United States v. Shawn Manning , 564 F. App'x 723 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4556
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SHAWN PATRICK MANNING,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Samuel G. Wilson, District
Judge. (7:12-cr-00042-SGW-3)
Submitted: February 25, 2014 Decided: April 3, 2014
Before GREGORY and FLOYD, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
L. Brad Braford, L. BRAD BRAFORD P.C., Roanoke, Virginia, for
Appellant. Timothy J. Heaphy, United States Attorney, R. Andrew
Bassford, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A grand jury indicted Shawn Manning on one count of
conspiring to possess with the intent to distribute a controlled
substance, in violation of 21 U.S.C. §§ 841 and 846, and two
counts of money laundering, in violation of 18 U.S.C. § 1956.
Manning subsequently pleaded guilty to one count of money
laundering and a lesser-included offense relating to the
conspiracy charge. At Manning’s sentencing, the district court
categorized Manning as a career offender, a determination that
Manning now challenges on appeal. For the reasons set forth
below, we affirm.
I.
The criminal activities giving rise to Manning’s indictment
and guilty plea are largely irrelevant to the sole issue
presented by this appeal. It suffices to say that during the
course of several years, Manning was involved in a conspiracy to
distribute hundreds of kilograms of marijuana and to channel
hundreds of thousands of dollars in related proceeds from
Virginia to persons in places as far away as California and
Jamaica. What is relevant is that prior to the underlying
indictment and plea, Manning was convicted in 2010 in Virginia
state court of possessing with the intent to distribute a
controlled substance. Manning was also convicted in 1997 in
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New Jersey state court of theft pursuant to New Jersey Code
section 2C:20-3(a), the umbrella provision for theft.
The U.S. Sentencing Guidelines Manual (the “Guidelines”)
provides in relevant part that, “A defendant is a career
offender if . . . the defendant has at least two prior felony
convictions of either a crime of violence or a controlled
substance offense.” U.S.S.G. § 4B1.1(a)(3). The district court
categorized Manning as a career offender based on his prior
convictions in Virginia and New Jersey, respectively. Manning’s
sentence consists of 188 months’ imprisonment and five years of
supervised release based on a total offense level of 31 and a
category VI criminal history.
Manning’s plea agreement reserved his right to appeal the
district court’s determination regarding his career-offender
status, which is the sole issue before the Court. On appeal,
Manning does not challenge the district court’s decision to
count his Virginia conviction for purposes of categorizing him
as a career offender, but he does challenge the decision to
count his New Jersey conviction. Specifically, Manning contends
that his theft conviction was not for a “crime of violence” for
purposes of Guidelines section 4B1.1(a)(3).
This Court reviews de novo a district court’s designation
of a defendant as a career offender. United States v. Johnson,
114 F.3d 435, 444 (4th Cir. 1997); see also United States v.
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Smith, 359 F.3d 662, 663–64 (4th Cir. 2004) (district court’s
determination regarding whether a crime is a “crime of violence”
is a legal question reviewed de novo).
II.
Prior to reaching the question presented by this appeal, we
first must address a preliminary issue raised by Manning: which
approach—the categorical approach or the modified categorical
approach—applies to the New Jersey theft conviction. Pursuant
to the categorical approach, courts need only “compare the
elements of the statute forming the basis of the defendant’s
conviction with the elements of the ‘generic’ crime—i.e., the
offense as commonly understood.” Descamps v. United States,
__ U.S. __, 133 S. Ct. 2276, 2281 (2013). The modified
categorical approach, on the other hand, applies to “divisible
statutes,” i.e., statutes that “set[] out one or more elements
of the offense in the alternative.” Id. Pursuant to the
modified categorical approach, courts may
consult a limited class of documents, such as
indictments and jury instructions, to determine which
alternative formed the basis of the defendant’s prior
conviction. The court can then do what the
categorical approach demands: compare the elements of
the crime of conviction (including the alternative
element used in the case) with the elements of the
generic crime.
Id.4
Manning argues that the New Jersey statute under which he
was convicted is “divisible” pursuant to Descamps, and thus the
district court erred by not looking at additional documents when
determining that his conviction was for a “crime of violence.”
In support of his position, Manning cites State v. Sein for the
notion that theft pursuant to New Jersey Code section 2C:20-3
“may be committed in many ways, i.e., by a stranger acting by
stealth or snatching from the presence or even the grasp of the
owner or by a person entrusted with the property as agent,
bailee, trustee, fiduciary or otherwise.” 590 A.2d 665, 670
(N.J. 1991) (emphasis omitted) (citation omitted) (block
quotation formatting omitted). Although Manning is correct that
the New Jersey Code sets forth several variations of theft—some
that can involve violence (e.g., section 2C:20-2(b)(1)(b), “The
property is taken by extortion”) and others that do not involve
violence (e.g., section 2C:20-2(b)(2)(j), “The property stolen
is a New Jersey Prescription Blank”)—the judgment pertaining to
Manning’s New Jersey conviction does not leave open the question
of whether Manning was an “agent, bailee, trustee, fiduciary,”
etc., Stein, 590 A.2d at 670; he plainly was not. Specifically,
the “Description” heading of the “Final Charges” section of the
Amended Judgment against Manning states, “Theft from Person (As
Amended),” and the “Degree” heading lists “3”. In looking at
the ways by which a person can commit third-degree theft in New
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Jersey, it is clear to us (as it was to the district court) that
Manning was convicted of stealing property from the victim’s
person pursuant to New Jersey Code section 2C:20-2(b)(2)(d) and
not of theft by breach of an entrustment or otherwise.
We turn now to the issue presented by this appeal: whether
section 2C:20-2(b)(2)(d) constitutes a “crime of violence” for
purposes of categorizing Manning as a career-offender pursuant
to the Guidelines.
III.
The Guidelines define “crime of violence” as
any offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that (1)
has as an element the use, attempted use, or
threatened use of physical force against the person of
another, or (2) is burglary of a dwelling, arson, or
extortion, involves use of explosives, or otherwise
involves conduct that presents a serious potential
risk of physical injury to another.
U.S.S.G. § 4B1.2(a).
Here, the offense elements of New Jersey Code section
2C:20-2(b)(2)(d) are that the defendant “[1] unlawfully takes,
or exercises unlawful control over, movable property of another
[person] [2] with purpose to deprive him thereof,” N.J. Rev.
Stat. § 2C:20-3(a), and “[3] [the taking] is from the person of
the victim,” id. § 2C:20-2(b)(2)(d). New Jersey courts have
interpreted the phrase “from the person” to mean from the
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victim’s “possession and immediate presence.” State v. Blow,
334 A.2d 341, 343 (N.J. Super. Ct. App. Div. 1975).
In considering these offense elements, third-degree theft
from the person does not fit the description of any crime that
the Guidelines categorize explicitly as a “crime of violence”—it
does not “ha[ve] as an element the use, attempted use, or
threatened use of physical force against the person of another,”
nor does it entail “burglary of a dwelling, arson, or extortion,
[or] involve[] [the] use of explosives.” U.S.S.G. § 4B1.2(a).
Thus, if we are to categorize section 2C:20-2(b)(2)(d) as a
“crime of violence,” its elements must “otherwise involve[]
conduct that presents a serious potential risk of physical
injury to another.” Id.
In United States v. Jarmon, this Court determined that the
North Carolina crime of larceny from the person is a crime of
violence pursuant to the “otherwise” clause of Guidelines
section 4B1.2(a). 596 F.3d 228, 233 (4th Cir. 2010). The
offense elements of North Carolina larceny from the person are
that the defendant “(1) took the property of another;
(2) carried it away; (3) without the owner’s consent[;] . . .
(4) with the intent to deprive the owner of the property
permanently”; and (5) “the property stolen must be in the
immediate presence of and under the protection or control of the
victim at the time the property is taken.” Id. at 230
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(citations omitted) (internal quotation marks omitted). In
categorizing larceny from the person as a “crime of violence,”
the Jarmon court compared larceny to robbery, the latter of
which has as an offense element in both New Jersey and North
Carolina “the use, attempted use, or threatened use of physical
force against the person of another,” U.S.S.G. § 4B1.2(a). See
N.J. Rev. Stat. § 2C:15-1; State v. Carter, 650 S.E.2d 650, 653
(N.C. Ct. App. 2007). The court stated:
[W]hile larceny from the person entails less violence
than robbery, that fact does not prove that larceny
from the person is nonviolent. Indeed, Jarmon
acknowledges that larceny from the person can involve
violence because it encompasses forceful takings like
the snatching of a purse from a shoulder. The act of
snatching a purse (or any other property) from the
victim’s person may not inflict severe pain or injury,
but it may do so, and in any event it is certainly
aggressive.
Jarmon, 596 F.3d at 232; see, e.g., State v. Link, 485 A.2d
1069, 1071 (N.J. Sup. Ct. App. Div. 1984) (affirming conviction
for attempted theft pursuant to section 2C:20-2(b)(2)(d) in a
case involving an unsuccessful purse snatch).
The court then compared larceny from the person to burglary
of a dwelling, which is among the crimes listed expressly as a
“crime of violence” in Guidelines section 4B1.2(a):
Burglary does not necessarily involve violence, but it
always requires that the offender intentionally enter
a building where a victim might be present. This
purposeful, aggressive act creates a serious risk of
violent confrontation. Similarly, larceny from the
person does not necessarily involve violence, but it
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requires the offender to make purposeful, aggressive
moves to part the victim from his or her property,
creating a similar risk of violent confrontation. In
fact, because larceny from the person requires that
the offender take the property from the protection or
control of the victim, the victim’s presence is
assured, and the odds of a violent confrontation are
even higher than in a generic burglary, where the
victim is often absent.
Jarmon, 596 F.3d at 232–33; see Blow, 334 A.2d at 343 (“A danger
of confrontation between thief and victim [becomes] present
[when] the victim's person and privacy [are] invaded.”).
Here, inasmuch as the New Jersey crime of third-degree
theft from the person has substantively indistinguishable
offense elements from the North Carolina crime of larceny from
the person—particularly with respect to the element wherein the
stolen property is taken from the victim’s “possession and
immediate presence,” Blow, 334 A.2d at 343, thus requiring a
potentially violent confrontation, see id.—we hold for the same
reasons articulated in Jarmon that third-degree theft pursuant
to New Jersey Code section 2C:20-2(b)(2)(d) also constitutes a
“crime of violence.”
IV.
For the reasons set forth above, we affirm the district
court’s decision to categorize Manning as a career offender for
purposes of sentencing him pursuant to the Guidelines. We
dispense with oral argument because the facts and legal
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contentions are presented adequately in the materials before the
Court and argument would not assist our decision-making process. ∗
AFFIRMED
∗
This Court previously determined that a conviction for
third-degree theft from the person pursuant to New Jersey Code
section 2C:20-2(b)(2)(d)—the precise statutory provision at
issue here—constitutes a “crime of violence” for sentencing
pursuant to the Guidelines. United States v. Clark, 373 F.
App’x 365 (4th Cir. 2010) (per curiam). Our decision in Clark,
however, is not published and therefore is not binding on this
Court when considering Manning’s appeal.
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