UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 02-4192
WILLIAM TUCKER JEFFCOAT,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Asheville.
Lacy H. Thornburg, District Judge.
(CR-01-7)
Argued: February 28, 2003
Decided: April 17, 2003
Before WILLIAMS, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Eric Jason Foster, LAW OFFICE OF RICK FOSTER,
Asheville, North Carolina, for Appellant. Richard Lee Edwards,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee. ON BRIEF: Robert J. Conrad, Jr., United States Attorney,
Asheville, North Carolina, for Appellee.
2 UNITED STATES v. JEFFCOAT
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
William Tucker Jeffcoat appeals his sentence for the interstate
transportation of a stolen firearm, motor vehicle, and credit card. The
district court, after determining that Jeffcoat’s two prior convictions
under S.C. Code Ann. § 16-15-140 (Law. Co-op. 1995) were crimes
of violence for the purposes of the United States Sentencing Guide-
lines § 2K2.1(a)(2) (2000), sentenced Jeffcoat to 105 months impris-
onment. The issue on appeal is whether the district court properly
considered Jeffcoat’s prior convictions as crimes of violence under
the sentencing guidelines. Because we find that our precedent dictates
that Jeffcoat’s prior crimes be considered "crimes of violence" for
sentencing guidelines purposes, we affirm Jeffcoat’s sentence.
I.
Jeffcoat pleaded guilty to interstate transportation of a stolen fire-
arm, in violation of 18 U.S.C.A. § 922(i) (West 2000); interstate
transportation of a stolen motor vehicle, in violation of 18 U.S.C.A.
§ 2312 (West 2000); interstate transportation of a stolen credit card,
in violation of 18 U.S.C.A. § 1644(b) (West 2000); and possession of
a stolen motor vehicle, in violation of 18 U.S.C.A. § 13 (West 2000).
At Jeffcoat’s sentencing hearing, the district court concluded that Jeff-
coat’s two prior South Carolina felony convictions for violations of
S.C. Code Ann. § 16-15-140, which prohibits committing, or attempt-
ing to commit, a lewd act upon a child under fourteen,1 were "crimes
of violence" under the sentencing guidelines, which provides that the
base offense level for the unlawful interstate transportation of a stolen
1
This section has since been amended making it illegal to commit such
an act upon a child under the age of sixteen. See State v. Brock, 516
S.E.2d 212, 214 n.2 (S.C. Ct. App. 1999) (citing S.C. Code Ann. § 16-
15-140 (Law. Co-op. 1998)).
UNITED STATES v. JEFFCOAT 3
firearm is 24 "if the defendant had at least two prior felony convic-
tions of either a crime of violence or a controlled substance offense."
U.S.S.G. § 2K2.1(a)(2) (2000). The district court then sentenced Jeff-
coat to 105 months imprisonment. Jeffcoat now appeals the district
court’s characterization of his prior convictions as "crimes of vio-
lence."
II.
In this case we must resolve the issue of whether a violation of S.C.
Code Ann. § 16-15-140 is a "crime of violence" for purposes of
U.S.S.G. § 2K2.1(a)(2). Whether a state offense is a "crime of vio-
lence" under the sentencing guidelines is a question of law that we
review de novo. United States v. Pierce, 278 F.3d 282, 286 (4th Cir.
2002).
A "crime of violence," for purposes of U.S.S.G. § 2K2.1(a)(2), is
defined in U.S.S.G. § 4B1.2(a). See U.S.S.G. § 2K2.1 cmt. n.5. Sec-
tion 4B1.2(a) defines the term "crime of violence" as follows:
[A]ny offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that . . .
(1) has as an element the use, attempted use, or threatened
use of physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves
use of explosives, or otherwise involves conduct that pre-
sents a serious potential risk of physical injury to another.
U.S.S.G. § 4B1.2(a). The commentary to § 4B1.2(a) further describes
the term:
"Crime of violence" includes murder, manslaughter, kidnap-
ping, aggravated assault, forcible sex offenses, robbery,
arson, extortion, extortionate extension of credit, and bur-
glary of a dwelling. Other offenses are included as "crimes
of violence" if (A) that offense has as an element the use,
attempted use, or threatened use of physical force against
4 UNITED STATES v. JEFFCOAT
the person of another, or (B) the conduct set forth (i.e.,
expressly charged) in the count of which the defendant was
convicted . . ., by its nature, presented a serious potential
risk of physical injury to another.
U.S.S.G. § 4B1.2 cmt. n.1.
While "the question of whether an offense is a crime of violence
is a question of federal law, because the federal law includes the pos-
sibility that a predicate offense may be a prior violation of state law,
in considering such an offense, we look to state law to determine its
nature and whether its violation is a crime of violence under federal
law." Pierce, 278 F.3d at 286 (internal citation omitted). To make the
determination, we apply the "categorical approach:" We analyze
"only the definition of the offense," to determine "the nature of the
offense" for federal purposes. Id. at 286. That is, we look to state law
only to determine what the elements of the offense are, the ways in
which the crime may be committed, and the dangers that may arise
from the commission of the offense. We then consider those factors
in determining whether the offense meets the federal definition of a
"crime of violence." Id. at 287 ("[W]e look to state law to understand
whether a conviction under state law amounts to a crime of violence
as defined by federal law." (emphasis added)).2
2
Jeffcoat argues that South Carolina’s characterization of the offense
should control how we characterize it for sentencing guidelines purposes,
and that he was erroneously sentenced because South Carolina explicitly
considers violations of § 16-15-140 to be nonviolent offenses. See S.C.
Code Ann. § 16-1-60 (Law. Co-op. 2000) (listing violent crimes under
South Carolina law, without mentioning § 16-15-140, and providing that
"only those offenses specifically enumerated in this section are consid-
ered violent offenses"); see also S.C. Code Ann. § 16-1-70 (Law. Co-op.
2000) ("For purposes of South Carolina law a nonviolent crime is all
offenses not enumerated in § 16-1-60."). The label placed upon the crime
by South Carolina, however, is not relevant. See Taylor v. United States,
495 U.S. 575, 590 (1990) (noting that elements of state offenses are
determinative regardless of technical definitions and labels under state
law); United States v. Raynor, 939 F.2d 191, 195 (4th Cir. 1991) (hold-
ing that a state’s characterization of an offense as a "felony" or a "misde-
meanor" is irrelevant to whether the offense meets the federal definition
UNITED STATES v. JEFFCOAT 5
The South Carolina statute at issue, § 16-15-140, provides:
It is unlawful for a person over the age of fourteen years to
wilfully and lewdly commit or attempt a lewd or lascivious
act upon or with the body, or its parts, of a child under the
age of fourteen years, with the intent of arousing, appealing
to, or gratifying the lust or passions or sexual desires of the
person or of the child.
Thus, § 16-15-140 requires touching or a threat of physical contact
"with the intent of appealing to the lust or passions" of the perpetra-
tor. State v. Norton, 332 S.E.2d 531, 533 (S.C. 1985). The Supreme
Court of South Carolina’s interpretation of § 16-15-140 as describing
child molestation, see State v. Hardee, 308 S.E.2d 521, 524 (S.C.
1983) ("The disjunctive phrases in [§ 16-15-140] are merely descrip-
tive of the offensive act, child molesting."), demonstrates that the stat-
ute was intended to protect children, "the most vulnerable members
of our society," Pierce, 278 F.3d at 288, from physical injury. More-
over, all South Carolina case law interpreting § 16-15-140 involves
sexual touching or physical contact. See Norton, 332 S.E.2d at 532
(committing a lewd act upon a minor); Hardee, 308 S.E.2d at 525
(touching minor’s private parts); State v. McFarlane, 306 S.E.2d 611,
612 (S.C. 1983) (fondling ten-year-old girl); State v. Brock, 516
S.E.2d 212, 213 (S.C. Ct. App. 1999) (touching nine-year-old girl’s
private parts); State v. Sprouse, 478 S.E.2d 871, 873 (S.C. Ct. App.
1996) (committing lewd act upon eight-year-old daughter); South
Carolina Dep’t of Social Services v. Forrester, 320 S.E.2d 39 (S.C.
Ct. App. 1984) (sexually molesting twelve-year-old and eight-year-
old nieces).
of those terms); see also United States v. Sacko, 247 F.3d 21, 25 (1st Cir.
2001) (noting that "because a state’s classification of a crime generally
reflects different policy considerations than the federal classification, it
is simply not relevant to the determination of whether a crime is a ‘vio-
lent felony’" under federal law); United States v. Baskin, 886 F.2d 383,
389 (D.C. Cir. 1989) (holding that a state offense is a crime of violence
if it meets the sentencing guidelines’ definition regardless of how the
state may characterize the crime for its own purposes).
6 UNITED STATES v. JEFFCOAT
In Pierce, we addressed whether sex offenses involving minors
under North Carolina’s indecent liberties statute, N.C. Gen. Stat.
§ 14-202.1 (2000),3 are "crimes of violence." The defendant in Pierce
was convicted of bank robbery and sentenced as a career offender
under U.S.S.G. § 4B1.1 on the ground that he had two prior felony
convictions for crimes of violence, as defined in U.S.S.G. § 4B1.2.
One of these convictions was for violating North Carolina’s indecent
liberties statute. Pierce, 278 F.3d at 284. Pierce argued on appeal that
because the statutory language defining the offense did not require
physical force or touching, his conviction was not a "crime of vio-
lence" for sentencing guidelines purposes. Analyzing this claim, we
first noted that North Carolina’s indecent liberties statute was enacted
to protect children from "sexual abuse, a particularly pernicious form
of personal injury," and requires neither physical force nor touching.
Id. at 287. We further noted, however, that the sentencing guidelines
provide a broad definition of "crimes of violence," including not only
crimes that actually cause physical injury but also those that by their
nature, "could cause physical injury." Id. (citation omitted). The North
Carolina indecent liberties offense, like arson, burglary of a dwelling,
attempted breaking and entering of a dwelling, escape from custody,
and attempted escape (none of which requires physical harm or a
touching), involves "conduct that inherently presents a risk of physi-
cal injury." Id. at 289. Like those crimes, we held, a violation of the
North Carolina indecent liberties statute is categorically a crime of
violence. Id. at 289.4
3
Section 14-202.1(a) (2000) states:
A person is guilty of taking indecent liberties with children if,
being 16 years of age or more and at least five years older than
the child in question he either:
(1) Willfully takes or attempts to take any immoral, improper,
or indecent liberties with any child of either sex under the age
of 16 years for the purpose of arousing or gratifying sexual
desire; or
(2) Willfully commits or attempts to commit any lewd or las-
civious act upon or with the body or any part or member of the
body of any child of either sex under the age of 16 years.
4
Alternatively, we held that a violation of the indecent liberties statute
is a crime of violence because the statute also protects against a "forcible
sex offense," which is specifically listed as a crime of violence under
U.S.S.G. § 4B1.2 cmt. n.1. Pierce, 278 F.3d at 289 (noting that the North
Carolina courts have consistently held that constructive force may be
inferred in sexual abuse cases involving children).
UNITED STATES v. JEFFCOAT 7
Section 16-15-140 is nearly identical to the North Carolina inde-
cent liberties statute at issue in Pierce. Like the North Carolina stat-
ute, the statute at issue here protects against conduct that presents a
"serious potential risk of physical injury" — sexual abuse of minors.
See Pierce, 278 F.3d at 288 (noting that "the statute is written in
broad terms as part of its specific design to protect against the height-
ened risk of injury that comes when impressionable children are the
victims"). Further, whereas the statute at issue in Pierce was applied
to situations in which there was no touching or threat of physical con-
tact, the South Carolina statute has only been applied in cases in
which there was physical contact. The proposition that the crimes at
issue here are "crimes of violence" is thus even stronger than it was
in Pierce. Accordingly, we conclude that our decision in Pierce con-
trols the outcome of this case. Because a violation of § 16-15-140
"presents a serious risk of physical injury to another," it constitutes
a "crime of violence" for sentencing guidelines purposes.5
III.
For the foregoing reasons, we affirm Jeffcoat’s sentence.
AFFIRMED
5
Jeffcoat asserts that, unlike the North Carolina courts’ construction of
the state’s indecent liberties statute, the South Carolina courts do not
have a history of applying the doctrine of "constructive force" to offenses
under § 16-15-140, and thus his violation of § 16-15-140 is not a "crime
of violence" because it is not a "forcible sex offense." Because either
aspect of the definition of a "crime of violence" satisfies the sentencing
guidelines, and because we previously determined that Jeffcoat’s convic-
tion under § 16-15-140 involves a serious risk of injury to another, we
need not address Jeffcoat’s contention that a violation of § 16-15-140 is
not a forcible sex offense.