United States v. Jarnaro Middleton ( 2018 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-7556
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JARNARO C. MIDDLETON,
Defendant – Appellant.
Appeal from the United States District Court for the District of South Carolina, at
Charleston. Patrick Michael Duffy, Senior District Judge. (2:04-cr-01094-PMD-1; 2:16-
cv-01327-PMD)
Argued: October 24, 2017 Decided: February 26, 2018
Amended: February 27, 2018
Before GREGORY, Chief Judge, FLOYD, and HARRIS, Circuit Judges.
Reversed and remanded by published opinion. Chief Judge Gregory wrote the opinion, in
which Judge Harris joined. Judge Floyd joined in part and concurred in the judgment.
Judge Floyd wrote a concurring opinion, in which Judge Harris joined as to Parts II.A. and
B.
ARGUED: Emily Deck Harrill, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Columbia, South Carolina, for Appellant. William Jacob Watkins, Jr., OFFICE OF THE
UNITED STATES ATTORNEY, Greenville, South Carolina, for Appellee. ON BRIEF:
Beth Drake, United States Attorney, Columbia, South Carolina, Eric J. Klumb, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston,
South Carolina, for Appellee.
GREGORY, Chief Judge:
Jarnaro Carlos Middleton was sentenced as an armed career criminal pursuant to the
Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). Middleton challenges the
district court’s determination that his prior conviction for South Carolina involuntary
manslaughter qualifies as a violent felony under the ACCA. Due to the idiosyncrasies of
the Supreme Court’s “categorical approach,” the ultimate issue in this case is whether
selling alcohol to a minor involves the requisite use of violent force. We conclude that it
does not and reverse.
I.
On December 29, 2005, Middleton pled guilty to being a felon in possession of
firearms and ammunition, in violation of 18 U.S.C. § 922(g)(1). Defendants who violate
§ 922(g) typically face a sentence of up to ten years’ imprisonment. See 18 U.S.C.
§ 924(a)(2). Under the ACCA, however, § 922(g) violators who have been convicted of
three or more violent felonies or serious drug offenses qualify as armed career criminals
and are subject to a fifteen-year mandatory minimum sentence. Id. § 924(e)(1). According
to Middleton’s Pre-sentence Report, three of his prior South Carolina convictions qualified
as violent felonies under the ACCA: (1) a 1976 conviction for housebreaking; (2) a 1980
conviction for involuntary manslaughter; and (3) a 1990 conviction for trafficking and
conspiracy to traffic cocaine. At sentencing, the district court found Middleton to be an
armed career criminal and sentenced him to fifteen years’ imprisonment.
2
Middleton’s direct appeal left this conviction and sentence unchanged. Middleton
then sought, unsuccessfully, post-conviction relief under 28 U.S.C. § 2255. In 2016,
Middleton requested and this Court granted authorization to file a second § 2255 petition
in light of the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015)
(hereinafter “Johnson II”), which invalidated part of the ACCA’s definition of a violent
felony. Id. at 2563.
In his second § 2255 petition, Middleton argued that all three of his prior felony
convictions no longer qualify as violent felonies under the ACCA. On November 3, 2016,
the district court rejected Middleton’s arguments and dismissed the petition. However, the
court issued a certificate of appealability with respect to whether Middleton’s South
Carolina involuntary manslaughter conviction meets the ACCA’s definition of a violent
felony, post-Johnson II.
II.
To determine whether South Carolina involuntary manslaughter falls within the
ACCA’s definition of a violent felony, we apply the “categorical approach.” United States
v. Baxter, 642 F.3d 475, 476 (4th Cir. 2011). Under the traditional categorical approach,
this Court is “bound by the interpretation of [the] offense articulated by that state’s courts.”
See United States v. Winston, 850 F.3d 677, 684 (4th Cir. 2017). This characteristic of the
categorical approach is sometimes counterintuitive because it requires courts to review the
“most innocent conduct” that the law criminalizes, rather than the specific facts on which
the defendant was convicted. See United States v. Diaz-Ibarra, 522 F.3d 343, 348 (4th Cir.
3
2008). Notwithstanding the categorical approach’s quirks, in-depth analysis of state law
helps to ensure that courts analyze realistic criminal conduct and not just “legal
imagination.” See Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007). After
determining the minimum conduct needed to commit an offense, we then compare the
elements of the offense to the ACCA’s definition of violent felony. United States v.
Doctor, 842 F.3d 306, 309 (4th Cir. 2016). If the offense “sweeps more broadly” than the
ACCA’s definition of a violent felony, the offense does not qualify as an ACCA predicate.
Descamps v. United States, 133 S. Ct. 2276, 2283 (2013).
We review de novo whether a prior conviction qualifies as an ACCA violent felony.
United States v. Hemingway, 734 F.3d 323, 331 (4th Cir. 2013). We begin with the
ACCA’s definition of violent felony and then compare it to the elements of South Carolina
involuntary manslaughter.
A.
The ACCA defines a “violent felony” as any crime, punishable by more than a year
in prison, that—
(i) has as an element the use, attempted use, or threatened use of physical
force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise
involves conduct that presents a serious potential risk of physical injury to
another.
§ 924(e)(2)(B). Subsection (i) is commonly referred to as the “force clause.” United States
v. Gardner, 823 F.3d 793, 802 (4th Cir. 2016). The language in subsection (ii) beginning
with “or otherwise” is commonly referred to as the “residual clause.” Beckles v. United
4
States, 137 S. Ct. 886, 891 (2017). In Johnson II, the Supreme Court struck down the
residual clause as unconstitutionally vague. 135 S. Ct. at 2562–63. Thus, the effective
language in subsection (ii) now reads, “is burglary, arson, or extortion, [or] involves use of
explosives.” See id.; 18 U.S.C. § 924(e)(2)(B)(ii).
It is undisputed that South Carolina involuntary manslaughter does not qualify as a
violent felony under subsection (ii) as “amended” by Johnson II. The offense cannot be
categorized as burglary, arson, or extortion; nor does the offense require the use of
explosives. See State v. Collins, 763 S.E.2d 22, 26 (S.C. 2014) (discussing the elements of
South Carolina involuntary manslaughter). And although this Court held in United States
v. Williams, 67 F.3d 527 (4th Cir. 1995), that South Carolina involuntary manslaughter
qualifies as a violent felony under subsection (ii), that case relied on the residual clause.
Id. at 528 (finding that South Carolina involuntary manslaughter involved conduct that
presented a “serious potential risk of physical injury to another.”). After Johnson II, our
decision in Williams no longer reaches the issue presented here. Thus, the only question
before us is whether South Carolina’s involuntary manslaughter offense qualifies as a
violent felony under subsection (i), the ACCA’s “force clause.” See 18 U.S.C.
§ 924(e)(2)(B)(i).
The ACCA’s force clause requires “the use, attempted use, or threatened use of
physical force against the person of another.” Id. (emphasis added). Congress did not
define the term “physical force.” Johnson v. United States, 559 U.S. 133, 138 (2010)
(hereinafter “Johnson I”). But the Supreme Court gave the phrase its ordinary meaning:
“force exerted by and through concrete bodies” as opposed to “intellectual force or
5
emotional force.” Id. In Johnson I, the Court further explained that “because the term
‘physical force’ contributes to the definition of a ‘violent felony,’ it is understood to mean
‘violent force—that is, force capable of causing physical pain or injury to another person.’”
United States v. Reid, 861 F.3d 523, 527 (4th Cir. 2017) (quoting Johnson I, 559 U.S. at
140). Therefore, “physical force” under the ACCA’s force clause must be both physical
(exerted through concrete bodies) and violent (capable of causing pain or injury to another).
De minimus physical force, such as mere offensive touching, is insufficient to trigger the
ACCA’s force clause because it is not violent. Compare United States v. Gardner, 823
F.3d 793, 803 (4th Cir. 2016) (holding that North Carolina robbery is not a violent felony
under the ACCA’s force clause because it can be committed with minimal physical force),
with Doctor, 842 F.3d at 309–10 (holding that South Carolina strong arm robbery is a
violent felony under the ACCA’s force clause because it requires violence or the threat of
physical force).
B.
Middleton argues that South Carolina involuntary manslaughter sweeps more
broadly than the physical force required under the ACCA’s force clause. We agree.
To establish involuntary manslaughter in South Carolina, “the State must show the
defendant killed another person without malice and unintentionally while the defendant
was engaged in either (1) an unlawful activity not amounting to a felony and not naturally
tending to cause death or great bodily harm, or (2) a lawful activity with a reckless
disregard of the safety of others.” Collins, 763 S.E.2d at 26. Applying the categorical
approach, we look for the least culpable conduct that this offense encompasses.
6
The strongest case supporting Middleton’s argument is State v. Hambright, 426
S.E.2d 806 (S.C. Ct. App. 1992). There, the defendant, Hambright, illegally sold alcohol
from his home to high school students. 426 S.E.2d at 807. One student drove with friends
to Hambright’s home twice on one day. Id. On both occasions, a friend of the driver exited
the vehicle, purchased alcohol from Hambright, and then returned to the vehicle. Id. The
driver consumed the illegally obtained alcohol with his friends and made the ill-fated
decision to drive again. Id. The driver died after crashing his car into a telephone pole.
Id. The doctor who performed the driver’s autopsy testified that “alcohol was a significant
contributing factor to [the driver’s] death,” and that his injuries must have been caused by
“tremendous force.” Id. at 808. A jury convicted Hambright of involuntary manslaughter,
and the Court of Appeals of South Carolina upheld his conviction. Id. at 810.
According to Middleton, because Hambright used no violent physical force against
the victim, South Carolina involuntary manslaughter is broader than the ACCA’s force
clause and therefore does not qualify as a violent felony. In opposition, the Government
relies on the Supreme Court’s language in United States v. Castleman, 134 S. Ct. 1405(2014), providing that it “is impossible to cause bodily injury without applying force in the
common-law sense.” Id. at 1415. Given this statement, the Government argues, “so too it
is impossible to cause a killing, the ultimate bodily injury, without the ‘force exerted by
and through concrete bodies’ or the ‘force capable of causing physical pain or injury to
another person.’” Gov’t Br. at 11 (quoting Johnson I, 559 U.S. at 138, 140). But the
Government’s argument proceeds on two misunderstandings of the law: (1) The
Government ignores the distinction between de minimus force, as discussed in Castleman,
7
and violent force, as discussed in Johnson I; and (2) the Government erroneously conflates
the use of violent force with the causation of injury.
1.
First, Castleman’s discussion of force does not control this case. Castleman was
convicted for violating § 922(g)(9), which prohibits any person “who has been convicted
in any court of a misdemeanor crime of domestic violence” from possessing a firearm. See
134 S. Ct. at 1408. In 18 U.S.C. § 921(a)(33)(A), Congress defines “a misdemeanor crime
of domestic violence” as “an offense that . . . has, as an element, the use or attempted use
of physical force.” Although the definitions of a misdemeanor crime of domestic violence
and a violent felony under the ACCA both contain the term “physical force,” the Supreme
Court has interpreted those terms differently. In Castleman, the Court applied the
common-law definition of force—“namely, offensive touching”—to the term “physical
force” in § 921(a)(33)(A). 134 S. Ct. at 1410. But in doing so, the Supreme Court
recognized that the common-law definition of physical force does not apply to the ACCA’s
force clause. Id. (“We declined to read the common-law meaning of ‘force’ into ACCA’s
definition of ‘violent felony,’ because we found it a ‘comical misfit with the defined
term.’”). The force discussed in Castleman thus differs from the force required in the
ACCA: Section 921(a)(33)(A) accepts de minimus force, but the ACCA, by contrast,
requires violent force. Accordingly, the Government’s attempt to extend Castleman’s
holding to the ACCA’s violent force provision fails. See Reid, 861 F.3d at 528 (“To be
sure, Castleman did not construe [the] ACCA’s force clause[.]”).
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2.
Second, the Government, relying again on Castleman, erroneously argues that
causing injury categorically means violent force was used. Both Castleman and this
Court’s decision in United States v. Torres-Miguel, 701 F.3d 165 (4th Cir. 2012),
abrogated by Castleman, 134 S. Ct. 1405, undermine this claim.
As a preliminary matter, Castleman’s discussion of injury does not reach the issue
presented here. Castleman pleaded guilty to “intentionally or knowingly caus[ing] bodily
injury” to the mother of his child. Id. at 1414 (emphasis added). “Under Tennessee law,
‘bodily injury’ is a broad term: It ‘includes a cut, abrasion, bruise, burn or disfigurement;
physical pain or temporary illness or impairment of the function of a bodily member, organ,
or mental faculty.’” Id. (quoting Tenn. Code Ann. § 39-11-106(a)(2) (1997)). When the
Supreme Court compared the facts of Castleman’s Tennessee indictment 1 to the definition
of “physical force” in § 921(a)(33)(A)(ii), the Court concluded that “a ‘bodily injury’ must
result from ‘physical force,’” and that “it is impossible to cause bodily injury without
applying force in the common-law sense.” Id. at 1414–15. Thus, when the Castleman
Court discussed “bodily injury,” it spoke in terms of the Tennessee statute and de minimus
force. Indeed, the majority explicitly reserved the question of whether “bodily injury”
required “violent force.” See 134 S. Ct. at 1414 (“Justice Scalia’s concurrence suggests
1
It should be noted that the Supreme Court looked to the facts of Castleman’s
indictment because it applied the “modified categorical approach.” Castleman, 134 S. Ct.
at 1414. In this case we apply the categorical approach, therefore looking to the facts of
Middleton’s indictment would be improper. See United States v. Hemingway, 734 F.3d
323, 327–28 (4th Cir. 2013) (comparing the modified categorical approach to the
categorical approach).
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that these forms of injury necessitate violent force, under [Johnson I’s] definition of that
phrase. But whether or not that is so—a question we do not decide—these forms of injury
do necessitate force in the common-law sense.”) (internal citation omitted). Accordingly,
Castleman does not support the Government’s argument that any form of bodily injury
requires violent force. See Reid, 861 F.3d at 528 (4th Cir. 2017) (“To be sure, Castleman
. . . expressly reserved the question of whether the causation of ‘bodily injury,’ a term
defined broadly under Tennessee law, would ‘necessitate violent force under [Johnson I’s]
definition of that phrase’ in ACCA.”).
Furthermore, the Government erroneously conflates the use of violent force with
the causation of injury. But, this Court addressed the distinction between use and causation
in Torres-Miguel, 701 F.3d 165. The issue there was whether a California criminal threat
statute constituted a crime of violence pursuant to the Sentencing Guidelines. 2 701 F.3d at
166. The Court reasoned that “an offense that results in physical injury, but does not
involve the use or threatened use of force, simply does not meet the Guidelines definition
of a crime of violence. Of course, a crime may result in death or serious injury without
involving [the] use of physical force.” Id. at 168 (emphasis added). It is well-settled that
Castleman abrogated a portion of Torres-Miguel’s reasoning. “Castleman did not however
abrogate the causation aspect of Torres-Miguel that ‘a crime may result in death or serious
2
The Sentencing Guidelines, as discussed in Torres-Miguel, contained a force
clause that was identical to the force clause in the ACCA. Accordingly, this Court has
applied Torres-Miguel’s reasoning in the ACCA context. See, e.g., United States v. Burns-
Johnson, 864 F.3d 313, 317–18 (4th Cir. 2017) (applying Torres-Miguel to the ACCA’s
force clause.)
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injury without involving the use of physical force.’” United States v. Covington, 880 F.3d
129, 134 n.4 (4th Cir. 2018) (quoting Torres-Miguel, 701 F.3d at 168).
The concurrence acknowledges that this portion of Torres-Miguel is unaffected by
Castleman, and thus remains good law. Nevertheless, the concurrence reasons that
language in In re Irby, 858 F.3d 231 (4th Cir. 2017) and Reid somehow “undercut[s]”
Torres-Miguel’s holding. Concur. Op. at 21. This cannot be true. “This court has adopted
the rule that prior decisions of a panel of the court are binding precedent on subsequent
panels unless and until overturned [e]n banc. Where there is direct conflict, the
precedential decision is the first.” McMellon v. United States, 387 F.3d 329, 333 (4th Cir.
2004) (en banc) (quoting Newell Cos. v. Kenney Mfg. Co., 864 F.2d 757, 765 (Fed. Cir.
1988)). We decided Torres-Miguel in 2012, five years before Irby and Reid. And, in the
last six years two separate panels of this Court have confirmed Torres-Miguel’s remaining
validity. See United States v. McNeal, 818 F.3d 141, 156 n.10 (4th Cir. 2016); Covington,
880 F.3d at 134 n.4. As a matter of precedent, Irby and Reid cannot rely on Castleman—
for a holding it did not make—in order to surmount this Court’s prior decision in Torres-
Miguel. To the extent that the concurrence’s interpretation of Irby and Reid conflicts with
Torres-Miguel, Torres-Miguel must prevail as binding precedent. McMellon, 387 F.3d at
333. “We of course are not free to disregard binding precedent.” United States v. Collins,
773 F.3d 25, 30 (4th Cir. 2014) (Floyd, J.). Therefore, the concurrence’s reliance on Irby
and Reid to overrule Torres-Miguel is misplaced.
In Hambright, the Court of Appeals of South Carolina concluded that there was a
“causal relation between the consumption of alcohol by [the driver] and the accident which
11
caused his death.” Hambright, 426 S.E.2d at 808 (emphasis added). That finding, however
does not mean that Hambright used sufficient violent physical force to satisfy the ACCA.
See Covington, 880 F.3d at 134 n.4. “[T]he word ‘use’ conveys the idea that the thing used
(here, ‘physical force’) has been made the user’s instrument.” Castleman, 134 S. Ct. at
1415 (some internal quotations omitted). And, “the word ‘violent’ in [the ACCA] connotes
a [crime with a] substantial degree of force,” “such as murder, forcible rape, and assault
and battery with a dangerous weapon.” Johnson I, 559 U.S. at 140 (quoting Black’s Law
Dictionary). In Hambright, the defendant used force only to exchange alcohol for money.
Hambright’s actions were physical, but selling alcohol to minors, without more, falls short
of the violent force Johnson I describes. See id. at 141.
Since Johnson I, this Court has confirmed that a defendant may cause injury
indirectly as well as directly for the purposes of the ACCA’s force clause. See Reid, 861
F.3d at 526–27. Nevertheless, Hambright’s actions are in a different category. Cases that
discuss indirect use of force speak about “the act of employing poison knowingly as a
device to cause physical harm.” Id. at 528. But the facts in Hambright do not meet this
standard either. Although alcohol can be harmful, it lacks the certainty of harm of
something like poison. Even if alcohol is equated to poison, Hambright’s actions cannot
be described as “employing [alcohol] knowingly as a device to cause physical harm.” See
id. (emphasis added). The South Carolina court found that Hambright acted with “reckless
disregard for the safety of other,” which falls short of knowingly causing harm. Hambright,
426 S.E.2d at 809 (emphasis added). This point is underscored by the facts. Hambright
never actually interacted with the driver, but rather sold alcohol to two of the driver’s
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friends, who later shared their alcohol with the driver. Id. at 807. Only after several
intervening steps did the driver ultimately crash. Id. It does not follow that any action
leading to bodily injury, through however attenuated a chain of causation, necessarily
qualifies as a use of violent physical force against the person of another. To hold otherwise
would allow any illegal sale—be it alcohol, cigarettes, fireworks, or even a fake
identification card—to trigger the ACCA’s force clause, simply because physical pain or
injury eventually results from the sale. The ACCA’s force clause is written too narrowly
to encompass such a broad range of criminal behavior.
The ACCA’s residual clause operated as a catch-all provision to broaden the list of
predicate crimes that would trigger lengthy sentences. See James v. United States, 550
U.S. 192, 198–99 (2007) (discussing the scope of the ACCA’s residual clause as compared
to the ACCA’s force clause), overruled by Johnson II, 135 S. Ct. 2551 (2015). The
ACCA’s force clause, in contrast, lacks a catch-all provision, and thus applies to a more
limited category of offenses. Id. Since Johnson II, federal prosecutors have attempted to
stretch the bounds of the force clause to compensate for the now-invalid residual clause.
But in this case, South Carolina involuntary manslaughter simply does not fit the ACCA’s
force clause because it can be committed through a non-violent sale.
III.
For the reasons stated above, we find that South Carolina involuntary manslaughter
does not qualify as a violent felony under the ACCA’s force clause. At oral argument, the
Government contended that Middleton would still have the requisite number of predicate
13
convictions to be an armed career criminal, regardless of whether South Carolina
involuntary manslaughter qualified as a violent felony. That contention was wrong. The
Government now concedes, in a subsequent letter to the Court, that if South Carolina
involuntary manslaughter is not a violent felony, Middleton cannot be considered an armed
career criminal. Accordingly, we reverse the district court’s denial of post-conviction relief
and remand this case for immediate resentencing.
REVERSED AND REMANDED
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FLOYD, Circuit Judge, concurring in part and concurring in the judgment, with whom
Judge HARRIS joins as to Parts II.A. and B.:
The majority concludes that a conviction for South Carolina involuntary
manslaughter does not categorically qualify as a “violent felony” under the Armed Career
Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(i). While I agree with that conclusion, I
hesitate to join the majority’s analysis. In my view, our recent decisions in In re Irby, 858
F.3d 231 (4th Cir. 2017), and United States v. Reid, 861 F.3d 523 (4th Cir. 2017),
undermine the majority’s reasoning that South Carolina involuntary manslaughter can be
committed with de minimis force and by simply causing injury without using force.
Nevertheless, I would hold that South Carolina involuntary manslaughter cannot be an
ACCA predicate because, although the ACCA force clause requires a higher degree of
mens rea than recklessness, an individual can be convicted of involuntary manslaughter in
South Carolina based on reckless conduct. Therefore, while I write separately as to Part
II.B, I concur in part and concur in the judgment reversing the denial of habeas relief.
I.
The majority’s analysis hinges on (1) the distinction between de minimis force, as
discussed in United States v. Castleman, 134 S. Ct. 1405, 1410 (2014), and violent force,
as discussed in Johnson v. United States, 559 U.S. 133, 140 (2010), and (2) the distinction
between use of force and causation of injury. The majority first explains that the
government erroneously tried to extend Castleman’s common-law definition of “force,”
which can be satisfied with offensive touching, to the ACCA force clause, which requires
15
violent force. Next, the majority relies on the distinction between use of force and
causation of injury that we drew in United States v. Torres-Miguel, 701 F.3d 165, 168 (4th
Cir. 2012), to observe that South Carolina involuntary manslaughter can be committed by
merely causing an injury without using force. In my view, neither explanation can stand.
A.
The ACCA enhances the sentence of an armed career criminal who “has three
previous convictions . . . for a violent felony . . . .” 18 U.S.C. § 924(e)(1). The ACCA force
clause defines “violent felony” as a crime that “has as an element the use, attempted use,
or threatened use of physical force against the person of another . . . .” 18 U.S.C. §
924(e)(2)(B)(i). The phrase “use . . . of physical force” in the ACCA force clause is
commonly understood as requiring both violent force and a requisite level of mens rea.
See Johnson, 559 U.S. at 140 (“We think it clear that in the context of a statutory definition
of ‘violent felony,’ the phrase ‘physical force’ means violent force . . . .” ); Leocal v.
Ashcroft, 543 U.S. 1, 9 (2004) (“The key phrase in [18 U.S.C.] § 16(a)—the ‘use . . . of
physical force against the person or property of another’—most naturally suggests a higher
degree of intent than negligent or merely accidental conduct.”).
The Supreme Court in Johnson defined “physical force” in the ACCA force clause
as “violent force—that is, force capable of causing physical pain or injury to another
person” because “physical force” was used to define the statutory category of “violent
feloni[es].” Johnson, 559 U.S. at 140. On the other hand, the Supreme Court in Castleman
defined “physical force” in the misdemeanor crime of domestic violence (MCDV) force
clause, 18 U.S.C. § 921(a)(33)(A)(ii), according to the common-law meaning of “force”
16
that can be satisfied by offensive touching, because “physical force” was used to define
MCDV offenses, which are routinely prosecuted as general assault and battery, not violent
felonies. Castleman, 134 S. Ct. at 1410–13.
In Castleman, the Supreme Court also elaborated how “physical force” may be
applied both directly and indirectly. The Supreme Court reasoned that “ ‘physical force’
is simply ‘force exerted by and through concrete bodies,’ and observed that, under common
law, “ ‘force’ encompasses even its indirect application,” such as administering a poison,
infecting someone with a disease, or resorting to some intangible substance, such as a laser
beam. Id. at 1414 (first quoting Johnson, 559 U.S. at 138; and then quoting Johnson, 559
U.S. at 139). “[T]he knowing or intentional causation of bodily injury necessarily involves
the use of physical force,” and “[t]hat the harm occurs indirectly, rather than directly (as
with a kick or punch), does not matter.” Id. at 1414, 1415. The Supreme Court, however,
“expressly reserved the question of whether the causation of ‘bodily injury[]’ . . . would
‘necessitate violent force under Johnson’s definition of that phrase’ in [the] ACCA.” Reid,
861 F.3d at 528 (quoting Castleman, 134 S. Ct. at 1414).
Contrary to the majority’s attempt to limit Castleman to the MCDV force clause,
Maj. Op. at 8 (“Castleman’s discussion of force does not control this case.”), this Court in
Irby and Reid already extended Castleman’s reasoning to other force clauses, including the
ACCA force clause. In Irby, this Court relied on both Johnson and Castleman to hold that
federal second-degree retaliatory murder constitutes a “crime of violence” under the force
clause in 18 U.S.C. § 924(c)(3), despite the fact that it could be committed “without
applying direct force[.]” Irby, 858 F.3d at 236. First relying on Johnson’s definition of
17
“physical force,” this Court reasoned that “unlawfully killing another human being requires
the use of force ‘capable of causing physical pain or injury to another person.’ ” Id.; see
also id. at 238 (“[O]ne cannot unlawfully kill another human being without a use of
physical force capable of causing physical pain or injury to another”). And then, relying
on Castleman, this Court found it immaterial that physical force was applied indirectly
through convincing another person to expose themselves to hazardous chemicals. Id. at
236 (“Castleman forecloses the argument that indirect means of applying force are not a
use of force.”).
Similarly, this Court in Reid adopted “the relevant aspects of [Castleman’s]
reasoning” and “conclude[d] that [the] ACCA’s phrase ‘use of physical force’ includes
force applied directly or indirectly.” Reid, 861 F.3d at 528–29. In Reid, we upheld as an
ACCA predicate a violation of Virginia Code § 18.2–55, which criminalizes a knowing
infliction of bodily injury on a juvenile detention facility employee. Id. at 526. In so doing,
this Court rejected Reid’s argument that indirect methods of inflicting injury—such as
“intentionally (1) pouring water on the floor, causing an officer to slip, (2) pulling a chair
out from underneath an officer before he sits, (3) removing screws from a chair or stair rail,
or (4) even poisoning”—“cause injury passively so as not to constitute the ‘use of force’ ”
under the ACCA. Id. at 526. It was enough that the § 18.2–55 violation involved “force
capable of causing physical pain or injury,” even if the force was applied indirectly. Id. at
529. Thus, as to the question of whether the causation of bodily injury would necessitate
violent force under the ACCA, this Court answered in the affirmative. See id. at 528–29.
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B.
With these principles in mind, I find that the majority’s analysis does not adequately
address this Court’s post-Castleman decisions in Irby, 858 F.3d at 236, 238, and Reid, 861
F.3d at 528–29.
1.
The majority first explains that the government conflates de minimis force with
violence force. Maj. Op. at 8. While de minimis force is insufficient under the ACCA, see
United States v. Gardner, 823 F.3d 793, 803–04 (4th Cir. 2016), this Court’s statements in
Irby regarding physical force suggest that South Carolina involuntary manslaughter
necessarily involves violent force, Irby, 858 F.3d at 235–36. Although Irby did not
construe the ACCA force clause, it relied on the ACCA’s definition of “physical force” as
defined in Johnson, 559 U.S. at 140. See Irby, 858 F.3d at 235–36. Most notably, this
Court observed in Irby that “unlawfully killing another human being requires the use of
force ‘capable of causing physical pain or injury to another person.’ ” Id. at 236. Because
involuntary manslaughter is a proscription against an unlawful killing of another, it must
necessarily require violent force—force capable of causing physical pain or injury. See id.
The majority does not address this important observation. 1
1
Even State v. Hambright, 426 S.E.2d 806, 808 (S.C. Ct. App. 1992), the case cited
by the majority for the proposition that South Carolina involuntary manslaughter can be
committed without violent force, Maj. Op. at 11–12, unquestionably involved “force
capable of causing physical pain or injury to another person,” Johnson, 559 U.S. at 140.
As the South Carolina Court of Appeals noted, the victim died because of injuries caused
by “tremendous force” from the car crash, Hambright, 426 S.E.2d at 808, which is
19
2.
Next, the majority opinion explains that the causation of an unlawful killing does
not itself qualify as the use of force required to satisfy the ACCA force clause, thus drawing
a distinction between use of force and causation of injury. The majority explains that the
unlawful killing in State v. Hambright, 426 S.E.2d 806, 808 (S.C. Ct. App. 1992), that was
caused by a car crash after an illegal sale of alcohol to minors did not amount to the use of
physical force, because “[t]he word ‘use’ conveys the idea that the thing used (here,
‘physical force’) has been made the user’s instrument.” Maj. Op. at 12 (quoting Castleman,
134 S. Ct. at 1415). Instead, relying on this Court’s decision in Torres-Miguel, 701 F.3d
at 168, the majority explains that there was causation of death, which it concludes is not
the same as use of force. But in light of our precedents, I question the viability of
distinguishing between use of force and causation of injury.
Before the Supreme Court decided Castleman, this Court drew two conceptual
distinctions in analyzing “physical force”: (1) direct versus indirect application of force,
and (2) use of force versus causation of injury. Torres-Miguel, 701 F.3d at 168; see also
United States v. Covington, 880 F.3d 129, 134 n.4 (4th Cir. 2018). Previously, this Court
held that indirect application of force, such as use of poison, does not amount to “use . . . of
physical force” under the meaning of the ACCA. Torres-Miguel, 701 F.3d at 168.
Castleman abrogated Torres-Miguel’s first distinction, and this Court now recognizes that
consistent with Irby’s observation that an unlawful killing requires force capable of causing
pain or injury, Irby, 858 F.3d at 236.
20
indirect application of force may constitute “use of . . . physical force” under the ACCA.
Covington, 880 F.3d at 134 (“[T]his Court has confirmed and reaffirmed in several
decisions that the direct versus indirect use of force distinction articulated in Torres-Miguel
has been abrogated by Castleman.”).
After Castleman, Torres-Miguel stands on its remaining leg—the distinction
between use of force and causation of injury. See id. at 134 n.4 (“Castleman did not
however abrogate the causation aspect of Torres-Miguel”). The premise of this distinction
was that “a crime may result in death or serious injury without involving use of physical
force.” Torres-Miguel, 701 F.3d at 168. Therefore, under Torres-Miguel, a crime that
results in death or serious injury may not be a predicate offense under the ACCA or other
force clauses. See id. at 169. Indeed, the majority’s analysis turns on this distinction. See
Maj. Op. at 9–13.
In my view, however, this Court’s post-Castleman decisions in Irby and Reid raise
questions as to whether such a distinction remains viable. For starters, Irby’s observations
directly undercut Torres-Miguel’s premise for making such a distinction. Compare Irby,
858 F.3d at 236 (“[U]nlawfully killing another human being requires the use of force
‘capable of causing physical pain or injury to another person.’ ”), with Torres-Miguel, 701
F.3d at 168 (“[A] crime may result in death or serious injury without involving use of
physical force.”).
More significantly, causation of injury necessarily involves either direct or indirect
application of force. See Reid, 861 F.3d at 528–29; see also Castleman, 134 S. Ct. 1414(“[T]he knowing or intentional causation of bodily injury necessarily involves the use of
21
physical force.”). Reid implicitly analyzed causation of injury as indirect application of
force by upholding a violation of Virginia Code § 18.2–55 as a “violent felony,” despite
the fact that one could violate § 18.2–55 by causing an injury. Reid, 861 F.3d at 528.
Under Reid, intentionally pouring water on the floor and causing an officer to slip
constituted a use of force. 861 F.3d at 526; see also Irby, 858 F.3d at 236 (observing that
causing an injury through “convincing a person to expose themselves to hazardous
chemicals” constitutes an indirect application of force). Moreover, Reid, relying on
Castleman, rejected the defendant’s argument that “caus[ing] injury passively” does not
constitute a use of force. See Reid, 861 F.3d at 526, 528. In other words, although Reid did
not explicitly abrogate the use of force versus causation of injury distinction, its analysis
and rejection of the defendant’s causation-based arguments lead me to question the
continued viability of what remains of Torres-Miguel.
Because the majority’s analysis does not sufficiently address this Court’s decisions
in Irby and Reid, I do not join Part II.B of the majority’s opinion. 2
2
“We of course are not free to disregard binding precedent.” United States v.
Collins, 773 F.3d 25, 30 (4th Cir. 2014). “It is to the holdings of our cases . . . that we must
attend.” Kokkonen v. Guardian Life Ins. Co. of Am., 551 U.S. 375, 379 (1994); see also
Alexander v. Sandoval, 532 U.S. 275, 282 (2001) (“[T]his Court is bound by holdings, not
language.”). Thus, even as this Court recognized in Reid, “the holding of Torres-Miguel
may still stand following the Supreme Court’s decision in Castleman.” 861 F.3d 523. But
we still must address whether the continued adherence to a certain pattern of reasoning
would be sound, especially given a significant doctrinal development in this area of the law
in Castleman and its subsequent expansion in Irby, and Reid. The majority summarily
points to the dicta in footnotes in McNeal and Covington to find support for the continued
viability of the reasoning behind the causation distinction, without substantively engaging
with Castleman, Irby, and Reid.
22
II.
Although I disagree with the majority’s rationale, under a separate analysis, I would
also conclude that South Carolina involuntary manslaughter is not a violent felony under
the ACCA. In my view, South Carolina involuntary manslaughter sweeps more broadly
than the ACCA because an individual can be convicted of this offense based on reckless
conduct, whereas the ACCA force clause requires a higher degree of mens rea.
My analysis begins by returning to the example in Hambright, 426 S.E.2d at 808,
an involuntary manslaughter case from South Carolina involving the deadly car crash
caused by a sale of alcohol to minors. Irby, 858 F.3d at 236, informs us that violent force
was unleashed in the crash, as made apparent by the resulting death, and Reid, 861 F.3d
528–29, similarly informs us that the defendant caused violent force to be indirectly applied
against the victim through the crash. Nevertheless, it is unnatural—even absurd—to equate
causing a deadly car crash through an illegal sale of alcohol to minors to “using” physical
force against the person of another.
I would conclude that the defendant in Hambright did not “use” violent force against
the victim because he caused death recklessly rather than intentionally. The word “use” in
the ACCA force clause requires more than a reckless application of force or causation of
injury to constitute a “use . . . of physical force.” The difference in mental states
distinguishes the reckless causation of death in Hambright that cannot constitute a
“use . . . of physical force,” from the intentional causation of injury in Reid that constituted
“use of . . . physical force.” See Irby, 858 F.3d at 236 (stating that, to constitute an use of
23
force, “it is enough that the individual intentionally acted to place the victim in the path of
an inevitable force.” (emphasis added)).
Indeed, this Court’s force clause cases lead me to conclude that ACCA predicates
must have, as an element, a higher degree of mens rea than recklessness. Therefore, South
Carolina involuntary manslaughter, which only requires recklessness, categorically cannot
serve as an ACCA predicate.
A.
The word “use” found in many force clauses “most naturally suggests a higher
degree of intent than negligent or merely accidental conduct.” Leocal, 543 U.S. at 9–10
(holding Florida’s DUI offense based on negligence is not a “crime of violence” that
involves the “use . . . of physical force” under 18 U.S.C. § 16). “Although [the Supreme
Court in] Leocal reserved the question of whether a reckless application of force could
qualify as a ‘use’ of force, [this Court] answered that question . . . by ruling that
recklessness was not enough.” United States v. McNeal, 818 F.3d 141, 154–55 (4th Cir.
2016). In fact, we were not alone. As the Supreme Court observed in 2014, since Leocal,
“the Courts of Appeals have almost uniformly held that recklessness is not sufficient.”
Castleman, 134 S. Ct. at 1414 n.8.
The word “use” in the ACCA force clause also requires a higher degree of mens rea
than recklessness. See United States v. Doctor, 842 F.3d 306, 311 (4th Cir. 2016); see also
McNeal, 818 F.3d 154–56 (concluding that the force clause under 18 U.S.C. § 924(c)(3)
requires more than recklessness); Garcia v. Gonzales, 455 F.3d 465, 469 (4th Cir. 2006)
24
(stating that, under 18 U.S.C. § 16, “recklessness, like negligence is not enough to support
a determination that a crime is a ‘crime of violence.’ ”).
I would additionally conclude that the Supreme Court’s recent decision in Voisine
v. United States, 136 S. Ct. 2272, 2278 (2016), which “conclude[d] that a reckless domestic
assault qualifies as a ‘misdemeanor crime of domestic violence’ under [18 U.S.C.] §
922(g)(9),” does not control how we should construe the ACCA force clause. The Supreme
Court expressly declined to extend its holding to the ACCA force clause. 136 S. Ct. at
2280 n.4. Furthermore, the Supreme Court expressly left open the possibility that two
statutory definitions, even if they are similarly drafted, could have divergent readings or
mens rea requirements “in light of differences in their contexts and purposes . . . .” Id. The
Supreme Court noted that Congress’s purpose in drafting the MCDV statute was “to bar
those domestic abusers convicted of garden-variety assault or battery
misdemeanors . . . from owning guns.” Id. at 2280. And because 35 jurisdictions at the
time of drafting the MCDV statute defined assault to include reckless infliction of harm,
the Court reasoned that Congress must have wanted to link the relevant MCDV provisions
to those laws. Id. Excluding crimes committed recklessly would have rendered the MCDV
provisions “broadly inoperative” in 35 states. Id.
Given the divergent context of “use” and the divergent purpose of targeting armed
career criminals, the ACCA force clause requires a construction different from that of the
MCDV force clause. In drafting the ACCA force clause, Congress employed the word
“use” differently than in the MCDV force clause. While the MCDV force clause concerns
simply “the use . .  of physical force” by the perpetrators, 18 U.S.C. § 921(a)(33)(A)(ii), the
25
ACCA’s force clause concerns “use . . . of physical force against the person of another,”
18 U.S.C. § 924(e)(2)(B)(i) (emphasis added). Congress chose to “denominate ‘the use of
force against another’ as a single, undifferentiated element.” United States v. Hayes, 555
U.S. 415, 421 n.4 (2009). While the word “use” by itself is “indifferent as to whether the
actor has the mental state of intention, knowledge, or recklessness,” Voisine, 136 S. Ct. at
2279, the subsequent phrase against the person of another arguably conveys “the need for
the perpetrator to be knowingly or purposefully (and not merely recklessly) causing the
victim’s bodily injury,” United States v. Bennett, 868 F.3d 1, 18 (1st Cir.), withdrawn 870
F.3d 34 (1st Cir. 2017) (withdrawing the first Bennett opinion as moot because of Bennett’s
death but noting that a different panel had “ ‘endorse[d] and adopt[ed]’ the ‘reasoning’ of
the [first] Bennett opinion as its own” (quoting United States v. Windley, 864 F.3d 36, 37
n.2 (1st Cir. 2017) (per curiam)) 3
3
The Sixth Circuit recently criticized the First Circuit’s effort in its Bennett and
Windley opinions to give effect to the phrase “against the person of another.” United States
v. Verwiebe, 874 F.3d 258, 262–63 (6th Cir. 2017). The Sixth Circuit reasoned, in dicta,
that there are “no victim-less prosecutions under the Voisine statute” since the MCDV force
clause also requires a use of force against a person. Id. at 263. The court, therefore, found
no meaningful basis for distinguishing the MCDV force clause and the ACCA force clause.
Id. This analysis—while plausible—seems to forget two important mandates. First,
federal courts must give effect to a statute as given to us by Congress, not as we would
have written ourselves. Congress deliberately drafted the ACCA force clause to include
the language “against the person of another” while omitting such a phrase in the MCDV
force clause. The word “use” should be read without rendering the phrase “against the
person of another” superfluous. E.g., Chickasaw Nation v. United States, 534 U.S. 84, 93
(2001) (“The Court has often said that every clause and word of a statute should, if possible,
be given effect.” (internal quotation marks omitted)). Furthermore, the Supreme Court
admonishes us to examine the contexts and purposes of the various force clauses. See
Voisine, 136 S. Ct. at 2280 n.4; see also Castleman, 134 S. Ct. at 1410–11. The failure to
appreciate these differences would lead to broadly sweeping run-of-the-mill criminals as
26
Critically, the ACCA does not share the same purpose as the MCDV statute. The
title of the ACCA—the Armed Career Criminal Act—“was not merely decorative.”
United States v. Begay, 470 F.3d 964, 981 n.3 (10th Cir. 2006) (McConnell, J., dissenting
in part), rev’d sub nom. Begay v. United States, 553 U.S. 137 (2008). The ACCA aims at
state offenses that “show an increased likelihood that the offender is the kind of person
who might deliberately point the gun and pull the trigger,” rather than offenses that merely
“reveal a degree of callousness toward risk.” Begay, 553 U.S. at 146. In sum, while
Congress’s broad purpose of preventing domestic abusers from possessing firearms by
linking the MCDV statute to prevailing state laws justifies broadly construing the MCDV
force clause, the ACCA’s purpose in targeting the truly purposeful and aggressive
criminals warrants a narrower reading of the word “use.”
Many federal courts have examined the divergent contexts and purposes of the
ACCA and the MCDV statute and similarly concluded that Voisine does not compel them
to construe the word “use” in the ACCA to include reckless conduct. See, e.g., United
States v. Butler, 253 F. Supp. 3d 133, 147–48 (D.D.C. 2017); United States v. Brown, 249
F. Supp. 3d 287, 297 (D.D.C. 2017) (“Even though the statutory language in
§ 921(a)(33)(A)(ii) at issue in Voisine largely mimics that of ACCA’s [force]
clause, . . . this Court follows the lead of various other District Courts in concluding that
that linguistic similarity should not mean that recklessness is a sufficient mens rea for
violent felons subject to the heavy hand of the ACCA’s sentencing enhancement. Cf.
Johnson, 559 U.S. at 145 (expressing the need to avoid “a comical misfit” in construing
the ACCA).
27
purposes of ACCA’s [force] clause.”); United States v. Johnson, 227 F. Supp. 3d 1078,
1090 (N.D. Cal. 2016); United States v. Hill, 225 F.Supp.3d 328, 338–39 (W.D. Pa. 2016);
see also Bennett, 868 F.3d at 23 (observing that the divergent contexts and purposes and
Voisine leave the meaning of the ACCA ambiguous and applying the rule of lenity to
conclude that Maine aggravated assault does not satisfy the ACCA force clause). While
some of our sister circuits have applied Voisine to the ACCA force clause, they have done
so without seriously considering or even discussing the divergent contexts and purposes of
the ACCA and the MCDV statute. See United States v. Pam, 867 F.3d 1191, 1207–08
(10th Cir. 2017); United States v. Fogg, 836 F.3d 951, 956 (8th Cir. 2016).
I believe these divergent contexts and purposes require us to construe the word “use”
in the ACCA’s force clause to require a higher level of mens rea than recklessness.
B.
Given that the word “use” in the ACCA force clause requires a higher degree of
mens rea than recklessness, I find that South Carolina involuntary manslaughter cannot
serve as an ACCA predicate. To determine whether an offense can serve as an ACCA
predicate, we apply the categorical approach, under which we “examine only the elements
of the state offense and the fact of conviction, not the defendant’s conduct,” Doctor, 842
F.3d at 308, and “the minimum conduct necessary for a violation,” Gardner, 823 F.3d at
803 (quoting Castillo v. Holder, 776 F.3d 262, 267 (4th Cir. 2015)). If the minimum
conduct necessary for a violation does not require the “use . . . of physical force,” then the
offense cannot be an ACCA predicate. Id. at 803 (emphasis added).
28
South Carolina law defines involuntary manslaughter as the unintentional killing of
another without malice, requiring a showing of “criminal negligence,” defined as “the
reckless disregard of the safety of others.” S.C. Code Ann. § 16-3-60 (2003); State v. Scott,
779 S.E.2d 529, 531 (S.C. 2015). South Carolina involuntary manslaughter—which
criminalizes reckless conduct—does not satisfy the ACCA’s mens rea requirement.
Therefore, a conviction for South Carolina involuntary manslaughter categorically cannot
serve as an ACCA predicate. For this reason, I agree with the majority that the district
court’s denial of habeas relief should be reversed.
III.
For these reasons, I respectfully decline to join Part II.B of the majority’s opinion,
but nevertheless join in the judgment reversing the district court’s denial of habeas relief.
29