United States v. Frankie Doctor, Sr.

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-4874
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
FRANKIE LANE DOCTOR, SR., a/k/a Nose,
Defendant – Appellant.
Appeal from the United States District Court for the District of South Carolina, at
Columbia. Joseph F. Anderson, Jr., Senior District Judge. (3:05-cr-00681-JFA-1)
Submitted: March 26, 2020 Decided: May 4, 2020
Before GREGORY, Chief Judge, FLOYD, and HARRIS, Circuit Judges.
Affirmed by published opinion. Chief Judge Gregory wrote the opinion, in which
Judge Floyd and Judge Harris joined.
Emily Deck Harrill, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Columbia, South
Carolina, for Appellant. Sherri A. Lydon, United States Attorney, Alyssa Leigh Richardson,
Assistant United States Attorney, Stacey Denise Haynes, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.
GREGORY, Chief Judge:
Frankie Lane Doctor, Sr., appeals the district court’s revocation of his supervised
release and resulting sentence, citing three primary errors. First, Doctor claims the court
erred in finding the government proved he committed the assault underlying the supervised
release violation. Second, even if the government had proven he perpetrated the assault,
Doctor asserts the court failed to announce the specific state offense he committed. Third,
he argues that the court improperly used the conduct-specific approach—rather than the
categorical approach—to determine that the assault qualified as a crime of violence under
the Sentencing Guidelines, which affected the advisory Guidelines range for his sentence.
For the reasons that follow, we affirm the district court. 1
I.
A.
In 2005, a jury found Doctor guilty on two counts: (1) felon in possession of a
firearm, and (2) possession with intent to distribute cocaine base. The district court deemed
Doctor an armed career criminal and sentenced him to 262 months in prison followed by 5
years of supervised release. In early 2018, the district court granted Doctor’s 28 U.S.C.
1
We also deny as moot Doctor’s motion to expedite. (ECF No. 49.) We dispense
with oral argument because the facts and legal contentions are adequately presented in the
materials before us and argument would not aid the decisional process.
2
§ 2255 petition and reduced his sentence to time served and three years of supervised
release. 2 Doctor began serving his supervised release term on February 9, 2018.
On August 7, 2018, Doctor’s probation officer filed a report alleging Doctor
committed three violations of his supervised release. First, Doctor engaged in new criminal
conduct—namely, on July 31, 2018, he was arrested and charged with second-degree
assault and battery in Richland County, South Carolina (“Violation One”). Second, he
tested positive for cocaine use (“Violation Two”). Third, he failed to notify his probation
officer of his contact with law enforcement when police questioned him about the alleged
assault (“Violation Three”). Another violation was later added to reflect Doctor’s failure
to notify his probation officer of his arrest on the assault charge (“Violation Four”).
The district court held a two-day hearing on the violations in November 2018.
Doctor admitted Violations Two and Three. The district court dismissed Violation Four
because Doctor had instructed a family member to notify the probation officer of his arrest,
and the family member complied. Accordingly, the only contested violation was the
criminal conduct related to the assault in Violation One, which is the subject of this appeal.
At the hearing, the government first called the victim of the assault, Tony Pearson,
a disabled veteran. Pearson indicated he met Doctor, whom he called “Nose Doctor,” when
Pearson purchased crack cocaine from Doctor through a third party. Pearson testified that
2
The petition was based on the Supreme Court’s holding in Johnson v. United
States, which prohibited imposing increased sentences pursuant to the vague residual
clause of the Armed Career Criminal Act. 135 S. Ct. 2551, 2557, 2563 (2015). Under
Johnson, Doctor should have received a sentence of no more than 120 months, a sentence
he overserved by about three years before obtaining relief.
3
on July 18, 2018, around 6:00 p.m., he went to the residence of a friend, Rondell “Pop”
Bennett, to “get[] high, drink[], and . . . just hang[] out.” J.A. 43. Several other people
were at Pop’s house when Pearson arrived, including Pop; Doctor; Doctor’s son,
Chris “Furby” Doctor; Doctor’s sister, Frances “Jenny” Brice; Doctor’s girlfriend,
Michelle Clifton; and a woman named Renea. Pearson drank several beers and smoked a
small amount of crack cocaine that evening but testified that he was “back to normal” by
the time of the assault. J.A. 46.
Later in the evening, Pearson lent his car to Doctor’s girlfriend, Michelle, and
Doctor’s sister, Jenny, to go to the store for beer and cigarettes. Doctor and Furby had left
Pop’s house, but they returned around the time Michelle and Jenny came back from the
store. While Doctor was in the kitchen, he leaned toward the living room and asked, “You
got a problem with my mother fucking son[?]” J.A. 48. Pearson believed this was directed
to him because he was the only one in the living room.
Doctor then entered the living room and sat down to the left of Pearson. Furby stood
in front of Pearson with an empty liquor bottle in his hand and threatened to “slap the shit
out of [Pearson] with [the] bottle.” J.A. 49. Pearson did not do anything to prompt Furby’s
behavior and was “shocked” by it. Id. Pearson took the bottle from Furby and walked into
the kitchen, where he used his cell phone to call Doctor’s niece and ask her to tell Furby
that Pearson was not a bad person. Furby entered the kitchen and snatched the phone from
Pearson’s hand. Doctor remained in the living room during this exchange.
Pearson returned to the living room and sat on the couch. Doctor was seated in a
chair to Pearson’s left and Furby stood in front of Pearson. Furby then punched Pearson
4
in the face. In response, Pearson got up and “slammed” Furby onto the couch. J.A. 50.
When Pearson turned around, Doctor screamed, “That’s my mother fucking son,” before
punching Pearson in the left side of his face. Id. By that time, Furby had gotten up, and
he punched Pearson in the right side of his face. Then, Doctor “punch[ed Pearson] again
in the left side of [his] face.” Id. As Pearson put it, “they double-team[ed] me.” J.A. 51.
Pop came into the room and said something to the men that Pearson could not hear due to
the fighting. Doctor responded by telling Pop, “Shut the fuck up before we beat your ass.”
J.A. 50. Pop ran into the kitchen and no one else attempted to intervene.
Pearson grabbed a cushion from the couch and placed it across his head while “they
continue[d] to beat [him].” J.A. 51. With the cushion over his head, he could not tell who
was hitting him. He was “positive,” however, that Doctor hit him on the left side of his
face at least two times before he shielded himself with the cushion. J.A. 52. Pearson
estimated the assault lasted at most fifteen minutes before paramedics rushed in. He
declined medical attention and returned home to call the police.
A police officer responded to Pearson’s complaint that same night. The officer’s
report indicated that according to Pearson, two unknown males began an altercation with
him. One threatened to hit him with a liquor bottle, and when Pearson pushed the bottle
away, a fight ensued. A second male then jumped into the fight and hit Pearson. To
identify these men, Pearson indicated “it could [have] been one of the Doctor brothers and
the father.” J.A. 228. 3 The officer photographed Pearson’s injuries.
3
Volume II of the J.A.—pages 199 through 284—was filed under seal. To the
extent this opinion quotes from the sealed volume, it does not disclose confidential matters.
5
The day after the assault, Pearson sought medical attention from the Veterans
Affairs (“VA”) hospital. To explain his visit, he told medical personnel that two men he
had never seen before “jumped” him. J.A. 203. He reported that an initial assailant and
the assailant’s father punched him repeatedly in the head. Medical staff noted his right eye
was swollen shut and his tongue was bruised and swollen. He received stitches near his
right eye. According to Pearson, the assault led to a loss of vision and sensitivity to light.
He continued to experience jaw pain and headaches for several months.
Pearson also testified that a couple of days after the fight, he contacted Doctor
through a three-way call involving Doctor’s niece. Pearson told Doctor, “That was fucked
up what y’all did to me. . . . Y’all was wrong as hell.” J.A. 54. Pearson then invited Doctor
and Furby to fight him and said that if they beat him, he would not press charges.
At the revocation hearing, the government also called as a witness Aubree Torres,
an investigator from the Richland County Sheriff’s Department. Torres was not the
responding officer on the night of the incident, but she was assigned to the complaint
Pearson filed. On July 26, 2018, she contacted him by phone to discuss the incident. On
the call, Pearson informed Torres that Doctor and Furby had assaulted him. Torres found
Pearson credible because “he was able to recall a lot of details and depth” about the assault.
J.A. 82. Torres asked Pearson to come to the station to make a written statement, which
he did, and his written statement was consistent with what he reported over the phone.
When Torres saw Pearson—eight days after the assault—she noticed he wore dark
sunglasses, which he explained was due to sensitivity to light. Torres photographed his
injuries, observing that his eye was watering and involuntarily shutting during the process.
6
Torres also testified that she spoke with Pop and transcribed a statement regarding
his version of the assault. 4 Pop recalled that Pearson was sitting on the couch when Doctor
and Furby entered the room and started beating Pearson up, causing injuries to his face and
eye. When Pop tried to intervene, they threatened to beat him up, too. Torres described
Pop’s statement as consistent with Pearson’s version of events.
Furby then testified that the fight began because he took too long to supply the drugs
Pearson had requested. 5 As a result, Pearson jumped out of his chair and “jabbed [Furby]
in the face with his hand,” which Furby perceived as the first blow of the fight. J.A. 103.
According to Furby, Doctor eventually pulled him away from Pearson. At no time did
Furby see Doctor hit, punch, or otherwise assault Pearson—although he noted he could not
“attest to something that [he] didn’t see.” J.A. 109. Furby also admitted that his memory
was faulty due to impairment from drugs and alcohol.
Doctor’s sister, Jenny, testified next. She indicated that Furby jumped on Pearson
and she instructed Doctor to help Pearson. She watched Doctor try to pull Furby off of
Pearson, but she left when she “saw all that blood.” J.A. 113. Jenny also testified that she
did not see Doctor hit Pearson.
4
Defense counsel objected to Torres’ testimony about Pop’s statement. The court
overruled the objection, first noting the Rules of Evidence do not apply in revocation
hearings. See Fed. R. Evid. 1101(d)(3). The court then found that permitting the testimony
was in the “interest of justice” because there was evidence that witnesses feared Doctor
and did not want to testify live. Fed. R. Crim. P. 32.1; see also Morrissey v. Brewer, 408
U.S. 471, 489 (1972) (describing a defendant’s right to confront adverse witnesses in a
revocation hearing unless the court finds good cause to deny it).
5
Furby was charged with first-degree assault and battery but stated that he
understood his right against self-incrimination before testifying.
7
Doctor’s girlfriend, Michelle, similarly testified that she did not see Doctor punch
or otherwise assault Pearson. She only saw Doctor attempt to grab Furby and stop him
from hitting Pearson. Michelle, however, was not present for the entire fight, as she left
when she saw Doctor trying to pull Furby away from Pearson.
Finally, Norma Dunn, who lived with Pop, testified. She emerged from her room
to find Furby and Pearson in an altercation. She witnessed Doctor attempt to break up the
fight but did not see Doctor punch Pearson. Norma did not witness the entire incident, but
she did see the men separated onto different couches at the fight’s conclusion before
returning to her room.
B.
After hearing all of the evidence, the district court decided “to swallow hard and . . .
accept Mr. Pearson’s version of what happened.” J.A. 161. The court found Pearson
credibly testified that “he was assaulted and punched in the face by Chris Doctor and also
by Frankie Doctor, Chris’ father, who is the defendant here.” Id. The court “observed the
demeanor of the various witnesses with the sharply conflicting versions of what happened.”
Id. The court noted that some defense witnesses had not seen the entire fight; they only
saw Doctor trying to pull Furby off of Pearson. Ultimately, the court found the government
proved by a preponderance of the evidence that Doctor punched Pearson.
The court then turned to the grade of the supervised release violation, which
depended on whether the assault constituted a crime of violence under the Sentencing
Guidelines. The court determined this analysis should be based on the defendant’s actual
conduct, rather than the categorical approach, citing an application note to Guideline
8
§ 7B1.1 that indicates “the grade of the violation is based upon the defendant’s actual
conduct.” J.A. 162. With no published authority from this Court, the district court was
persuaded by an out-of-circuit case that relied on the defendant’s conduct.
Turning to the actual conduct in this case, the court found that Doctor punching
Pearson twice in the face constituted a crime of violence and thus a Grade A violation. As
such, Violation One would have carried a Guidelines range of 33 to 41 months but was
limited by a statutory maximum of 24 months. If this had been a Grade B violation—as
in, not a crime of violence—the Guidelines would have set forth a range of 21 to 27 months,
still capped by the 24-month maximum. The court also adopted the supervised release
violation report, which identified Violation One for second-degree assault and battery as a
Grade A violation. Like a presentence report (“PSR”), the report set forth the conduct
underlying the violation, the relevant Guidelines range, and the statutory maximum.
The court sentenced Doctor to 12 months and 1 day on Violation One, with 12
months of supervised release to follow. 6 The additional day, which defense counsel
requested, would enable Doctor to shorten his sentence through good behavior. The court
noted that even if it erred in its legal analysis regarding the grade of the violation, it would
depart upward as necessary to reach a sentence of 12 months and 1 day. The court
explained that it varied downward partly because Doctor had overserved his original
sentence before obtaining relief pursuant to Johnson. The court also discussed the
applicable 18 U.S.C. § 3553(a) factors to explain why the sentence was reasonable.
6
The court imposed a concurrent sentence of time served on Violation Two but
failed to impose a sentence for Violation Three.
9
Doctor timely appealed as to Violation One.
II.
On appeal, Doctor first argues the district court erred by revoking his supervised
release because the government did not prove he participated in the fight, and in any event,
the resulting injuries were insufficient to meet the requirements for second-degree assault
and battery. Second, assuming the government proved the assault, the district court failed
to articulate what offense Doctor committed that constituted a Grade A violation—meaning
it qualified as a crime of violence under the Sentencing Guidelines. Finally, the district
court should have used the categorical approach, rather than Doctor’s actual conduct, to
determine whether he committed a crime of violence. The categorical approach would lead
to the conclusion that South Carolina second-degree assault and battery is overbroad and
therefore not a crime of violence. Accordingly, Doctor committed at most a Grade B
violation, which would have resulted in a lower Guidelines range for sentencing.
In response, the government argues that it established Doctor committed second-
degree assault and battery. Furthermore, the district court announced Doctor’s offense by
adopting the violation report, which specified second-degree assault and battery as the new
criminal conduct in Violation One. The court also properly relied on Doctor’s actual
conduct to determine he committed a crime of violence and thus a Grade A violation.
Alternatively, the court should have applied the modified categorical approach, which
would have led to the same conclusion. In any event, even if the district court erred in its
10
analysis, the government argues the error was harmless because the court would have
imposed the same sentence regardless of any error.
A.
We turn first to whether the district court erred by finding the government proved
Violation One by a preponderance of the evidence. See 18 U.S.C. § 3583(e)(3) (permitting
courts to revoke supervised release upon finding a violation by a preponderance of the
evidence). “This standard requires only that the existence of a fact be more probable than
its nonexistence.” United States v. Padgett, 788 F.3d 370, 374 (4th Cir. 2015) (internal
quotation marks and citation omitted).
We review a district court’s decision to revoke supervised release for abuse of
discretion. Id. at 373. But we review the factual findings underlying a revocation for clear
error. Id. “Under the clear error standard, we will only reverse if ‘left with the definite
and firm conviction that a mistake has been committed.’” United States v. Savage, 885
F.3d 212, 225 (4th Cir. 2018) (quoting Anderson v. Bessemer City, 470 U.S. 564, 573
(1985)). When factual findings are based on the credibility of witnesses, we give great
deference to the district court’s determinations. United States v. Hall, 664 F.3d 456, 462
(4th Cir. 2012). We typically only disturb credibility determinations when objective
evidence contradicts the witness’ story or the story is so internally inconsistent or
implausible that a reasonable finder of fact would not credit it. United States v. McGee,
736 F.3d 263, 271 (4th Cir. 2013).
11
i.
In this case, despite Pearson’s involvement with drugs and alcohol, the district court
“observed [his] demeanor” as he testified and found his version of events credible. J.A.
161. On appeal, we see nothing so internally inconsistent or implausible about the account
Pearson gave—as the victim of the assault—that would cause us to disturb the district
court’s credibility determination. See McGee, 736 F.3d at 271.
Aside from initially telling paramedics on the scene that he did not know what
happened, Pearson consistently reported to police and medical personnel that two males
assaulted him, even though he did not always identify his attackers by name. See, e.g., J.A.
203, 207 (telling VA staff that two unknown men—an individual and his father—“jumped”
him). He informed an officer on the night of the incident that his assailants might have
been “one of the Doctor brothers and the father.” J.A. 228. He twice reported to
Investigator Torres that Furby and Doctor had assaulted him. Additionally, Pop, whose
statement the court accepted through Torres, witnessed both Furby and Doctor hitting
Pearson.
Doctor’s witnesses, including his sister and girlfriend, testified that they did not see
Doctor punch Pearson. But most of them did not see the entire fight. Jenny and Michelle
left before the fight ended, and Norma did not come out of her room in time to see the
beginning of the fight. While Doctor’s son, Furby, was present for the entire fight, he
admitted his memory was blurred by drugs and alcohol. Moreover, Furby noted that
although he did not see Doctor punch Pearson, he could not attest to what he did not see.
12
There is no evidence in the record that directly contradicts Pearson’s version of
events or makes his testimony implausible to a reasonable factfinder. Accordingly, we will
not disturb the district court’s credibility determination. Based on Pearson’s credible
testimony, the district court did not clearly err by finding that Doctor punched Pearson. 7
ii.
Because the district court did not err in finding that Doctor punched Pearson, the
next question is whether Doctor’s conduct qualified as second-degree assault and battery,
the offense set forth in the violation report. Under South Carolina law, a person commits
second-degree assault and battery:
if the person unlawfully injures another person, or offers or attempts to injure
another person with the present ability to do so, and:
(a) moderate bodily injury to another person results or moderate bodily injury
to another person could have resulted; or
(b) the act involves the nonconsensual touching of the private parts of a
person, either under or above clothing.
S.C. Code Ann. § 16-3-600(D)(1). “Moderate bodily injury” as set forth in subsection (a)
means:
physical injury that involves prolonged loss of consciousness, or that causes
temporary or moderate disfigurement or temporary loss of the function of a
bodily member or organ, or injury that requires medical treatment when the
treatment requires the use of regional or general anesthesia or injury that
results in a fracture or dislocation. Moderate bodily injury does not include
7
When announcing its findings, the district court remarked that Doctor struck
Pearson at the “conclusion” of the fight. J.A. 161. Doctor contends the court erred since
Pearson had a pillow over his head at the end of the fight and did not know who punched
him at that point. But the court’s mischaracterization of Pearson’s testimony does not mean
it clearly erred by adopting Pearson’s version of events; indeed, Pearson’s testimony
unequivocally described Doctor punching him before he placed the pillow over his head.
13
one-time treatment and subsequent observation of scratches, cuts, abrasions,
bruises, burns, splinters, or any other minor injuries that do not ordinarily
require extensive medical care.
Id. § 16-3-600(A)(2). Doctor asserts that because Pearson did not suffer a moderate bodily
injury, he committed at most a lesser degree of assault.
A person, however, can be guilty of second-degree assault and battery if “moderate
bodily injury to another person could have resulted.” Id. § 16-3-600(D)(1) (emphasis
added). Here, the evidence showed that Pearson required stitches, his eye swelled shut, his
tongue was bruised, his vision suffered, and he experienced prolonged jaw pain and
headaches. Even if these do not constitute moderate bodily injuries, we see no clear error
in finding that punching Pearson in the face as described in the record could have resulted
in “prolonged loss of consciousness,” “disfigurement or temporary loss of the function of
a bodily member or organ,” medical treatment requiring “the use of regional or general
anesthesia,” or “a fracture or dislocation,” as set forth in the statute. Id. § 16-3-600(A)(2).
Indeed, Doctor points us to no case that instructs otherwise. 8
Thus, Doctor’s argument that Pearson did not suffer the necessary injuries for
second-degree assault and battery does not leave us “with the definite and firm conviction”
that the district court made a mistake in finding Doctor committed Violation One. Savage,
885 F.3d at 225. The district court did not clearly err in this regard.
8
Furthermore, because the statute only requires the possibility of moderate bodily
injury, Doctor’s attempt to parse out which assailant actually caused which of Pearson’s
injuries is unavailing.
14
B.
Doctor next asserts the district court procedurally erred by failing to announce that
Doctor committed second-degree assault and battery. He claims that the district court’s
failure thwarts appellate review because this Court cannot discern what offense Doctor
committed in Violation One. Because he raises this issue for the first time on appeal, we
apply plain error review. United States v. Webb, 738 F.3d 638, 640 (4th Cir. 2013). Thus,
Doctor must show (1) the district court erred; (2) the error was plain; and (3) the error
affected his substantial rights, meaning it affected the outcome of the proceedings. United
States v. Olano, 507 U.S. 725, 732–34 (1993). The error also must have seriously affected
the fairness, integrity, or public reputation of the proceedings. Id. at 732.
Doctor points to a Third Circuit case in which the district court had erred by failing
to indicate the particular crime the defendant committed as a violation of his supervised
release. See United States v. Carter, 730 F.3d 187, 192–93 (3d. Cir. 2013). Instead, the
district court merely stated that the defendant committed “a forcible sexual offense.” Id.
at 192. The appellate court could not determine whether the offense was a crime of
violence under the Guidelines because doing so would require speculating as to which
federal or state offense the district court believed the defendant committed. 9 Id. at 193.
Here, by contrast, we need not speculate about the district court’s findings. The
court stated on the record—more than once—that it adopted the violation report for
purposes of sentencing. In adopting the report, the court overruled Doctor’s objection to
9
The Third Circuit ultimately did not need to decide whether the offense was a
crime of violence, because the district court’s error was harmless. Carter, 730 F.3d at 193.
15
it. The report specified that Violation One was based on Doctor’s arrest for second-degree
assault and battery. Nothing in the record suggests the district court meant to find Doctor
committed anything other than second-degree assault and battery. Accordingly, unlike in
Carter, we are not precluded from meaningful review of the district court’s decision.
Even if the district court erred in announcing Doctor’s offense by adopting the
violation report, that error was not plain. Indeed, this Court has held that when resolving
objections to a PSR, a district court “may simply adopt the findings contained in a PSR,
provided that it makes clear which disputed issues were resolved by its adoption,” thus
allowing for effective appellate review. United States v. Bolden, 325 F.3d 471, 497 (4th
Cir. 2003) (internal quotation marks and citation omitted). The “court need not articulate
[findings] as to disputed factual allegations with minute specificity.” Id. (alteration in
original). The principles set forth in Bolden could logically extend from PSRs to
supervised release violation reports, such that any error by the district court was not “clear”
or “obvious.” 10 Olano, 507 U.S. at 734. In any event, Doctor has not identified how this
lack of clarity affected his substantial rights pursuant to Olano’s third prong. Id.
Thus, the district court did not commit plain error by adopting the violation report
when announcing Doctor committed Violation One.
10
We recognize that PSRs and violation reports are distinct documents prepared for
separate criminal proceedings. But for purposes of this appeal, the district court did not
plainly err by adopting the violation report like a court would adopt a PSR at sentencing.
16
C.
Next, we turn to the district court’s decision that Doctor’s commission of South
Carolina second-degree assault and battery constituted a crime of violence under the
Guidelines. Doctor argues the court should have applied the categorical approach to
determine his offense was not a crime of violence and thus not a Grade A violation, which
would have resulted in a lower Guidelines range for sentencing.
i.
Under the Sentencing Guidelines, a Grade A violation involves, for purposes of this
appeal, an offense punishable by a term of imprisonment exceeding one year that is a
“crime of violence.” U.S.S.G. § 7B1.1(a)(1). The Guidelines define “crime of violence”
as an offense that “has as an element the use, attempted use, or threatened use of physical
force against the person of another.” 11 Id. § 4B1.2(a)(1). A Grade B violation, on the other
hand, involves only an offense punishable by a term of imprisonment exceeding one year.
Id. § 7B1.1(a)(2). Because South Carolina second-degree assault and battery carries the
possibility of imprisonment for more than one year, it could qualify as either a Grade A or
a Grade B violation. S.C. Code Ann. § 16-3-600(D)(2). Thus, to determine the violation
grade, we must ask whether second-degree assault and battery is a crime of violence.
To answer that question, the district court examined Doctor’s actual conduct. Since
Doctor’s revocation hearing, however, this Court has applied the categorical approach to
11
The definition also includes certain delineated offenses, such as murder and
aggravated assault, none of which are relevant here. U.S.S.G. § 4B1.2(a)(2). Although the
government argued Doctor committed aggravated assault below, that argument is not made
on appeal.
17
decide whether a state offense is a crime of violence under the Guidelines. United States
v. Simmons, 917 F.3d 312, 316 (4th Cir. 2019) (“To determine whether North Carolina
[assault with a deadly weapon on a government official] is a ‘crime of violence’ under the
Sentencing Guidelines, we apply the familiar categorical approach.”). Accordingly,
application of the conduct-specific approach in these circumstances is not proper.
The categorical approach examines only the elements of the offense. Id. at 317.
“[I]f the offense can be committed without satisfying the definition of crime of violence,
then it is overbroad and not a categorical match.” Id. at 316–17 (internal quotation marks
and citation omitted). Doctor argues that an individual can commit second-degree assault
and battery by “nonconsensual touching,” S.C. Code Ann. § 16-300(D)(1)(b), which the
Supreme Court has excluded from the Guidelines’ definition of a crime of violence. United
States v. Salmons, 873 F.3d 446, 448–49 (4th Cir. 2017). Thus, Doctor asserts, the statute
is overbroad and his offense is not categorically a crime of violence.
The government argues that we should apply the modified categorical approach,
since the South Carolina statute is “divisible,” meaning it defines multiple crimes. Mathis
v. United States, 136 S. Ct. 2243, 2249 (2016). Under this approach, we determine which
crime a defendant committed and apply the categorical approach only to that offense. Id.
In the government’s view, the statute sets forth two crimes, one involving moderate bodily
injury, and one involving nonconsensual touching. See United States v. Butler, 760 F.
App’x 194, 196 (4th Cir. 2019) (applying the modified categorical approach to S.C. Code
Ann. § 16-3-600(D)(1) based on the parties’ agreement). Because Doctor committed the
18
former crime, the government says, we need only examine whether that constitutes a crime
of violence, and it does.
ii.
But we need not decide whether the categorical or modified categorical approach
applies to South Carolina second-degree assault and battery because, even if the district
court erred in concluding the offense was a crime of violence, the error was harmless.
We review a sentence under a “deferential abuse-of-discretion standard.” United
States v. McDonald, 850 F.3d 640, 643 (4th Cir. 2017). We first examine whether the
district court committed a procedural error, and if we find none, we consider the substantive
reasonableness of the sentence. Id. “We will not disturb a district court’s revocation
sentence unless it falls outside the statutory maximum or is otherwise plainly
unreasonable.” Padgett, 788 F.3d at 373 (internal quotation marks and citation omitted).
It is not necessary, however, to vacate a sentence based on an alleged Guidelines
error if we can determine from the record that the error is harmless. McDonald, 850 F.3d
at 643. Indeed, “it would make no sense to set aside [a] reasonable sentence and send the
case back to the district court” when the court “has already told us that it would impose
exactly the same sentence, a sentence we would be compelled to affirm.” Id. at 645.
Instead, we may assume that a sentencing error occurred and proceed to examine whether
the error affected the defendant’s sentence. Id. at 643. There are two prongs of this
“assumed error harmlessness inquiry.” Id. First, we require “knowledge that the district
court would have reached the same result even if it had decided the [G]uidelines issue the
19
other way.” Id. Second, we must make “a determination that the sentence would be
reasonable even if the [G]uidelines issue had been decided in the defendant’s favor.” Id.
For purposes of this analysis, we assume Doctor’s offense was not a crime of
violence and turn to (1) whether the district court would have arrived at the same sentence
if it had found Doctor committed a Grade B violation, and (2) whether that sentence is
reasonable. As for the first question, the district court made clear that even if it erred, it
“would depart upward if necessary” to reach 12 months and 1 day. J.A. 187. The court
believed the sentence was “appropriate . . . based on the totality of the record,” which
included Doctor’s over-service of his original sentence. Id. Noting the statutory maximum
was 24 months regardless of the violation grade, the court decided “to split it down the
middle at 12 months and [1] day.” J.A. 186. Thus, “the district court’s sentencing intent
was . . . clear from the record.” McDonald, 850 F.3d at 645; see also United States v.
Gomez-Jimenez, 750 F.3d 370, 383 (4th Cir. 2014) (finding the district court made its intent
clear: “If, however, for some reason someone were to determine that I did not [properly
calculate the advisory Guidelines range], I announce an alternative variant sentence[.]”).
Next we must decide if Doctor’s sentence is substantively reasonable. This entails
looking to “the totality of the circumstances to see whether the sentencing court abused its
discretion in concluding that the sentence it chose satisfied the standards set forth in [18
U.S.C.] § 3553(a).” Gomez-Jimenez, 750 F.3d at 383. When revoking a defendant’s term
of supervised release, a court must consider certain factors set forth in § 3553(a), including
the nature and circumstances of the offense, the history and characteristics of the defendant,
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the need to afford adequate deterrence, and the need to protect the public. See 18 U.S.C.
§ 3583(e) (citing § 3553(a)).
In this case, the district court adequately addressed the relevant § 3553(a) factors
when imposing Doctor’s sentence. As for the nature and circumstances of the offense, the
court found Doctor had committed a “serious offense” when he and Furby repeatedly
punched Pearson and caused bruising and lacerations. J.A. 187. Doctor had a criminal
history at the top of the scale and his original PSR listed numerous previous convictions,
leading the court to observe he had “a significant criminal history.” J.A. 188. The court
also considered the need for adequate deterrence and to protect the public from Doctor.
Additionally, and importantly, the district court imposed a sentence well below the
Guidelines range for either a Grade A violation or a Grade B violation. Cf. Gomez-
Jimenez, 750 F.3d at 389 (Gregory, J., concurring in part and dissenting in part) (noting the
sentence imposed exceeded what would have been the Guidelines range absent the court’s
calculation error). The court sentenced Doctor to 12 months and 1 day, even though the
range for a Grade A violation was 24 months pursuant to the statutory maximum. But the
sentence also fell considerably below the range for a Grade B violation, which was 21 to
24 months. In other words, Doctor’s sentence was lower than the Guidelines would have
advised if the court had found no crime of violence. Thus, the court did not “anchor” the
sentence “to an improperly calculated Guidelines range.” Simmons, 917 F.3d at 315.
We cannot find—nor does Doctor cite—a reason that this variant sentence would
be substantively unreasonable if the court had found he committed a Grade B violation.
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Accordingly, even if the district court erred in sentencing Doctor for a Grade A violation,
the error was harmless.
III.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
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