United States v. Peterson

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 08-4889
JOHN ANTHONY PETERSON,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
W. Earl Britt, Senior District Judge.
(4:07-cr-00045-BR-1)

Argued: September 24, 2010

Decided: January 14, 2011

Before NIEMEYER, MOTZ, and
GREGORY, Circuit Judges.

Vacated and remanded by published opinion. Judge Niemeyer
wrote the opinion, in which Judge Motz and Judge Gregory
joined.

COUNSEL

ARGUED: Slade Culli Trabucco, THE TRABUCCO LAW
FIRM, PA, Raleigh, North Carolina, for Appellant. Kristine
L. Fritz, OFFICE OF THE UNITED STATES ATTORNEY,
2 UNITED STATES v. PETERSON
Raleigh, North Carolina, for Appellee. ON BRIEF: George
E. B. Holding, United States Attorney, Anne M. Hayes, Jenni-
fer P. May-Parker, Assistant United States Attorneys,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee.

OPINION

NIEMEYER, Circuit Judge:

After a jury convicted John Peterson on six counts of drug
trafficking and firearms charges, the district court sentenced
him to 420 months’ imprisonment. In making its sentencing
decision, the district court found that Peterson was a career
offender under U.S.S.G. § 4B1.1(a), because he had two prior
felony convictions of a crime of violence, one of which was
a North Carolina conviction for involuntary manslaughter.

Peterson contends that his North Carolina manslaughter
conviction was not a crime of violence, as defined in U.S.S.G.
§ 4B1.2(a) and that, therefore, he should not have been sen-
tenced as a career offender.

We agree. Because Peterson’s prior involuntary man-
slaughter conviction did not have any requirement of intent or
mens rea, we conclude that it was not a crime of violence, as
defined by U.S.S.G. § 4B1.2(a). Accordingly, we vacate
Peterson’s sentence and remand for resentencing.

I

A jury convicted Peterson in April 2008 of (1) conspiracy
to distribute and possess with intent to distribute more than 50
grams of crack cocaine, in violation of 21 U.S.C. § 846; (2)
distribution of more than five grams of crack cocaine, in vio-
lation of 21 U.S.C. § 841(a)(1); (3) distribution of more than
 UNITED STATES v. PETERSON 3
50 grams of crack cocaine, in violation of 21 U.S.C.
§ 841(a)(1); (4) possession of more than 50 grams of crack
cocaine and quantities of cocaine powder, marijuana, and
MDMA ("Ecstasy") with the intent to distribute, in violation
of 21 U.S.C. § 841(a)(1); (5) possession of firearms in fur-
therance of a drug trafficking offense, in violation of 18
U.S.C. § 924(c); and (6) unlawful possession of firearms by
a felon, in violation of 18 U.S.C. § 921(g)(1).

In calculating Peterson’s sentencing range for counts 1
through 4 and 6, the district court found that Peterson was a
career offender, based on two prior convictions, one of which
was a North Carolina conviction in 2001 for involuntary man-
slaughter. That conviction arose from an incident in which
Peterson accidentally shot his close friend, William Reid,
while the two were playing with what they believed (mis-
takenly) was an unloaded pistol. Overruling Peterson’s objec-
tion to use of this conviction, the district court determined that
the Guidelines sentencing range for these counts was 360
months to life imprisonment. The sentence for Count 5 was
an additional, consecutive 60 months’ imprisonment.

If the North Carolina conviction had not been used as a
predicate offense under U.S.S.G. § 4B1.1(a), Peterson’s
Guidelines range would have been 168 to 210 months’
imprisonment for Counts 1 through 4 and 6 and 60 consecu-
tive months’ imprisonment for Count 5.

The district court acknowledged that use of the North Caro-
lina involuntary manslaughter conviction presented a "close
call," but the court determined that it was bound by our deci-
sion in United States v. Payton, 28 F.3d 17 (4th Cir. 1994),
holding that a South Carolina conviction for involuntary man-
slaughter qualified as a predicate crime of violence under the
predecessor to U.S.S.G. § 4B1.2(a).

The court sentenced Peterson to 420 months’ imprison-
ment, which included concurrent 360-month terms of impris-
4 UNITED STATES v. PETERSON
onment on Counts 1 through 4, a concurrent 120-month
sentence on Count 6, and a consecutive 60-month sentence on
Count 5.

This appeal followed.

II

Peterson contends that his prior North Carolina conviction
for involuntary manslaughter does not qualify as a "crime of
violence," as defined by U.S.S.G. § 4B1.2(a), so as to make
him a career offender under § 4B1.1(a). He argues that our
1994 decision in Payton, on which the district court relied,
was implicitly overruled by the Supreme Court’s 2008 deci-
sion in Begay v. United States, 553 U.S. 137, 144-45 (2008),
holding that a conviction for a violent felony under the Armed
Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), had to
involve conduct that was "purposeful, violent, and aggres-
sive." He asserts that a North Carolina conviction for involun-
tary manslaughter was categorically not purposeful.

The government argues that Payton is still binding prece-
dent and that Begay construed ACCA, not the Sentencing
Guidelines, which have their own binding interpretive rubrics.
Because Application Note 1 to U.S.S.G. § 4B1.2(a) includes
"manslaughter" as a "crime of violence," without distinguish-
ing voluntary from involuntary manslaughter, the government
contends that Peterson’s involuntary manslaughter conviction
qualifies as a predicate offense, making him a career offender
under U.S.S.G. § 4B1.2(a)(2).*

Because resolution of the issue involves interpretation of
the Sentencing Guidelines, we begin with the text. The Guide-

*The government does not argue that Peterson’s involuntary man-
slaughter conviction was a crime of violence as defined in U.S.S.G.
§ 4B1.2(a)(1), which must have "as an element the use, attempted use, or
threatened use of physical force against the person of another."
 UNITED STATES v. PETERSON 5
lines provide for a sentencing enhancement if the defendant
is a "career offender." U.S.S.G. § 4B1.1(a). A career offender
is defined as a defendant (1) who is "at least eighteen years
old at the time the defendant committed the instant offense of
conviction"; (2) whose instant offense is "a felony that is
either a crime of violence or a controlled substance offense";
and (3) who "has at least two prior felony convictions of
either a crime of violence or a controlled substance offense."
U.S.S.G. § 4B1.1(a) (emphasis added). The term "crime of
violence" is, in turn, defined in § 4B1.2(a) as follows:

The term "crime of violence" means any offense
under federal or state law, punishable by imprison-
ment 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
presents a serious potential risk of
physical injury to another.

U.S.S.G. § 4B1.2(a). Application Note 1 to § 4B1.2(a)
explains:

"Crime of violence" includes murder, manslaughter,
kidnapping, aggravated assault, forcible sex
offenses, robbery, arson, extortion, extortionate
extension of credit, and burglary 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 the person
of another, or (B) the conduct set forth (i.e.,
expressly charged) in the count of which the defen-
dant was convicted involved use of explosives
6 UNITED STATES v. PETERSON
(including any explosive material or destructive
device) or, by its nature, presented a serious potential
risk of physical injury to another.

U.S.S.G. § 4B1.2(a) cmt. 1 (emphasis added).

It is now established that this commentary to the Sentenc-
ing Guidelines is authoritative and binding, "unless it violates
the Constitution or a federal statute, or is inconsistent with, or
plainly erroneous reading of" the Guideline itself. Stinson v.
United States, 508 U.S. 36, 38 (1993). Because we find no
inconsistency here, we treat the commentary as binding. See
United States v. Seay, 553 F.3d 732, 737 (4th Cir. 2009) (find-
ing no inconsistency between U.S.S.G. § 4B1.2 and its com-
mentary).

The parties’ arguments suggest two ways by which a North
Carolina conviction for involuntary manslaughter might be a
crime of violence under U.S.S.G. § 4B1.1(a). North Carolina
involuntary manslaughter might be "manslaughter" as explic-
itly included in § 4B1.2(a) cmt. 1, or it might be an offense
that "otherwise involves conduct that presents a serious poten-
tial risk of physical injury to another" under § 4B1.2(a)(2).
We address these two questions in order.

A

The first question, whether a North Carolina conviction for
involuntary manslaughter is "manslaughter," raises two sub-
sidiary questions: (1) what constitutes "manslaughter," as the
term is used in the Sentencing Guidelines commentary, and
(2) whether the North Carolina conviction for involuntary
manslaughter qualifies as "manslaughter."

Courts employ a categorical approach in determining
whether a prior conviction will lead to a sentence enhance-
ment under the Sentencing Guidelines. Seay, 553 F.3d at 737
("In determining whether a conviction qualifies as a crime of
 UNITED STATES v. PETERSON 7
violence under the Sentencing Guidelines, we use the ‘cate-
gorical approach’"); see also Taylor v. United States, 495 U.S.
575, 588 (1990) ("[T]he enhancement provision always has
embodied a categorical approach to the designation of predi-
cate offenses").

As described in Taylor, the categorical approach involves
two steps. First, a court must distill a "generic" definition of
the predicate offense based on how the offense is defined "in
the criminal codes of most states." Taylor, 495 U.S. at 598.
The Taylor Court borrowed the "generic," "contemporary,"
and "modern" definition of burglary from the Model Penal
Code and a modern criminal law textbook, which provided
similar definitions. See id. & n.8. Pointing out the necessity
of distilling the generic crime of burglary, the Court rejected
simply applying a single State’s form of burglary. It explained
that any definition of a predicate offense that would be deter-
mined by a single State’s criminal law could result in unac-
ceptable differences in applying federal law in sentencing
defendants. Id. at 590-91. "That would mean that a person
convicted of unlawful possession of a firearm would, or
would not [through an enhancement based on a single State’s
definition of burglary], receive a sentence enhancement based
on exactly the same conduct, depending on whether the State
of his prior conviction happened to call that conduct ‘bur-
glary.’" Id.

Second, after finding the generic form of the predicate
offense, a court must determine whether the defendant’s prior
conviction constituted a conviction of the generic offense.
That determination is made categorically, not by comparing
the defendant’s prior conduct with the generic offense, but
rather by comparing the elements of the crime of conviction
with the generic offense. As the Taylor Court admonished, the
court must "look[] only to the statutory definitions of the prior
offenses, and not to the particular facts underlying those con-
victions." Taylor, 495 U.S. at 600.
8 UNITED STATES v. PETERSON
The categorical approach applied in this way achieves uni-
formity in enforcement of federal sentencing enhancements
and avoids retrials of prior convictions, which would effec-
tively result from delving into the conduct underlying a prior
conviction rather than looking to the elements of the offense
of the prior conviction.

We now turn to the question of what constitutes generic
"manslaughter," as used in U.S.S.G. § 4B1.2(a) cmt. 1.
Because a review of "manslaughter" offenses under various
state criminal laws appears to yield material variations, espe-
cially when looking at relevant state laws, such as those in
North Carolina (applicable here) and South Carolina (applica-
ble in Payton), we conclude, as did the Supreme Court in Tay-
lor, that the Model Penal Code provides the best generic,
contemporary, and modern definition, particularly because it
has been widely adopted. See Taylor, 495 U.S. at 598 n.8; see
also United States v. Velez-Alderete, 569 F.3d 541, 544 (5th
Cir. 2009); United States v. Gonzalez-Ramirez, 477 F.3d 310,
316 (5th Cir. 2007). The Model Penal Code defines "man-
slaughter" as a homicide that "is committed recklessly," or
that would be murder except for the fact that it was "commit-
ted under the influence of extreme mental or emotional distur-
bance for which there is reasonable explanation or excuse."
Model Penal Code § 210.3 (1962). In turn, it defines reckless-
ness to mean a "conscious[] disregard[] of a substantial and
unjustifiable risk that the material element will result from
[the] conduct." Model Penal Code § 2.02(2)(c). Concluding
the Code’s definition to be a satisfactory generic definition of
"manslaughter," we hold that "manslaughter" in U.S.S.G.
§ 4B1.2(a) cmt. 1 means a criminal homicide that is commit-
ted (1) recklessly (i.e., with a conscious disregard of risk) or
(2) intentionally if committed under the influence of extreme
mental or emotional disturbance for which there is a reason-
able explanation or excuse.

Against that generic definition of manslaughter, we now
determine whether the elements of Peterson’s prior North
 UNITED STATES v. PETERSON 9
Carolina conviction for involuntary manslaughter fit the
generic crime of manslaughter. Under North Carolina law,
involuntary manslaughter is "the unintentional killing of a
human being without malice, proximately caused by (1) an
unlawful act not amounting to a felony nor naturally danger-
ous to human life, or (2) a culpably negligent act or omis-
sion." State v. Hudson, 483 S.E.2d 436, 438 (N.C. 1997)
(internal quotation marks omitted). This definition includes
conduct amounting to both negligent homicide and homicide
resulting from "a thoughtless disregard of consequences or a
heedless indifference to the safety and rights of others," which
North Carolina defines as "reckless." State v. Davis, 680
S.E.2d 239, 242 (N.C. Ct. App. 2009) (emphasis added)
(quoting State v. Weston, 159 S.E.2d 883, 886 (N.C. 1968)).

"Thoughtless disregard," however, is less than "conscious
disregard," which is the definition of recklessness under the
Model Penal Code. Therefore, these alternative elements of
negligence and thoughtless disregard of consequences fall
short, we conclude, of the generic crime of manslaughter,
which requires at least reckless conduct (a conscious disre-
gard of risk). North Carolina involuntary manslaughter is not
generic "manslaughter" as used in the Sentencing Guidelines.
Rather, it is more like homicide "committed negligently,"
which the Model Penal Code defines separately as the lesser
offense of "negligent homicide." Model Penal Code § 210.4.

The government’s position suggests that the appellation
"involuntary manslaughter" implies the existence of a class of
crimes constituting "manslaughter," such that "involuntary
manslaughter" is a subset of the class "manslaughter" and
therefore included in the word "manslaughter" as used in
§ 4B1.2(a) cmt. 1. But this linguistic argument fails to
account for the fact that North Carolina’s definition of "invol-
untary manslaughter" includes elements materially different
from those of "manslaughter." While North Carolina "invol-
untary manslaughter" might be a lesser included offense of
"manslaughter," it is nonetheless a different crime with a sub-
10 UNITED STATES v. PETERSON
stantially less serious degree of culpability. The distinctness
is borne out by the Model Penal Code’s recognition of two
separate crimes—"manslaughter" and "negligent homicide."
See Model Penal Code § 210.3 (defining "manslaughter"); id.
§ 210.4 (defining as a separate crime "negligent homicide").
Likewise, the Model Penal Code distinguishes "recklessness"
from "negligence." Compare Model Penal Code § 2.02(2)(c)
with § 2.02(2)(d).

The government argues nonetheless that our decision in
Payton controls the disposition here. In Payton we held that
a South Carolina conviction for involuntary manslaughter
constituted a "crime of violence" as used in U.S.S.G.
§ 4B1.2(1) (1994), the predecessor to § 4B1.2(a). In reaching
that conclusion, we applied a decision from the Ninth Circuit,
which held that involuntary manslaughter was an offense that
"‘by its nature, involves a substantial risk that physical force
may be used in the course of committing the offense.’" See
Payton, 28 F.3d at 19 (quoting United States v. Springfield,
829 F.2d 860 (9th Cir. 1987)). The Springfield court con-
cluded that a Montana conviction for involuntary manslaugh-
ter, "which ‘by its nature’ involves the death of another
person, is highly likely to be the result of violence." Id. (sum-
marizing and quoting Springfield, 829 F.2d at 863).

If Payton remains good law in light of Begay, it is nonethe-
less inapplicable here for two reasons. First, it is not clear that
South Carolina’s crime of involuntary manslaughter, which
Payton considered, is similar with regard to intent to North
Carolina’s crime of involuntary manslaughter. As noted,
North Carolina involuntary manslaughter is defined as the
unintentional killing of another without malice when caused
by "(1) an unlawful act not amounting to a felony nor natu-
rally dangerous to human life, or (2) a culpably negligent act
or omission." Hudson, 483 S.E.2d at 438. By contrast, South
Carolina involuntary manslaughter is defined as the uninten-
tional killing of another without malice while engaged in (1)
"an unlawful activity not naturally tending to cause death or
 UNITED STATES v. PETERSON 11
great bodily harm," or (2) "a lawful activity with reckless dis-
regard for the safety of others." State v. Mekler, 664 S.E.2d
477, 478 (S.C. 2008). Under South Carolina law, recklessness
is "a state of mind in which the actor is aware of his or her
conduct, yet consciously disregards a risk which his or her
conduct is creating." State v. Pittman, 647 S.E.2d 144, 167
(S.C. 2007) (emphasis added). While South Carolina’s reck-
lessness requirement would appear to require a mens rea that
comports with the Model Penal Code definition, North Caroli-
na’s culpable negligence requirement clearly does not. See
also Davis, 680 S.E.2d 242; State v. Brown, 307 S.E.2d 831
(N.C. Ct. App. 1983).

Second, in finding that involuntary manslaughter under
South Carolina law was a predicate offense for a Sentencing
Guidelines enhancement, the Payton court found that conduct
violating South Carolina’s law carried with it "the ‘risk’ of
physical force" because it resulted in the death of another. See
Payton, 28 F.3d at 19. This analysis relies on the language of
U.S.S.G. § 4B1.2(a)(2), which parrots the language of ACCA,
as included in 18 U.S.C. § 924(e)(2)(B)(ii). While the Payton
court concluded that this language was satisfied by conduct
amounting to involuntary manslaughter because it "involves
the death of another person," the Supreme Court in Begay,
which was decided 14 years after Payton, rejected such an
analysis. The Begay Court held that an offense that "involves
conduct that presents a serious potential risk of physical
injury to another" was limited by the nature of the example
crimes (burglary, arson, extortion, and use of explosives) and
therefore had to be "purposeful, violent, and aggressive."
Begay, 553 U.S. at 144. This holding overruled at least in part
the reasoning of Payton.

Although the language of ACCA that was considered in
Begay is identical to the language in U.S.S.G. § 4B1.2(a)(2),
the commentary to § 4B1.2(a)(2) adds to the list of example
crimes listed in § 4B1.2(a)(2) an additional six crimes of vio-
lence under the Guidelines—murder, manslaughter, kidnap-
12 UNITED STATES v. PETERSON
ping, aggravated assault, forcible sex offenses, and robbery.
See U.S.S.G. § 4B1.2(a) cmt. 1. Nonetheless, when the Begay
analysis is applied even to the enlarged list of example crimes
included in the Sentencing Guidelines commentary, it does
not lead to a holding different from that reached in Begay, as
we point out below.

At bottom, under the categorical approach, a North Caro-
lina conviction for involuntary manslaughter does not fit the
generic definition of "manslaughter," as that term is used in
U.S.S.G. § 4B1.2(a) cmt. 1 to enhance sentences under
§ 4B1.1(a).

B

Even though North Carolina’s involuntary manslaughter
crime does not fit the generic crime of manslaughter, as it is
a crime distinct from manslaughter, it might nonetheless be
argued that it is an "other" predicate offense under U.S.S.G.
§ 4B1.2(a)(2), which defines a crime of violence as any
offense, other than the example crimes, that "otherwise
involves conduct that presents a serious potential risk of phys-
ical injury to another." Because this language is identical to
the ACCA language, see 18 U.S.C. § 924(e)(2)(B)(ii) (defin-
ing crimes that enhance sentences for firearms offenses), it is
subject to the Begay analysis addressing the ACCA language.
See Seay, 553 F.3d at 739 ("[W]e conclude that Begay’s anal-
ysis is applicable to U.S.S.G. § 4B1.2(a)(2)").

In Begay, the Supreme Court held that not "every crime
that presents a serious potential risk of physical injury to
another" constitutes a predicate offense under ACCA. Begay,
553 U.S. at 142 (emphasis omitted). Rather, the Court con-
strued the serious-potential-risk-of-physical-injury language
to refer only to those offenses "that are roughly similar, in
kind as well as in degree of risk posed, to the examples"
included in the definition of "violent felony"—namely, bur-
glary, arson, extortion, and crimes involving the use of explo-
 UNITED STATES v. PETERSON 13
sives. Id. at 142-43. Observing that these crimes "typically
involve purposeful, violent, and aggressive conduct," id. at
144-45, the Begay Court concluded that other crimes must
also have those attributes to be violent felonies under ACCA.

Applying the Begay analysis to U.S.S.G. § 4B1.2(a) cmt. 1,
which adds six crimes to the list of example crimes for Guide-
lines cases—murder, manslaughter, kidnapping, aggravated
assault, forcible sex offenses, and robbery—we now ask
whether the predicate offense under consideration is "roughly
similar, in kind, as well as in degree of risk posed, to the
examples." See Begay, 553 U.S. at 143. Just as the Supreme
Court concluded from the four example crimes that a predi-
cate crime typically must involve purposeful, violent, and
aggressive content, we have little difficulty in concluding
similarly, by looking at the enlarged array of example crimes,
that a qualifying predicate offense under § 4B1.2(a) must also
be purposeful, violent, and aggressive.

The particular requirement of a mens rea, which is the
characteristic relevant here in considering North Carolina’s
involuntary manslaughter, is clearly present in the additional
six example crimes. Considering the Model Penal Code’s def-
inition of the additional examples readily demonstrates this.
Murder is committed purposefully, knowingly, or recklessly,
Model Penal Code § 210.2(1); kidnapping must be committed
purposefully, Model Penal Code § 212.1; aggravated assault
is committed "purposefully, knowingly, or recklessly," Model
Penal Code § 211.1(2); forcible sex offenses are generally
committed purposefully or knowingly, Model Penal Code
§§ 213.1, 213.2; and robbery is committed purposefully or
recklessly, Model Penal Code § 222.1 note. Because reckless-
ness under the Model Penal Code is at least a conscious disre-
gard of risk, we conclude that a predicate offense under
U.S.S.G. § 4B1.2(a)(2) must similarly have a mens rea.

As we have already noted, North Carolina’s involuntary
manslaughter crime is defined as "unintentional" and can be
14 UNITED STATES v. PETERSON
committed through negligent conduct, which does not have a
mens rea. North Carolina courts have made this clear, observ-
ing that its version of involuntary manslaughter does not
include purposeful conduct. See Brown, 307 S.E.2d at 832.
"The difference between voluntary and involuntary man-
slaughter is a question of intent. As it relates to involuntary
manslaughter, intent is not an issue." Id.

While it is true that conduct leading to a North Carolina
involuntary manslaughter conviction will generally be set in
motion by purposeful conduct, that fact does not convert
involuntary manslaughter convictions into "crimes of vio-
lence." Otherwise, the purposeful acts of drinking alcohol and
driving a motor vehicle would have caused the Begay defen-
dant’s prior DUI arrests to qualify as predicate offenses under
ACCA. See United States v. Woods, 576 F.3d 400, 408-09
(7th Cir. 2009). Yet the Begay Court held to the contrary.
Begay’s reference to "purposeful" conduct concerned an
actor’s mens rea ("guilty mind"), not his actus reus ("guilty
conduct"). Cf. Begay, 553 U.S. at 145-46. The Court
explained that while "a drunk driver may very well drink on
purpose . . . the conduct for which the drunk driver is con-
victed (driving under the influence) need not be purposeful or
deliberate." Id. at 145. This explanation applies equally to
North Carolina involuntary manslaughter.

In short, we hold that a North Carolina conviction for
involuntary manslaughter does not "otherwise involve[] con-
duct that presents a serious potential risk of physical injury to
another," as limited in U.S.S.G. § 4B1.2(a)(2) cmt. 1, with the
result that Peterson’s 2001 North Carolina conviction for
involuntary manslaughter does not serve as a predicate crime
of violence for determining whether he is a career offender
under U.S.S.G. § 4B1.1(a).

We vacate Peterson’s sentence and remand for resentenc-
ing.

VACATED AND REMANDED