United States v. Rice

36 F.4th 578

UNITED STATES of America, Plaintiff – Appellee,

v.Dennis Macauthor RICE, Defendant – Appellant.

No. 19-4489

United States Court of Appeals, Fourth Circuit.

Argued: March 9, 2022

Decided: June 9, 2022

ARGUED: Megan Coyle Hoffman, 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, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. R. Andrew Murray, United States Attorney, William T. Stetzer, Acting United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

Before WILKINSON, KING, and QUATTLEBAUM, Circuit Judges.

Affirmed by published opinion. Judge Quattlebaum wrote the opinion, in which Judge Wilkinson joined. Judge King wrote a dissenting opinion.

QUATTLEBAUM, Circuit Judge:

We are asked to decide if the North Carolina crime of assault inflicting physical injury by strangulation is a "crime of violence." Ask any person on the street and they would say of course. In fact, they would likely question our common sense for asking such an obvious question. But we must resolve this issue using the "categorical approach," not common sense. Under that approach, we do not consider whether what Rice did was violent. It was, by the way. Instead, we consider how an assault inflicting physical injury by strangulation could have been committed in situations that have nothing to do with Rice. While that inquiry can lead to confounding results, here the common-sense answer is also the legally correct one. The North Carolina crime of assault inflicting physical injury by strangulation is a crime of violence under the categorical approach. Thus, we affirm the judgment of the district court.

I.

Dennis Macauthor Rice pled guilty to violating 18 U.S.C. § 922(g), which prohibits a felon from possessing a firearm. Prior to sentencing, the Probation Office prepared a Presentence Investigation Report ("PSR"). The PSR concluded that Rice's previous North Carolina conviction for felony assault inflicting physical injury by strangulation was a crime of violence that enhanced Rice's base offense level under the United States Sentencing Guidelines. Rice's prior conviction stemmed from an incident where he put "his hand around [a woman's] neck and squeez[ed]." J.A. 114.

Rice objected to the enhancement, arguing that assault by strangulation is not a crime of violence. Had Rice prevailed on his argument, his advisory guidelines range would have been 51 to 63 months. But the district court disagreed with Rice and imposed the enhancement, resulting in an advisory guidelines range of 77 to 96 months. The district court sentenced Rice to 77 months' imprisonment.

Rice timely appealed his sentence, and we have jurisdiction to review under 28 U.S.C. § 1291.

II.

A.

Section 2K2.1(a)(2) of the United States Sentencing Guidelines provides for an enhancement of a defendant's base offense level if he has two prior "felony convictions of either a crime of violence or a controlled substance offense."¹ A crime of violence includes "any offense under ... state law, punishable by imprisonment for a term exceeding one year, that ... has as an element the use ... of physical force against the person of another." USSG § 4B1.2(a)(1).²

To determine whether a predicate offense is a crime of violence, we use the categorical approach. United States v. Simmons , 917 F.3d 312, 316 (4th Cir. 2019). 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.’ " United States v. Salmons , 873 F.3d 446, 448 (4th Cir. 2017) (quoting United States v. Diaz–Ibarra , 522 F.3d 343, 348 (4th Cir. 2008) ). But if the statutory language defining the offense does not match and is not narrower, then "the predicate offense ... is overbroad and not a categorical match." Id. Our inquiry into the most innocent conduct, or "minimum conduct criminalized by the statute[,] is not an invitation to apply ‘legal imagination’ to the state offense; there must be ‘a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.’ " Moncrieffe v. Holder , 569 U.S. 184, 191, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013).

One of the elements that a predicate crime must match is the mens rea element of a crime of violence. Simmons , 917 F.3d at 320–21. A predicate offense must require proof of a mens rea more culpable than recklessness and negligence to qualify as a crime of violence. Borden v. United States , ––– U.S. ––––, 141 S. Ct. 1817, 1824–25, 210 L.Ed.2d 63 (2021) (plurality opinion) (reasoning that crimes committed with only a reckless state of mind are not crimes of violence because "[t]he phrase ‘against another,’ when modifying the ‘use of force,’ demands that the perpetrator direct his action at, or target, another individual," and "[r]eckless conduct is not aimed in that prescribed manner"); id. at 1835 (Thomas, J., concurring) (reasoning that "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)); see also Leocal v. Ashcroft , 543 U.S. 1, 11, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004) (holding that a crime requiring only a negligent state of mind is not a crime of violence).

Rice argues that assault by strangulation is not a crime of violence because it can be committed with a mens rea of culpable negligence.³ In making this argument, he relies on State v. Jones , 353 N.C. 159, 538 S.E.2d 917 (2000). There, the North Carolina Supreme Court held that, with respect to North Carolina assault, "actual intent" may be implied from proof of "culpable or criminal negligence." Id. at 923. And likewise in United States v. Vinson , 805 F.3d 120 (4th Cir. 2015), citing Jones , we explained that "North Carolina case law establishes that the defendant must act intentionally to be guilty of assault," but in practice that requisite intent can be established through proof of culpable negligence. 805 F.3d at 125–26. In other words, although North Carolina provides that the mens rea required is intent, only culpable negligence is required.

If Rice's prior offense was run of the mill "assault," as criminalized under N.C. Gen. Stat. 14-33(c), he would have a point. But it is not. Our question here is about assault by strangulation. Therefore, neither Jones nor Vinson controls our inquiry.

What's more, we have held that an additional element contained in a North Carolina assault crime can satisfy the requisite mens rea required for a crime of violence. See United States v. Townsend , 886 F.3d 441, 445–47 (4th Cir. 2018). In Townsend , we addressed whether the North Carolina crime of assault with a deadly weapon with intent to kill inflicting serious injury was a crime of violence. Id. at 444. We rejected the appellant's argument, which relied on Vinson , that all assaults in North Carolina required merely proof of culpable negligence, because the specific assault in Townsend required proof of the additional element of a specific intent to kill. Id. at 446–47. Townsend thus provides that where a North Carolina assault offense contains an additional element satisfying the requisite mens rea, that element may qualify the offense as a crime of violence.

B.

Besides the element of assault, the crime of assault by strangulation contains two additional elements: (1) inflicting physical injury and (2) by strangulation. We must decide if these additional elements require a purposeful, knowing or intentional state of mind. If either does, then assault by strangulation is a crime of violence.

1.

To answer this question of what intent is required by the crime assault by strangulation, we first examine whether North Carolina law expressly states that assault by strangulation can be committed negligently or recklessly. See Johnson v. United States , 559 U.S. 133, 138, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) (providing that federal courts are bound by a state high court's interpretation of "state law, including its determination of the elements" of a crime). North Carolina General Statute § 14-32.4(b),⁴ which criminalizes assault by strangulation, does not specify a mens rea, nor has the North Carolina Supreme Court provided what state of mind the crime requires. But the North Carolina Court of Appeals, in State v. Lanford , 225 N.C.App. 189, 736 S.E.2d 619 (2013), provides some guidance. There, the court reviewed a defendant's challenge that there was insufficient evidence to support his conviction for assault by strangulation. Id. at 624. The defendant argued that the evidence presented only showed that he had placed his hands on the victim's head, neck, nose and mouth but had not applied force to the victim's trachea. Id. In rejecting the defendant's challenge, the court expounded upon the meaning of strangulation. It noted that it had previously approved a jury instruction on strangulation, defining it "as a form of asphyxia characterized by closure of the blood vessels and/or air passages of the neck as a result of external pressure on the neck brought about by hanging, ligat[ure] or the manual assertion of pressure." Id. at 624 (quoting State v. Braxton , 183 N.C.App. 36, 643 S.E.2d 637, 642 (2007) ). Quoting Webster's Ninth New Collegiate Dictionary, the court provided other possible definitions of strangulation, including "the action or process of strangling or strangulating," "the state of being strangled or strangulated" and "excessive or pathological constriction or compression of a bodily tube (as a blood vessel or a...