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Decided: July 21, 2015  

The Fourth Circuit held that the district court erred in dismissing the indictment against the defendant. The Fourth Circuit determined the analytical approach called the “modified categorical approach” applies to this case. Therefore, the defendant was convicted of a qualifying misdemeanor crime of domestic violence, and the indictment should be reinstated.

During a consensual search of Rodney Vinson’s residence, police officers found a rifle and ammunition. After determining that Vinson had a prior North Carolina misdemeanor conviction of domestic violence under 18 U.S.C. § 921(a)(33)(A), the government charged Vinson with possession of a firearm by a prohibited person under 18 U.S.C. § 922(g)(9). Possession of firearms by persons convicted of a “misdemeanor crime of domestic violence” is prohibited. 18 U.S.C. § 922(g)(9). The district court granted the defendant’s motion to dismiss, concluding that the defendant was not a prohibited firearm possessor because the relevant state statute did not qualify as a misdemeanor crime of domestic violence.

When determining whether a prior conviction qualifies the defendant as a prohibited person under § 922(g), the court applies a categorical approach. Under the categorical approach, the court looks “only to the fact of conviction and the statutory definition of the prior offense…focus[ing] on the elements of the prior offense rather than the conduct underlying the conviction.” United States v. Cabrera-Umanzor, 728 F.3d 347, 350 (4th Cir. 2013). The categorical approach can be modified and can be used in situations where the underlying state crime “consists of the multiple alternative elements creating several different crimes, some of which would match the generic federal offense and others that would not.” Omargharib v. Holder, 775 F.3d 192, 197 (4th Cir. 2014). A state crime is divisible for purposes of applying the modified categorical approach only if at least one of the categories into which the crime may be divided constitutes, by its elements, a qualifying predicate offense. Cabrera-Umanzor, 728 F.3d at 352.

The district court concluded that the North Carolina state crime was not divisible and that the modified categorical approach was therefore inapplicable. Under the categorical approach, the district court concluded that a violation of the North Carolina statute did not amount to a misdemeanor crime of domestic violence (MCDV) because the use or threatened use of physical force is not an element of assault under North Carolina law.

The question for the Fourth Circuit is whether Vinson’s conviction under N.C. Gen. Stat. § 14-33(c)(2) qualifies as a conviction for a MCDV, defined by 18 U.S.C. § 921(a)(33)(A). The government contends that the modified categorical approach should have been applied by the district court. Any convictions for the completed-battery form of assault would necessarily include the use of physical force sufficient to satisfy the federal definition of an MCDV. The Fourth Circuit determined that the kind of conduct proscribed by the different formulations of assault should be treated as separate crimes warranting the use of the modified categorical approach. When determining the divisibility of a state crime, the Fourth Circuit looks to the manner in which the offense is charged to the jury. Omargharib, 775 F.3d at 199. In North Carolina, a single definition of assault is typically given, and that definition is nothing more than a description of the charged conduct. The jury instructions, with their focus on the single form of assault, implicated by the underlying facts, indicates that the alternative formulations of assault are alternate elements, not alternate means. The Fourth Circuit concluded that for purposes of inquiry under 18 U.S.C. § 922(g)(9), the attempted-battery and completed-battery forms of assault effectively create separate crimes with separate elements.

Further, the Magistrate’s Order charges Vinson with assault by completed-battery, which establishes that the various formulating of assault are alternate elements, which establishes that the assault is divisible. Because the Fourth Circuit determined the offense to be divisible, the modified categorical approach is applicable, and under this approach, Vinson’s prior conviction qualifies as a MCDV. Therefore, the Fourth Circuit held that the district court erred by dismissing the case and remanded to the district court to reinstate the indictment.

Dissenting, Justice Gregory stated that North Carolina’s common law crime of assault is ambiguous and/or inconsistently applied. For that reason, Gregory stated it would be smart to err on the side of constitutional caution, construing the state law in a way that minimizes the danger of the Sixth Amendment by imposing a sentence based on a fact that need not be found beyond a reasonable doubt. Additionally, the modified categorical-approach should only be applied in a narrow range of cases. Gregory could not agree with the conclusion of the majority that the North Carolina crime of assault encompasses functionally separate alternative offenses such that the modified categorical approach would be permissible.

Full Opinion

Austin T. Reed