulting in injury and child neglect resulting in injury given the “substantial evidence that [defendant] both abused his child by physically assaulting him, and neglected his child, by failing to seek appropriate medical attention.”). Indeed, in West Virginia, the terms abuse and neglect are defined disjunctively. As noted above, “abuse” means “the infliction upon a minor of physical injury by other than accidental means.” W.Va. Code § 61-8D-1(1). Whereas “neglect” is defined as “the unreasonable failure by a parent, guardian, or any person voluntarily accepting a supervisory role towards a minor child to exercise a minimum degree of care to assure said minor child's...