PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 08-4624
JERRED MONDEE JARMON,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
James A. Beaty, Jr., Chief District Judge.
(1:07-cr-00268-JAB-1)
Argued: January 29, 2010
Decided: February 26, 2010
Before MOTZ, GREGORY, and DAVIS, Circuit Judges.
Affirmed by published opinion. Judge Motz wrote the opin-
ion, in which Judge Gregory and Judge Davis joined.
COUNSEL
ARGUED: Thomas Norman Cochran, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Greensboro, North Caro-
lina, for Appellant. Michael A. DeFranco, OFFICE OF THE
UNITED STATES ATTORNEY, Greensboro, North Caro-
2 UNITED STATES v. JARMON
lina, for Appellee. ON BRIEF: Anna Mills Wagoner, United
States Attorney, Greensboro, North Carolina, for Appellee.
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
Jerred Mondee Jarmon pled guilty to being a felon in pos-
session of a firearm. Jarmon challenges only his sentence on
appeal. He argues that the district court erred in counting his
prior North Carolina conviction for larceny from the person
as a "crime of violence" under the United States Sentencing
Guidelines ("U.S.S.G." or "Guidelines"). We affirm.
I.
On May 5, 2007, police officers in Durham, North Caro-
lina, responding to a citizen’s tip that she had observed a
young man with a gun, approached Jarmon and two others. As
the officers approached, Jarmon attempted to flee. The offi-
cers detained him and noticed a handgun protruding from his
pocket. Further investigation revealed that the pistol had been
stolen from a police officer and had traveled in interstate com-
merce.
A federal grand jury returned a one-count indictment charg-
ing Jarmon with possession of a firearm by a felon, in viola-
tion of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2006). Jarmon’s
predicate felony was a 2002 North Carolina conviction for
larceny from the person.
Jarmon pled guilty to being a felon in possession. At his
sentencing hearing, Jarmon objected to the district court’s
determination that his 2002 conviction constituted a crime of
violence for sentencing purposes. The district court overruled
the objection and sentenced Jarmon to 40 months in prison
UNITED STATES v. JARMON 3
and three years of supervised release. Jarmon timely noted
this appeal.
II.
The Guidelines state that a sentencing court shall assign a
felon in possession of a firearm a base offense level of 20 if
"the defendant committed any part of the instant offense sub-
sequent to sustaining one felony conviction of . . . a crime of
violence." U.S.S.G. § 2K2.1(a)(4)(A). A "crime of violence"
is any offense punishable by more than one year in prison,
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 presents a serious potential risk of
physical injury to another.
U.S.S.G. § 4B1.2(a) (2009) (emphasis added). We review de
novo the district court’s interpretation of these provisions. See
United States v. Pierce, 278 F.3d 282, 286 (4th Cir. 2002).
To obtain a larceny conviction in North Carolina, the prose-
cution must prove that the defendant "(1) took the property of
another; (2) carried it away; (3) without the owner’s consent,
and (4) with the intent to deprive the owner of the property
permanently." State v. Rawlinson, 679 S.E.2d 878, 882 (N.C.
Ct. App. 2009) (internal quotation marks omitted). Larceny
from the person requires proof of an additional element: "‘the
property stolen must be in the immediate presence of and
under the protection or control of the victim at the time the
property is taken.’" State v. Carter, 650 S.E.2d 650, 654 (N.C.
Ct. App. 2007) (quoting State v. Barnes, 478 S.E.2d 188, 190
(N.C. 1996)).
4 UNITED STATES v. JARMON
Accordingly, "larceny from the person" does not include as
one of its elements the threatened, attempted, or actual use of
physical force; nor does the Guideline list this crime as a
crime of violence. Therefore, neither § 4B1.2(a)(1) nor the
first clause of § 4B1.2(a)(2) applies here. Rather, to constitute
a crime of violence, larceny from the person must qualify
under the "otherwise" clause of § 4B1.2(a)(2), i.e., it must
"otherwise involve[ ] conduct that presents a serious potential
risk of physical injury to another." Id.
Jarmon acknowledges that six years ago, in United States
v. Smith, 359 F.3d 662 (4th Cir. 2004), we held that larceny
from the person constitutes a crime of violence for sentencing
purposes because it presents a risk of violent confrontation,
and therefore a serious risk of physical injury. Id. at 665-66.
Jarmon argues, however, that the Supreme Court’s recent
decision in Begay v. United States, 128 S. Ct. 1581 (2008),
effectively overruled Smith.
In Begay, the Supreme Court held that conviction under a
state statute prohibiting driving under the influence of alcohol
was not a "violent felony" under the Armed Career Criminal
Act ("ACCA").*See id. at 1588. The Court reasoned that Con-
gress included the enumerated offenses of burglary, arson,
extortion, and the use of explosives to "limit[ ] the crimes that
[the second] clause . . . covers to crimes that are roughly simi-
lar, in kind as well as in degree of risk posed, to the examples
themselves." Id. at 1585. The Court found that the enumerated
felonies "typically involve purposeful, ‘violent,’ and ‘aggres-
sive’ conduct," id. at 1586, and thus distinguished those
crimes from offenses, like driving under the influence of alco-
*The ACCA defines "violent felony" in a manner substantively identi-
cal to the definition of a "crime of violence" in § 4B1.2. Compare 18
U.S.C. § 924(e)(2)(B) (2006) with U.S.S.G. § 4B1.2. We have therefore
held that precedents evaluating the ACCA apply with equal force to
U.S.S.G. § 4B1.2. See, e.g., United States v. Seay, 553 F.3d 732, 739 (4th
Cir. 2009).
UNITED STATES v. JARMON 5
hol, that "impose strict liability, criminalizing conduct in
respect to which the offender need not have had any criminal
intent at all," id. at 1586-87.
Begay thus requires a sentencing court, in determining
whether an offense falls under the "otherwise" clause, to
engage in a different analysis than that followed in Smith. The
Begay Court held that the sentencing court must "decide
whether, as a categorical matter," the prior offense "is
‘roughly similar, in kind as well as in degree of risk posed[,]’
to the enumerated offenses." United States v. White, 571 F.3d
365, 370 (4th Cir. 2009) (quoting Begay, 128 S. Ct. at 1585).
To assess whether the prior offense is similar "in kind" to the
enumerated offenses, "we must . . . determine whether the
statute at issue involves purposeful, violent, and aggressive
conduct, such that the offense can be found similar to the enu-
merated crimes." United States v. Roseboro, 551 F.3d 226,
234 (4th Cir. 2009). To determine whether a prior offense
presents the same "degree of risk" as an enumerated offense,
we examine whether "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." White, 571 F.3d at 370 (quoting United
States v. Thornton, 554 F.3d 443, 449 (4th Cir. 2009)) (alter-
ations in original).
III.
Jarmon contends that our holding in Smith cannot stand
after Begay because larceny from the person does not involve
purposeful, violent, and aggressive conduct. Jarmon argues
that this must be true because the addition of "violence" to a
larceny-from-the-person offense would transform that offense
into a robbery.
Jarmon’s arguments fail. Of course, violence is not an ele-
ment of larceny from the person; if it were, U.S.S.G.
§ 4B1.2(a)(1) would apply. The relevant question under the
6 UNITED STATES v. JARMON
"otherwise" clause in U.S.S.G. § 4B1.2(a)(2), which applies
here, is not whether the offense involves as much violence as
robbery, but whether it typically involves the type of purpose-
ful, violent, and aggressive conduct that would support an
inference that this offender would be more dangerous with a
gun. See Begay, 128 S. Ct. at 1587.
We conclude that larceny from the person typically
involves such conduct. The crime is purposeful because it is
not a "strict liability" crime devoid of criminal intent. See id.
And while larceny from the person entails less violence than
robbery, that fact does not prove that larceny from the person
is nonviolent. Indeed, Jarmon acknowledges that larceny from
the person can involve violence because it encompasses force-
ful takings like the snatching of a purse from a shoulder. See
State v. Robertson, 531 S.E.2d 490, 493 (N.C. Ct. App. 2000).
The act of snatching a purse (or any other property) from the
victim’s person may not inflict severe pain or injury, but it
may do so, and in any event it is certainly aggressive. A
defendant willing to confront his victims so directly is likely
more dangerous with a gun than a defendant whose only prior
crime is a strict liability offense like drunk driving. See
Begay, 128 S. Ct. at 1588.
Jarmon next contends that offenders typically accomplish
larceny from the person by stealth, not aggression. But this
argument applies with equal force to the enumerated offense
of burglary. Indeed, courts considering this question after
Begay have found larceny from the person similar to burglary,
as both crimes "raise[ ] the possibility of a violent confronta-
tion between the victim and perpetrator or someone who wit-
nesses the offense." See, e.g., United States v. Thrower, 584
F.3d 70, 74 (2d Cir. 2009) (holding that larceny from the per-
son is "surely purposeful" and "is as inherently violent and
aggressive as burglary").
Nevertheless, Jarmon asserts that the comparison to bur-
glary is "illusory" for two reasons. First, he maintains that
UNITED STATES v. JARMON 7
burglary entails more violence than larceny from the person
because, unlike larceny from the person, burglary requires the
offender to violate the sanctity of the victim’s home, while the
victim is present, with intent to commit a felony therein. Sec-
ond, Jarmon contends that burglary requires breaking and
entering, and thus destruction of property, which larceny from
the person does not.
These arguments rest on a faulty premise. Jarmon compares
larceny from the person with the North Carolina offense of
first degree burglary. But the Supreme Court has expressly
rejected the contention that the meaning of burglary "de-
pend[s] on the definition adopted by the State of conviction."
Taylor v. United States, 495 U.S. 575, 590 (1990). The Court
has held instead that to ensure uniformity in sentencing, fed-
eral courts should give burglary a "generic" meaning encom-
passing "any crime, regardless of its exact definition or label,
having the basic elements of unlawful or unprivileged entry
into, or remaining in, a building or structure, with intent to
commit a crime." Id. at 599. This definition of burglary,
which we use today, does not require that the dwelling be
occupied or property destroyed.
Comparing generic burglary with larceny from the person
compels us to reaffirm our conclusion in Smith. Burglary does
not necessarily involve violence, but it always requires that
the offender intentionally enter a building where a victim
might be present. This purposeful, aggressive act creates a
serious risk of violent confrontation. Similarly, larceny from
the person does not necessarily involve violence, but it
requires the offender to make purposeful, aggressive moves to
part the victim from his or her property, creating a similar risk
of violent confrontation. In fact, because larceny from the per-
son requires that the offender take the property from the pro-
tection or control of the victim, the victim’s presence is
assured, and the odds of a violent confrontation are even
higher than in a generic burglary, where the victim is often
absent.
8 UNITED STATES v. JARMON
We therefore hold that larceny from the person resembles
the enumerated offense of burglary both in kind and in degree
of risk, and so constitutes a "crime of violence" under the
"otherwise" clause of § 4B1.2 of the United States Sentencing
Guidelines.
IV.
The district court reached the proper conclusion. Its judg-
ment is
AFFIRMED.