By George Kennedy
On June 12, 2015, the Fourth Circuit issued its published opinion in the criminal case of United States v. Shell. The Fourth Circuit vacated the sentence imposed by the district court, holding that the district court erred in finding that Defendant’s prior second-degree rape conviction was a crime of violence under the U.S. Sentencing Guidelines. Additionally, the Fourth Circuit remanded the case so that the district court could make a separate factual finding as to whether Defendant was aware that he was fleeing a law enforcement officer.
Defendant’s Firearm Possession Conviction
On December 27, 2012, Defendant Aaron Eugene Shell was driving on Highway 321 in Caldwell County, North Carolina. From the opposite side of the highway, North Carolina State Trooper Christopher Hodges observed that Defendant was speeding, and turned his vehicle around to pursue and arrest Defendant. By the time that Hodges had turned around, Defendant had veered off the road down into an embankment. Hodges soon discovered Defendant, who had fled the scene of the accident. While fleeing, Defendant dropped a small bag behind a tree. Hodges searched the bag and found a semiautomatic pistol.
Defendant was charged with one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g), and pleaded guilty. A presentencing report made recommendations for the appropriate sentence to be imposed upon Defendant. The report recommended raising Defendant’s base offense level from fourteen to twenty under U.S.G.S. § 2K2.1(a)(4)(a) since Defendant’s previous second-degree rape conviction constituted a “crime of violence” under the statute. Additionally, the presentencing report recommended a two-level enhancement for obstruction of justice under U.S.G.S. § 3C1.2 because Defendant’s reckless driving while fleeing from Officer Hodges created a substantial risk of death or bodily injury to another person. The district court adopted the recommendations of the presentencing report and sentenced Defendant to fifty-seven months’ imprisonment. Defendant appealed, challenging the district court’s use of both enhancements to extend the term of his sentence.
Second-Degree Rape as Defined Under North Carolina Law Is Not a “Crime of Violence” Under U.S.S.G. § 2K2.1
The Fourth Circuit first addressed the issue of whether the district court erred by raising Defendant’s base offense level because Defendant’s prior second-degree rape conviction was a crime of violence under U.S.S.G. § 2K2.1. Second-degree rape is defined in North Carolina under N.C. Gen. Stat. § 14-27.3 (West 2004) [“N.C.G.S. § 14-27.3”]. As the Fourth Circuit noted, a person may be convicted of rape in the second degree under the statute either by having intercourse with another person by force, or by having intercourse with someone who is mentally disabled, mentally incapacitated, or otherwise legally unable to give consent. The district court held that, under the U.S. Sentencing Guidelines, second-degree rape under N.C.G.S. § 14-27.3 is a crime of violence, and therefore, Defendant’s sentence was properly extended. The Fourth Circuit, however, disagreed.
First, the Fourth Circuit held that the text of U.S.S.G. § 4B1.2(a) does not support that second-degree rape as defined under N.C.G.S. § 14-27.3 is a crime of violence. The text of U.S.S.G. § 4B1.2(a) defines a crime of violence as one which involves “physical force against the person of another.” However, as the Fourth Circuit noted, a second-degree rape conviction under N.C.G.S. § 14-27.3 is possible without the use of physical force. The Fourth Circuit explained that a person may commit second-degree rape just by having sex with someone whose consent is legally invalid; the use of physical force is not necessary. Since the text of U.S.S.G. § 4B1.2(a) defines a crime of violence as one that involves “physical force,” and second-degree rape does not necessarily involve physical force, the Fourth Circuit reasoned that second-degree rape is not a crime of violence under the statute.
The government countered this argument by pointing to the comments of the statute, U.S.S.G. § 4B1.2 cmt. n. 1., which states that “[crime] of violence” includes . . . forcible sex offenses . . .” The government argued that since forcible sex offenses are listed as crimes of violence under the statute, then second-degree rape under N.C.G.S. § 14-27.3 qualifies as a crime of violence. The Fourth Circuit, however, disagreed. In so holding, the Fourth Circuit cited precedent from the Sixth and Tenth Circuits which had expressly rejected the exact argument that the government was making. Additionally, the Fourth Circuit looked to the intent of the Sentencing Commission, and concluded that sex offenses based on an inability to give legal consent do not fall within the intended meaning of “forcible sex crimes” in this provision of the U.S. Sentencing Guidelines.
The District Court Should Have Clarified That Defendant Knew He Was Being Pursued by Law Enforcement
Lastly, the Fourth Circuit held that the district court erred by failing to make a separate finding as to whether Defendant knew he was being pursued by law enforcement officers. The Fourth Circuit held that it was unclear as to whether the district court had made such a finding. The Fourth Circuit held that such a finding must be made before enhancing a defendant’s sentence under U.S.S.G. § 3C1.2 for “recklessly creat[ing] a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer.” Accordingly, the Fourth Circuit remanded the case for an ultimate determination of this issue.
Vacated and Remanded
The Fourth Circuit held that the district court erred in finding that Defendant’s prior second-degree rape conviction was a crime of violence and in failing to determine whether Defendant knew whether he was being pursued by a law enforcement officer. Accordingly, the Fourth Circuit vacated the sentence from the district court and remanded the case for further proceedings. One judge wrote a dissenting opinion, arguing instead that second-degree rape under N.C.G.S. § 14-27.3 should be considered a crime of violence under the U.S. Sentencing Guidelines.