United States v. Rodney Vinson , 805 F.3d 120 ( 2015 )

ON REHEARING
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4078
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
v.
RODNEY MARSHALL VINSON,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
District Judge. (5:13-cr-00121-FL-1)
Argued: January 27, 2015 Decided: November 3, 2015
Before TRAXLER, Chief Judge, and GREGORY and AGEE, Circuit
Judges.
Affirmed by published opinion. Chief Judge Traxler wrote the
opinion in which Judge Gregory and Judge Agee concur.
ARGUED: Barbara Dickerson Kocher, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellant. Robert Earl
Waters, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North
Carolina, for Appellee. ON BRIEF: Thomas G. Walker, United
States Attorney, Jennifer P. May-Parker, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellant. Thomas P. McNamara, Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North
Carolina, for Appellee.
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TRAXLER, Chief Judge:
Police officers dispatched to the residence of Rodney
Marshall Vinson found a rifle and ammunition during a consensual
search. After determining that Vinson had a prior North
Carolina conviction amounting to a “misdemeanor crime of
domestic violence,” 18 U.S.C. § 921(a)(33)(A), the government
charged Vinson with possession of a firearm by a prohibited
person, see 18 U.S.C. § 922(g)(9). The district court granted
Vinson’s motion to dismiss the indictment, concluding that
Vinson was not a prohibited person because the state statute at
issue did not, as a categorical matter, qualify as a misdemeanor
crime of domestic violence. The government appeals.
In our previous opinion in this case, in which Judge
Gregory dissented, we vacated the district court’s order
dismissing the indictment and remanded with instructions that
the district court reinstate the indictment against Vinson. See
United States v. Vinson, No. 14-4078 (4th Cir. filed July 21,
2015). Vinson thereafter filed a petition for rehearing in
which he asserted a new basis for affirming the dismissal of the
indictment. Upon consideration of the point raised in the
petition for rehearing, we granted the petition and we now
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affirm the district court’s order dismissing the indictment
against Vinson. 1
I.
A.
Section 922(g) prohibits the possession of firearms by
various classes of persons, including those convicted of a
“misdemeanor crime of domestic violence” (“MCDV”). 18 U.S.C. §
922(g)(9). Subject to certain exceptions not relevant here, a
crime qualifies as a MCDV if it:
(i) is a misdemeanor under Federal, State, or Tribal .
. . law; and
1 Vinson did not raise the issue we find dispositive in
his brief before this court or the district court. “Ordinarily,
. . . we do not decide issues on the basis of theories first
raised on appeal.” Skipper v. French, 130 F.3d 603, 610 (4th
Cir. 1997). Although this court “may affirm judgments on
alternative grounds to those relied upon by a lower court, this
contemplates that the alternative ground shall first have been
advanced in that court, whether or not there considered.” Id.(citation omitted). The rule precluding consideration of issues
raised for the first time on appeal, however, is prudential, not
jurisdictional. See id. The issue Vinson raises involves a
pure question of law that is closely related to the arguments
made by the government in its opening and reply briefs, and the
government, at our request, has responded to Vinson’s petition
for rehearing. Moreover, North Carolina does not have a
mechanism for certifying questions of state law to its Supreme
Court, see Town of Nags Head v. Toloczko, 728 F.3d 391, 398 (4th
Cir. 2013), and failure to consider the issue would leave in
place our incomplete and thus incorrect analysis of North
Carolina law. Under these circumstances, we exercise our
discretion to consider the issue raised in Vinson’s petition for
rehearing. See Hormel v. Helvering, 312 U.S. 552, 556-57
(1941).
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(ii) has, as an element, the use or attempted use of
physical force, or the threatened use of a deadly
weapon, committed by a current or former spouse,
parent, or guardian of the victim, by a person with
whom the victim shares a child in common, by a person
who is cohabiting with or has cohabited with the
victim as a spouse, parent, or guardian, or by a
person similarly situated to a spouse, parent, or
guardian of the victim.
18 U.S.C. § 921(a)(33)(A). The existence of the domestic
relationship between the victim and defendant specified in the
statute is an element of the § 922(g)(9) charge that must be
proven beyond a reasonable doubt by the government, but the
relationship need not be an element of the underlying state
offense. See United States v. Hayes, 555 U.S. 415, 426 (2009).
As is clear from the terms of the statute, however, the use or
attempted use of physical force, or threatened use of a deadly
weapon, must be an element of the underlying state offense. The
“physical force” element of § 921(a)(33)(A) is satisfied “by the
degree of force that supports a common-law battery conviction,”
United States v. Castleman, 134 S. Ct. 1405, 1413 (2014),
“namely, offensive touching,” id. at 1410.
To determine whether a prior conviction renders the
defendant a prohibited person under § 922(g), we apply the
familiar “categorical approach.” Id. at 1413. Under the
categorical approach, we look “only to the fact of conviction
and the statutory definition of the prior offense. . . . ,
focus[ing] on the elements of the prior offense rather than the
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conduct underlying the conviction.” United States v. Cabrera-
Umanzor, 728 F.3d 347, 350 (4th Cir. 2013) (internal quotation
marks omitted).
A modification to the categorical approach may be used in
cases where the underlying state crime “consists of multiple,
alternative elements creating several different crimes, some of
which would match the generic federal offense and others that
would not.” Omargharib v. Holder, 775 F.3d 192, 197 (4th Cir.
2014) (internal quotation marks omitted). When such “divisible”
crimes are at issue, we may apply the “modified categorical
approach,” which permits us “to examine a limited class of
documents to determine which of a [crime’s] alternative elements
formed the basis of the defendant’s prior conviction.” Descamps
v. United States, 133 S. Ct 2276, 2284 (2013). 2 “General
divisibility, however, is not enough; a [state crime] is
divisible for purposes of applying the modified categorical
approach only if at least one of the categories into which the
[crime] may be divided constitutes, by its elements, [a
2 Although Descamps addressed a state crime defined by
statute, we have since held that the Descamps analysis applies
to state crimes whose elements are defined by case law rather
than by statute. See United States v. Aparicio-Soria, 740 F.3d
152, 155 (4th Cir. 2014) (en banc) (“[T]he categorical/modified
categorical typologies apply equally to statutory and common law
crimes.”); United States v. Hemingway, 734 F.3d 323, 333 (4th
Cir. 2013) (“[T]he Descamps divisibility analysis is applicable
to the question of whether a common law offense constitutes a[]
. . . predicate crime.”).
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qualifying predicate offense].” Cabrera-Umanzor, 728 F.3d at
352; see Descamps, 133 S. Ct. at 2285.
B.
Vinson’s prior conviction involved a violation of N.C. Gen.
Stat. § 14-33, a statute that classifies simple and aggravated
forms of misdemeanor assault, assault and battery, and affray.
Vinson was convicted of violating subsection (c)(2) of the
statute, which provides that “any person who commits any
assault, assault and battery, or affray is guilty of a Class A1
misdemeanor if, in the course of the assault, assault and
battery, or affray, he . . . [a]ssaults a female, he being a
male person at least 18 years of age.” N.C. Gen. Stat. § 14-
33(c)(2).
There is no statutory definition of assault, battery, or
affray, so the common-law rules governing these crimes apply to
prosecutions under N.C. Gen. Stat. § 14-33. See State v.
Roberts, 155 S.E.2d 303, 305 (N.C. 1967). Conviction under
subsection (c)(2) requires proof of the following elements: “(1)
an assault (2) upon a female person (3) by a male person (4) who
is at least eighteen years old.” State v. Wortham, 351 S.E.2d
294, 296 (N.C. 1987).
The district court understood § 14-33(c)(2) as establishing
the crime of assault on a female, a crime that can be committed
through an assault, assault and battery, or an affray. In the
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district court’s view, assault, battery, and affray were
alternate means of committing the same crime, not alternate
elements of different crimes, such that § 14-33(c)(2) was not
divisible and the modified categorical approach was not
applicable. See Omargharib, 775 F.3d at 198 (explaining that
alternate means of committing a single crime do make the crime
divisible); see also Descamps, 133 S. Ct. at 2285 n.2.
Applying the categorical approach, the district court
concluded that a violation of 14-33(c)(2) did not amount to an
MCDV because the use or threatened use of physical force is not
an element of assault under North Carolina law. In reaching
this conclusion, the district court applied this court’s
decision in United States v. White, 606 F.3d 144 (4th Cir.
2010), and interpreted the “physical force” requirement of §
921(a)(33)(A)(ii) to mean “violent force,” see id. at 153
(“[T]he phrase ‘physical force’ means violent force -- that is,
force capable of causing physical pain or injury to another
person.” (internal quotation marks omitted)).
After the district court granted Vinson’s motion to
dismiss, however, the Supreme Court issued its decision in
Castleman and held, directly contrary to our holding in White,
that violent force was not necessary to satisfy the “physical
force” requirement of § 921(a)(33)(A)(ii). See Castleman, 134
S. Ct. at 1413. Instead, the Court held that the statute
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“incorporated the common-law meaning of ‘force’ -- namely,
offensive touching,” id. at 1410, and that “the requirement of
‘physical force’ is satisfied, for purposes of § 922(g)(9), by
the degree of force that supports a common-law battery
conviction,” id. at 1413.
II.
The sole issue on appeal is whether Vinson’s conviction
under N.C. Gen. Stat. § 14-33(c)(2) qualifies as a conviction
for an MCDV as defined by 18 U.S.C. § 921(a)(33)(A). The
government does not challenge the district court’s determination
that Vinson’s conviction would not qualify as an MCDV under the
categorical approach. Instead, the government argues that,
contrary to the district court’s conclusion, § 14-33(c)(2) is
divisible, such that the modified categorical approach may be
applied. And because the charging document in this case shows
that the conviction was predicated on a battery of Vinson’s
wife, the government contends that the modified categorical
approach establishes that Vinson was convicted of an MCDV and
that the district court therefore erred by dismissing the
indictment against Vinson.
In the government’s view, the crime is divisible because
North Carolina law defines “assault” through alternate elements.
North Carolina law includes three different definitions of the
crime of assault. First, under what can be called the
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“attempted battery” formulation, an assault can be committed by
“an overt act or an attempt, or the unequivocal appearance of an
attempt, with force and violence, to do some immediate physical
injury to the person of another, which show of force or menace
of violence must be sufficient to put a person of reasonable
firmness in fear of immediate bodily harm.” Roberts, 155 S.E.2d
at 305 (internal quotation marks omitted). Second, under the
“show of violence” formulation, an assault can be committed by
“a show of violence accompanied by reasonable apprehension of
immediate bodily harm or injury on the part of the person
assailed which causes him to engage in a course of conduct which
he would not otherwise have followed.” Id. Finally, under the
“completed battery” formulation, an assault conviction may be
premised on proof of a battery. See In re K.C., 742 S.E.2d 239,
243 (N.C. Ct. App. 2013) (“When a battery has occurred, assault
may be proven by a finding of either assault or battery on the
victim.”); State v. Britt, 154 S.E.2d 519, 521 (N.C. 1967) (“A
battery always includes an assault, and is an assault whereby
any force is applied, directly or indirectly, to the person of
another.”). The government argues that these different
formulations of assault are alternate elements that render the
crime divisible and thus permit application of the modified
categorical approach.
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Whether the multiple assault formulations are alternate
means or alternate elements is the issue that divided this court
in our original opinion, and we need not delve into that issue
again. As we have explained, whether a statute or criminal
offense is divisible depends on the existence of alternate
elements and a matching category -- that is, the alternate
elements must create at least one category or form of an offense
that matches up to the elements of the generic federal offense
in question. See Omargharib, 775 F.3d at 197; Cabrera-Umanzor,
728 F.3d at 352. Assuming without deciding that the assault
formulations amount to alternate elements creating separate
forms of the offense, none of the forms of the offense require
the level of intent necessary to qualify as an MCDV.
A.
As noted above, an MCDV is defined as an offense that “has,
as an element, the use or attempted use of physical force, or
the threatened use of a deadly weapon.” 18 U.S.C. §
921(a)(33)(A)(ii). Because the threatened use of a deadly
weapon is not an element of assault under North Carolina law, we
focus on the “use or attempted use of physical force”
requirement.
In Leocal v. Ashcroft, 543 U.S. 1 (2004), the Supreme
Court, interpreting the “crime of violence” definition of 18
U.S.C. § 16, concluded that “the most common employment of the
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word ‘use’ connotes the intentional availment of force.” Id. at
9. The Court therefore held that “negligent or merely
accidental conduct” does not constitute a use of physical force.
Id. Although the Leocal Court expressly did not decide whether
reckless conduct could constitute a “use” of force, see id. at
13, this court has since concluded that a reckless use of force
does not satisfy the requirements of § 16, see Garcia v.
Gonzales, 455 F.3d 465, 469 (4th Cir. 2006) (“[R]ecklessness,
like negligence, is not enough to support a determination that a
crime is a ‘crime of violence.’”); accord Bejarano-Urrutia v.
Gonzales, 413 F.3d 444, 447 (4th Cir. 2005).
Because the relevant language in § 16 is largely identical
to that of § 921(a)(33)(A), Leocal’s definition of “use” is
applicable to this case. Accordingly, if North Carolina law
permits an assault conviction based on negligent or reckless
conduct, then none of the different assault formulations
categorically qualify as an MCDV.
B.
North Carolina case law establishes that the defendant must
act intentionally to be guilty of assault. See, e.g., State v.
Starr, 703 S.E.2d 876, 880 (N.C. Ct. App. 2011) (“[A]ll that is
necessary to sustain a conviction for assault is evidence of an
overt act showing an intentional offer by force and violence to
do injury to another sufficient to put a person of reasonable
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firmness in apprehension of immediate bodily harm.” (internal
quotation marks and emphasis omitted)); State v. Britt, 154
S.E.2d 519, 521 (N.C. 1967) (“[A]n assault is an intentional
attempt, by violence, to do injury to the person of another.”
(internal quotation marks omitted)); State v. Davis, 23 N.C.
125, 127 (N.C. 1840) (“[An assault] must be intentional -- for,
if it can be collected, notwithstanding appearances to the
contrary, that there is not a present purpose to do an injury,
there is no assault.”). Likewise, North Carolina’s pattern jury
instructions addressing assault offenses generally provide that
the defendant must act intentionally. See, e.g., N.C. Pattern
Instructions - Crim. 208.40 (simple assault); id. 208.70
(assault on a female).
Because assaults must be intentional, an assault conviction
under North Carolina law would seem to require a “use” of force
as defined by Leocal. As Vinson points out in his petition for
rehearing, however, the requisite intent can be established
through proof of “culpable negligence.” State v. Jones, 538
S.E.2d 917, 923 (N.C. 2000) (“actual intent” may be implied from
proof of “culpable or criminal negligence”); State v. Thompson,
454 S.E.2d 271, 273 (N.C. Ct. App. 1995) (“Where an alleged
assault is unintentional and the perpetrator acted without
wrongful purpose in the course of lawful conduct and without
culpable negligence, a resultant injury will be excused as
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accidental.” (emphasis added)); see also N.C. Pattern
Instructions - Crim. 307.11 (“An injury is accidental if it is
unintentional, occurs during the course of lawful conduct, and
does not involve culpable negligence.”).
North Carolina law defines “culpable negligence” as “such
recklessness or carelessness, proximately resulting in injury or
death, as imports a thoughtless disregard of consequences or a
heedless indifference to the safety and rights of others.”
Jones, 538 S.E.2d at 923 (internal quotation marks omitted). As
this court explained in United States v. Peterson, 629 F.3d 432(4th Cir. 2011), this standard, with its focus on thoughtless
disregard, is a lesser standard of culpability than
recklessness, which requires at least “a conscious disregard of
risk.” Id. at 437 (emphasis added).
Accordingly, as Vinson argues, North Carolina law permits
convictions for all forms of assault, including completed-
battery assault, in cases where the defendant’s conduct does not
rise even to the level of recklessness. See State v. Dammons,
461 S.E.2d 6, 8 (N.C. Ct. App. 1995) (completed-battery case
finding no error in jury instructions stating “that defendant
would not be guilty of the assault if the shooting was
accidental [and] that a shooting is not accidental if it results
from culpable negligence”). Thus, none of the different forms
of assault categorically qualifies as an MCDV, because each form
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permits conviction for conduct that does not amount to a “use”
of force under Leocal. And because none of the assault forms
categorically qualifies as an MCDV, assault is not a divisible
offense, and the modified categorical approach is inapplicable.
See Descamps, 133 S. Ct. at 2285; Cabrera-Umanzor, 728 F.3d at
352.
III.
Because none of the categories of assault under North
Carolina law have elements matching the elements of an MCDV
under 18 U.S.C. § 921(a)(33)(A), we hereby affirm the district
court’s judgment dismissing the indictment against Vinson.
AFFIRMED
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