Decided: August 13, 2013
The Fourth Circuit held that a conviction under Virginia law for assault and battery of a police officer did not categorically qualify as a crime of violence that could serve as a predicate offense for a career offender enhancement. Nevertheless, with no prior controlling decision and an unsettled state of the law in other states, the court also held that it was not plain error for the district court to determine that a criminal defendant’s prior conviction for assault and battery of a police officer was a “crime of violence” constituting a predicate offense for the career offender enhancement.
Defendant, Jolon Devon Carthorne (“Carthorne”) pled guilty to possession with intent to distribute cocaine and possession of a firearm in furtherance of a drug trafficking crime as part of a plea agreement. As a part of the plea agreement, the government agreed to recommend a reduction in Carthorne’s sentence based on acceptance of responsibility. A probation officer filed Carthorne’s final presentence report (the “PSR”) recommending that Carthorne be sentenced as a “career offender” based on two prior convictions: (1) a felony conviction for distribution of cocaine; and (2) a felony conviction under Virginia law for assault and battery of a police officer (the “Virginia conviction”). The probation officer labeled the Virginia conviction as a “crime of violence,” subjecting Carthorne to a sentencing enhancement. Carthorne did not dispute the facts surrounding the Virginia conviction where Carthorne apparently spit in the face of a police officer without provocation. The district court adopted the PSR and sentenced Carthorne to 300 months imprisonment. Based on sentencing guidelines, without the “career offender” enhancement, Carthorne would have received between 181 and 211 months’ imprisonment for the conviction. At trial, however, Carthorne failed to object to the PSR’s conclusion that he should be classified as a career offender. In fact, when pressed, Carthorne’s counsel conceded that any argument that the Virginia conviction was not a crime of violence was “without merit.” Carthorne appealed the district court’s determination that the Virginia conviction was a crime of violence” under the federal sentencing guidelines.
On appeal, the Fourth Circuit reviewed the district court’s classification of the Virginia conviction for plain error because Carthorne failed to object to the ruling at the trial level. To establish plain error, the defendant must prove: (1) that an error was made; (2) that the error was plain; and (3) that the error affected his substantial rights. The court agreed with the defendant that the Virginia conviction did not categorically qualify as a “crime of violence.” The court found that the elements of the Virginia conviction did not involve the requisite “conduct that presents a serious potential risk of physical injury to another” to qualify as a crime of violence because assault and battery can occur under Virginia law without a resulting injury. In fact, under Virginia law, “the slightest touching of another…if done in a rude, insolent, or angry manner, constitutes a battery for which the law affords redress.” Therefore, because the elements of the Virginia conviction did not include “the use, attempted use, or threatened use of physical force against another,” it does not categorically qualify as a crime of violence. The court dismissed the government’s argument that the assault and battery conviction was aggravated by the fact that it was perpetrated on a police officer, parting with several other circuits.
Despite finding error, the court found that the error was not “plain.” Neither the Supreme Court nor the Fourth Circuit had previously determined whether the Virginia conviction was a crime of violence. Furthermore, other circuits have split on the issue. Since a district court does not commit plain error by following the reasoning of another circuit, the court determined that the error was not plain and affirmed the district court.
– Wesley B. Lambert