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Media Alerts - United States v. Thompson -- Fourth Circuit
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November 27, 2017
  United States v. Thompson -- Fourth Circuit
Narrowing Johnson's Scope: Similar Risk and Kind Requirements Remain for Residual Clause of the Sentencing Guidelines

Areas of Law: Criminal Law, Statutory Interpretation, Sentencing Guidelines

Issue Presented:
Whether a prior North Carolina conviction for assault inflicting serious bodily injury permitted the district court to increase Thompson's sentence under the United States Sentencing Guidelines § 4B1.2's residual clause.

Brief Summary:
In a published opinion, the United States Court of Appeals for the Fourth Circuit analyzed whether the residual clause of the Sentencing Guidelines for designated career offenders (§ 4B1.2) authorized the United States District Court for the Eastern District of North Carolina to increase Thompson's sentence because of his prior conviction. In order for § 4B1.2 to apply, the prior conviction had to constitute a crime of violence. The Fourth Circuit found that Thompson's prior conviction was a crime of violence under the residual clause because it posed a similar degree of risk and was similar in kind to § 4B1.2's enumerated offenses.

Extended Summary: In 2015, Thompson pled guilty to possession of marijuana with intent to distribute and being a felon in possession of a firearm. Thompson had also been convicted previously of assault inflicting serious bodily injury ("AISBI"), a violation of North Carolina law. Due to this prior offense, Thompson's probation officer recommended that the district court increase Thompson's sentence pursuant to § 4B1.2's residual clause, which covers all unnamed "crimes of violence" that "involve conduct that presents a serious potential risk of potential injury" to others. The enumerated offenses in § 4B1.2 include arson, burglary of a dwelling, and use of explosives.

Thompson argued that AISBI is not a crime of violence. When the district court disagreed and sentenced him to an enhanced sentence of 120 months imprisonment and 3 years supervised release, Thompson appealed, maintaining that his prior conviction for AISBI was not a crime of violence under § 4B1.2's residual clause.

In its analysis, the Fourth Circuit noted that the Sentencing Guidelines' definition parallels the residual clause of the Armed Career Criminal Career Act ("ACCA")'s definition of "violent felony," and that courts apply the Supreme Court's ACCA residual clause analysis to § 4B1.2's residual clause. While the Supreme Court ruling in Johnson declared the ACCA's residual clause unconstitutional, the Fourth Circuit held that that decision did not change the required analysis of the residual clause of the Guidelines' provision.

In order to qualify as a crime of violence under § 4B1.2, the Fourth Circuit explained that the crime must first have the same "degree of risk" as the offenses enumerated in § 4B1.2. The Fourth Circuit relied on James v. United States, in which the Supreme Court held that attempted burglary was a violent felony under the ACCA because attempted burglary posed the same degree of risk to others as the enumerated offenses in the ACCA. Since the Court of Appeals of North Carolina stated that AISBI applies to especially violent assaults and assaults that result in severe injuries, the crime involved the same degree of risk as the enumerated offenses in § 4B1.2.

The Fourth Circuit then determined whether AISBI represented a crime "similar in kind" to the offenses enumerated in § 4B1.2. The Fourth Circuit noted that in Begay v. United States, the Supreme Court found that a prior DUI conviction did not constitute a violent felony because Congress intended to cover crimes that were similar in kind to the enumerated offenses, but did not intend to include every crime that posed a serious potential risk of harm to others. To qualify, the crime must include "purposeful, violent, and aggressive conduct." The Fourth Circuit found that AISBI was similar in kind to the enumerated offenses because every North Carolina AISBI case supported the notion that convictions for AISBI require "purposeful, violent, and aggressive conduct."

Because Thompson's prior AISBI conviction posed the similar degree of risk and was similar in kind to § 4B1.2's enumerated offenses, the Fourth Circuit affirmed his increased sentence.

To read the full opinion, click here.

Panel: Circuit Judges Motz, Wilkinson, and Diaz

Argument Date:
09/12/2017

Date of Issued Opinion: 10/26/2017

Docket Number: 15-4685

Decided: Affirmed by published opinion

Case Alert Author:
Matthew Schofield, Univ. of Maryland Carey School of Law

Counsel: Jennifer Claire Leisten, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Phillip Anthony Rubin, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon, Chief Appellate Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. John Stuart Bruce, Acting United States Attorney, Jennifer P. May-Parker, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Author of Opinion: Circuit Judge Motz

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 11/27/2017 01:31 PM     4th Circuit  

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