United States v. Lorenzo Keitt ( 2019 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-4165
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LORENZO KEITT,
Defendant – Appellant.
Appeal from the United States District Court for the District of South Carolina, at
Columbia. Terry L. Wooten, Senior District Judge. (3:17-cr-00805-TLW-1)
Argued: December 13, 2018 Decided: March 13, 2019
Before NIEMEYER, KING, and WYNN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
ARGUED: Kimberly Harvey Albro, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Columbia, South Carolina, for Appellant. William Camden Lewis,
OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for
Appellee. ON BRIEF: Sherri A. Lydon, United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lorenzo Keitt pleaded guilty in the District of South Carolina in 2017 to a single
offense of possession of a firearm and ammunition as a convicted felon, in violation of 18
U.S.C. § 922(g)(1). After establishing his advisory Sentencing Guidelines range at 70 to
87 months, the district court sentenced Keitt to 72 months in prison. On appeal, Keitt
contends that the court erred in calculating his Guidelines range by incorrectly applying a
provision that increases the offense level for a defendant who already has two felony
convictions for “crime[s] of violence.” As explained below, one of Keitt’s convictions
on which the court relied is not a “crime of violence.” We therefore vacate the judgment
and remand.
I.
In November 2017, Keitt was convicted of the 18 U.S.C. § 922(g)(1) offense of
possessing a firearm and ammunition as a convicted felon. Prior to the sentencing
hearing, the probation officer prepared Keitt’s presentence report (the “PSR”) under the
Sentencing Guidelines. The PSR suggested a base offense level of 24 under Guidelines
§ 2K2.1(a)(2). That provision increases the base offense level — and thereby the
advisory Guidelines range — if the defendant has certain prior felony convictions. More
specifically, § 2K2.1(a)(2) provides that, if the defendant has at least two prior felony
convictions for a “crime of violence” or a “controlled substance offense,” his base
offense level for the § 922(g)(1) offense increases from 14 to 24. See USSG
§ 2K2.1(a)(6)(A) (providing that, absent other factors, base offense level for § 922(g)(1)
2
offense is 14). As pertinent here, the Guidelines define a “crime of violence” as any
crime punishable by a term of imprisonment exceeding one year that:
(1) has as an element the use, attempted use, or threatened use of physical
force against the person of another [the “force clause”], or
(2) is murder, voluntary manslaughter, kidnapping, aggravated assault, a
forcible sex offense, robbery, arson, extortion, or the use or unlawful
possession of a firearm described in 26 U.S.C. § 5845(a) or explosive
material as defined in 18 U.S.C. § 841(c) [the “enumerated crimes clause”].
See id. § 4B1.2(a); see also id. § 2K2.1 cmt. n.1 (incorporating definition of “crime of
violence” from Guidelines § 4B1.2(a) into Guidelines § 2K2.1). 1 The Guidelines
definition of a “crime of violence” thus contains two distinct clauses, commonly referred
to as the “force clause” and the “enumerated crimes clause.”
The PSR recommended that the sentencing court in the District of South Carolina
apply § 2K2.1(a)(2) — and a base offense level of 24 — because Keitt had two prior
convictions for a “crime of violence.” That is, the PSR specified that Keitt was
previously convicted in South Carolina state courts for the felony offenses of
(1) assaulting, beating, or wounding a law enforcement officer while resisting arrest, in
violation of South Carolina Code § 16-9-320(B) (hereinafter the “ABWO offense”), and
(2) threatening the life, person, or family of a public official, in violation of South
Carolina Code § 16-3-1040(A) (hereinafter the “threat offense”). After subtracting 3
levels for Keitt’s guilty plea and acceptance of responsibility — resulting in a total
1
The Sentencing Commission amended the Guidelines in August 2016 to revise
the “crime of violence” definition spelled out in § 4B1.2(a). That “crime of violence”
definition applies in these proceedings.
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offense level of 21 — the PSR placed Keitt in a criminal history category of V. It then
calculated his advisory Guidelines range as 70 to 87 months.
At the sentencing hearing conducted in Columbia on March 13, 2018, Keitt
objected to the application of § 2K2.1(a)(2). He argued that neither his ABWO offense
nor his threat offense constituted a “crime of violence.” The district court, however,
ruled that both offenses — the ABWO offense and the threat offense — were “crime[s]
of violence” under the force clause of Guidelines § 4B1.2(a). The court thus concluded
that § 2K2.1(a)(2) applied to Keitt’s § 922(g)(1) conviction and required a base offense
level of 24. The court adopted the remainder of Keitt’s PSR, resulting in the advisory
Guidelines range of 70 to 87 months. The court then sentenced Keitt — within that
advisory range — to 72 months in prison. Keitt has appealed the criminal judgment, and
we possess jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
II.
On appeal, Keitt maintains that the district court erred in calculating his advisory
Guidelines range. That is, Keitt asserts that the court should not have applied the base
offense level provided for in Guidelines § 2K2.1(a)(2), in that his ABWO offense is not a
“crime of violence” under Guidelines § 4B1.2(a). In other words, he argues that he does
not have two prior felony convictions for “crime[s] of violence,” as required by
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§ 2K2.1(a)(2). 2 In response, the government contends that the court correctly ruled that
Keitt’s ABWO offense is a “crime of violence” under § 4B1.2(a)’s force clause. We
review de novo the question of whether a prior conviction is a “crime of violence.” See
United States v. Hammond, 912 F.3d 658, 661 (4th Cir. 2019).
III.
A.
The lawyers agree that we are obliged to apply the familiar “categorical approach”
in assessing whether Keitt’s conviction for the ABWO offense constitutes a “crime of
violence.” See United States v. Jones, 914 F.3d 893, 900-01 (4th Cir. 2019) (applying
categorical approach to whether ABWO offense was “violent felony” under Armed
Career Criminal Act (the “ACCA”), 18 U.S.C. § 924(e)(2)(B)). Pursuant to the
categorical approach, we consider only the elements of the offense in dispute, not the
underlying facts of that offense. See United States v. Carthorne, 726 F.3d 503, 514 (4th
Cir. 2013). Accordingly, for an offense to qualify categorically as a “crime of violence”
under the force clause of Guidelines § 4B1.2(a), the offense “necessarily must have as an
element the ‘use, attempted use, or threatened use of physical force against the person of
2
Keitt also maintains on appeal that his conviction for the threat offense is not a
“crime of violence” conviction under Guidelines § 4B1.2(a). Because we rule that the
ABWO offense is not a “crime of violence,” and that the district court erred in applying
Guidelines § 2K2.1(a)(2), we need not decide the threat offense issue. See United States
v. Passaro, 577 F.3d 207, 223 (4th Cir. 2009) (declining to decide Guidelines challenge
where other error required remand).
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another.’” See United States v. Hammond, 912 F.3d 658, 661 (4th Cir. 2019) (quoting
USSG § 4B1.2(a)(1)). The Supreme Court has instructed that the phrase “physical
force,” as used in § 4B1.2(a)’s force clause, “means violent force — that is, force capable
of causing physical pain or injury to another person.” See Johnson v. United States, 559
U.S. 133, 140 (2010).
In conducting the categorical analysis required by § 4B1.2(a), “[w]e rely on
precedents evaluating whether an offense constitutes a ‘crime of violence’ under the
Guidelines interchangeably with precedents evaluating whether an offense constitutes a
‘violent felony’” under the ACCA. See United States v. Montes-Flores, 736 F.3d 357,
363 (4th Cir. 2013) (quoting United States v. King, 673 F.3d 274, 279 n.3 (4th Cir.
2012)). 3 Like § 4B1.2(a)’s “crime of violence” definition, the ACCA’s “violent felony”
definition also contains a force clause. See 18 U.S.C. § 924(e)(2)(B)(i) (defining “violent
felony” as an offense punishable by more than a year in prison that “has as an element the
use, attempted use, or threatened use of physical force against the person of another”).
We have recognized that, if an offense does not qualify as a “violent felony” under the
3
The ACCA defines a “violent felony” as any crime punishable by a term of
imprisonment exceeding one year 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.
See 18 U.S.C. § 924(e)(2)(B).
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ACCA’s force clause, it is not a “crime of violence” under § 4B1.2(a)’s force clause. See
United States v. Gattis, 877 F.3d 150, 155 (4th Cir. 2017).
B.
With the applicable legal principles so understood, we are satisfied that our recent
published decision in the Jones case requires us to vacate the challenged judgment and
remand. See United States v. Jones, 914 F.3d 893 (4th Cir. Feb. 4, 2019). In Jones, we
assessed whether the ABWO offense was a “violent felony” under the ACCA’s force
clause. Id. at 902-04. We therein explained that the ABWO offense can be committed
by three distinct physical actions against a law enforcement officer, that is, by assaulting,
by beating, or by wounding the law officer. Id. at 901. 4 Focusing on the assault aspect of
the ABWO offense, we recognized that “an assault under South Carolina law can be
committed without the use, attempted use, or threatened use of violent physical force.”
Id. at 903-04. As Jones related, “a person can perpetrate an assault [in South Carolina]
by attempting to touch another in a rude or angry manner.” Id. at 903. Moreover, we
4
The South Carolina statute criminalizing the ABWO offense provides, in
pertinent part, that it is a felony offense punishable by up to ten years in prison for any
person
to knowingly and wilfully assault, beat, or wound a law enforcement officer
engaged in serving, executing, or attempting to serve or execute a legal writ
or process or to assault, beat, or wound an officer when the person is
resisting an arrest being made by one whom the person knows or
reasonably should know is a law enforcement officer, whether under
process or not.
See S.C. Code Ann. § 16-9-320(B).
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emphasized that South Carolina has actually applied the ABWO offense to conduct that
did not involve violent physical force (i.e., when an arrestee spit blood on a police
officer). Id. As a result of South Carolina’s application of the ABWO offense to
“conduct that does not involve the use, attempted use, or threatened use of violent
physical force against another,” the Jones decision ruled that the ABWO offense is not
categorically a “violent felony” under the force clause of the ACCA. Id.Although Jones was decided under the ACCA’s force clause, it informs our
analysis of the force clause in Guidelines § 4B1.2(a). See Gattis, 877 F.3d at 155;
Montes-Flores, 736 F.3d at 363. Based on the reasoning of Jones, we are satisfied that
Keitt’s prior South Carolina conviction for the ABWO offense fails to qualify as a “crime
of violence” under § 4B1.2(a)’s force clause. 5 Consequently, the sentencing court erred
in applying Guidelines § 2K2.1(a)(2), in that Keitt does not have the two requisite prior
felony convictions for “crime[s] of violence.” Because that error resulted in an incorrect
determination of Keitt’s base offense level, he is entitled to be resentenced.
IV.
Pursuant to the foregoing, we vacate the judgment and remand for such other and
further proceedings as may be appropriate.
VACATED AND REMANDED
5
The government did not argue in the district court — and does not contend on
appeal — that the ABWO offense is a “crime of violence” under the enumerated crimes
clause of § 4B1.2(a).
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