PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 08-4492
DEMONTRELL WILLIAMS WHITE,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Frank D. Whitney, District Judge.
(3:04-cr-00106-FDW-1)
Argued: May 15, 2009
Decided: July 6, 2009
Before MOTZ, KING, and DUNCAN, Circuit Judges.
Affirmed by published opinion. Judge King wrote the opin-
ion, in which Judge Motz and Judge Duncan joined.
COUNSEL
ARGUED: Mark Patrick Foster, Jr., LAW OFFICES OF
MARK FOSTER, PC, Charlotte, North Carolina, for Appel-
lant. Adam Christopher Morris, OFFICE OF THE UNITED
STATES ATTORNEY, Charlotte, North Carolina, for Appel-
2 UNITED STATES v. WHITE
lee. ON BRIEF: Gretchen C. F. Shappert, United States
Attorney, Charlotte, North Carolina, for Appellee.
OPINION
KING, Circuit Judge:
The Armed Career Criminal Act (the "ACCA") provides
that a defendant convicted of an 18 U.S.C. § 922(g) firearm
offense shall be imprisoned for "not less than fifteen years" if
he has three previous violent felony convictions. 18 U.S.C.
§ 924(e). In this case, Demontrell Williams White pleaded
guilty in the district court to being a felon in possession of a
firearm, in contravention of § 922(g)(1). At sentencing, the
court determined that White had three previous violent felony
convictions and was thus an armed career criminal. As a
result, the court applied the ACCA and sentenced White to
fifteen years in prison. White’s sole appellate contention is
that the North Carolina offense underlying one of his previous
convictions — conspiracy to commit robbery with a danger-
ous weapon — does not constitute a "violent felony" under
the ACCA. As explained below, we reject this contention and
affirm.
I.
On April 29, 2004, White was indicted in the Western Dis-
trict of North Carolina for being a felon in possession of a
firearm, in contravention of 18 U.S.C. § 922(g)(1), and for
possessing a stolen firearm, in violation of § 922(j). White
pleaded guilty on April 19, 2006, to both charged offenses.
On August 4, 2007, the probation officer filed a presentence
report ("PSR"), designating White as an armed career crimi-
nal under the ACCA. One of the three previous convictions
contributing to this designation was White’s 1999 conviction
for the North Carolina offense of conspiracy to commit rob-
UNITED STATES v. WHITE 3
bery with a dangerous weapon. The district court subse-
quently declined to accept White’s guilty pleas because the
plea agreement failed to contemplate the applicability of the
ACCA. Thereafter, on January 4, 2008, White again pleaded
guilty to the § 922(g)(1) felon-in-possession offense, and the
stolen firearm charge was dismissed.
On January 16, 2008, the probation officer filed a revised
PSR with the district court, again designating White as an
armed career criminal under the ACCA. On April 12, 2008,
White objected to the PSR on the ground that a conspiracy to
commit robbery with a dangerous weapon under North Caro-
lina law is not a violent felony. The court denied this objec-
tion during its April 15, 2008 sentencing hearing, ruling from
the bench that "a conspiracy to commit armed robbery is just
as dangerous and confrontational . . . as the substantive crime
of armed robbery itself." J.A. 65.1 The court also explained
that "a conspiracy to commit an armed robbery is [a] danger-
ous type of crime that creates [a] serious potential risk of
physical injury to another." Id. at 66. Accordingly, the court
sentenced White under the ACCA to fifteen years in prison.2
On April 30, 2008, White filed a timely notice of appeal.
We possess jurisdiction pursuant to 18 U.S.C. § 3742 and 28
U.S.C. § 1291.
II.
White’s sole appellate contention is that the North Carolina
offense of conspiracy to commit robbery with a dangerous
weapon (the "Conspiracy Offense") is not a "violent felony"
under the ACCA. We review this contention de novo. See
United States v. Thornton, 554 F.3d 443, 445 (4th Cir. 2009).
1
Citations herein to "J.A. __" refer to the contents of the Joint Appendix
filed by the parties in this appeal.
2
Absent the ACCA ruling, White’s advisory Sentencing Guidelines
range would have been 168 to 210 months. Thus, the ACCA increased the
lower level of his Guidelines range by twelve months.
4 UNITED STATES v. WHITE
A.
Before assessing White’s contention that the Conspiracy
Offense does not constitute an ACCA violent felony, we
begin with an overview of the pertinent legal principles. More
specifically, we discuss the elements of the Conspiracy
Offense, the requirements of the ACCA, and the controlling
decisions of the Supreme Court of the United States.
1.
In North Carolina, the offense of criminal conspiracy origi-
nated with, and is defined by, the common law. See N.C. Gen.
Stat. § 4-1 (incorporating common law into North Carolina
criminal law); see also State v. Howard, 40 S.E. 71, 74-75
(N.C. 1901) (tracing common law origins of criminal conspir-
acy offense). North Carolina defines a criminal conspiracy —
a partnership in crime — as "an agreement between two or
more persons to do an unlawful act or to do a lawful act in
an unlawful way or by unlawful means." State v. Gibbs, 436
S.E.2d 321, 347 (N.C. 1993) (internal quotation marks omit-
ted); State v. Conrad, 168 S.E.2d 39, 43 (N.C. 1969) (describ-
ing criminal conspiracy as "a partnership in crime"). In order
to be convicted of a North Carolina conspiracy offense, a
defendant must be shown to have "entered into an unlawful
confederation for the criminal purposes alleged." State v.
Massey, 334 S.E.2d 71, 72 (N.C. Ct. App. 1985). According
to the pattern jury instructions for criminal prosecutions in
North Carolina, there are three essential elements of such a
conspiracy offense: (1) "that the defendant and [another]
entered into an agreement"; (2) "that the agreement was to
commit [a crime]"; and (3) "that the defendant and [his cocon-
spirator(s)] intended that the agreement be carried out at the
time it was made." N.C.P.I. - Crim. 202.80 (2001).3 As the
3
The North Carolina Pattern Jury Instructions are promulgated by the
North Carolina Conference of Superior Court Judges, and they are predi-
cated on legal principles derived from decisions of the Supreme Court of
UNITED STATES v. WHITE 5
pattern instructions reflect, the commission of an overt act is
not an essential element of a North Carolina criminal conspir-
acy. See Gibbs, 436 S.E.2d at 347 ("As soon as the union of
wills for the unlawful purpose is perfected, the offense of con-
spiracy is completed." (internal quotation marks omitted)).
Although the Conspiracy Offense is a common law offense,
its object — robbery with a dangerous weapon — is statu-
torily defined. See N.C. Gen. Stat. § 14-87.4 The three essen-
tial elements of the North Carolina offense of robbery with a
dangerous weapon are the following: "(1) the unlawful taking
or an attempt to take personal property from the person or in
the presence of another; (2) by use or threatened use of a fire-
arm or other dangerous weapon; (3) whereby the life of a per-
son is endangered or threatened." State v. Faison, 411 S.E.2d
143, 149 (N.C. 1991) (internal quotation marks omitted).
2.
The ACCA defines what constitutes a "violent felony" in
18 U.S.C. § 924(e)(2)(B). First, under clause (i) of that provi-
sion, a violent felony is an offense that "has as an element the
use, attempted use, or threatened use of physical force against
the person of another." 18 U.S.C. § 924(e)(2)(B)(i). Second,
North Carolina. Although the North Carolina courts are not obliged to
always utilize the pattern instructions, it is "recognized that the preferred
method of jury instruction is the use of the approved guidelines of the
North Carolina Pattern Jury Instructions." State v. Sexton, 571 S.E.2d 41,
45 (N.C. Ct. App. 2002) (internal quotation marks omitted).
4
The North Carolina statutory offense of robbery with a dangerous
weapon, which is the object of the Conspiracy Offense, is committed
when
[a]ny person . . . who, having in possession or with the use or
threatened use of any firearm[ ] or other dangerous weapon . . .
whereby the life of a person is endangered or threatened, unlaw-
fully takes or attempts to take personal property from another.
N.C. Gen. Stat. § 14-87.
6 UNITED STATES v. WHITE
pursuant to clause (ii) of that same provision, a violent felony
"is a burglary, arson, or extortion, involves the use of explo-
sives, or otherwise involves conduct that presents a serious
potential risk of physical injury to another." Id.
§ 924(e)(2)(B)(ii). In assessing whether an offense constitutes
an ACCA violent felony, we are obliged to utilize a categori-
cal approach, under which the offense is analyzed generically
— that is, by relying solely on its essential elements, rather
than on the particular underlying facts. See James v. United
States, 550 U.S. 192, 208 (2007); Taylor v. United States, 495
U.S. 575, 600 (1990) (explaining that categorical approach
requires "looking only to the fact of conviction and the statu-
tory definition of the predicate offense, rather than to the par-
ticular underlying facts").
Applying a categorical analysis to the Conspiracy Offense,
we first observe that it does not have "as an element the use,
attempted use, or threatened use of physical force against the
person of another." 18 U.S.C. § 924(e)(2)(B)(i). Furthermore,
the Conspiracy Offense is not among the four enumerated
offenses of § 924(e)(2)(B)(ii) — burglary, arson, extortion, or
an offense involving the use of explosives. Thus, we must
assess only one issue — the potential applicability of the "re-
sidual provision" of clause (ii). In other words, we must
decide whether the Conspiracy Offense "otherwise involves
conduct that presents a serious potential risk of physical
injury to another." Id. § 924(e)(2)(B)(ii).
3.
In its James decision in 2007, the Supreme Court recog-
nized that the crime of attempted burglary, as defined by Flor-
ida law, qualified as a violent felony under the residual
provision of § 924(e)(2)(B)(ii). See 550 U.S. at 211-12. In
making that determination, the Court assessed "whether the
risk posed by attempted burglary is comparable to that posed
by its closest analog among the enumerated offenses — here,
completed burglary." Id. at 203. The Court explained that,
UNITED STATES v. WHITE 7
"[a]s long as an offense is of a type that, by its nature, pre-
sents a serious potential risk of injury to another, it satisfies
the requirements of § 924(e)(2)(B)(ii)’s residual provision."
Id. at 209. Because an attempted burglary "poses the same
kind of risk" as a burglary, the Court held that the Florida
offense of attempted burglary was encompassed within the
clause (ii) residual provision, and thus constituted a violent
felony under the ACCA. Id. at 203.
A year after James, the Court refined the ACCA "violent
felony" analysis by its decision in Begay v. United States, 128
S. Ct. 1581 (2008). There, the Court held that the New Mex-
ico offense of driving under the influence ("DUI") did not
constitute a violent felony under § 924(e)(2)(B)(ii)’s residual
provision. See Begay, 128 S. Ct. at 1588. The Court recog-
nized that the residual provision encompasses only those
crimes "that are roughly similar, in kind as well as in degree
of risk posed," to the enumerated offenses of clause (ii). Id.
at 1585. Expanding the inquiry that it made in James, the
Court explained that — in addition to comparing degrees of
risk — the conduct underlying the offense in question must be
compared to the conduct required by the clause (ii) enumer-
ated offenses, each of which "typically involve[s] purposeful,
violent, and aggressive conduct." Id. at 1586 (internal quota-
tion marks omitted). "[B]y way of contrast," crimes that "typi-
cally do not insist on purposeful, violent, and aggressive
conduct" are not roughly similar in kind to the enumerated
offenses. Id. Ultimately, the Court concluded that the New
Mexico DUI offense was "simply too unlike the [enumerated]
examples" to constitute a violent felony. Id. at 1584.
The Begay Court stressed that the ACCA had been enacted
to target "the special danger created when a particular type of
offender — a violent criminal or drug trafficker — possesses
a gun." Begay, 128 S. Ct. at 1587. As the Court explained,
when a defendant has been previously convicted of three vio-
lent felonies, those earlier offenses "reveal a degree of cal-
lousness toward risk" and "an increased likelihood that the
8 UNITED STATES v. WHITE
offender is the kind of person who might deliberately point
the gun and pull the trigger." Id. "[S]uch crimes," the Court
emphasized, "are characteristic of the armed career criminal,
the eponym of the statute." Id. at 1586 (internal quotation
marks omitted).
We recently applied the Begay test in United States v.
Thornton, where we concluded that the crime of "carnal
knowledge of a minor" in Virginia was not a violent felony
within the scope of § 924(e)(2)(B)(ii)’s residual provision.
See 554 F.3d at 449. Under Virginia’s carnal knowledge stat-
ute, an accused is guilty if he "carnally knows, without the use
of force, a child thirteen years of age or older but under fifteen
years of age." Va. Code § 18.2-63(A) (emphasis added). We
ruled that the carnal knowledge offense was simply "not suffi-
ciently ‘similar, in kind as well in degree of risk posed’" to
the enumerated offenses of clause (ii). Thornton, 554 F.3d at
449 (quoting Begay, 128 S. Ct. at 1585). The degree of risk
presented by the carnal knowledge offense, we explained, was
unlike the enumerated crimes because the offense did not
create the "immediate, serious, and foreseeable physical risks
that arise concurrently with the commission of the crime[ ]"
itself. Id. Furthermore, we determined that the carnal knowl-
edge offense was not similar "in kind" to the enumerated
offenses, because it was not "purposeful, violent, and aggres-
sive." Id.
Pursuant to the foregoing, we must decide whether, as a
categorical matter, the Conspiracy Offense is "roughly simi-
lar, in kind as well as in degree of risk posed" to the enumer-
ated offenses in clause (ii) of § 924(e)(2)(B). Begay, 128 S.
Ct. at 1585; see also Thornton, 554 F.3d at 446. A roughly
similar "degree of risk" means that the prior crime, like the
enumerated offenses, creates an "immediate, serious, and
foreseeable physical risk[ ] that arise[s] concurrently with the
commission of the crime[ ]" itself. Thornton, 554 F.3d at 449;
see also James, 550 U.S. at 209. In order to be deemed similar
"in kind," the Conspiracy Offense must categorically involve
UNITED STATES v. WHITE 9
conduct that is "purposeful, violent, and aggressive" — the
common characteristics of the enumerated offenses in clause
(ii). Begay, 128 S. Ct. at 1586; see also United States v. Rose-
boro, 551 F.3d 226, 234 (4th Cir. 2009) ("[T]he proper
inquiry focuses on the similarity between the prior crime and
the enumerated [offenses], asking whether the prior crime
involved purposeful, violent, and aggressive conduct.").
B.
White contends on appeal that, absent an overt-act element,
the Conspiracy Offense requires only "a mere agreement to
commit an armed robbery." Br. of Appellant 9. According to
White, such an agreement "carries no . . . inherent risk of con-
frontation, [and no] serious potential risk of physical injury to
another [is] presented by the [Conspiracy Offense]." Id. White
thus maintains that the Conspiracy Offense "does not qualify
as a ‘violent felony’ under Section 924(e)(2)(B)." Id. at 11. As
a result, White predicates his contention on James’s "degree
of risk" inquiry alone, without seeking to show that the Con-
spiracy Offense also fails to satisfy the "in kind" inquiry
required by Begay. Nonetheless, pursuant to Begay, we are
obliged to consider both inquiries — degree of risk and in
kind — as each must be satisfied for the Conspiracy Offense
to constitute a violent felony under the ACCA.
1.
First of all, we reject White’s contention that, absent an
overt-act element, the Conspiracy Offense categorically fails
to present a degree of risk of physical harm that is similar to
the risks posed by the enumerated offenses of clause (ii).
Notably, North Carolina mandates that a conspiratorial agree-
ment be directed to the accomplishment of a criminal act —
in this case, robbery with a dangerous weapon. Cf. Iannelli v.
United States, 420 U.S. 770, 777 (1975) (explaining that "an
agreement to commit an unlawful act" is "the essence" of
criminal conspiracy); United States v. Ward, 171 F.3d 188,
10 UNITED STATES v. WHITE
192 (4th Cir. 1999) ("Before one may be convicted of a con-
spiracy charge, it must always be asked: ‘conspiracy to do
what?’"). Although White seeks to downplay the degree of
risk posed by referring to the Conspiracy Offense as a "mere
agreement to commit an armed robbery," we are unable to so
easily dismiss the nature of the conspirators’ objective. More-
over, White misapprehends the fact that a successful conspir-
acy prosecution in North Carolina requires proof that the
conspirators specifically "intended that the agreement be car-
ried out." N.C.P.I. – Crim. 202.80 (2001).
Put succinctly, the Conspiracy Offense presents an immedi-
ate, serious, and foreseeable physical risk that arises concur-
rently with the formation of the conspiracy. When
conspirators have formed a partnership in crime to achieve a
violent objective, and when they intend to achieve that object,
they have substantially increased the risk that their actions
will result in serious physical harm to others. Cf. United
States v. Chimurenga, 760 F.2d 400, 404 (2d Cir. 1985)
("Because the conspiracy itself provides a focal point for col-
lective criminal action, attainment of the conspirators’ objec-
tives becomes . . . a significant probability.").5 Additionally,
a previous conviction on the Conspiracy Offense reveals a
callousness toward risk and an increased likelihood of future
violent conduct by an offender — conduct that the ACCA was
intended to interdict. See Begay, 128 S. Ct. at 1587. Thus, the
Conspiracy Offense presents a degree of risk — consistent
with James and Begay — similar to that presented by the enu-
merated offenses of clause (ii).6
5
White has acknowledged — and we agree — that the substantive North
Carolina offense of robbery with a dangerous weapon is a violent felony
under the ACCA.
6
Notably, the Sentencing Commission has determined that "crimes of
violence," for purposes of a sentencing enhancement, "include the
offenses of aiding and abetting, conspiring, and attempting to commit such
offenses." USSG § 4B1.2 cmt. n.1 (2008) (emphasis added). The Commis-
sion’s judgment, as the Supreme Court has explained, was premised on its
UNITED STATES v. WHITE 11
2.
Second, the Conspiracy Offense is similar "in kind" to the
enumerated offenses of § 924(e)(2)(B)(ii), because its com-
pletion requires conduct that is "purposeful, violent, and
aggressive." Begay, 128 S. Ct. at 1586. In deciding whether
the criminal conduct underlying the Conspiracy Offense is
categorically "purposeful," we must identify the Offense’s
required level of culpability. See id. (relying on examples of
specific intent crimes to define "purposeful"). Put simply, a
North Carolina criminal conspiracy is necessarily purposeful,
as the prosecution is obliged to prove that the conspirators
specifically intended to achieve the object of the conspiracy.
See State v. Weaver, 473 S.E.2d 362, 368 (N.C. Ct. App.
1996) (recognizing that conspiracy to commit robbery with a
dangerous weapon requires specific intent); see also Model
Penal Code § 2.02(a) (2001) ("A person acts purposely when
. . . it is his conscious object to engage in conduct of that
nature . . . ."); id. § 5.03 (requiring conspirators to agree "with
the purpose of promoting or facilitating" commission of
object offense).
Next, we must examine Begay’s requirement that the fel-
ony offense in question be "violent." See Black’s Law Dictio-
nary 1601 (8th ed. 2004) (defining "violent" as "[r]esulting
from extreme or intense force" and as "[v]ehemently or pas-
sionately threatening"). This element of the Begay analysis is
the most difficult issue in this case because, under North Car-
olina law, the Conspiracy Offense is complete when its three
elements have been satisfied. We nevertheless conclude that
analysis of "empirical sentencing data and presumably reflects an assess-
ment that [aiding and abetting, conspiracy, and attempt offenses] often
pose a similar risk of injury as completed offenses." James, 550 U.S. at
206. Although a "crime of violence" under the Guidelines may not neces-
sarily equate to a "violent felony" under the ACCA, the view of the Com-
mission reinforces the proposition that a conspiracy offense and its object
may present similar risks of potential physical harm.
12 UNITED STATES v. WHITE
the essential conduct underlying the Conspiracy Offense is
categorically violent. The Conspiracy Offense cannot be
divorced from its violent objective — robbery with a danger-
ous weapon. See Ward, 171 F.3d at 193 (recognizing that, in
assessing whether an offense is a "crime of violence" under
the Sentencing Guidelines, "a sentencing court can go beyond
the general elements of a criminal conspiracy statute to deter-
mine whether a violent felony was the object of the conspir-
acy"). A conspirator in the Conspiracy Offense necessarily
intends to achieve the object of the agreement: robbery of the
victim with a dangerous weapon.7 And, by entering into a
criminal partnership to commit such a violent crime, conspira-
tors render acts of violence — and the participation of multi-
ple offenders — much more likely. The Conspiracy Offense
thus poses "a threat to the public over and above the threat of
the commission of the relevant substantive crime — both
because the ‘[c]ombination in crime makes more likely the
commission of [other] crimes’ and because it ‘decreases the
probability that the individuals involved will depart from their
path of criminality.’" United States v. Jimenez Recio, 537
U.S. 270, 275 (2003) (quoting Callanan v. United States, 364
U.S. 587, 593-94 (1961)); see also United States v.
Rabinowich, 238 U.S. 78, 88 (1915) ("For two or more to
confederate and combine together to commit . . . a breach of
the criminal laws, is an offense of the gravest character, some-
times quite outweighing, in injury to the public, the mere
commission of the contemplated crime.").
7
The Conspiracy Offense is readily distinguishable from the carnal
knowledge offense analyzed in our Thornton case. Because the carnal
knowledge offense was necessarily committed "without the use of force,"
Va. Code § 18.2-63(A), we emphasized in Thornton that "the Virginia car-
nal knowledge offense, by definition, categorically does not involve the
use of force and does not support an inference that any or all instances of
the offense are violent and aggressive." 554 F.3d at 448-49. Thus, whereas
the Conspiracy Offense requires proof that the conspirators specifically
intended to use force, the Virginia carnal knowledge statute specified that
force could not have been used.
UNITED STATES v. WHITE 13
Finally, we must assess whether the Conspiracy Offense —
as contemplated by the Begay analysis — is an aggressive
criminal act. See Begay, 128 S. Ct. at 1586 (relying on exam-
ples of offenses against the person, as well as physically risky
crimes against property, to define "aggressive"); see also
Webster’s Third New International Dictionary 41 (1976)
(defining aggressive conduct as "marked by combative readi-
ness or bold determination"). The Conspiracy Offense
requires, as an essential element, that the conspirators agree
to use a dangerous weapon to accomplish an armed robbery
— an offense against the person. The conspirators’ intent to
achieve such a violent object is thus "marked by combative
readiness or bold determination" against the person of
another, rendering their crime categorically aggressive.
III.
In these circumstances, we agree with the district court that
the Conspiracy Offense "is [a] dangerous type of crime that
creates [a] serious potential risk of physical injury to another."
J.A. 66. Furthermore, the Conspiracy Offense requires con-
duct that is similar "in kind" to the enumerated offenses of
clause (ii) of § 924(e)(2)(B). The imposition of an ACCA sen-
tence was therefore warranted, and we must reject White’s
contention and affirm.
AFFIRMED