United States v. Vann

Rehearing en banc granted, January 6, 2011
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 09-4298
TORRELL CHUVALA VANN,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, District Judge.
(7:08-cr-00098-BO-1)
Argued: January 27, 2010
Decided: September 24, 2010
Before NIEMEYER, KING, and SHEDD, Circuit Judges.
Affirmed by published opinion. Judge Niemeyer wrote the
majority opinion, in which Judge Shedd joined. Judge King
wrote a dissenting opinion.
COUNSEL
ARGUED: Eric Joseph Brignac, OFFICE OF THE FED-
ERAL PUBLIC DEFENDER, Raleigh, North Carolina, for
Appellant. Clay C. Wheeler, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appel-
2 UNITED STATES v. VANN
lee. ON BRIEF: Thomas P. McNamara, Federal Public
Defender, G. Alan DuBois, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant. George
E. B. Holding, United States Attorney, Raleigh, North Caro-
lina, for Appellee.
OPINION
NIEMEYER, Circuit Judge:
This appeal presents the question whether Torrell Vann’s
sentence for possessing a firearm, in violation of 18 U.S.C.
§ 922(g), was properly enhanced under the Armed Career
Criminal Act ("ACCA"), 18 U.S.C. § 924(e), based on three
previous convictions in North Carolina for taking indecent
liberties with a child, in violation of N.C. Gen. Stat. § 14-
202.1. To constitute a predicate offense under ACCA, a con-
viction must be either for a "serious drug offense" or for a "vi-
olent felony," as defined in § 924(e)(2)(B) and interpreted by
Begay v. United States, 553 U.S. 137 (2008). The district
court relied on the North Carolina convictions to enhance
Vann’s sentence, and Vann challenges this ruling on appeal.
Because North Carolina’s indecent liberties statute encom-
passes at least two separate crimes, we employ the modified
categorical approach articulated in Taylor v. United States,
495 U.S. 575 (1990), and Shepard v. United States, 544 U.S.
13 (2005), and conclude (1) that Vann’s three prior convic-
tions were based on his taking indecent liberties with a child
by willfully committing a lewd or lascivious act upon the body
of a child under the age of 16 and (2) that, as so formulated,
his convictions were for violent felonies that serve as predi-
cate offenses under ACCA. Accordingly, we affirm.
I
In the early morning hours of January 20, 2008, officers in
Lumberton, North Carolina, responded to a 911 call from an
UNITED STATES v. VANN 3
ex-girlfriend of Torrell Vann, complaining that Vann was
insisting that he be let inside her house. By the time officers
arrived, however, Vann had left. About an hour later, Vann
returned and entered the ex-girlfriend’s house through an
unlocked back door. When the ex-girlfriend asked him to
leave, Vann pulled out a pistol, put it to his head, and threat-
ened to kill himself if she would not talk to him. Although
Vann put the weapon away when the ex-girlfriend became
upset and eventually left the residence, the ex-girlfriend again
called the police. A short time later, officers stopped Vann’s
vehicle, finding that his speech was slurred, his license had
been suspended, and he was in possession of a Bersa .380 pis-
tol and ammunition.
Vann was charged with being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1), and the indict-
ment included the allegation that Vann had three previous
convictions for "violent felonies," as defined in 18 U.S.C.
§ 924(e)(2)(B). Vann pleaded guilty to the charge pursuant to
a written plea agreement.
In the presentence report, the probation officer found that
Vann qualified as an armed career criminal under ACCA
based on his three previous North Carolina convictions for
taking indecent liberties with a child, in violation of N.C.
Gen. Stat. § 14-202.1. Taking into account the ACCA
enhancement, the probation officer calculated Vann’s sen-
tencing range under the Sentencing Guidelines as 180 to 210
months’ imprisonment, with a mandatory minimum sentence
of 180 months’ imprisonment.
Vann objected to being classified as an armed career crimi-
nal, arguing that under Begay and United States v. Thornton,
554 F.3d 443 (4th Cir. 2009) (holding that Virginia’s carnal
knowledge offense is not a violent felony under ACCA), his
indecent liberties convictions were not for violent felonies for
purposes of ACCA. The government argued that the issue was
essentially controlled by United States v. Pierce, 278 F.3d 282
4 UNITED STATES v. VANN
(4th Cir. 2002) (holding that the offense of taking indecent
liberties with a child, in violation of N.C. Gen. Stat. § 14-
202.1, was a "crime of violence" for purposes of the career-
offender enhancement under U.S.S.G. §§ 4B1.1, 4B1.2(a)).
The district court overruled Vann’s objection, applied an
enhancement under ACCA, and sentenced Vann to 180
months’ imprisonment. This appeal followed.
II
A violation of 18 U.S.C. § 922(g) ordinarily carries a maxi-
mum sentence of 10 years’ imprisonment. 18 U.S.C.
§ 924(a)(2). But ACCA provides a sentencing enhancement
based on the defendant’s criminal history, providing that a
person who has "three previous convictions . . . for a violent
felony or a serious drug offense, or both, committed on occa-
sions different from one another" must be sentenced to at least
15 years’ imprisonment. Id. § 924(e)(1). The Act defines a
"violent felony" as "any crime punishable by imprisonment
for a term 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 pre-
sents a serious potential risk of physical injury to
another[.]
Id. § 924(e)(2)(B).
The government contends that Vann’s three prior convic-
tions for taking indecent liberties with a child, in violation of
N.C. Gen. Stat. § 14-202.1, are convictions for violent felo-
nies within the meaning of ACCA, relying on our decision in
Pierce, which held that a violation of the North Carolina inde-
UNITED STATES v. VANN 5
cent liberties statute categorically constitutes a "crime of vio-
lence," as that term is defined in the context of the Sentencing
Guidelines’ career-offender enhancement. See Pierce, 278
F.3d at 284. In Pierce, we found that the offense prohibited
by the North Carolina statute involved conduct that, "‘by its
nature, present[s] a serious potential risk of physical injury to
another,’" id. at 286 (quoting U.S.S.G. § 4B1.2, cmt. n.1), and
also that the offense qualified as a "forcible sex offense"—
which the Sentencing Guidelines’ application notes explicitly
list as a "crime of violence," see U.S.S.G. § 4B1.2, cmt. n.1—
because "[t]he North Carolina courts have consistently held
that constructive force may be inferred in sexual abuse cases
involving children," 278 F.3d at 289. The government argues
that Pierce’s holding, even though made in the context of the
Sentencing Guidelines, nonetheless requires us to find that the
North Carolina crime "has as an element the use, attempted
use, or threatened use of physical force against the person of
another," making it a violent felony under ACCA. 18 U.S.C.
§ 924(e)(2)(B)(i). The government also maintains that the
offense qualifies as a violent felony because, as Pierce recog-
nized, it "involves conduct that presents a serious potential
risk of physical injury to another," which is an alternative def-
inition of a violent felony under ACCA. Id. § 924(e)(2)(B)(ii).
In contrast, Vann asserts that Pierce has been effectively
overruled by the Supreme Court’s holding in Begay that
§ 924(e)(2)(B)(ii) does not cover "every crime that presents a
serious potential risk of physical injury to another," but only
those "that are roughly similar, in kind as well as in degree of
risk posed, to the examples" included in the definition of "vio-
lent felony"—namely, burglary, arson, extortion, and crimes
involving the use of explosives. Begay, 553 U.S. at 142-43
(internal quotation marks omitted). Vann contends further that
holdings by North Carolina courts that a defendant need not
touch the victim or, indeed, even be in the actual presence of
the victim to violate the statute demonstrate that the taking
indecent liberties offense does not have "as an element the
use, attempted use, or threatened use of physical force against
6 UNITED STATES v. VANN
the person of another." 18 U.S.C. § 924(e)(2)(B)(i). Vann also
argues that we should be guided by Thornton, a post-Begay
decision, in which we held that Virginia’s carnal knowledge
offense—which makes it a crime to "carnally know[ ], with-
out the use of force," a child who is between 13 and 15 years
old—is not a "violent felony" under ACCA. See Thornton,
554 F.3d at 444 (quoting Va. Code Ann. § 18.2-63).
The issue thus framed is whether a violation of North Caro-
lina’s indecent liberties statute is a "violent felony," as
defined in § 924(e)(2)(B) and interpreted by Begay.
To make that determination, ACCA requires application of
a categorical approach by which the elements of the statute of
conviction, not the facts supporting conviction, are evaluated
to determine whether the crime qualifies as a predicate
offense under ACCA. See Taylor v. United States, 495 U.S.
575, 599-602 (1990); Chambers v. United States, 129 S. Ct.
687, 690 (2009) ("[ACCA’s] defining language, read natu-
rally, uses ‘felony’ to refer to a crime as generally committed.
And by so construing the statute, one avoids the practical dif-
ficulty of trying to ascertain at sentencing . . . whether the
present defendant’s prior crime, as committed on a particular
occasion, did or did not involve violent behavior"). The
Supreme Court first announced this principle in Taylor, hold-
ing that "the only plausible interpretation of [ACCA] is that
. . . it generally requires the trial court to look only to the fact
of conviction and the statutory definition of the prior offense."
495 U.S. at 602. The Court qualified this general principle,
however, by adding that the categorical approach may be
modified to "permit the sentencing court to go beyond the
mere fact of conviction in a narrow range of cases where a
jury was actually required to find all the elements of [a quali-
fying offense]" in order to convict the defendant. Id.
The full scope of this "modified categorical approach" was
refined in Shepard v. United States, 544 U.S. 13 (2005),
where the Court applied Taylor to convictions based on guilty
UNITED STATES v. VANN 7
pleas. The Court held that the Taylor-approved modification
to a strict categorical approach for identifying convictions for
predicate offenses was not limited to convictions obtained
through a jury trial. Id. at 19. Rather, for cases tried without
a jury, a sentencing court may also consider the "bench-trial
judge’s formal rulings of law and findings of fact" and, for
pleaded cases, the court may examine "the statement of fac-
tual basis for the charge, Fed. Rule Crim. Proc. 11(a)(3),
shown by a transcript of plea colloquy or by written plea
agreement presented to the court, or by a record of compara-
ble findings of fact adopted by the defendant upon entering
the plea." Id. at 20.
In two recent cases, the Supreme Court has further clarified
the ACCA analysis by addressing how to determine whether
the statute under which the defendant was convicted is subject
to the modified categorical approach. See Chambers, 129 S.
Ct. at 690-91; Johnson v. United States, 130 S. Ct. 1265, 1273
(2010). Emphasizing that the "categorical approach requires
courts to choose the right category," Chambers recognized
that the statute of conviction may proscribe different kinds of
behavior, which, if sufficiently distinct, may constitute differ-
ent crimes for ACCA purposes. 129 S. Ct. at 690. In Cham-
bers, for example, the defendant had been convicted of a
statute that prohibited
(1) escape from a penal institution, (2) escape from
the custody of an employee of a penal institution, (3)
failing to report to a penal institution, (4) failing to
report for periodic imprisonment, (5) failing to return
from furlough, (6) failing to return from work and
day release, and (7) failing to abide by the terms of
home confinement.
Id. at 691 (citing Ill. Comp. Stat., ch. 720, § 5/31-6(a)). The
Court held that statutory phrases (1) and (2), which prohibited
escape from custody, constituted a category of behavior dis-
tinct from the behavior prohibited in statutory phrases (3)-(6),
8 UNITED STATES v. VANN
all of which prohibited the similar form of behavior of failing
to report or to return to custody. Id. It therefore treated statu-
tory phrases (1) and (2) as a single category and phrases (3)-
(6) as a single category, concluding that the statute of convic-
tion should be treated "for ACCA purposes as containing at
least two separate crimes, namely escape from custody on the
one hand, and a failure to report on the other." Id. It also
observed that "[t]he behavior that likely underlies a failure to
report would seem less likely to involve a risk of physical
harm than the less passive, more aggressive behavior underly-
ing an escape from custody." Id. Because the state-court infor-
mation showed that Chambers had pleaded guilty to the
generic crime of failing to report, the Court concluded that his
conviction was not for an offense that satisfied ACCA’s defi-
nition of "violent felony." Id. at 691-93.
Similarly, in Johnson, the Supreme Court evaluated a con-
viction under Florida’s simple battery statute, which allowed
conviction if the prosecution proved "that the defendant
‘[i]ntentionally cause[ed] bodily harm,’ that he ‘intentionally
str[uck]’ the victim, or that he merely ‘[a]ctually and inten-
tionally touche[d]’ the victim." 130 S. Ct. at 1269 (quoting
Fla. Stat. § 784.03(1)(a)). Because no Shepard-approved
material showed which type of battery resulted in Johnson’s
conviction, the Court held the conviction could not count as
an ACCA predicate because "the least of these acts"—
"[a]ctually and intentionally touch[ing]" another—was not a
violent felony under ACCA. Id. at 1269. The Court made
clear, however, that if Shepard-approved material had shown
the defendant’s battery conviction was based on the separate
crime of "intentionally caus[ing] bodily harm," then the con-
viction would have qualified the defendant for a sentencing
enhancement under ACCA. The Court explained:
When the law under which the defendant has been
convicted contains statutory phrases that cover sev-
eral different generic crimes . . . the "modified cate-
gorical approach" that we have approved permits a
UNITED STATES v. VANN 9
court to determine which statutory phrase was the
basis for the conviction by consulting the trial record
—including charging documents, plea agreements,
transcripts of plea colloquies, findings of fact and
conclusions of law from a bench trial, and jury
instructions and verdict forms.
Id. at 1273 (internal citation omitted); see also United States
v. Rivers, 595 F.3d 558, 564 (4th Cir. 2010) (holding that it
is appropriate to apply the modified categorical approach
when "different types of behavior satisfy an element of the
offense and the proscribed behaviors constitute at least two
separate crimes for ACCA purposes"). Thus, we must begin
by examining the statute of conviction to determine whether
it covers more than one generic crime to ensure that we are
using "the right category." Chambers, 129 S. Ct. at 690.
The North Carolina statute criminalizing the taking of inde-
cent liberties with children does in fact contain phrases that
cover two different generic crimes. One requires physical acts
against the body of a child, and the other does not. The statute
provides that a defendant who is "16 years of age or more and
at least five years older than the child in question" is guilty of
taking indecent liberties with the child if he either:
(1) Willfully takes or attempts to take any immoral,
improper, or indecent liberties with any child of
either sex under the age of 16 years for the purpose
of arousing or gratifying sexual desire; or
(2) Willfully commits or attempts to commit any
lewd or lascivious act upon or with the body or any
part or member of the body of any child of either sex
under the age of 16 years.
N.C. Gen. Stat. § 14-202.1(a) (emphasis added). As inter-
preted by North Carolina courts, clause (1) of the statute is
broader than clause (2), prohibiting a wide range of criminally
10 UNITED STATES v. VANN
inappropriate behavior, such as "photographing an unclothed
child in a sexually suggestive position, masturbating in front
of a child, . . . secretly videotaping a child who was undress-
ing," or engaging a child in sexually explicit telephone con-
versations. State v. Every, 578 S.E.2d 642, 648 (N.C. Ct. App.
2003) (citations omitted). Although clauses (1) and (2) over-
lap, clause (2) identifies and proscribes a narrower crime—
committing lewd or lascivious acts upon or with the body of
a child—that is conceptually separate and distinct from the
crimes covered by clause (1) and requires a physical act upon
or with the body of the victim. The statute thus covers at least
two categories of crimes for ACCA purposes—(1) offenses
based on the willful commission or attempted commission of
a lewd or lascivious act upon or with the body of a child (i.e.,
violations of § 14-202.1(a)(2)) and (2) all other indecent liber-
ties offenses (i.e., conduct that violates § 14-202.1(a)(1) but
not (a)(2)). Accordingly, we may employ the modified cate-
gorical approach in this case to determine (1) whether the
record reveals which generic crime was the basis for Vann’s
convictions and (2) if so, whether that generic crime is a "vio-
lent felony," as defined by ACCA. See Johnson, 130 S. Ct. at
1273; Chambers, 129 S. Ct. at 691; Rivers, 595 F.3d at 564-
65; see also United States v. Woods, 576 F.3d 400, 405 (7th
Cir. 2009) (noting that the modified categorical approach
"may be used only to determine which crime within a statute
the defendant committed, not how he committed that crime")
(emphasis in original).1
1
In concluding that the modified categorical approach is not appropriate,
the dissent determines that violating North Carolina’s indecent liberties
statute constitutes a single offense, even though it also concedes that the
statute provides "disjunctively two alternative means of proving one ele-
ment of the offense." Post at 24 (quoting Jones, 616 S.E.2d at 20). This
describes precisely the circumstance that allows for application of the
modified categorical approach. In Johnson, the Supreme Court considered
a statute that punishes the offense of "simple battery," the elements of
which required either "actually and intentionally touch[ing] another per-
son" or "intentionally caus[ing] bodily harm to another person," stated in
the disjunctive. The Court noted that the single offense of simple battery
UNITED STATES v. VANN 11
In applying the modified categorical approach, we are, of
course, limited to considering "conclusive records made or
used in adjudicating [a defendant’s] guilt," which, when the
defendant pleads guilty, include "the terms of the charging
document, the terms of a plea agreement or transcript of col-
loquy between judge and defendant in which the factual basis
for the plea was confirmed by the defendant, or to some com-
parable judicial record of this information." Shepard, 544
U.S. at 21, 26.
Here, the only material in the record before the district
court was the presentence report, which provided the follow-
ing description of the offense underlying Vann’s first indecent
liberties conviction:
According to the indictment, on December 17, 1991,
Vann willfully did take and attempt to take immoral,
improper, and indecent liberties with a child . . . for
the purpose of arousing and gratifying sexual desire
and did commit a lewd and lascivious act upon the
body of said child.
J.A. 51 (emphasis added).2 The presentence report indicated
could be violated by satisfaction of either one of the two disjunctive ele-
ments. See Johnson, 130 S. Ct. at 1269-70. Recognizing that a violation
of one of the disjunctive elements would not be considered a violent fel-
ony, the Court held that it was appropriate to employ the modified cate-
gorical approach "to determine which statutory phrase was the basis for
the conviction." Id. at 1273.
As in Johnson, the North Carolina statute for indecent liberties has two
alternative elements, one of which, as we hold below, constitutes a violent
felony. Accordingly, we are permitted to apply the modified categorical
approach to determine which was the basis for the convictions. In this
case, that determination is made on the basis of Vann’s guilty pleas during
which he pleaded guilty to both elements of the offense as charged,
including the one that constitutes a violent felony.
2
The dissent reasons that because the charging document charges Vann
with a violation of both disjunctive elements of the North Carolina inde-
12 UNITED STATES v. VANN
that Vann pleaded guilty to this charge. Although the para-
graphs of the presentence report describing Vann’s two other
indecent liberties convictions arising from conduct in July
1998 and August 1998, which were also obtained through
guilty pleas, simply state that they were based on "court
records," the descriptions of these offenses were materially
identical to the first, again tracking the statutory language,
and were therefore also undoubtedly based on the charging
documents. While Vann’s counsel refused to concede at oral
argument that we could properly rely on the presentence
report’s descriptions of the charging documents, we have pre-
viously recognized that a presentence report, to which the
defendant did not object, may be consulted to the extent that
its information is derived from Shepard-approved sources.
See United States v. Thompson, 421 F.3d 278, 285 (4th Cir.
2005) ("The trial judge was entitled to rely upon the PSR
because it bears the earmarks of derivation from Shepard-
approved sources such as the indictments and state-court
judgments from his prior convictions, and, moreover, Thomp-
son never raised the slightest objection either to the propriety
of its source material or to its accuracy"). Moreover, at our
request, Vann’s counsel has now provided us with copies of
the charging documents and judgments for the three convic-
tions,3 materials that confirm that Vann pleaded guilty three
cent liberties statute, it does not necessarily charge a violation of the ele-
ment constituting a violent felony. Post at 28-30. But that argument misses
the point in the context of this case because Vann pleaded guilty to a vio-
lation of both elements thus admitting that he "did commit and attempt to
commit a lewd and lascivious act upon the body of" a named child under
the age of 16. When a defendant makes admissions supporting the convic-
tion for a violent felony, the admissions may be relied on in lieu of the
facts inherent in the statutory offense. See Shepard, 544 U.S. at 19 (noting
that "guilty pleas may establish ACCA predicate offenses"); id. at 25 (plu-
rality opinion); United States v. Alston, __ F.3d __, 2010 WL 2635796, at
*6 (4th Cir. July 2, 2010).
3
Although Vann’s counsel requested an opportunity to submit supple-
mental briefs on the question of whether we can consider state charging
documents not made part of the record in the district court, we conclude
UNITED STATES v. VANN 13
times to charges of committing, at separate times, a lewd and
lascivious act upon the body of a child. The December 1991
charging document included a statement that Vann
did commit and attempt to commit a lewd and las-
civious act upon the body of the child named below.
At the time of this offense, the child named below
was under the age of 16 years and the defendant
named above was over 16 years of age and at least
five years older than the child. The name of the child
is [SLH].
The July 1998 charging document included a somewhat more
detailed statement that Vann
did commit and attempt to commit a lewd and las-
civious act upon [ENL], a child 13 years of age, the
defendant being more than six years older than the
child and was not lawfully married to the victim
....
The August 1998 charging document included a statement
similar to that included in the July 1998 charging document
and named the same victim.
The dissent notes that these statements in the charging doc-
uments were included in each case with another statement that
Vann took "immoral, improper, and indecent liberties with the
child named below for the purpose of arousing and gratifying
sexual desire," the alternative element that would also support
a violation of the North Carolina statute. Post at 29-30. It
that the issue has been resolved in our circuit. See Lolavar v. De Santi-
banes, 430 F.3d 221, 224 n.2 (4th Cir. 2005) (taking "judicial notice of the
records of a court of record"); Colonial Penn Ins. Co. v. Coil, 887 F.2d
1236, 1239 (4th Cir. 1989) (noting that courts of appeals may properly
take judicial notice of state court proceedings that were not part of the
record before the district court).
14 UNITED STATES v. VANN
argues that a charging document charging two alternative ele-
ments conjunctively must be taken, absent a special verdict,
as a conviction on "the lesser of the disjunctive statutory
objects." Post at 29. It reasons therefore that Vann could not
be imputed with a conviction on the more serious, violent ele-
ment charged in the charging document. See post at 28-30.
This argument, however, fails to appreciate the distinction
between a jury verdict on a charging document alleging in the
conjunctive two alternative elements and a guilty plea. In
returning a verdict, the jury can rely on either element to sup-
port its finding of guilt, and therefore the verdict cannot nec-
essarily be found to rely on the more serious, violent element.
But the modified categorical approach also permits the nature
of the prior convictions to be determined by "the defendant’s
own admissions" in pleading guilty, and in that case, the
admissions determine the nature of the conviction. See Shep-
ard, 544 U.S. at 25 (plurality opinion). In this case Vann
admitted that he committed lewd and lascivious acts upon the
bodies of two named children under the age of 16.
Relying on the violations of N.C. Gen. Stat. § 14-202.1
(a)(2) (prohibiting a lewd and lascivious act upon or with the
body of a child), as indicated by employing the modified cate-
gorical approach, we now turn to the question whether will-
fully committing a lewd or lascivious act upon the body of a
child is a "violent felony" within the meaning of 18 U.S.C.
§ 924(e)(2)(B).
It might be argued, although with some difficulty in light
of the Supreme Court’s recent decision in Johnson, that will-
fully committing a lewd or lascivious act upon the body of a
child is a violent felony under the first prong of
§ 924(e)(2)(B)’s definition of "violent felony," which requires
the offense to "ha[ve] as an element the use, attempted use,
or threatened use of physical force." 18 U.S.C.
§ 924(e)(2)(B)(i). Johnson held that the phrase "physical
force" in this clause "means violent force—that is, force capa-
UNITED STATES v. VANN 15
ble of causing physical pain or injury to another person."
Johnson, 130 S. Ct. at 1271. The nature of a sex act commit-
ted "upon the body of a child," while not necessarily produc-
ing immediate physical pain or injury, arguably causes serious
long-term injury to the psyche, which may ultimately mani-
fest itself physically. Indeed, one can conceive of only a few
criminal acts that result in such serious and long-lasting
injury. Thus, a child, whom the law presumes unable to con-
sent to such an act, is subjected to the "force" of the predator,
and the resulting long-term injury may satisfy Johnson’s vio-
lence requirement. Cf. United States v. Chacon, 533 F.3d 250,
257-58 (4th Cir. 2008) (holding that a sex offense perpetrated
in the absence of consent, but which does not have as an ele-
ment the use, attempted use, or threatened use of physical
force, nonetheless constitutes a "crime of violence" under the
Sentencing Guidelines by qualifying as a "forcible sex
offense"); Pierce, 278 F.3d at 289-90 (same).
But the more readily applicable prong of § 924(e)(2)(B)’s
definition of "violent felony" is the second prong, which qual-
ifies a previous conviction when the offense of conviction "in-
volves conduct that presents a serious potential risk of
physical injury to another." 18 U.S.C. § 924(e)(2)(B)(ii). To
fulfill this requirement, the crime must be "roughly similar, in
kind as well as in degree of risk posed," to the provision’s
example crimes—burglary, arson, extortion, and crimes
involving the use of explosives—all of which "typically
involve purposeful, violent, and aggressive conduct." Begay,
553 U.S. at 143-45 (internal quotation marks omitted).
After Begay, the Second Circuit in United States v. Daye,
571 F.3d 225 (2d Cir. 2009), addressed whether a defendant’s
three prior convictions under a Vermont statute prohibiting
sexual assault of a child qualified him for a sentencing
enhancement under ACCA. The Vermont statute made it a
crime for any person to engage in a sexual act with a person
under the age of 16, with an exception for consensual acts
between married persons. Applying Begay, the Second Circuit
16 UNITED STATES v. VANN
held that a violation of the Vermont statute was categorically
a violent felony under § 924(e)(2)(B)(ii). It found "that a sex-
ual act inflicted upon a child by an adult ordinarily creates a
serious potential risk of physical harm to the child," reasoning
that "the nature of the conduct and the child’s relative physi-
cal weakness give rise to a substantial likelihood that the adult
may employ force to coerce the child’s accession." Id. at 232.
The court also found that the Vermont offense was suffi-
ciently similar in kind to § 924(e)(2)(B)(ii)’s example crimes
to satisfy Begay. The court acknowledged that the offense
imposed strict liability with regard to the age of the victim but
nonetheless concluded that it typically involved purposeful
conduct because the crime, by its terms, "involves deliberate
and affirmative conduct—namely, an intentional sexual act
with a person who is, in fact, under the age of consent." Id.
at 234. Finally, the court concluded that a typical violation of
the Vermont statute was sufficiently violent and aggressive to
satisfy Begay:
[C]rimes involving sexual contact between adults
and children create a substantial likelihood of force-
ful, violent, and aggressive behavior on the part of
the perpetrator because a child has essentially no
ability to deter an adult from using such force to
coerce the child into a sexual act. Such likely use of
force not only creates a risk of injury to the victim,
but also establishes that the perpetrator will com-
monly act in a purposeful, violent, and aggressive
manner. At a minimum, we have no doubt that a typ-
ical instance of this crime will involve conduct that
is at least as intentionally aggressive and violent as
a typical instance of burglary.
Id. But see United States v. McDonald, 592 F.3d 808, 814 (7th
Cir. 2010) (holding that the felony of having sexual contact
or intercourse with a person under the age of 16 is not a crime
of violence for purposes of the Sentencing Guidelines after
reasoning that the offense is a strict-liability crime because
UNITED STATES v. VANN 17
"no mens rea is required with respect to the age of the vic-
tim"); United States v. Christensen, 559 F.3d 1092, 1095 (9th
Cir. 2009) (holding that a conviction for statutory rape—
involving sexual intercourse with a child between the ages of
14 and 16 when the perpetrator is at least 48 months older—
is not categorically a violent felony under ACCA because "it
does not necessarily involve either ‘violent’ or ‘aggressive’
conduct").
Inasmuch as Daye focuses on crimes that "typically involve
purposeful, violent, and aggressive conduct," see 571 F.3d at
234 (alteration omitted) (quoting Begay, 553 U.S. at 144-45)
—an analysis not employed by the courts in McDonald and
Christensen—we find Daye more persuasive. Its analysis
faithfully applies the Supreme Court’s decisions in Begay and
James v. United States, 550 U.S. 192 (2007).
In James, the Supreme Court held that a violation of Flori-
da’s attempted burglary statute was a violent felony under
§ 924(e)(2)(B)(ii). In reaching its holding, the Court stressed
that the categorical approach does not "requir[e] that every
conceivable factual offense covered by a statute must neces-
sarily present a serious potential risk of injury before the
offense can be deemed a violent felony." Id. at 208. Indeed,
the Court observed, the crimes specifically listed in
§ 924(e)(2)(B)(ii), which "provide a baseline against which to
measure the degree of risk that a nonenumerated offense must
‘otherwise’ present," could not even meet that standard. Id. It
noted that one could imagine a burglary in the form of "a
break-in of an unoccupied structure located far off the beaten
path and away from any potential intervenors" or "an extor-
tion scheme where an anonymous blackmailer threatens to
release embarrassing personal information about the victim
unless he is mailed regular payments," neither of which would
pose "a realistic risk of confrontation or injury to anyone." Id.
at 207-08. The Court thus concluded that "the proper inquiry
is whether the conduct encompassed by the elements of the
offense, in the ordinary case, presents a serious potential risk
18 UNITED STATES v. VANN
of injury to another." Id. at 208 (emphasis added). This is also
what Begay concluded.
In Begay, the Court, while holding that a violation of New
Mexico’s statute prohibiting driving under the influence of
alcohol did not constitute a violent felony, explained that a
qualifying offense must be "roughly similar[ ] in kind" to the
example crimes listed in § 924(e)(2)(B)(ii), all of which "typi-
cally involve purposeful, violent, and aggressive conduct."
553 U.S. at 143-45 (emphasis added) (internal quotation
marks omitted). That the example crimes are typically marked
by such conduct is significant, the Court stressed, because that
kind of behavior "makes [it] more likely that an offender, later
possessing a gun, will use that gun deliberately to harm a vic-
tim." Id. at 145.
Critically, just as James does not require "that every con-
ceivable factual offense covered by a statute . . . necessarily
present a serious potential risk of injury before the offense can
be deemed a violent felony," 550 U.S. at 208, Begay does not
require that all conduct that represents a violation of the stat-
ute be purposeful, violent, and aggressive for the crime to
qualify as a violent felony. Indeed, it is self-evident that the
example crimes themselves may be committed in ways that
are not purposeful, violent, and aggressive. What matters is
that the offense, in a manner "roughly similar" to arson, bur-
glary, extortion, and the unlawful use of explosives, "typically
involves purposeful, violent, and aggressive conduct," so that
a conviction for that offense tends to "show an increased like-
lihood that the offender is the kind of person who might delib-
erately point [a] gun and pull the trigger." Begay, 553 U.S. at
143-46 (emphasis added) (internal quotation marks omitted).
Applying these principles to the relevant provision here, we
are satisfied that the North Carolina offense of taking indecent
liberties with a child by willfully committing a lewd or lascivi-
ous act upon or with the body of the child, in violation of N.C.
Gen. Stat. § 14-202.1(a)(2), is "a violent felony" under
UNITED STATES v. VANN 19
§ 924(e)(2)(B)(ii). First, as we recognized in Pierce, conduct
that violates this provision will, in the ordinary case, present
a potential risk of physical injury to the child that is at least
as serious as the risk facing a victim of arson or burglary. See
Pierce, 278 F.3d at 290 ("[C]hild abuse by an adult . . . pre-
sent[s] a serious potential risk of physical injury to the child,
a danger that is quite similar in character to the potential
injury to persons involved in arson or burglary, both of which
are specifically recognized as crimes of violence"). Moreover,
the offense is "roughly similar, in kind," to arson, burglary,
extortion, and the unlawful use of explosives in a way that the
crime of driving under the influence at issue in Begay was
not, and we readily conclude that the typical instance of a
defendant willfully committing a lewd or lascivious act upon
or with the body of a child who is under the age of 16 and at
least 5 years younger than the defendant involves purposeful,
violent, and aggressive conduct. Indeed, review of North Car-
olina decisions applying the statute reveals that a large num-
ber of violations involve the use of horrific force. See, e.g.,
State v. Rhodes, 361 S.E.2d 578, 579 (N.C. 1987) (defendant
had sexual intercourse with a 10-year-old girl and threatened
to kill her, her mother, and her brother if she told anyone what
he had done); State v. Ridgeway, 648 S.E.2d 886, 889-90
(N.C. Ct. App. 2007) (defendant bit, raped, sodomized, and
murdered a 14-year-old girl); State v. Jones, 393 S.E.2d 585
(N.C. Ct. App. 1990) (defendant repeatedly had sexual inter-
course with his step-daughter, threatened to kill her, and
choked her). This is no surprise since, given the age differen-
tial and the resulting power disparity between the defendant
and the child, the offense will naturally tend to involve coer-
cive conduct that can readily escalate to physical violence.
Accordingly, we conclude that willfully committing a lewd or
lascivious act upon the body of a child, in violation of N.C.
Gen. Stat. § 14-202.1(a)(2), satisfies Begay’s standard and
qualifies as a "violent felony" under § 924(e)(2)(B)(ii).
Vann relies heavily on our holding in Thornton to argue
otherwise. In that decision, we held that Virginia’s carnal
20 UNITED STATES v. VANN
knowledge offense, which makes it a crime to "carnally
know[ ], without the use of force, a child thirteen years of age
or older but under fifteen years of age," Va. Code Ann.
§ 18.2-63 (emphasis added), does not qualify as a violent fel-
ony under ACCA, as interpreted by Begay. Thornton, 554
F.3d at 444. Although Virginia’s carnal knowledge offense
overlaps to some extent with North Carolina’s indecent liber-
ties offense, important and material differences exist that dis-
tinguish Thornton. Most notably, the Virginia offense is, by
its own terms, committed "without the use of force," while the
North Carolina crime is not so limited. Indeed, as we have
noted, the North Carolina crime tends to involve coercive
conduct that can readily escalate to physical violence. Addi-
tionally, the Virginia statute only covers sexual contact with
young teens who are 13 and 14 years old, while the North
Carolina statute protects all children, including society’s
youngest. The North Carolina statute also requires that the
defendant be at least 16 years old and at least 5 years older
than the child, while the Virginia statute only takes the defen-
dant’s age into account to lessen the punishment if he is a
minor and the child in fact consented. See Va. Code Ann.
§ 18.2-63(B). The result of these differences is that a typical
violation of the North Carolina statute is much more likely to
be marked by violent and aggressive conduct than an ordinary
violation of the Virginia statute considered in Thornton, and
therefore it qualifies as a violent felony under ACCA, even
though Virginia’s carnal knowledge offense does not.
For the reasons given, we affirm the judgment of the dis-
trict court.
AFFIRMED
KING, Circuit Judge, dissenting:
With great respect for my fine colleagues of the majority,
I strongly disagree with their decision in this case. I write sep-
arately in dissent for several reasons. First, the majority errs
UNITED STATES v. VANN 21
in deciding that North Carolina General Statute § 14-202.1
(the "Indecent Liberties Statute," or the "Statute") delineates
two distinct crimes, thereby justifying its application of the
"modified categorical approach" to the ACCA issue. Second,
the majority errs in ruling that Vann "necessarily" violated the
second prong — subsection (a)(2) — of the Indecent Liberties
Statute. And third, the majority errs in classifying subsection
(a)(2) as a "violent felony" under the ACCA, which it accom-
plishes by ignoring applicable precedent and misconstruing
the Statute.
I.
In assessing whether a prior conviction qualifies as an
ACCA predicate offense, the federal courts are normally
obliged to employ the "categorical approach," looking only to
the existence of a conviction and the statutory definition of
the earlier offense. See Taylor v. United States, 495 U.S. 575,
602 (1990). The focus in a proper ACCA analysis is on
whether the statutory elements justify classifying the earlier
offense as an ACCA predicate crime, and not on the factual
underpinnings of the particular conviction. See James v.
United States, 550 U.S. 192, 202 (2007).1 In some instances,
the statute of conviction may include separate generic crimes
— for example, failure to report as well as escape, or burglary
of a residence as well as burglary of a vehicle. See Chambers
v. United States, 129 S. Ct. 687, 690-91 (2009). In this "nar-
row range of cases," a court is entitled to "go beyond the mere
fact of conviction" to determine which portion of the statute
— that is, which crime — "necessarily" underlies the convic-
tion. Taylor, 495 U.S. at 602; see United States v. Rivers, 595
F.3d 558, 562 (4th Cir. 2010); United States v. Woods, 576
1
In utilizing the categorical approach, as the Supreme Court has
explained, a court must look to the "generic crime, say, the crime of fraud
or theft in general," rather than "the specific acts in which an offender
engaged on a specific occasion." Nijhawan v. Holder, 129 S. Ct. 2294,
2298 (2009).
22 UNITED STATES v. VANN
F.3d 400, 404 (7th Cir. 2009). This narrow exception to the
categorical approach is known as the "modified categorical
approach." See United States v. Harcum, 587 F.3d 219, 223
(4th Cir. 2009) (internal quotation marks omitted).
In concluding that a violation of the Indecent Liberties Stat-
ute constitutes a violent felony under the ACCA, the majority
theorizes that the Statute "does in fact contain phrases that
cover two different generic crimes" — "[o]ne requires physi-
cal acts against the body of a child, and the other does not."
Ante at 9.2 According to the majority, subsection (a)(1) is a
broad provision "prohibiting a wide range of criminally inap-
propriate behavior," including sexually explicit telephone
conversations, photographing unclothed children, and mastur-
bating in a child’s presence. Id. at 9-10. By contrast, the
majority erroneously perceives subsection (a)(2) as "requir-
[ing] a physical act upon or with the body of the victim," and
thus detailing a crime that is "conceptually separate and dis-
tinct from the crimes covered by [subsection (a)(1)]." Id. at 10
(emphasis omitted). From this misperception of North Caro-
lina law, the majority concludes that it "may employ the mod-
ified categorical approach" to determine, in the context of
Vann’s three contested convictions, whether he was convicted
of violating subsection (a)(2) and, if so, whether subsection
(a)(2) is a violent felony under the ACCA. Id.
2
The Indecent Liberties Statute specifies that a person has taken inde-
cent liberties with a child if that person is "16 years of age or more and
at least five years older than the child in question," and either:
(1) Willfully takes or attempts to take any immoral, improper, or
indecent liberties with any child of either sex under the age of 16
years for the purpose of arousing or gratifying sexual desire
["subsection (a)(1)"]; or
(2) Willfully commits or attempts to commit any lewd or lascivi-
ous act upon or with the body or any part or member of the body
of any child of either sex under the age of 16 years ["subsection
(a)(2)"].
N.C. Gen. Stat. § 14-202.1(a).
UNITED STATES v. VANN 23
The fundamental error in the majority’s analysis is that it
ignores North Carolina’s interpretation of the Indecent Liber-
ties Statute. North Carolina’s conception of its own statute is
paramount, for in conducting a proper ACCA analysis we
must apply the Statute as it has been defined and interpreted
by the North Carolina courts. See Johnson v. United States,
130 S. Ct. 1265, 1269 (2010) (explaining that, in conducting
ACCA analysis, "[w]e are . . . bound by the [state] Supreme
Court’s interpretation of state law, including its determination
of the elements of [the pertinent statute]"); James, 550 U.S.
at 202 (beginning ACCA analysis "by examining what consti-
tutes attempted burglary under Florida law"); United States v.
Bethea, 603 F.3d 254, 257 (4th Cir. 2010) (explaining that, in
determining if modified categorical approach is appropriate,
"we look to how [the] elements are defined by statute and by
the state’s supreme court"). To be sure, one of the basic tenets
of our federal system is that a federal court is not empowered
"to place a construction on a state statute different from the
one rendered by the highest court of the State." Johnson v.
Fankell, 520 U.S. 911, 916 (1997). As Justice Stevens
explained therein, for the unanimous Court, "[t]his proposi-
tion [is] fundamental to our system of federalism." Id.
It is vitally significant that, in enacting the Indecent Liber-
ties Statute, North Carolina chose not to "distinguish between
the types of indecent liberties," State v. Jones, 393 S.E.2d
585, 589 (N.C. Ct. App. 1990), and instead made "[t]he crime
of indecent liberties . . . a single offense," State v. Hartness,
391 S.E.2d 177, 180 (N.C. 1990); see also State v. Jones, 616
S.E.2d 15, 20 (N.C. Ct. App. 2005) (rejecting proposition that
"[s]ubsections (a)(1) and (a)(2) are separate criminal offenses
with different elements" (emphasis omitted)). Indeed,
although theoretically distinguishable, the Statute’s two sub-
sections have been treated interchangeably by the North Caro-
lina courts. See, e.g., State v. Strickland, 335 S.E.2d 74, 76
(N.C. Ct. App. 1985) (utilizing language of subsections (a)(1)
and (a)(2) in explaining that "[t]he liberty that defendant will-
fully took with the boys . . . in exposing his lewd and lascivi-
24 UNITED STATES v. VANN
ous activity to them and inviting their participation was
certainly indecent, immoral and improper"). In order to prove
an offense under the Statute, the State must establish five ele-
ments:
(1) the defendant was at least 16 years of age; (2) he
was five years older than his victim; (3) he willfully
took or attempted to take an indecent liberty with the
victim; (4) the victim was under 16 years of age at
the time the alleged act or attempted act occurred;
and (5) the action by the defendant was for the pur-
pose of arousing or gratifying sexual desire.
State v. Coleman, 684 S.E.2d 513, 519 (N.C. Ct. App. 2009)
(internal quotation marks omitted). According to North Caro-
lina’s courts, the Statute provides "disjunctively two alterna-
tive means of proving one element of the offense of indecent
liberties." Jones, 616 S.E.2d at 20.3
More specifically, the Indecent Liberties Statute’s two sub-
sections provide alternative conduits for establishing that the
activity was "for the purpose of arousing or gratifying sexual
desire," with such a purpose being "assumed" in the context
of lewd and lascivious acts. See State v. Wilson, 361 S.E.2d
105, 108 (N.C. Ct. App. 1987) (internal quotation marks omit-
3
The majority maintains that, because a violation of the Indecent Liber-
ties Statute provides "disjunctively two alternative means of proving one
element of the offense," Jones 616 S.E.2d at 20, application of the modi-
fied categorical approach is somehow appropriate. See ante at 10-11 n.1.
To support its unwarranted conclusion, the majority relies on the Supreme
Court’s recent decision in Johnson v. United States, 130 S. Ct. 1265
(2010), but ignores the fact that Johnson reiterated the Court’s precedent
that the modified categorical approach is applicable only in those situa-
tions where a statute contains two or more different generic crimes. See
Johnson, 130 S. Ct. at 1273. Because the Supreme Court of North Caro-
lina has already concluded that the "crime of indecent liberties is a single
offense," see Hartness, 391 S.E.2d at 180 (emphasis added) — rather than
two separate generic crimes — the modified categorical approach simply
is not applicable to violations of the Statute.
UNITED STATES v. VANN 25
ted). As either theory can establish culpability, the North Car-
olina courts have recognized that the same behavior can be
prosecuted under either subsection, see, e.g., State v. Banks,
370 S.E.2d 398, 407 (N.C. 1988) (prosecuting "acts of kiss-
ing" under subsections (a)(1) and (a)(2)), and, in assessing the
ambit of one of the Statute’s subsections, those state courts
have frequently relied on decisions that involve the compan-
ion subsection, see, e.g., State v. Every, 578 S.E.2d 642, 647-
48 (N.C. Ct. App. 2003) (relying, in appeal under subsection
(a)(1), on prior decision involving subsection (a)(2)). Signifi-
cantly, the very criminal acts that the majority now suggests
are prohibited only by subsection (a)(1) — "photographing an
unclothed child in a sexually suggestive position [and] mas-
turbating in front of a child," ante at 10 (internal quotation
marks omitted) — have actually been prosecuted and pun-
ished under subsection (a)(2). See State v. Hammett, 642
S.E.2d 454, 459 (N.C. Ct. App. 2007) (prosecuting masturba-
tion in another’s presence under subsection (a)(2)); State v.
Turman, 278 S.E.2d 574, 575 (N.C. Ct. App. 1981) (same;
subsection (a)(1)); State v. McClees, 424 S.E.2d 687 (N.C. Ct.
App. 1993) (prosecuting videotaping of disrobing teenager
under subsection (a)(1)); State v. Kistle, 297 S.E.2d 626 (N.C.
Ct. App. 1982) (prosecuting photographing of unclothed child
under subsection (a)(2)). Moreover, contrary to the majority’s
interpretation of subsection (a)(2) as requiring a "physical
act[ ]," ante at 10 — presumably some act of touching — the
North Carolina courts have ruled that neither subsection (a)(1)
nor subsection (a)(2) requires a touching. See Hammett, 642
S.E.2d at 459 (rejecting contention "that, in order to be con-
victed under [subsection (a)(2)], the accused must physically
touch the victim"); Every, 578 S.E.2d at 648 (recognizing that
subjection (a)(1) does not require touching).
Put most simply, the Indecent Liberties Statute proscribes
only one generic crime: the taking of indecent liberties with
a child. See Jones, 616 S.E.2d at 20 (explaining that "‘[t]he
crime of indecent liberties is a single offense’" and rejecting
26 UNITED STATES v. VANN
proposition that subsections have different elements).4 There-
fore, in analyzing the Statute, we should, as my friend Judge
Niemeyer explained in an earlier decision, simply apply the
"categorical approach, which takes into account only the defi-
nition of the offense and the fact of conviction." United States
v. Pierce, 278 F.3d 282, 286 (4th Cir. 2002) (analyzing Stat-
ute for career offender purposes). And under that approach —
as the majority implicitly acknowledges — a violation of the
Statute does not constitute a "violent felony" under the ACCA
because it is not similar in kind or in degree of risk to the
ACCA enumerated crimes of arson, burglary, extortion, and
offenses involving explosives. See ante at 10 (recognizing
breadth of Statute); see also Every, 578 S.E.2d at 647 (con-
cluding that "the utterance of ‘mere words’" constitutes inde-
cent liberty).
II.
The majority has compounded its initial error — determin-
ing that the Indecent Liberties Statute proscribes two distinct
crimes — by finding that Vann, in each of his three underly-
ing convictions, "necessarily" contravened subsection (a)(2)
of the Statute. It is far from clear, however, that Vann pleaded
guilty to violating subsection (a)(2), which the majority pres-
ents as the more egregious of what it deems to be the Statute’s
two alternative offenses.
A.
The Supreme Court has specified the restricted parameters
of the inquiry into whether a conviction qualifies as an ACCA
4
In its opinion, the majority erroneously maintains that this dissenter has
somehow "determine[d] that violating North Carolina’s indecent liberties
statute constitutes a single offense." Ante at 10-11 n.1. To the contrary, it
is the Supreme Court of North Carolina, rather than this lone dissenter,
that made such a determination, by explicitly recognizing twenty years
ago that "[t]he crime of indecent liberties is a single offense." State v.
Hartness, 391 S.E.2d 177, 180 (N.C. 1990).
UNITED STATES v. VANN 27
violent felony. In 1990, in Taylor v. United States, the
Supreme Court explained the limited circumstances where a
court may "go beyond the mere fact of conviction" in assess-
ing ACCA applicability, namely the "narrow range of cases
where a jury was actually required to find all the elements of
[a] generic [qualifying offense]." 495 U.S. 575, 602 (1990).
As the Court explained (by way of example), "in a State
whose burglary statutes include entry of an automobile as
well as a building, if the indictment or information and jury
instructions show that the defendant was charged only with a
burglary of a building, and that the jury necessarily had to
find an entry of a building to convict," the earlier conviction
would qualify as an ACCA predicate offense. Id.
Fifteen years later, in Shepard v. United States, the Court
extended the Taylor rationale to convictions obtained by way
of guilty pleas. See 544 U.S. 13 (2005). In so doing, the Court
"adhere[d] to the demanding requirement that any sentence
under the ACCA rest on a showing that a prior conviction
‘necessarily’ involved (and a prior plea necessarily admitted)
facts equating to [a predicate offense]," id. at 24, recognizing
that constitutional concerns "counsel[ed] [the Court] to limit
the scope of judicial factfinding on the disputed generic char-
acter of a prior plea," id. at 25-26. Accordingly, the Shepard
Court restricted the ACCA inquiry to whether an earlier guilty
plea "necessarily admitted elements of the generic offense,"
as demonstrated by the terms of the plea agreement, the terms
of the charging document, the transcript of the plea colloquy
in which the defendant confirmed the factual basis for the
plea, or "some comparable judicial record of this informa-
tion." Id. at 26. The Shepard Court elaborated upon this ratio-
nale as follows: when the statute requires no finding of a
generic qualifying crime, "the only certainty of a generic find-
ing" when the charging document does not narrow the charge
to generic limits, is in the jury instructions, bench-trial find-
ings and rulings, or, in the context of a guilty plea, "the defen-
dant’s own admissions or accepted findings of fact confirming
the factual basis for a valid plea." Id. at 25.
28 UNITED STATES v. VANN
The Shepard decision thus establishes the parameters of the
ACCA-related inquiry in a pleaded case. Importantly, though,
it also demonstrates the degree of certainty that is required for
a prior conviction to qualify under this "restricted look." 544
U.S. at 23. The charging documents at issue in Shepard
recited the pertinent burglary statute, which encompassed bur-
glaries of buildings as well as vehicles, and listed the residen-
tial address where the offense occurred. See Shepard, 544
U.S. at 31-32 (O’Connor, J., dissenting). The Shepard Court,
however, observed that "the record is silent on the generic ele-
ment [namely, whether it was burglary of a building], there
being no plea agreement or recorded colloquy in which Shep-
ard admitted the generic fact." 544 U.S. at 25. Because of the
failure to satisfy this generic requirement, Shepard’s earlier
burglary convictions were not ACCA predicate offenses.
B.
By contrast, the majority today determines that Vann "nec-
essarily" pleaded guilty to violating subsection (a)(2) of the
Statute — a determination predicated on the descriptions of
his prior convictions in the presentence report (the "PSR"),
which were either made "[a]ccording to the indictment" or
derived from "court records," and by the use of the word
"and" in delineating the charges in those descriptions and the
charging documents. See ante at 11-12 (internal quotation
marks and emphasis omitted). Such reliance is entirely under-
mined, however, by the legal principles generally applicable
to charging documents (such as indictments).
First, it is established that a charging document must allege
conjunctively the disjunctive components of an underlying
statute. See State v. Armstead, 562 S.E.2d 450, 452 (N.C. Ct.
App. 2002) ("Where a statute sets forth disjunctively several
means or ways by which the offense may be committed, a
warrant thereunder correctly charges them conjunctively."
(internal quotation marks omitted)); see also United States v.
Rhynes, 206 F.3d 349, 384 (4th Cir. 1999) ("Where a statute
UNITED STATES v. VANN 29
is worded in the disjunctive, federal pleading requires the
Government to charge in the conjunctive.").5 As a result, that
Vann’s earlier charging documents apparently use the con-
junctive term "and," rather than the disjunctive "or," does not
mean that Vann "necessarily" pleaded guilty to subsection
(a)(2). It is also established that when a defendant is convicted
under a conjunctively charged indictment, in the absence of
a special verdict identifying the factual bases for conviction,
a sentence cannot be imposed that exceeds the statutory maxi-
mum for the "least-punished" component, that is, the lesser of
the disjunctive statutory objects. See Rhynes, 206 F.3d at 379-
81.6
Moreover, this case presents a much weaker basis than in
Shepard for determining the nature of Vann’s prior offenses.
The charging documents merely recite the language of the
5
Indeed, a disjunctive charge in an indictment contravenes an accused’s
constitutional rights. See, e.g., The Confiscation Cases, 87 U.S. 92, 104
(1874) (explaining that disjunctive charge is "wholly insufficient" and
lacks "necessary certainty," as it fails to provide "definite notice of the
offence charged" and does not protect against "subsequent prosecution for
one of the several offences").
6
According to the majority, the dissent "fails to appreciate the distinc-
tion between a jury verdict on a charging document alleging in the con-
junctive two alternative elements and a guilty plea." Ante at 14. The
majority draws this distinction on the basis of its theory that, when a
defendant pleads guilty, he necessarily admits all allegations charged con-
junctively. Notably, the majority identifies no authority that supports such
a theory, which it has apparently created from whole cloth. Indeed, there
is support for the opposite conclusion. See e.g., Malta-Espinoza v. Gon-
zales, 478 F.3d 1080, 1082 n.3 (9th Cir. 2007) ("[A] plea of guilty admits
only the elements of the charge necessary for a conviction."); Omari v.
Gonzales, 419 F.3d 303, 308 n.10 (5th Cir. 2005) ("Indictments often
allege conjunctively elements that are disjunctive in the corresponding
statute, and this does not require either that the government prove all of
the statutorily disjunctive elements or that a defendant admit to all of them
when pleading guilty."). Furthermore, the majority’s theory is incompati-
ble with our Rhynes precedent and its underlying principles, as enunciated
in Edwards v. United States, 523 U.S. 511 (1998), and United States v.
Quicksey, 525 F.2d 337 (4th Cir. 1975). See Rhynes, 206 F.3d at 379-81.
30 UNITED STATES v. VANN
Statute, provide the dates of the alleged offenses and identities
of Vann and the minor, and aver that the age requirements
were satisfied. Each charging document alleges a violation of
the Statute, without specifying either subsection thereof. And,
consistent with North Carolina law, each properly alleges the
indecent liberties offense in conjunctive fashion. Similarly,
each judgment simply specifies the file number, identifies the
offense as "Indecent Liberties with Minor Child" or "Indecent
Liberties with Child," denotes the pertinent statute only as
"14-202.1," and recognizes that no written findings were
made. From this weak reed, the majority somehow finds that
Vann necessarily violated subsection (a)(2) of the Statute.
C.
In view of the foregoing, the majority’s "finding" that each
of Vann’s three contested convictions violated subsection
(a)(2) of the Statute is erroneous in multiple respects. Most
basically, it contravenes the settled principle that appellate
courts do not make factual findings. See Robinson v. Wix Fil-
tration Corp., 599 F.3d 403, 418-19 (4th Cir. 2010) (King, J.,
dissenting); see also Columbus-Am. Discovery Grp. v. Atl.
Mut. Ins. Co., 56 F.3d 556, 575-76 (4th Cir. 1995) ("It is a
basic tenet of our legal system that, although appellate courts
often review facts found by a judge or jury . . . , they do not
make such findings in the first instance."). Further, it is at best
disingenuous to "conclude that the issue" "of whether we can
consider state charging documents not made part of the record
in the district court" "has been resolved in our circuit." Ante
at 12-13 n.3. It is one thing for a federal court to look at a
state court docket in assessing jurisdiction over a removed
case, or to note a subsequent arson conviction in determining
the propriety of rescinding a fire insurance settlement offer.
See id. (citing Lolavar v. de Santibanes, 430 F.3d 221 (4th
Cir. 2005); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236 (4th
Cir. 1989)). It is materially different to rest a sentencing deci-
sion — affirming the transformation of a ten-year maximum
into a fifteen-year minimum — on the basis of evidence never
UNITED STATES v. VANN 31
presented to the district court, particularly when such evi-
dence was not requested until after oral argument.7
Moreover, it bears emphasis that the basis of the majority’s
conclusion that Vann’s convictions "necessarily" rest on sub-
section (a)(2) is that the charging documents simply recite the
language of the Indecent Liberties Statute. Recently, however,
we ruled that a conviction under a so-called Alford plea —
where the defendant does not confirm the factual basis for the
plea, see North Carolina v. Alford, 400 U.S. 25 (1970) —
does not qualify as an ACCA predicate offense when the stat-
utory definition contains both qualifying and non-qualifying
predicate crimes and no other Shepard-approved documents
establish the offense on which the defendant was convicted.
United States v. Alston, 611 F.3d 219, 227-28 (4th Cir. 2010).
As Judge Niemeyer properly recognized in Alston, "Shepard
prevents sentencing courts from assessing whether a prior
conviction counts as an ACCA predicate conviction by rely-
ing on facts neither inherent in the conviction nor admitted by
the defendant." Id. at 226. Indeed, our opinion emphasized
that the Alford plea "did not necessarily rest on facts estab-
lishing [Alston’s] second-degree assault offense as a type of
assault that qualifies as a violent felony" and that, in accepting
his plea, the trial court was not required to find such facts;
therefore, "we [could not] say that the facts indicating the vio-
lent nature of the second-degree assault charge to which Als-
ton tendered his plea are inherent in the fact of his
conviction." Id. at 227 (alteration and internal quotation
marks omitted). Accordingly, we concluded that
7
Indeed, the district court had no opportunity to consider the state charg-
ing documents, nor did the parties have the opportunity to object to their
validity or argue their implications. Thus, to the extent the propriety of
treating Vann’s convictions as qualifying ACCA violent felonies depends
on the charging documents, the district court should consider those materi-
als in the first instance. See, e.g., United States v. Alston, 611 F.3d 219,
225 (4th Cir. 2010) (recognizing that "sentencing court" conducts ACCA
analysis).
32 UNITED STATES v. VANN
the State’s proffer of the factual basis for Alston’s
Alford plea, although necessary for the state court’s
acceptance of the plea, cannot now establish, with
the requisite certainty, that the conviction for
second-degree assault that followed Alston’s plea
was a conviction for a violent felony under ACCA.
Id. at 228.
Under the Alston precedent, it is inappropriate for the
majority to find that Vann "necessarily" pleaded guilty to the
subsection of the Statute (subsection (a)(2)) that it deems a
violent felony under the ACCA. See United States v. Bethea,
603 F.3d 254, 259 n.7 (4th Cir. 2010) ("Because the indict-
ment specifies that Bethea escaped while waiting to appear in
court, we recognize that the most plausible explanation for his
specific conduct is that he fled custody, rather than that he
simply failed to report. Under Shepard, however, we are
charged with considering whether Bethea’s conduct was ‘nec-
essarily’ violent, not whether his conduct was plausibly or
even likely so."). Indeed, to borrow the Taylor analogy uti-
lized in Alston, if Vann had gone to trial in the underlying
cases, any resulting conviction could only be used as an
ACCA predicate offense if the jury had returned a special ver-
dict (or answered an interrogatory) specifically convicting
him of violating subsection (a)(2) of the Statute. See Alston,
611 F.3d at 228. Put simply, this situation is a far cry from the
Taylor hypothetical, where the indictment specifically
charged burglary of a dwelling. See 495 U.S. at 602. Instead,
the majority sees fit to engage in the very behavior the cate-
gorical approach is intended to avert: inappropriate judicial
factfinding on appeal. See id. at 601 (explaining that categori-
cal approach avoids difficulty associated with pleaded cases
in which "there often is no record of the underlying facts");
see also Nijhawan v. Holder, 129 S. Ct. 2294, 2299 (2009)
(explaining that categorical approach "avoids the practical dif-
ficulty of trying to ascertain in a later proceeding, perhaps
from a paper record containing only a citation (say, by num-
UNITED STATES v. VANN 33
ber) to a statute and a guilty plea, whether the offender’s prior
crime did or did not involve, say, violence" (alteration, omis-
sion, and internal quotation marks omitted)).
III.
If the modified categorical approach could appropriately be
used here, and if the PSR and charging documents indeed
established that Vann was "necessarily" convicted of violating
subsection (a)(2), his underlying convictions would yet fail to
qualify as ACCA predicate offenses. Succinctly put, in con-
cluding that a violation of subsection (a)(2) typically involves
purposeful, violent, and aggressive conduct, the majority mis-
construes the Statute and ignores applicable precedent.
The ACCA was enacted to target "the special danger cre-
ated when a particular type of offender — a violent criminal
or drug trafficker — possesses a gun." Begay v. United States,
553 U.S. 137, 146 (2008). As a result, the ACCA focuses on
purposeful, violent, and aggressive crimes that are "poten-
tially more dangerous when firearms are involved" — the
type of crimes that are "characteristic of the armed career
criminal, the eponym of the statute." Id. at 145 (internal quo-
tation marks omitted). As the Supreme Court has emphasized,
the ACCA targets criminal conduct related to "violent crimi-
nal use of firearms," and not every crime that "can be said to
present a serious potential risk of physical injury." Id. at 147
(internal quotation marks omitted); see also id. at 142
(emphasizing that ACCA "covers only similar crimes [to
arson, burglary, offenses involving explosives, and extortion],
rather than every crime that ‘presents a serious potential risk
of physical injury to another’" (quoting 18 U.S.C.
§ 924(e)(2)(B)(ii))). Accordingly, to qualify as an ACCA
predicate offense under the "residual provision" of
§ 924(e)(2)(B)(ii) — the clause at issue here — the predicate
offense must be "‘roughly similar, in kind as well as in degree
of risk posed,’ to the enumerated offenses." United States v.
34 UNITED STATES v. VANN
White, 571 F.3d 365, 369 (4th Cir. 2009) (quoting Begay, 553
U.S. at 143)).
A.
An appropriate assessment of the Indecent Liberties Statute
and its treatment by the North Carolina courts demonstrates
that a violation thereof is neither similar in kind nor similar
in degree of risk to the crimes enumerated in the ACCA. To
obtain a conviction under the Statute as initially enacted, pros-
ecutors were obliged to prove the occurrence of an unnatural
sexual act, such as incest or a crime against nature. State v.
Banks, 370 S.E.2d 398, 407 (N.C. 1988). In 1975, the North
Carolina legislature revised the Statute, removing the require-
ment of an unnatural sexual act. See id. The resulting Statute
"encompass[es] more types of deviant behavior" than North
Carolina’s other sex-related statutes, in order to provide chil-
dren "broader protection than available under [those] stat-
utes." State v. Etheridge, 352 S.E.2d 673, 682 (N.C. 1987).
Accordingly, a variety of actions, performed at a variety of
distances from a minor, are now prohibited by the Statute.
See, e.g., State v. McClees, 424 S.E.2d 687, 689-90 (N.C. Ct.
App. 1993) (collecting cases and concluding that secretly vid-
eotaping disrobing teenager violates Statute). The scope of the
Statute and the "breadth of conduct" it proscribes reflect
North Carolina’s concern for the potential "psychological
damage" indecent liberties can cause. State v. Every, 578
S.E.2d 642, 648 (N.C. Ct. App. 2003).
As with such North Carolina statutes as "Opposite sexes
occupying same bedroom at hotel for immoral purposes;
falsely registering as husband and wife," N.C. Gen. Stat. § 14-
186, the Indecent Liberties Statute is classified as an offense
against public morality and decency. See N.C. Gen. Stat. Ch.
14, Subch. VII ("Offenses against Public Morality and
Decency"); cf. id., Subch. III ("Offenses against the Person").
Thus, "[i]ndecent liberties are defined as such liberties as the
common sense of society would regard as indecent and
UNITED STATES v. VANN 35
improper." McClees, 424 S.E.2d at 690 (internal quotation
marks omitted). Moreover, as used in the Statute, "lewd" and
"lascivious" are defined "according to their plain meaning in
ordinary usage." State v. Hammett, 642 S.E.2d 454, 458 (N.C.
Ct. App. 2007). The North Carolina courts define the terms
"lewd" as "inciting to sensual desire or imagination" and "las-
civious" as "tending to arouse sexual desire." State v. Wilson,
361 S.E.2d 105, 108 (N.C. Ct. App. 1987) (internal quotation
marks omitted). Furthermore, the North Carolina courts have
emphasized that one can take "indecent liberties with chil-
dren" without being in the actual presence of the minor. See
McClees, 424 S.E.2d at 689-90 (explaining implications of
"with" in Statute). The breadth of the Statute has, not surpris-
ingly, engendered numerous challenges on the grounds that it
is unconstitutionally vague. See, e.g., State v. Elam, 273
S.E.2d 661, 664-65 (N.C. 1981) (rejecting vagueness chal-
lenge); State v. Hicks, 339 S.E.2d 806, 808 (N.C. Ct. App.
1986) (citing cases upholding Statute’s constitutionality);
State v. Turman, 278 S.E.2d 574, 575 (N.C. Ct. App. 1981)
(rejecting vagueness and other constitutional challenges).
In assessing the Indecent Liberties Statute under the
ACCA, reference to its companion statute, N.C. Gen. Stat.
§ 14-202.2 (entitled "Indecent liberties between children"), is
helpful. The companion statute, which proscribes indecent
liberties between those aged sixteen and younger who are at
least three years apart in age, is almost identical to the Statute.
Nevertheless, a conviction obtained under § 14-202.2 — a
misdemeanor — could not constitute an ACCA predicate
offense because juvenile offenses only qualify if they involve
the use of a firearm, knife, or destructive device. See 18
U.S.C. § 924(e)(2)(B). Given that the same behavior is pro-
scribed by both statutes, the following hypothetical reveals
the illogic of treating the Indecent Liberties Statute as a "vio-
lent felony" under the ACCA. Two children, one initially
aged fifteen and the other eleven, engage in sexting (texting
of sexually suggestive pictures) both before and after the
elder’s sixteenth birthday. Cf. State v. Kistle, 297 S.E.2d 626
36 UNITED STATES v. VANN
(N.C. Ct. App. 1982) (taking sexually suggestive photograph
constitutes subsection (a)(2) indecent liberty). The sexting
incidents occurring prior to the elder’s sixteenth birthday can-
not form the basis for an ACCA predicate offense, but such
incidents on or subsequent to the child’s birthday, under the
majority’s logic, are so violent, aggressive, and purposeful —
so connected to the behavior of an armed career criminal —
that they would be ACCA predicate offenses.
B.
Of course, the conclusion spelled out above is entirely
illogical; it is also directly contrary to the Supreme Court’s
warning that the ACCA does not cover every offense with a
potential risk of injury. As we have explained, for purposes of
an ACCA analysis, "[a] roughly similar degree of risk means
that the prior crime, like the enumerated offenses, creates an
immediate, serious, and foreseeable physical risk that arises
concurrently with the commission of the crime itself." White,
571 F.3d at 370 (alterations and internal quotation marks
omitted). Moreover, "[i]n order to be deemed similar in kind,
the [offense] must categorically involve conduct that is pur-
poseful, violent, and aggressive — the common characteris-
tics of the [ACCA] enumerated offenses." Id. (internal
quotation marks omitted). The majority, however, has failed
to analyze the Statute against these essential criteria.
Just recently, in United States v. Thornton, we concluded
that a conviction under Virginia’s statutory rape statute failed
to qualify as an ACCA "violent felony." 554 F.3d 443 (4th
Cir. 2009). In so ruling, we explained that "the risks of physi-
cal injury associated with adult-minor sexual activity" are
insufficient to justify a defendant’s "classification as an armed
career criminal," and we rejected the proposition that the pos-
sibility of constructive force made the statutory rape offense
similar to the ACCA enumerated crimes. Id. at 447-48.8 In
8
The Indecent Liberties Statute does not involve only adult-child behav-
ior, nor does it implicate the parent-child relationship — a context in
UNITED STATES v. VANN 37
conducting our analysis, we were attentive to the Virginia
Criminal Code, recognizing that its "structure shows that the
Virginia General Assembly considers forcible and nonforcible
sexual offenses to present different risks that are punishable
in different ways." Id. at 448. Explaining that the ACCA
"enumerated crimes create immediate, serious, and foresee-
able physical risks that arise concurrently with the commis-
sion of the crimes themselves," and acknowledging that
"nonforcible adult-minor sexual activity can present grave
physical risks to minors," we recognized that "such risks are
not sufficiently similar, in kind as well as in degree of risk
posed to the examples of burglary, arson, extortion, and
crimes involving explosives." Id. at 449 (internal quotation
marks omitted). Indeed, Judge Duncan emphasized that such
a statutory rape conviction "is not associated with a likelihood
of future violent, aggressive, and purposeful armed career
criminal behavior and cannot constitute a violent felony under
the ACCA." Id. (internal quotation marks omitted).
Faithful application of our Thornton precedent illustrates
the error of treating a North Carolina indecent liberties con-
viction as a violent felony. First, much of the justification for
the majority’s position is the potential for psychological harm
associated with indecent liberties. See also United States v.
Pierce, 278 F.3d 282 (4th Cir. 2002). Psychological harm,
however, is insufficient under the ACCA: the predicate
offense must "create immediate, serious, and foreseeable
physical risks that arise concurrently with the commission of
which North Carolina permits an inference of constructive force. See
Etheridge, 352 S.E.2d at 681 (inferring lack of consent, in context of
second-degree sexual offense by father, from parent-child relationship);
State v. Hardy, 409 S.E.2d 96, 99 (N.C. Ct. App. 1991) (same; second-
degree rape by stepfather); cf. United States v. Pierce, 278 F.3d 282, 290
(4th Cir. 2002). Instead, the Statute proscribes behavior between teenagers
(e.g., individuals aged nineteen and fourteen) as well as between teenagers
and preteens (e.g., those aged sixteen and eleven) and between young
adults and teenagers (e.g., people aged twenty and fifteen).
38 UNITED STATES v. VANN
the crime[ ]" itself. Thornton, 554 F.3d at 449; cf. Pierce, 278
F.3d at 291 (explaining that sexual touching "may not cause
injury" and thus the "violence . . . was not necessarily the
touching"). Second, even a cursory examination of North Car-
olina’s criminal code reveals the enormity of the distinction
between indecent liberties and sexual offenses, let alone forc-
ible sexual offenses. North Carolina devotes a subchapter in
its criminal code to "Offenses against the Person," and has a
specific article therein devoted to "Rape and Other Sex
Offenses." See N.C. Gen. Stat. Ch. 14, Subch. III, art. 7A.
Within this article, North Carolina further differentiates
between sex offenses committed by force, see id. § 14-27.3,
second-degree rape (encompassing "vaginal intercourse . . .
[b]y force and against the will of the other person"), and those
committed without force, see id. § 14-27.7, intercourse and
sexual offenses with certain victims (providing "[c]onsent is
not a defense to a charge under this section"), and § 14-27.7A,
statutory rape (prohibiting intercourse except when parties are
married). By contrast, the Indecent Liberties Statute is codi-
fied in the subchapter devoted to "Offenses against Public
Morality and Decency," immediately after the crime of "Se-
cretly peeping into room occupied by another person," id.
§ 14-202. See id., Subch. VII. It thus strains the bounds of
credulity to classify indecent liberties as a violent felony
when statutory rape, classified as an "Offense[ ] against the
Person" and as a more serious felony than indecent liberties,
fails to so qualify. See id. § 14-27.7A; see generally Thornton,
554 F.3d 443. That the same behavior could form the basis
of a conviction under both statutes further illustrates the error
of treating indecent liberties as a violent felony. See State v.
Baker, 426 S.E.2d 73, 76 (N.C. 1993) (explaining that sexual
penetration can constitute indecent liberty, rape, and/or sexual
offense).
C.
As I have emphasized, in conducting an ACCA analysis we
are obliged — pursuant to settled principles of federalism —
UNITED STATES v. VANN 39
to consider whether the elements of a crime, as defined by
state law, are such that it qualifies as an ACCA predicate
offense. See Johnson v. United States, 130 S. Ct. 1265, 1269
(2010); James v. United States, 550 U.S. 192, 202 (2007).
Subsection (a)(2) proscribes "lewd" and "lascivious" acts, that
is, behavior "inciting to sensual desire or imagination" or
"tending to arouse sexual desire." Wilson, 361 S.E.2d at 108
(internal quotation marks omitted). The majority, however,
fundamentally misconstrues subsection (a)(2), which properly
provides that an individual (at least sixteen years of age and
five years older than the minor) commits an indecent liberty
if he "[w]illfully commits or attempts to commit any lewd or
lascivious act upon or with the body or any part or member
of the body of any child of either sex under the age of 16
years." N.C. Gen. Stat. § 14-202.1(a)(2) (emphasis added).
More specifically, the majority’s assessment that subsection
(a)(2) "requires [a] physical[ ] act against the body of a child,"
ante at 9, demonstrates a failure to fully appreciate the Inde-
cent Liberties Statute’s "or with" language. In so doing, the
majority fundamentally alters the character of the statutory
prohibition because, under North Carolina law, both actual
and constructive presence are denoted by use of the statutory
term "with." See, e.g., McClees, 424 S.E.2d at 689-90
(explaining that "with" encompasses both actual and construc-
tive presence); Turman, 278 S.E.2d at 575 ("The word ‘with’
is not limited to mean only a physical touching.").
North Carolina has specifically rejected the assertion that a
violation of (a)(2) requires the touching of a child, let alone
"any sexual contact with the child’s body." Kistle, 297 S.E.2d
at 628; see Hammett, 642 S.E.2d at 459 (rejecting contention
"that, in order to be convicted under [N.C. Gen. Stat.] § 14-
202.1(a)(2), the accused must physically touch the victim").
Instead, the Indecent Liberties Statute encompasses a broader
range of conduct than North Carolina’s sexual acts statutes,
including those that specifically target "sexual contact with a
child’s body," such as "Rape of a child; adult offender," N.C.
Gen. Stat. § 14-27.2A, "Sexual offense with a child; adult
40 UNITED STATES v. VANN
offender," id. § 14-27.4A, and "Statutory rape or sexual
offense of a person who is 13, 14, or 15 years old," id. § 14-
27.7A. Accordingly, "masturbating in the presence of" a
minor "falls under the rubric of an activity covered by [N.C.
Gen. Stat.] § 14-202.1(a)(2)." Hammett, 642 S.E.2d at 459.
Further examples of subsection (a)(2) offenses include
"french kissing," whether merely attempted or actually con-
summated. See Banks, 370 S.E.2d at 407 (actual); Hammett,
642 S.E.2d at 458-59 (attempted). Indeed, simply photograph-
ing an unclothed child violates subsection (a)(2). See Kistle,
297 S.E.2d at 628 (rejecting contention that "the taking of a
photograph of a child does not constitute the commission of
a lewd and lascivious act upon or with the body, or a part or
member thereof"). Because a violation of subsection (a)(2)
clearly does not "create immediate, serious, and foreseeable
physical risks that arise concurrently with the commission of
the crime[ ]" itself, it cannot constitute an ACCA predicate.
Thornton, 554 F.3d at 449.9
D.
In my view, it is nonsensical to assert that a violation of the
Indecent Liberties Statute — which mandates neither sexual
acts nor the touching of a minor — is more violent than statu-
9
In this regard, the majority errs in comparing the Statute to Vermont’s
sexual assault of a child statute, which specifically requires sexual rela-
tions. See United States v. Daye, 571 F.3d 225 (2d Cir. 2009); see also
United States v. McDonald, 592 F.3d 808, 815 (7th Cir. 2010) (explaining
that Daye relied "largely on pre-Begay circuit precedents" and failed to
"explain [its] generalization about the prevalence of the use of force in sex
offenses"). A better guide for our analysis is United States v. Dennis,
where the Tenth Circuit determined that Wyoming’s indecent liberties
statute does not qualify as a crime of violence, recognizing that it is not
similar in degree of risk to the enumerated crimes because of the breadth
of conduct it proscribes. See 551 F.3d 986, 989-90 (10th Cir. 2008); see
also McDonald, 592 F.3d at 815 (concluding that Wisconsin’s second-
degree sexual assault statute is not a crime of violence because its
"breadth" "makes it difficult to conclude that the offense is typically ‘vio-
lent and aggressive’").
UNITED STATES v. VANN 41
tory rape, which specifically requires sexual acts with a
minor. See ante at 19-20 (seeking to distinguish Virginia’s
carnal knowledge statute and concluding that "a typical viola-
tion of the North Carolina statute is much more likely to be
marked by violent and aggressive conduct than an ordinary
violation of the Virginia statute considered in Thornton"). It
is also notable that the majority opinion is lacking in support-
ing authorities. See, e.g., id. at 19 (claiming, without support
or elaboration, that indecent liberties offense is roughly simi-
lar in kind to enumerated offenses "in a way that the crime of
driving under the influence at issue in Begay was not"); id. at
19 (speculating, absent authority, that "given the age differen-
tial and the resulting power disparity between the defendant
and the child, the [indecent liberties] offense will naturally
tend to involve coercive conduct that can readily escalate to
physical violence"). Moreover, the majority’s resort to spe-
cific North Carolina cases in support of its contention that "a
large number of [subsection (a)(2)] violations involve the use
of horrific force," is unavailing. See id. at 19. It is the bedrock
principle of the categorical approach that only the elements of
the offense — rather than the factual circumstances of a spe-
cific violation — can be considered. See Nijhawan v. Holder,
129 S. Ct. 2294, 2299 (2009) (explaining categorical
approach, as distinct from circumstance-specific approach).
One solid reason for the ban on considering the factual cir-
cumstances of a particular offense is that, "if a guilty plea to
a lesser, [nonqualifying] offense was the result of a plea bar-
gain, it would seem unfair to impose a sentence enhancement
as if the defendant had pleaded guilty to [a qualifying
offense]." Taylor v. United States, 495 U.S. 575, 601-02
(1990). It is likewise unfair to apply sentence enhancements
simply because more heinous crimes often satisfy the ele-
ments of an earlier crime on which a defendant was con-
victed. See Baker, 426 S.E.2d at 76.
Thus, in assessing whether a violation of the Indecent Lib-
erties Statute "typically" involves violent, aggressive, and
purposeful conduct, we must examine the Statute itself, which
42 UNITED STATES v. VANN
is best exemplified by state court decisions involving only
indecent liberties convictions — as opposed to those involv-
ing rape, murder, and incest, upon which the majority relies.
Compounding the problematic nature of the majority opinion
is that the "horrific" decisions upon which the majority relies
involve violations of subsection (a)(1), rather than subsection
(a)(2). See ante at 19; cf. State v. Rhodes, 361 S.E.2d 578, 580
(N.C. 1987) (examining subsection (a)(1)); State v. Ridgeway,
648 S.E.2d 886, 895 (N.C. Ct. App. 2007) (examining
whether "purpose of arousing or gratifying sexual desire,"
specified in subsection (a)(1), had been established); State v.
Jones, 393 S.E.2d 585, 589-90 (N.C. Ct. App. 1990) (discuss-
ing jury instruction on "immoral, improper or indecent lib-
erty").
To paraphrase Thornton, the Indecent Liberties Statute,
including subsection (a)(2), is not "sufficiently similar to the
enumerated crimes" of arson, burglary, extortion, and
offenses involving explosives "in kind or in degree of risk to
constitute a violent felony." 554 F.3d at 449. Put simply,
although a violation of subsection (a)(2) is reprehensible, it is
not the violent, aggressive, and purposeful behavior associ-
ated with violent use of firearms and armed career criminals.
Therefore, it does not constitute an ACCA predicate offense.
IV.
Pursuant to the foregoing, I would rule that a violation of
the Indecent Liberties Statute is not categorically a "violent
felony" under the ACCA, and that the district court thus erred
in treating Vann’s contested convictions as ACCA predicate
offenses. As a result, I would vacate the judgment and remand
for resentencing.
I respectfully dissent.