United States v. Troy Chisolm

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4177

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

TROY LAMONT CHISOLM,

Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Beaufort. Sol Blatt, Jr., Senior District
Judge. (9:05-cr-00428-SB-1)

Argued: May 15, 2014 Decided: July 29, 2014

Before GREGORY, AGEE, and KEENAN, Circuit Judges.

Affirmed by unpublished opinion. Judge Gregory wrote the
opinion, in which Judge Agee and Judge Keenan joined.

ARGUED: Ann Briks Walsh, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Charleston, South Carolina, for Appellant. Nathan S. Williams,
OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South
Carolina, for Appellee. ON BRIEF: William N. Nettles, United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia,
South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
GREGORY, Circuit Judge:

Following his conviction for being a felon in possession of

a firearm, Troy Chisolm appeals his sentence on the ground that

the district court improperly categorized a prior conviction for

Criminal Domestic Violence of a High and Aggravated Nature

(“CDVHAN”) as a crime of violence under the sentencing

guidelines. Because we find that the offense was categorically

a crime of violence, we affirm.

I.

On April 13, 2005, Troy Chisolm was charged in a one-count

federal indictment with being a felon in possession of a

firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2),

924(e)(1). He was found guilty after a trial on July 17, 2006,

and was sentenced to 210 months’ imprisonment. Chisolm

successfully filed a motion to vacate pursuant to 28 U.S.C.

§ 2255, and he was resentenced on February 27, 2013 to 103

months’ imprisonment.

In determining Chisolm’s applicable guideline range at his

resentencing, the presentence report (“PSR”) categorized an

August 2, 2001 South Carolina conviction for CDVHAN as a crime

of violence under the guidelines, resulting in a base offense

level of 20. After the relevant adjustments were accounted for,

2
his total offense level was 24, and, with a criminal history

category of V, Chisolm’s guideline range was 92 to 115 months.

In order to establish Chisolm’s prior CDVHAN conviction,

the Government submitted the charging document and a sentencing

sheet from the state court. The sentencing sheet contains

checkboxes for the state court to indicate whether a defendant

is being sentenced pursuant to a plea or a trial, and also

reads, in relevant part, as follows: “In disposition of the

said indictment comes now the Defendant who was □ CONVICTED OF

or □ PLEADS TO: CDVHAN . . . .” J.A. 37. None of these boxes

were checked on Chisolm’s form, although the court did check a

box indicating that the charge is “[a]s [i]ndicted,” and that

the plea is by “[r]ecommendation by the State,” as opposed to

being “Without Negotiations or Recommendation,” or by

“Negotiated Sentence.” Id. Chisolm, his attorney, and the

prosecutor each signed the form, which pronounced that Chisolm’s

sentence for CDVHAN was 5 years, suspended upon 90 days’

imprisonment.

Chisolm objected at his resentencing to the classification

of CDVHAN as a crime of violence, arguing that the offense was

categorically not a crime of violence. Using the modified

categorical approach, the district court looked at the charging

document for the CDVHAN conviction. Noting that the charging

document alleged that Chisolm “choke[d] [the victim] around her

3
neck with his hands causing her to seek medical attention,” J.A.

36, the district court overruled the objection on the ground

that “when you choke somebody with enough force [that] they have

to seek medical attention, . . . that’s sufficient to show that

physical force was used, and that makes it a violent felony,”

J.A. 46. Chisolm timely appealed his sentence, and this Court

has jurisdiction pursuant to 28 U.S.C. § 1291.

II.

Chisolm’s primary argument 1 on appeal is that the district

court erred in categorizing his CDVHAN conviction as a crime of

1
Chisolm also argues that there was insufficient evidence
that he was convicted of CDVHAN due to the state court’s failure
to check the boxes on his sentencing sheet indicating whether he
was convicted by trial or whether he pled guilty. We review the
factual question of whether Chisolm was actually convicted of
CDVHAN for clear error. See United States v. Hall, 664 F.3d
456, 462 (4th Cir. 2012). Chisolm, his attorney, and the
attorney for the Government all signed the sentencing sheet
indicating that Chisolm was being sentenced for having violated
CDVHAN, as indicted, by recommendation of the Government. We
are thus not left with a “definite and firm conviction that a
mistake has been committed,” id., viewing the evidence in its
entirety, as to the finding that he was convicted of CDVHAN —
whether by plea or by trial. We also note that our prior
decision in United States v. Davis, 679 F.3d 177, 187 (4th Cir.
2012), wherein we vacated the application of a guideline on the
ground that the defendant’s “no contest” plea did not alone
provide the necessary evidentiary basis for the guideline, is
inapposite here. In Davis, the guideline at issue applied even
in circumstances where there was no conviction, and the relevant
inquiry centered on the defendant’s conduct. Id. The guideline
here, however, requires that the defendant actually sustain a
felony conviction of a crime of violence. See U.S.S.G.
(Continued)
4
violence under the sentencing guidelines. Chisolm’s base

offense level was determined pursuant to U.S.S.G. § 2K2.1(a)(4), 2

which provides for a base offense level of 20 if “the defendant

committed any part of the instant offense subsequent to

sustaining one felony conviction of . . . a crime of violence.”

The term “crime of violence” is defined for the purposes of

§ 2K2.1 as it is in the career offender guideline, § 4B1.2(a):

The term “crime of violence” means any 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 presents a serious potential risk of
physical injury to another.

U.S.S.G. § 4B1.2(a). See U.S.S.G. § 2K2.1 cmt. n.1 (2012). The

first clause is known as the “force clause.” See United States

v. Toyer, 414 F.App’x 584, 592 (4th Cir. 2011) (unpublished).

The second clause consists of several enumerated crimes, as well

§ 2K2.1(a)(4)(A). Thus, Davis is not controlling. See also
United States v. Vinton, 631 F.3d 476, 486 (8th Cir. 2011)
(rejecting defendant’s argument that there was insufficient
evidence that he was convicted of a crime of violence since he
entered an Alford plea without admitting guilt).
2
The PSR correctly cites the language of § 2K2.1(a)(4)(A),
but inadvertently cites this provision as § 2K2.1(a)(2). J.A.
88. Compare U.S.S.G. § 2K2.1(a)(4)(A), with § 2K2.1(a)(2).

5
as a “residual” or “otherwise” clause pertaining to “conduct

that presents a serious potential risk of physical injury to

another.” See United States v. Jenkins, 631 F.3d 680, 682 n.5

(4th Cir. 2011).

“A determination of whether a defendant’s offense of

conviction constitutes a crime of violence under § 4B1.2(a) of

the Guidelines is a legal issue that we review de novo.” United

States v. Mobley, 687 F.3d 625, 627 (4th Cir. 2012) (internal

citations omitted). “We rely on precedents evaluating whether

an offense constitutes a ‘crime of violence’ under the

Guidelines interchangeably with precedents evaluating whether an

offense constitutes a ‘violent felony’ under the ACCA, because

the two terms have been defined in a manner that is

‘substantively identical.’” United States v. King, 673 F.3d

274, 279 n.3 (4th Cir. 2012) (internal citations omitted).

“In assessing whether an offense constitutes a crime of

violence under the Sentencing Guidelines, two types of analyses

are potentially applicable—known as the categorical approach and

the modified categorical approach.” United States v. Montes-

Flores, 736 F.3d 357, 364 (4th Cir. 2013) (internal quotation

marks and citations omitted). “The categorical approach focuses

on the elements of the prior offense rather than the conduct

underlying the conviction,” and “[t]he point of the categorical

inquiry is not to determine whether the defendant’s conduct

6
could support a conviction for a crime of violence, but to

determine whether the defendant was in fact convicted of a crime

that qualifies as a crime of violence.” United States v.

Cabrera-Umanzor, 728 F.3d 347, 350 (4th Cir. 2013) (emphasis in

original) (internal citations omitted). See Begay v. United

States, 128 S.Ct. 1581, 1584 (2008) (“In determining whether

this crime is a violent felony, we consider the offense

generically, that is to say, we examine it in terms of how the

law defines the offense and not in terms of how an individual

offender might have committed it on a particular occasion.”)

(citing Taylor v. United States, 110 S.Ct. 2143, 2160 (1990)).

As such, the categorical approach requires us to “compare the

elements of the statute forming the basis of the defendant’s

conviction with the elements of the ‘generic’ crime—i.e., the

offense as commonly understood.” Descamps v. United States, 133

S.Ct. 2276, 2281 (2013). “In evaluating a state court

conviction for . . . predicate offense purposes, a federal court

is ‘bound by the [state supreme court’s] interpretation of state

law, including its determination of the elements of’ the

potential predicate offense.” United States v. Hemingway, 734

F.3d 323, 333 (4th Cir. 2013) (alteration in original) (internal

citations omitted).

However, we may apply a modified categorical approach in “a

narrow range of cases,” Taylor, 110 S.Ct. at 2160, in which “the

7
prior state conviction rests on a divisible statute—that is, a

statute that ‘contains divisible categories of proscribed

conduct, at least one of which constitutes—by its elements—a

violent felony,’” Montes-Flores, 736 F.3d at 364-65 (internal

citations omitted). As the Supreme Court explained in Descamps,

a divisible statute “sets out one or more elements of the

offense in the alternative—for example, stating that burglary

involves entry into a building or an automobile.” 133 S.Ct. at

2281 (emphasis in original). “If one alternative (say, a

building) matches an element in the generic offense, but the

other (say, an automobile) does not, the modified categorical

approach permits sentencing courts to consult a limited class of

documents, such as indictments and jury instructions, to

determine which alternative formed the basis of the defendant’s

prior conviction.” Id. “The court can then do what the

categorical approach demands: compare the elements of the crime

of conviction (including the alternative element used in the

case) with the elements of the generic crime.” Id.

Importantly, the Supreme Court explained in Descamps that:

The modified approach thus acts not as an exception,
but instead as a tool. It retains the categorical
approach’s central feature: a focus on the elements,
rather than the facts, of a crime. And it preserves
the categorical approach’s basic method: comparing
those elements with the generic offense’s. All the
modified approach adds is a mechanism for making that
comparison when a statute lists multiple, alternative
elements, and so effectively creates ‘several

8
 different . . . crimes.’ . . . If at least one, but
not all of those crimes matches the generic version, a
court needs a way to find out which the defendant was
convicted of. That is the job, as we have always
understood it, of the modified approach: to identify,
from among several alternatives, the crime of
conviction so that the court can compare it to the
generic offense.

Id. at 2285 (internal citations omitted). Thus, our first

inquiry is whether the categorical or the modified categorical

approach is appropriate with regard to CDVHAN.

III.

In order to determine whether we may stray from the

categorical approach, we must examine the elements of CDVHAN.

CDVHAN is codified by S.C. Code Ann. § 16-25-65. At the time of

Chisolm’s conviction, 3 a defendant was guilty of CDVHAN if he

committed the offense of criminal domestic violence (“CDV”)

3
§ 16-25-65 has since been amended, and the current version
provides that:

A person who violates Section 16-25-20(A) is
guilty of the offense of criminal domestic violence of
a high and aggravated nature when one of the following
occurs. The person commits:

(1) an assault and battery which involves the use
of a deadly weapon or results in serious bodily injury
to the victim; or

(2) an assault, with or without an accompanying
battery, which would reasonably cause a person to fear
imminent serious bodily injury or death.

S.C. Code Ann. § 16-25-65 (2006).

9
while also committing the offense of assault and battery of a

high and aggravated nature (“ABHAN”). S.C. Code Ann. § 16-25-65

(2001). 4 Thus, as then defined, CDVHAN is the combination of CDV

and ABHAN, such that the elements of CDVHAN are merely the

combined elements of each component crime. Under Section 16-25-

20, CDV, the first component of CDVHAN, is defined as follows:

It is unlawful to: (1) cause physical harm or injury
to a person’s own household member, (2) offer or
attempt to cause physical harm or injury to a person’s
own household member with apparent present ability
under circumstances reasonably creating fear of
imminent peril.

S.C. Code Ann. § 16-25-20 (1994) (amended 2004). ABHAN was a

common law offense at the time, defined as:

the unlawful act of violent injury to another
accompanied by circumstances of aggravation. . . .
Circumstances of aggravation include the use of a
deadly weapon, the intent to commit a felony,
infliction of serious bodily injury, great disparity
in the ages or physical conditions of the parties, a
difference in gender, the purposeful infliction of
shame and disgrace, taking indecent liberties or
familiarities with a female, and resistance to lawful
authority.

State v. Fennell, 531 S.E.2d 512, 516-17 (S.C. 2000) (internal

citations omitted). 5

4
Chisolm does not dispute that CDVHAN is punishable by a
term of imprisonment exceeding one year.
5
South Carolina subsequently redefined and codified ABHAN
as a felony offense. See S.C. Code Ann. § 16-3-600(B)(1) (2011)
(providing that a person is guilty of ABHAN “if the person
unlawfully injures another person, and: (a) great bodily injury
(Continued)
10
 In this case, the district court applied the modified

categorical approach without offering any explanation for why

that approach was appropriate. Both Chisolm and the Government

now agree that the modified categorical approach was improper,

although they offer no legal analysis to support this

proposition, presumably relying on our recent jurisprudence

holding that the categorical approach was required for the

lesser-included offense of ABHAN. See Hemingway, 734 F.3d 323

(holding that ABHAN is categorically not a violent felony under

the ACCA’s residual clause); Montes-Flores, 736 F.3d 357

(holding that ABHAN is categorically not a crime of violence

under the guidelines). However, the parties’ mere agreement

does not resolve this question of law.

The statutory definition of CDVHAN at the time of Chisolm’s

conviction consisted of the elements of ABHAN coupled with a

violation of CDV, that is, Chisolm must have committed both

ABHAN and CDV to be guilty of CDVHAN. The modified categorical

approach is only appropriate “when a statute lists multiple,

alternative elements, and so effectively creates ‘several

different . . . crimes,’” at least one, but not all, of which

matches the generic version of a crime of violence. Descamps,

to another person results; or (b) the act is accomplished by
means likely to produce death or great bodily injury.”)

11
133 S.Ct. at 2285 (emphasis added). However, the modified

categorical approach is improper here because CDVHAN does not

set forth elements in the alternative describing several

different crimes. Instead, it is an indivisible statute,

presenting two elements in the conjunctive, rather than a

divisible statute that sets forth its elements in the

disjunctive. For this reason, we apply the categorical approach

to determine whether CDVHAN is a crime of violence.

IV.

Since we have already held that ABHAN is categorically not

a crime of violence, what remains to be decided in this appeal

is whether the other component of CDVHAN — CDV — matches any of

the elements of the generic crime of violence. For this

inquiry, we must revisit the elements of CDV itself. As noted

above, the CDV statute provides as follows:

It is unlawful to: (1) cause physical harm or injury
to a person’s own household member, (2) offer or
attempt to cause physical harm or injury to a person’s
own household member with apparent present ability
under circumstances reasonably creating fear of
imminent peril.

S.C. Code Ann. § 16-25-20 (1994).

As an initial matter, we make clear here that the

categorical approach applies even to our consideration of CDV

alone. On the face of the statute, CDV is sub-divided into two

12
parts, one penalizing the causation of physical harm and the

other penalizing the offer or attempt to cause physical harm

with the apparent present ability under circumstances reasonably

creating fear of imminent peril. However, rather than

“effectively creat[ing] several different crimes,” these two

sections of CDV penalize different levels of completion of the

same crime: the offer, attempt, or actual causation of physical

harm. Though this conduct may vary in effect, the behaviors

underlying the two enumerated parts of the CDV statute do not

“differ[] so significantly . . . that . . . a sentencing court

must treat the two as different crimes.” Chambers v. United

States, 129 S.Ct. 687, 690 (2009) (internal citations omitted).

Rather, CDV is not a divisible statute since both parts prohibit

the same type of behavior, merely making explicit that the

conduct is unlawful no matter whether the defendant successfully

accomplishes the physical harm.

Our decision in United States v. Rivers, 595 F.3d 558 (4th

Cir. 2010) lends further support to our conclusion that the

modified categorical approach is improper with respect to CDV.

In Rivers, we considered whether a South Carolina statute

penalizing the failure to stop for a blue light qualified as a

violent felony under the ACCA. Under that statute, “it is

unlawful for a motor vehicle driver, while driving on a road,

street, or highway of the State, to fail to stop when signaled

13
by a law enforcement vehicle by means of a siren or flashing

light.” S.C. Code Ann. § 56-5-750(A). Importantly, “[f]ailure

to see the flashing light or hear the siren does not excuse a

failure to stop when the distance between the vehicles and other

road conditions are such that it would be reasonable for a

driver to hear or see the signals from the law enforcement

vehicle.” Id. Because one could commit the offense either

intentionally or without any intent at all, we held that

“[t]here is no varied behavior underlying the elements of a blue

light offense,” and the statute instead “proscribes one type of

behavior: failing to stop for a blue light.” Rivers, 595 F.3d

at 564. We therefore held that the modified categorical

approach was improper “because the statute only contains one

category of crime.” Id. Likewise, CDV may be committed

intentionally or with no intent at all, 6 and the same behavior

underlies both parts of the offense. Regardless of how far this

6
We note that the absence of any required mens rea for CDV
has no bearing on the ultimate question of whether CDVHAN is a
crime of violence since a CDVHAN conviction also requires the
commission of ABHAN. Although the South Carolina Supreme Court
“ha[s] not explicitly identified any particular mental state the
State must prove in order for a defendant to be found guilty of
ABHAN,” Fennell, 531 S.E. 2d at 517, the Court has affirmed jury
instructions advising that, in order to prove ABHAN beyond a
reasonable doubt, the State must prove that the defendant acted
with “recklessness or gross recklessness,” see State v.
Sussewell, 146 S.E. 697, 698 (S.C. 1929). See also Hemingway,
734 F.3d at 338 (describing ABHAN’s requisite mental state as
recklessness).

14
type of behavior has actually progressed, the CDV statute

proscribes a single category of crime. For the above reasons,

we must apply the categorical approach to our analysis of CDV.

We first consider whether CDV falls under the force clause

of the guidelines, which defines a crime of violence as a crime

that “has as an element the use, attempted use, or threatened

use of physical force against the person of another . . . ”

§ 4B1.2(a)(1). The Supreme Court has explained that, for the

purpose of the force clause, “the phrase ‘physical force’ means

violent force—that is, force capable of causing physical pain or

injury to another person.” Johnson v. United States, 559 U.S.

133, 140 (2010) (second emphasis added). It is clear that a

defendant’s violation of the CDV statute falls within the force

clause if he actually causes physical harm to a household member

or attempts to do so with the apparent present ability under

circumstances reasonably creating fear of imminent peril.

However, the categorical approach requires us to look at

the definition of CDV and “determine whether the conduct

criminalized, including the most innocent conduct, qualifies as

a crime of violence.” Montes-Flores, 736 F.3d at 369 (emphasis

added). As such, we must resolve the more difficult question of

whether the most innocent conduct penalized under the CDV

statute — the “offer . . . to cause physical harm or injury to a

person’s own household member with apparent present ability

15
under circumstances reasonably creating fear of imminent peril”

— sufficiently falls within the force clause. If it does not,

we must then proceed to consider whether CDV constitutes one of

the enumerated offenses or falls within the residual clause.

Because we hold that an offer to cause physical harm or injury

to a household member under the CDV statute coincides with the

“threatened use of physical force against the person of

another,” however, our inquiry ends with the force clause.

South Carolina has provided limited guidance as to the

precise meaning of an “offer” to cause physical harm or injury,

but as the state’s courts have used the term, an offer to commit

physical harm constitutes, at the least, 7 a threat to do so. For

instance, South Carolina defines assault, a lesser-included

offense of CDV, State v. LaCoste, 553 S.E.2d 464, 472 (S.C. Ct.

App. 2001), as “an unlawful attempt or offer to commit a violent

7
To the extent that South Carolina has also used the word
“offer” to describe conduct that rises to the level of an
attempt to cause harm, such an understanding of “offer” is ill-
fitting in the context of the CDV statute. Since CDV prohibits
the “offer or attempt to cause physical harm or injury” to a
household member, we construe the statute such that the words
“offer” and “attempt” are distinct in meaning. See TRW Inc. v.
Andrews, 122 S.Ct. 441, 449 (2001) (“It is a cardinal principle
of statutory construction that a statute ought, upon the whole,
to be so construed that, if it can be prevented, no clause,
sentence, or word shall be superfluous, void, or
insignificant.”) (internal quotation marks and citations
omitted); United States v. Broncheau, 645 F.3d 676, 684 (4th
Cir. 2011) (“We should also strive, of course, when interpreting
a statute, to give effect to each word and provision thereof.”).

16
injury upon the person of another, coupled with a present

ability to complete the attempt or offer by a battery,” In re

McGee, 299 S.E.2d 334, 334 (S.C. 1983) (per curiam) (internal

citations omitted). South Carolina courts have characterized

the behavior which gives rise to an assault as a type of threat,

Mellen v. Lane, 659 S.E.2d 236, 244 (S.C. Ct. App. 2008), and

state law requires that the attempt or offer to commit violence

involve a physical effort, State v. Sanders, 75 S.E. 702, 703

(S.C. 1912). See City of Gaffney v. Putnam, 15 S.E. 2d 130, 131

(S.C. 1941) (explaining that mere words, no matter how

threatening, do not constitute an assault “unless accompanied by

an actual offer of physical violence”).

By example, in In re McGee, the appellant was a juvenile

who was adjudicated delinquent of assault after she and another

juvenile threatened an employee of their detention center. 299

S.E.2d at 334. Standing four to six feet away from the

employee, the other juvenile raised a baseball bat and

threatened to hit the employee if she did not “hush,” while the

appellant “‘dared’ her accomplice to strike the employee.” Id.

“The employee feared harm from the juveniles, even though

neither made any overt act other than to hold up the bat and

make the verbal threats.” Id. The Supreme Court of South

Carolina affirmed the assault conviction, holding that while the

appellant’s mere words alone did not constitute assault, she was

17
nonetheless liable for the offense in light of her accomplice’s

threatening behavior. Id.

The implication of South Carolina’s jurisprudence regarding

assault is that an “offer” to cause physical harm is not created

by mere words alone, but by an expression of one’s intention or

willingness to impose a violent injury coupled with a physical

effort to actually cause the offered violence — that is, a

threat. See Oxford English Dictionary 998 (2d ed. 1989)

(defining “threaten” as “[t]o hold out or offer (some injury) by

way of a threat; to declare one’s intention of inflicting.”). A

defendant may not be convicted of CDV unless he has caused — or

attempted or offered to cause with the apparent present ability

to do so — physical harm or injury, and in light of the above

understanding of an “offer,” it is evident that a conviction for

CDV requires the type of violence set forth in the force clause.

See State v. Grace, 564 S.E.2d 331, 335 (S.C. Ct. App. 2002) (“A

criminal domestic violence charge is an act of violence towards

another.”).

Although we consider here the meaning of “offer” under

South Carolina law, we note that several of our sister circuits

have similarly understood an offer as amounting to a threat in

the context of the force clause. See, e.g., United States v.

Mitchell, 743 F.3d 1054, 1059 (6th Cir. 2014) (finding that a

Tennessee offense involving “physical force offered or

18
impending” ... “directly corresponds to [the] ‘use or threatened

use of physical force’”); United States v. Cerda-Enriquez, 477

F. App’x 565, 567 (11th Cir. 2012) (“‘[O]ffering’ to do violence

involves the attempted use or threatened use of ‘physical force’

or ‘violent force.’”); United States v. Dudley, No. 99-2823,

2000 WL 1286259, at *1 (8th Cir. Sept. 13, 2000) (per curiam)

(holding that the “offer to commit violence to an officer or

employee of a correctional institution” inherently involves “the

use or threatened use of physical force”).

For all of the above reasons, we must conclude that because

an “offer” to cause physical harm constitutes the threatened use

of physical harm, the CDV statute falls entirely within the

force clause. Because CDVHAN requires the commission of CDV, it

necessarily follows that CDVHAN, as it was then defined, is

categorically a crime of violence. 8 Although we disagree with

8
Chisolm also argues that CDVHAN can be committed
recklessly, and thus, that it is not categorically a crime of
violence. The Supreme Court has declined to address whether
recklessness is a sufficient mens rea under the force clause.
See Leocal v. Ashcroft, 125 S.Ct. 377, 382, 384 (2004). We most
directly addressed this issue in Berjarano-Urrutia v. Gonzales,
although that case involved 18 U.S.C. § 16(b), which aligns with
the residual clause rather than with the force clause. 413 F.3d
444, 447 (4th Cir. 2005) (holding that, with respect to § 16(b),
the decision in Leocal “strongly indicates that the result . . .
would have been the same even had a violation of the statute
there at issue required recklessness rather than mere
negligence.”). In discussing the enumerated offenses, we more
recently explained that “South Carolina’s recklessness
requirement [for involuntary manslaughter] would appear to
(Continued)
19
the district court’s application of the modified categorical

approach, “we may affirm a judgment for any reason appearing on

the record.” See Republican Party v. Martin, 980 F.2d 943, 952

(4th Cir. 1992).

V.

For the foregoing reasons, the judgment of the district

court is

AFFIRMED.

require a mens rea that comports with the Model Penal Code
definition” for the generic manslaughter offense. United States
v. Peterson, 629 F.3d 432, 438 (4th Cir. 2011). As such, we are
left with an absence of controlling authority pertaining
directly to the force clause, and authority pulling in different
directions with respect to the sufficiency of a recklessness
mens rea for the residual clause and for the enumerated
offenses. The limited support and argument that Chisolm has
offered for his proposition do not aid the resolution of this
issue, thus we leave this question to be decided in a case in
which the matter is more squarely at hand.

20