United States v. Antoine Smith

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-4015
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTOINE DARRELL SMITH,
Defendant - Appellant.
Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. Catherine C. Eagles, District Judge. (1:16-cr-00078-CCE-1)
Argued: January 25, 2018 Decided: February 15, 2018
Before WILKINSON, TRAXLER, and DUNCAN, Circuit Judges.
Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge
Traxler and Judge Duncan joined.
ARGUED: John David Bryson, WYATT, EARLY, HARRIS & WHEELER, LLP, High
Point, North Carolina, for Appellant. JoAnna Gibson McFadden, OFFICE OF THE
UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee. ON
BRIEF: Sandra J. Hairston, Acting United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Greensboro, North Carolina, for Appellee.
WILKINSON, Circuit Judge:
The district court held that the North Carolina crime of voluntary manslaughter is
a violent felony under the force clause of the Armed Career Criminal Act (ACCA), 18
U.S.C. § 924(e)(2)(B)(i). We agree, and affirm the enhanced sentence imposed on
Antoine Smith as a result.
I.
Antoine Smith pled guilty to one count of possession with intent to distribute
cocaine hydrochloride in violation of 21 U.S.C. § 841(a)(1) and one count of possession
of ammunition by a convicted felon in violation of 18 U.S.C. § 922(g).
Smith’s presentence investigative report determined that he was subject to the
enhanced penalties of ACCA because he had “violate[d] section 922(g) . . . and ha[d]
three previous convictions . . . for a violent felony or a serious drug offense, or both,
committed on occasions different from one another.” 18 U.S.C. § 924(e)(1). According to
the report, the qualifying violent felonies were two convictions for North Carolina felony
robbery with a dangerous weapon and one conviction for North Carolina voluntary
manslaughter. Smith objected to the enhancement, arguing that North Carolina voluntary
manslaughter is not a violent felony for purposes of ACCA. The district court disagreed
and applied the enhancement, sentencing Smith to the resulting mandatory minimum of
180 months.
Smith appeals on the grounds that North Carolina voluntary manslaughter does not
qualify as a violent felony under ACCA because it can be committed with a mens rea of
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mere negligence or recklessness. We review this question de novo. United States v.
Hemingway, 734 F.3d 323, 331 (4th Cir. 2013).
II.
Under ACCA, “any crime punishable by imprisonment for a term exceeding one
year” that “has as an element the use, attempted use, or threatened use of physical force
against the person of another” is a “violent felony.” 18 U.S.C. § 924(e)(2)(B). To
determine whether a prior conviction qualifies as a “violent felony,” we apply the
categorical approach, and thus look to the elements of the crime of conviction rather than
to the defendant’s actual conduct. See United States v. Doctor, 842 F.3d 306, 308 (4th
Cir. 2016). We therefore begin with the elements of the North Carolina crime of
voluntary manslaughter before considering whether this crime is categorically violent.
Voluntary manslaughter in North Carolina is “the unlawful killing of a human
being without malice, express or implied, and without premeditation and deliberation.”
State v. McNeil, 518 S.E.2d 486, 506 (N.C. 1999) (quoting State v. Rinck, 280 S.E.2d
912, 923 (N.C. 1981)). As the North Carolina Supreme Court has recognized,
“[g]enerally, voluntary manslaughter occurs when one kills intentionally but does so in
the heat of passion suddenly aroused by adequate provocation or in the exercise of self-
defense where excessive force is utilized or the defendant is the aggressor.” State v.
Barts, 343 S.E.2d 828, 845 (N.C. 1986). The North Carolina Pattern Jury Instructions
provide that the elements of voluntary manslaughter are: (1) “that the defendant killed the
victim by an intentional and unlawful act”; (2) “that the defendant’s act was a proximate
cause of the victim’s death”; (3) “that the defendant [did not act in self-defense] or
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[though acting in self-defense was the aggressor] (or) [though acting in self-defense used
excessive force].” NCPJI Crim. 206.40 (brackets in original) (citation omitted). Trial
courts can refuse to give a voluntary manslaughter jury instruction if the defendant does
not provide evidence of adequate provocation or self-defense. See Barts, 343 S.E.2d at
845.
Smith correctly notes that North Carolina treats voluntary manslaughter as a lesser
crime than second-degree murder, which is defined as “the unlawful killing of a human
being with malice but without premeditation and deliberation.” State v. McCollum, 579
S.E.2d 467, 470 (N.C. App. 2003) (quoting State v. Wilkerson, 247 S.E.2d 905, 915 (N.C.
1978)). He is wrong to conclude, however, that this means voluntary manslaughter must
criminalize conduct that is merely negligent, or that is otherwise justified or nonviolent.
Basically, what separates voluntary manslaughter from murder is not an absence of intent
but rather the circumstances in which that intent is exercised, namely, as we have noted,
in the heat of passion or under provocation. As the North Carolina courts have stated,
voluntary manslaughter in North Carolina is “essentially a first-degree murder, where the
defendant’s reason is temporarily suspended by legally adequate provocation.” State v.
Rainey, 574 S.E.2d 25, 30 (N.C. App. 2002). The pattern jury instructions, which
specifically require an intentional act, reflect this level of culpability. See NCPJI Crim.
206.40. Pleading guilty to voluntary manslaughter thus necessarily entails acknowledging
that one’s conduct was not justified by the affirmative defenses that would normally
result in acquittal.
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Smith’s final line of argument focuses on a sub-issue within a sub-issue of the
definition of voluntary manslaughter: the possibility of conviction based on using an
unreasonable amount of force while acting in self-defense. See State v. Shoemaker, 341
S.E.2d 603, 607–08 (N.C. App. 1986). Pointing to the role of reasonableness in this
formulation, Smith concludes that this form of voluntary manslaughter criminalizes the
negligent use of force. This conflates two distinct aspects of the crime, however. Even if
a defendant acted only negligently in choosing the amount of force to use in such a case,
the underlying decision to use force was still an intentional one. Such a defendant could
not say that his use of force was accidental or that it was merely through negligence or
recklessness that he used “physical force against the person of another.” 18 U.S.C.
§ 924(e)(2)(B).
While the precise contours of ACCA’s mens rea requirement may be disputed, it
is certain that the intent required for North Carolina voluntary manslaughter is sufficient
to qualify it as a categorically violent predicate. The Supreme Court has interpreted 18
U.S.C. § 16, which contains a nearly identical definition for the term “crime of violence”
as ACCA does for the term “violent felony,” to require “a higher mens rea than [] merely
accidental or negligent conduct.” Leocal v. Ashcroft, 543 U.S. 1, 11 (2004).
Leocal makes clear that “use” in the force clause of ACCA requires that the force
involved in the qualifying offense be volitional, see id., which it plainly is in a voluntary
manslaughter conviction under North Carolina law. It is beyond dispute that the
intentional use of force satisfies the mens rea requirement of ACCA’s force clause. That
is exactly what is required to support conviction for North Carolina voluntary
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manslaughter. In similar circumstances, the Sixth and Eighth Circuits have reached the
same conclusion: voluntary manslaughter is a violent felony for purposes of ACCA if it
proscribes conduct that would otherwise be murder except for circumstances that served
as partial justification for the conduct. See United States v. Jackson, 655 F. App’x 290
(6th Cir. 2016) (voluntary manslaughter in Georgia is a violent felony under ACCA);
United States v. Lambers, 527 F. App’x 586 (8th Cir. 2013) (per curiam) (voluntary
manslaughter in Missouri is a violent felony under ACCA). Any other conclusion would
strain North Carolina law beyond the breaking point.
Simply put, voluntary manslaughter in North Carolina requires an intentional
killing. It thus plainly involves “the use, attempted use, or threatened use of physical
force against the person of another.” 18 U.S.C. § 924(e)(2)(B). The judgment of the
district court is therefore
AFFIRMED.
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