United States v. Jerrod Mack , 855 F.3d 581 ( 2017 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4684
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JERROD LAQON MACK,
Defendant – Appellant.
Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. Catherine C. Eagles, District Judge. (1:15-cr-00255-CCE-1)
Argued: December 8, 2016 Decided: May 1, 2017
Before NIEMEYER, KING, and AGEE Circuit Judges.
Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge King
and Judge Agee joined.
ARGUED: Mireille P. Clough, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Winston-Salem, North Carolina, for Appellant. Kyle David Pousson, OFFICE OF THE
UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee. ON
BRIEF: Louis C. Allen, Federal Public Defender, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Greensboro, North Carolina, for Appellant. Ripley Rand, United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North
Carolina, for Appellee.
NIEMEYER, Circuit Judge:
After Jerrod Laqon Mack pleaded guilty to possession of a stolen firearm knowing
that it was stolen, in violation of 18 U.S.C. § 922(j) and § 924(a)(2), the district court
sentenced him to 70 months’ imprisonment, a sentence at the low end of the range
recommended by the Sentencing Guidelines. In calculating the recommended Guidelines
range, the court applied U.S.S.G. § 2K2.1(a)(2) (2014), which provided for a base offense
level of 24 for the firearm offense at issue when the defendant has “at least two [prior]
felony convictions of either a crime of violence or a controlled substance offense.” The
court relied on Mack’s two prior North Carolina convictions for (1) attempted first-
degree burglary and conspiracy to commit first-degree burglary, and (2) felony breaking
and entering, concluding that they were crimes of violence as defined in U.S.S.G. §
4B1.2(a) (2014). With respect to the first of these prior convictions, the court relied on
the commentary to § 4B1.2, which provided that the term “‘[c]rime of violence’ . . .
include[s] the offense of . . . conspiring[] and attempting to commit such offenses.” Id.
cmt. n.1.
Challenging his sentence on appeal, Mack argued that because conspiracies and
attempts to commit burglary do not constitute the completed crime of burglary, as
enumerated in the text of § 4B1.2(a), the Guidelines Commentary relied on by the district
court to include conspiracies and attempts must be a construction of § 4B1.2(a)(2)’s
“residual clause.” The residual clause includes in the definition of crime of violence any
crime involving “conduct that presents a serious potential risk of physical injury to
another.” He reasoned that because the Supreme Court in Johnson v. United States, 135
2
S. Ct. 2551 (2015), found the same residual-clause language, as contained in the Armed
Career Criminal Act of 1984 (“ACCA”), unconstitutionally vague, the residual clause in
§ 4B1.2(a)(2) is likewise unconstitutionally vague, thus invalidating the text for which
the Commentary provides explanation.
The government conceded that Johnson prevented the district court from relying
on the residual clause in U.S.S.G. § 4B1.2(a)(2). But it contended that Mack’s prior
conviction for attempting and conspiring to commit first-degree burglary nonetheless
qualified as a crime of violence because the Commentary’s inclusion of inchoate offenses
such as conspiracies and attempts was a valid construction of the broader term “crime of
violence,” rather than necessarily being an interpretation of the residual clause.
After we heard oral argument, the Supreme Court decided Beckles v. United
States, 137 S. Ct. 886 (2017), which held that the Sentencing Guidelines are not subject
to vagueness challenges under the Due Process Clause and therefore that § 4B1.2(a)(2)’s
residual clause is not void for vagueness. Based on Beckles, we now reject Mack’s
vagueness challenge to § 4B1.2(a). Concluding that Mack’s North Carolina conviction
for attempting and conspiring to commit first-degree burglary qualifies as a crime of
violence under § 4B1.2(a)(2), we affirm the district court’s sentence.
I
In sentencing Mack, the district court determined that his base offense level was
24, as provided in U.S.S.G. § 2K2.1(a)(2) for defendants convicted of violating 18 U.S.C.
§ 922(j) who have two prior convictions for a “crime of violence.” Applying the
3
definition of “crime of violence” provided in U.S.S.G. § 4B1.2(a), the court found that
Mack had two prior North Carolina convictions that satisfied this predicate-crimes
requirement. The presentence report, on which the court relied, showed that Mack was
sentenced in November 2012 in North Carolina state court to 25 to 42 months’
imprisonment for having committed “felony attempted first degree burglary” and “felony
conspiracy to commit first degree burglary” in May 2012, in violation of N.C. Gen. Stat.
§ 14-51. It also showed that Mack was sentenced in March 2014 in state court to 8 to 19
months’ imprisonment for “felony breaking and entering” in June 2012, in violation of
N.C. Gen. Stat. § 14-54.
While Mack did not, at sentencing, dispute his criminal record, he argued that after
the Supreme Court’s decision in Johnson, his conviction of attempting and conspiring to
commit first-degree burglary did not qualify as a crime of violence under § 4B1.2(a).
That section, in the version in force at the time of Mack’s sentencing, defined a “crime of
violence” as:
[A]ny 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.
4
U.S.S.G. § 4B1.2(a) (2014) (emphasis added to the residual clause). 1 And Application
Note 1 to § 4B1.2 provided that a “‘[c]rime of violence’ . . . include[s] the offenses of
aiding and abetting, conspiring, and attempting to commit such offenses.” (Emphasis
added). Mack argued that because the language of the residual clause in § 4B1.2(a) was
the same as the language in the residual clause in ACCA, which Johnson had held was
unconstitutionally vague, the residual clause in the Sentencing Guidelines was likewise
invalid. He argued further that the text of § 4B1.2(a) included only the completed crime
of “burglary of a dwelling,” such that the government would have to rely on the residual
clause to cover his conspiracy and attempt conviction. And because the residual clause
was invalid, the district court could not rely on the commentary to include inchoate
offenses such as conspiracy and attempt.
The district court rejected Mack’s arguments, concluding that Application Note 1
to § 4B1.2(a) had the force of law and therefore that Mack’s conspiracy and attempt
conviction was a crime of violence.
From the district court’s judgment, Mack filed this appeal.
1
After the sentencing in this case, which took place on October 15, 2015, the
Sentencing Commission amended U.S.S.G. § 4B1.2(a), effective August 1, 2016, by,
among other things, deleting the residual clause and expanding the “enumerated offense
clause.” The Commission explained that the change was made because of a lack of
clarity in the residual clause that had prompted a significant amount of litigation,
particularly after Johnson. Amend. 798, U.S.S.G. app. C, at 127–30 (Supp. Nov. 1,
2016).
5
II
Mack’s sole argument on appeal is that his North Carolina felony conviction for
conspiracy and attempt to commit first-degree burglary is not a crime of violence under
the Sentencing Guidelines’ definition in § 4B1.2(a) and therefore that his base offense
level for his illegal possession of a stolen firearm violation should not have been
enhanced based on this conviction. He argues that because Johnson held that the residual
clause in ACCA, 18 U.S.C. § 924(e)(2)(B)(ii), was unconstitutionally vague, the
Guidelines’ residual clause in § 4B1.2(a)(2), which uses the same language, is likewise
unconstitutionally vague.
After Mack made that argument, both in his brief and at oral argument, the
Supreme Court issued its decision in Beckles, 137 S. Ct. 886. In Beckles, the petitioner
was convicted of possession of a firearm by a felon and sentenced as “career offender”
under the Sentencing Guidelines — a sentencing enhancement that, like Mack’s base
offense level, depended on the defendant having two prior convictions for a “crime of
violence,” as that term is defined in U.S.S.G. § 4B1.2(a). Id at 890–91. The petitioner
challenged his sentence, arguing that one of his prior convictions was not a crime of
violence after the Court’s decision in Johnson. Id. at 891–92. The government
conceded, as it did here, that the residual clause in § 4B1.2(a) was unconstitutionally
vague, but it argued that the petitioner’s sentence nonetheless remained valid. Id. at 892.
The Court, however, did not accept the government’s concession. Instead, it rejected the
petitioner’s effort to apply Johnson to the Sentencing Guidelines, explaining:
6
Unlike the ACCA, . . . the advisory Guidelines do not fix the permissible
range of sentences. To the contrary, they merely guide the exercise of a
court’s discretion in choosing an appropriate sentence within the statutory
range. Accordingly, the Guidelines are not subject to a vagueness
challenge under the Due Process Clause. The residual clause in
§ 4B1.2(a)(2) therefore is not void for vagueness.
Id.
This decision clearly forecloses Mack’s argument based on Johnson. With the
residual clause remaining in force, we must now apply § 4B1.2(a) with all its relevant
language, including the residual clause and any Guidelines Commentary that may explain
it.
Mack concedes that “with . . . § 4B1.2(a)(2)’s residual clause intact, the
commentary that includes attempts and conspiracies as crimes of violence [is] consistent
with the language of the guideline.” See Stinson v. United States, 508 U.S. 36, 38 (1993)
(“[C]ommentary in the Guidelines Manual that interprets or explains a guideline is
authoritative unless it . . . is inconsistent with, or a plainly erroneous reading of, that
guideline”). This concession represents a common-sense understanding of the residual
clause — inchoate crimes that would qualify as violent if completed “present[] a serious
potential risk of physical injury to another.” U.S.S.G. § 4B1.2(a)(2) (2014).
Accordingly, because the completed crime of “burglary of a dwelling” is enumerated as a
crime of violence in the text of § 4B1.2(a), it follows that, based on the Commentary,
attempts and conspiracies to commit “burglary of a dwelling” similarly qualify. The
question remains, however, whether the North Carolina crime of first-degree burglary,
N.C. Gen. Stat. § 14-51, qualifies as a crime of violence under § 4B1.2(a) (2014).
7
In making this determination, we use a two-step “categorical approach.” See
United States v. Peterson, 629 F.3d 432, 435 (4th Cir. 2011). First, we establish the
“generic” definition of the Guidelines-enumerated offense, either from prior cases or,
where courts have not interpreted the enumerated offense, by “distill[ing] a ‘generic’
definition of the predicate offense based on how the offense is defined ‘in the criminal
codes of most states.’” Id. at 436 (quoting Taylor v. United States, 495 U.S. 575, 598
(1990)). Then we decide whether the state offense is a “categorical match” to the generic
offense — that is, whether a defendant convicted of the state offense necessarily satisfied
the elements of the generic offense. If so, the defendant’s conviction for the state offense
counts as a conviction of the Guidelines-enumerated offense.
The generic definition of burglary is well established to mean the “unlawful or
unprivileged entry into . . . a building or other structure, with intent to commit a crime.”
Taylor, 495 U.S. at 598. And with the added requirement in § 4B1.2(a)(2) that the
burglary be “of a dwelling,” the Taylor requirement of a “building or other structure” is,
in turn, limited to a dwelling. See United States v. Bonilla, 687 F.3d 188, 190 n.3 (4th
Cir. 2012). In other words, to qualify categorically, the state offense must require (1) the
unlawful or unprivileged entry into a dwelling (2) with intent to commit a crime.
Applying these principles, we conclude that a North Carolina conviction of first-
degree burglary under N.C. Gen. Stat. § 14-51 categorically matches the generic
definition of burglary of a dwelling in § 4B1.2(a). To obtain a conviction for first-degree
burglary in North Carolina, the State must prove “(i) the breaking (ii) and entering (iii) in
the nighttime (iv) into the dwelling house or sleeping apartment (v) of another (vi) which
8
is actually occupied at the time of the offense (vii) with the intent to commit a felony
therein.” State v. Singletary, 472 S.E.2d 895, 899 (N.C. 1996) (emphasis added) (citing
N.C. Gen. Stat. § 14-51). While this formulation does not explicitly require an “unlawful
or unprivileged entry,” state decisions show that it is an essential element of the North
Carolina crime. See State v. Upchurch, 421 S.E.2d 577, 588 (N.C. 1992) (noting that to
support a conviction for first-degree burglary, the breaking and entering must be “without
the consent of anyone authorized to give consent”). Accordingly, Mack’s prior
conviction in North Carolina for conspiracy and attempt to commit first-degree burglary
is a crime of violence under § 4B1.2(a). 2
In sum, we conclude that the district court properly considered Mack’s North
Carolina conviction for conspiring and attempting to commit first-degree burglary as a
predicate offense under § 2K2.1(a)(2), which provides for a base offense level of 24
2
Mack does not challenge the district court’s use of his prior conviction
for felony breaking and entering under N.C. Gen. Stat. § 14-54 as the second predicate
crime of violence required by U.S.S.G. § 2K2.1(a)(2). Nonetheless, the government
notified us after oral argument that it had abandoned its argument that the North Carolina
breaking and entering conviction qualified as “burglary of a dwelling” for purposes of
U.S.S.G. § 4B1.2(a). It maintains, however, that the felony breaking and entering offense
would still qualify as a crime of violence under the residual clause in § 4B1.2(a)(2),
citing Leocal v. Ashcroft, 543 U.S. 1, 10 (2004) (construing 18 U.S.C. § 16(b)’s residual
clause and explaining that “burglary would be covered . . . because burglary, by its
nature, involves a substantial risk that the burglar will use force against a victim in
completing the crime”). See also In re Hubbard, 825 F.3d 225, 230 (4th Cir. 2016)
(assuming that defendant’s ability to challenge use of Kentucky third-degree burglary as
a predicate offense supporting a Guidelines enhancement depended on § 4B1.2’s residual
clause being invalid); United States v. Mungro, 754 F.3d 267, 270 (4th Cir. 2014)
(holding that North Carolina breaking and entering qualifies as generic “burglary” for
purposes of ACCA, as it requires an “unlawful or unprivileged” entry). Because this
issue has not been raised on appeal, we do not address it.
9
when the defendant has “at least two felony convictions of . . . a crime of violence,” as
that term is defined in § 4B1.2(a).
AFFIRMED
10