United States v. Derrick Lee , 697 F. App'x 175 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4740
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DERRICK DESHAWN LEE, a/k/a Derrick Deshaune Lee,
Defendant - Appellant.
Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. William L. Osteen, Jr., Chief District Judge. (1:14-cr-00196-WO-1)
Submitted: August 30, 2017 Decided: September 7, 2017
Before GREGORY, Chief Judge, and AGEE and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, Kathleen A. Gleason, Assistant Federal Public
Defender, Greensboro, North Carolina, for Appellant. Sandra Hairston, Acting United
States Attorney, Kyle D. Pousson, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Derrick Deshawn Lee appeals the 96-month sentence imposed by the district court
on remand for resentencing on his conviction for possession of ammunition by a felon, in
violation of 18 U.S.C. § 922(g)(1) (2012). Lee argues that the district court erred in
concluding that his prior convictions for North Carolina second-degree murder and
attempted second-degree arson were crimes of violence and, therefore, that the district
court erred in applying a base offense level of 24 under U.S. Sentencing Guidelines
Manual § 2K2.1(a)(2) (2014). We affirm.
Because Lee objected to the district court’s classification of his convictions as
crimes of violence, we review the classifications de novo. United States v. Carthorne,
726 F.3d 503, 509 (4th Cir. 2013). The Sentencing Guidelines applicable to Lee provide
that a crime of violence is:
any offense under federal or state law, 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, or
(2) is burglary of a dwelling, arson, or extortion, involves use of explosives,
or otherwise involves conduct that presents a serious potential risk of
physical injury to another.
USSG § 4B1.2(a). The definition of crime of violence includes “attempting to commit
such offenses.” USSG § 4B1.2(a)(2) & cmt. n.1. We use the categorical approach to
determine whether a prior state conviction constitutes a crime of violence under
§ 4B1.2(a). United States v. Mack, 855 F.3d 581, 585-86 (4th Cir. 2017). In applying the
categorical approach, we examine “the statutory definition of the state crime . . . to
determine whether the conduct criminalized by the statute, including the most innocent
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conduct, qualifies as a crime of violence.” United States v. Perez-Perez, 737 F.3d 950,
952 (4th Cir. 2013) (internal quotation marks omitted).
First, North Carolina second-degree murder is “the unlawful killing of a human
being with malice but without premeditation and deliberation.” State v. Thibodeaux, 532
S.E.2d 797, 806 (N.C. 2000). “Force,” as used in § 4B1.2(a)(1) is “force capable of
causing physical pain or injury to another person.” In re Irby, 858 F.3d 231, 235 (4th Cir.
2017) (internal quotation marks omitted). “[U]nlawfully killing another human being
requires the use of force capable of causing physical pain or injury to another person.”
Id. at 236 (internal quotation marks omitted). Because North Carolina second-degree
murder requires the unlawful killing of a human being, we conclude that it is a crime of
violence under § 4B1.2(a).
Next, Lee concedes that arson is an enumerated offense and that North Carolina
second-degree arson falls within the generic definition of arson. Lee argues, however,
that the Supreme Court’s holding in Johnson v. United States, 135 S. Ct. 2551 (2015),
invalidated the residual clause in § 4B1.2(a)(2), and, therefore, that attempted enumerated
crimes of violence are no longer necessarily crimes of violence. After Lee submitted his
appellate brief, the Supreme Court held that its reasoning in Johnson did not invalidate
the residual clause in § 4B1.2(a)(2). Beckles v. United States, 137 S. Ct. 886, 890, 895
(2017). We conclude that the Supreme Court’s holding in Beckles renders this argument
meritless.
Accordingly, we affirm the district court’s amended criminal judgment. We
dispense with oral argument because the facts and legal contentions are adequately
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presented in the materials before this court and argument would not aid the decisional
process.
AFFIRMED
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