U.S. v. SHELL, NO. 14-4211
Decided: June 12, 2015
The Fourth Circuit vacated and remanded the lower court opinion, holding that a defendant’s prior conviction in North Carolina for second-degree rape was not automatically a crime of violence under sentencing guidelines for career criminals. The Fourth Circuit also held that in order for a defendant’s sentencing to be enhanced under the guidelines for recklessly creating a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer, the defendant must have known that he was being pursued by law enforcement.
This appeal arises from Aaron Eugene Shell’s (“Shell”) guilty plea to felon in possession of a firearm in violation of 18 U.S.C. § 922(g) (2012). The presentencing report (“PSR”) recommended that Shell receive an enhanced base offense level for two reason. First, the PSR found that Shell’s prior felony conviction of second-degree rape was a crime of violence. Second, the PSR recommended an enhanced base offense level for Shell’s reckless driving in the course of fleeing from a law enforcement officer that created a substantial risk of death or serious bodily injury to others. Shell objected to both enhancements. During sentencing, the district court overruled both of Shell’s objections. The court reasoned that second-degree rape constituted a violent crime under the U.S. Sentencing Guidelines Manual § 2K2.1(a)(4)(A) (2014). Shell appeals the district court’s determination that his second-degree rape conviction was a crime of violence.
The Fourth Circuit reviewed Shell’s appeal, as a question of law, de novo. In considering whether Shell’s second-degree rape conviction constituted a crime of violence, the Court applied the categorical approach, which focuses on the elements of the prior offense. With this approach, the particular events that occurred in the commission of the crime are irrelevant, and the Court had to decide if any second-degree rape under the North Carolina statute would qualify as a violent crime when compared to the Sentencing Guidelines’ use of the phrase “crime of violence.” The Court looked at the two separate offenses in the statute. Because the records of Shell’s conviction for second-degree rape did not specify which subsection of the statute formed the basis for his prior conviction, the Court reasoned that the conviction could only be treated as a crime of violence only if both subsections qualified as crimes of violent. The Court concluded that the first subsection of the statute, which required force, easily qualified as a crime of violence under the Guidelines. The Court held that the second subsection, however, did not require the state to prove force and could be violated if there is legally insufficient consent. Therefore, the Court reasoned that under the second subsection, second-degree rape in North Carolina does not qualify as a crime of violence. The Court also held that the enhanced base offense level for recklessly creating a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer could only be applied when the fleeing suspect was aware of law enforcement being in pursuit. The Court vacated Shell’s sentencing and remanded the case for resentencing consistent with this opinion.
William H. Yarborough