United States v. Aaron Shell

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4211

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

AARON EUGENE SHELL,

Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:13-cr-00054-RLV-DSC-1)

Argued: March 25, 2015 Decided: June 12, 2015

Before WILKINSON and HARRIS, Circuit Judges, and DAVIS, Senior
Circuit Judge.

Vacated and remanded by published opinion. Judge Harris wrote
the majority opinion, in which Senior Judge Davis joined. Judge
Wilkinson wrote a dissenting opinion.

ARGUED: Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Asheville, North Carolina, for Appellant.
William Michael Miller, OFFICE OF THE UNITED STATES ATTORNEY,
Charlotte, North Carolina, for Appellee. ON BRIEF: Ross Hall
Richardson, Acting Executive Director, FEDERAL DEFENDERS OF
WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for
Appellant. Anne M. Tompkins, United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for
Appellee.
PAMELA HARRIS, Circuit Judge:

Defendant-Appellant Aaron Eugene Shell (“Shell”) pleaded

guilty to being a felon in possession of a firearm, in violation

of 18 U.S.C. § 922(g) (2012). At sentencing, the district court

applied an enhanced base offense level on the ground that

Shell’s prior North Carolina conviction for second-degree rape

constituted a crime of violence under the U.S. Sentencing

Guidelines Manual (“U.S.S.G.” or the “Guidelines”)

§ 2K2.1(a)(4)(A) (2014). The district court also applied a two-

level enhancement for obstruction of justice pursuant to

Guidelines § 3C1.2, concluding that Shell recklessly created a

substantial risk of death or serious bodily injury to another

person in the course of fleeing from a law enforcement officer.

On appeal, Shell challenges the district court’s application of

both enhancements. For the reasons that follow, we vacate

Shell’s sentence and remand for resentencing.

I.

On December 27, 2012, Shell was driving southbound on

Highway 321 in Caldwell County, North Carolina. North Carolina

Trooper Christopher Hodges (“Hodges”), traveling northbound, saw

Shell speeding and turned around to follow him. By the time

Hodges was able to complete the turn, Shell had disappeared from

2
sight. But in short order, Hodges discovered that Shell’s

vehicle had veered off the road and down an embankment.

As he fled the scene of the accident, Shell discarded a bag

behind a tree. Officers searched the bag and found a loaded

semiautomatic pistol. Several days later, Shell voluntarily

submitted to a police interview and admitted that he was the

driver of the vehicle and was in possession of the firearm.

Shell was charged with one count of being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g), and

pleaded guilty. The presentence report (“PSR”) recommended

raising Shell’s base offense level from 14 to 20 under U.S.S.G.

§ 2K2.1(a)(4)(A), on the ground that Shell committed the instant

offense after a prior felony conviction for a “crime of

violence” – here, a North Carolina conviction for second-degree

rape. The PSR also recommended a two-level enhancement for

obstruction of justice, pursuant to U.S.S.G. § 3C1.2, because

Shell's reckless driving in the course of fleeing from a law

enforcement officer created a substantial risk of death or

serious bodily injury to another person. Applying those

provisions, the PSR calculated a Guidelines range of 57 to 71

months’ imprisonment.

Shell objected to both enhancements. At sentencing, the

district court overruled Shell’s objections. As to reckless

endangerment under § 3C1.2, the district court credited a

3
witness who testified that Shell sped, skidded, and almost hit

her vehicle, and thus concluded that Shell created a substantial

risk of death in the course of fleeing from a law enforcement

officer. The court also held that Shell’s prior second-degree

rape conviction qualified as a “crime of violence” under

§ 2K2.1.

The district court adopted the PSR and sentenced Shell to

57 months’ imprisonment and three years of supervised release.

Shell appeals, challenging the district court’s application of

both enhancements.

II.

A.

Under the Guidelines, a defendant convicted of being a

felon in possession of a firearm receives an enhanced base

offense level of 20 if he or she has committed a prior “crime of

violence,” as defined in Guidelines § 4B1.2. U.S.S.G. § 2K2.1

cmt. n.1. Shell argues that the district court erred in

characterizing his North Carolina conviction for second-degree

rape as a crime of violence because the state statute does not

require the use of physical force, and may instead be violated

through constructive force or the absence of legally valid

consent. We review de novo that question of law. United States

v. Montes-Flores, 736 F.3d 357, 363 (4th Cir. 2013).

4
 The parties agree that in considering whether Shell’s North

Carolina conviction constitutes a crime of violence, we must

apply what is called the “categorical approach,” which

“focus[es] on the elements, rather than the facts,” of the prior

offense. United States v. Carthorne, 726 F.3d 503, 511 (4th

Cir. 2013) (quoting Descamps v. United States, 133 S. Ct. 2276,

2285 (2013)). What matters for the categorical approach is how

the law defines the offense generically, and not the particulars

of how an individual might have committed the offense on a given

occasion. Begay v. United States, 553 U.S. 137, 141 (2008);

United States v. Seay, 553 F.3d 732, 737 (4th Cir. 2009).

The question we must decide, then, is whether the full

range of conduct covered by North Carolina’s second-degree rape

statute, “including the most innocent conduct,” would qualify as

a crime of violence for purposes of the

§ 4B1.2 enhancement. United States v. Diaz-Ibarra, 522 F.3d

343, 348, 352 (4th Cir. 2008). If it is “evident from the

statutory definition of the state crime that some violations of

the statute are ‘crimes of violence’ and others are not,” then

the state offense is deemed “categorically overbroad” and

§ 4B1.2 does not apply. United States v. Rangel-Castaneda, 709

F.3d 373, 376 (4th Cir. 2013) (quoting Diaz-Ibarra, 522 F.3d at

348). Whether North Carolina second-degree rape categorically

qualifies as a crime of violence under this approach is a

5
question of first impression for our court, and for the reasons

that follow, we agree with Shell that it does not.

B.

In comparing the elements of North Carolina second-degree

rape to § 4B1.2’s definition of “crime of violence,” we begin

with the North Carolina statute and the state precedent

construing it. North Carolina’s second-degree rape statute

consists of two separate offenses, providing that:

(a) A person is guilty of rape in the second degree if
the person engages in vaginal intercourse with another
person:

(1) By force and against the will of the other
person; or

(2) Who is mentally disabled, mentally
incapacitated, or physically helpless, and the
person performing the act knows or should
reasonably know the other person is mentally
disabled, mentally incapacitated, or physically
helpless.

N.C. Gen. Stat. § 14-27.3 (West 2004). Because the records of

Shell’s conviction do not specify which subsection of the

statute formed the basis for his conviction, the parties agree,

that conviction may be treated as a crime of violence only if

both subsections so qualify.

The first subsection is applicable where “sexual

intercourse is effectuated by force and against the victim’s

will.” State v. Atkins, 666 S.E.2d 809, 812 (N.C. Ct. App.

2008). Under North Carolina law, that force requirement may be

6
satisfied either by “actual, physical force or by constructive

force in the form of fear, fright, or coercion.” State v.

Etheridge, 352 S.E.2d 673, 680 (N.C. 1987). Constructive force

may be demonstrated by proof of compulsion or threats of force,

and also will be inferred from certain relationships - such as a

parent-child relationship – that are deemed inherently coercive.

See id. at 680–82; State v. Morrison, 380 S.E.2d 608, 611–12

(N.C. Ct. App. 1989).

The second subsection, by contrast, does not require the

state to prove either force or the absence of consent. Atkins,

666 S.E.2d at 812. Instead, it applies to victims who are

deemed by law incapable of validly consenting to intercourse or

resisting sexual acts, State v. Williams, 698 S.E.2d 542, 544–

45 (N.C. Ct. App. 2010), and it is used by the state in cases

where there is factual but legally insufficient consent, see

State v. Ramey, No. COA10–1197, 2011 WL 3276720, at *4–5 (N.C.

Ct. App. Aug. 2, 2011) (unpublished) (conviction for second-

degree rape of mentally disabled victim who initiated

intercourse). In this sense, it is analogous to the age element

of North Carolina’s statutory rape law: the fact of consent is

not a defense where the victim is unable to give legally valid

consent by virtue of age or by virtue of mental disability. See

Atkins, 666 S.E.2d at 812 (comparing second-degree and statutory

rape and quoting legislative history: “In second degree rape,

7
we are adding persons who are mentally defective, mentally

incapacitated, or physically helpless. This is basically a

statutory rape section . . . .”); see also State v. Banks, 766

S.E.2d 334, 339 (N.C. 2014) (statutory and second-degree rape

“separately punish the act of intercourse with a victim who,

because of her age, is unable to consent to the act, and the act

of intercourse with a victim who, because of a mental disability

or mental incapacity, is unable to consent to the act”). 1

C.

Our other point of comparison is the phrase “crime of

violence,” as used in the Sentencing Guidelines. 2 As will become

important in this case, different guideline provisions describe

1
To the extent our dissenting colleague suggests that lack
of legally valid consent cannot alone sustain a conviction for
North Carolina second-degree rape, as opposed to statutory rape,
we must respectfully disagree. See Williams, 698 S.E.2d at 544-
45. Nor is the prospect of prosecution in cases of factual but
legally insufficient consent so fanciful that we may overlook it
under the categorical approach. See Ramey, 2011 WL 3276720, at
*4-5. Indeed, at his sentencing hearing, Shell adduced
testimony that his own conviction under the statute was for
engaging in sexual intercourse with his stepsister by marriage
when both were young and with factual consent. The particulars
of Shell’s offense, of course, do not control the analysis under
the categorical approach we apply. But they may help to
illustrate the practical scope of the North Carolina statute at
issue.
2
As is customary, we rely as well on cases construing the
phrase “violent felony” under the Armed Career Criminal Act,
“because the two terms have been defined in a manner that is
substantively identical.” Montes-Flores, 736 F.3d at 363
(internal quotation marks omitted).

8
“crime of violence” differently. But Shell’s sentence was

enhanced for a prior crime of violence under U.S.S.G. § 2K2.1,

which defines that term by reference to the career-offender

guideline, U.S.S.G. § 4B1.2. U.S.S.G. § 2K2.1 cmt. n.1.

Section 4B1.2, in turn, defines a crime of violence as:

(a) . . . 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). The commentary elaborates, in relevant

part:

“Crime of violence” includes murder, manslaughter,
kidnapping, aggravated assault, forcible sex offenses,
robbery, arson, extortion, extortionate extension of
credit, and burglary of a dwelling.

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

In its argument, the government skips past the text of

§ 4B1.2 to focus on its commentary, and in particular the phrase

“forcible sex offenses.” But it is the text, of course, that

takes precedence, see Stinson v. United States, 508 U.S. 36, 43

(1993) (where commentary is inconsistent with text, text

controls), and so that is where we begin. And like two other

9
circuit courts, as well as our own court in an unpublished

opinion, we conclude that offenses that may be committed without

physical force and predicated instead on the absence of legally

valid consent – as under the North Carolina second-degree rape

statute – are not categorically crimes of violence under either

clause of § 4B1.2. See United States v. Wray, 776 F.3d 1182,

1187–91 (10th Cir. 2015) (conviction for sexual assault with a

10-year age difference not categorically a crime of violence

under § 4B1.2); United States v. Wynn, 579 F.3d 567, 572–75 (6th

Cir. 2009) (sexual battery based on coercive nature of

relationship not categorically a crime of violence under

§ 4B1.2); United States v. Leshen, 453 F. App’x 408, 412–16 (4th

Cir. 2011) (unpublished) (third-degree rape and aggravated

sexual assault based on age of victim not categorically crimes

of violence under § 4B1.2).

We can dispense relatively quickly with the first clause of

the career-offender guideline – the so-called “force clause” -

which covers crimes that have “as an element the use, attempted

use, or threatened use of physical force against the person of

another.” U.S.S.G. § 4B1.2(a)(1). For these purposes, the

Supreme Court held in Johnson v. United States, “physical force”

means “violent force - that is, force capable of causing

physical pain or injury to another person.” 559 U.S. 133, 140

(2010); see also United States v. Aparicio-Soria, 740 F.3d 152,

10
154–55 (4th Cir. 2014) (en banc) (applying Johnson). We think

it clear that the second subsection of North Carolina’s second-

degree rape statute, which does not require the state to prove

force at all and may instead be violated if there is legally

insufficient consent, does not meet this “violent force”

standard, and indeed, the government does not argue otherwise. 3

Nor do we believe that North Carolina’s second-degree rape

offense qualifies as a crime of violence under § 4B1.2’s

“residual clause” or “otherwise clause,” covering any crime that

“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)(2). 4 Sex offenses are not among the enumerated

3
As the dissent notes, the North Carolina Supreme Court has
held that for purposes of the state’s own sentencing laws,
felony rape necessarily is a crime of violence. See State v.
Holden, 450 S.E.2d 878, 884 (N.C. 1994). But the meaning of
“physical force” under § 4B1.2(a)(1) is a question of federal
law, not state law, and in answering that question, we “are not
bound by a state court’s interpretation of a similar – or even
identical – state statute.” Johnson, 559 U.S. at 138. Instead,
we follow Johnson and other Supreme Court and Fourth Circuit
precedent that bears on the relevant federal provision before
us.
4
The dissent chides us for giving too much attention to the
“straw man of the ‘residual clause’” at the expense of § 4B1.2’s
force clause. Post at 9. But this is an unusual case in that
the government ignores both clauses equally, and that makes it
hard for us to say which is the straw man. On the assumption
that the government’s argument must be anchored at least
implicitly in one of § 4B1.2’s textual clauses, and without

11
crimes. And the final clause, the Supreme Court instructs, does

not reach every crime that “otherwise . . . presents a serious

potential risk of physical injury,” U.S.S.G. § 4B1.2(a)(2), but

only those “that are roughly similar [] in kind” to the listed

examples – involving conduct that is “purposeful, violent and

aggressive” – as well as similar in the “degree of risk” of

physical injury they pose. Begay, 553 U.S. at 142-45. 5 That

standard, we have held already, is not met by sex offenses that

do not require the use of physical force and may be predicated

instead on the legal insufficiency of purported consent. See

United States v. Thornton, 554 F.3d 443, 446–49 (4th Cir. 2009)

(conviction for statutory rape does not fall within residual

clause); see also Leshen, 453 F. App’x at 413–14 (same).

That precedent governs here. Like the statutory rape

offense considered in Thornton, the second subsection of North

Carolina’s statute may be violated without the threat or use of

physical force, and on the legal presumption that the victim is

further guidance from the government as to which, we feel
ourselves obliged to address both.
5
Although the Supreme Court refined the Begay approach in
Sykes v. United States, 131 S. Ct. 2267, 2275–76 (2011), we
continue to require that an offense be similar to the listed
examples both in kind and in degree of risk before it can
qualify as a crime of violence under the residual clause. See
United States v. Martin, 753 F.3d 485, 490 (4th Cir. 2014).

12
unable to consent. See Atkins, 666 S.E.2d at 812. That does

not mean, of course, that the crime is not serious; but it does

mean, we held in Thornton, that unlike the crimes enumerated in

the career-offender guideline, it “does not support an inference

that any or all instances of the offense are violent and

aggressive.” 554 F.3d at 449; see also Leshen, 453 F. App’x at

414; Wynn, 579 F.3d at 574. Similarly, we do not doubt that sex

offenses committed without physical force and against vulnerable

victims can present physical as well as psychological risks, in

the form of sexually transmitted diseases or health concerns

attendant to pregnancy. But we have concluded that those risks

are not comparable to the physical risks generated by the crimes

listed in § 4B1.2(a)(2), both because they are more attenuated

and because they are not “violent in nature.” Thornton, 554

F.3d at 449; see Leshen, 453 F. App’x at 414.

At issue in Thornton (and Leshen, as well) was a statute

criminalizing adult sexual contact with minors, whereas North

Carolina’s statute criminalizes sexual intercourse with those

who are mentally disabled or incapacitated. But nothing about

that distinction renders the logic of Thornton any less

applicable here. Like statutory rape laws, North Carolina’s

second-degree rape statute does not require the state to prove

force or the absence of consent in fact, Atkins, 666 S.E.2d at

812, and there is at least a “realistic probability,” Diaz-

13
Ibarra, 522 F.3d at 348, that the statute would apply in

situations in which a victim is presumed unable to give legally

valid consent, Williams, 698 S.E.2d at 544–45; Ramey, 2011 WL

3276720, at *4–5. Those are precisely the features that led us

to conclude in Thornton that statutory rape is not a crime of

violence under § 4B1.2. See 554 F.3d at 448 (“[A] victim’s lack

of ability to give legal consent” does not make statutory rape

“inherently violent and aggressive.”); see also Leshen, 453 F.

App’x at 414. In applying § 4B1.2’s definition of crime of

violence, we see no grounds for distinguishing between sexual

intercourse with a victim whose consent is legally invalid

because he or she is fourteen years old, and sexual intercourse

with an adult victim whose consent is legally invalid because he

or she has the mental capacity of a fourteen-year-old. Indeed,

as noted above, North Carolina law itself draws precisely this

parallel, treating the second subsection of its second-degree

rape statute as analogous to its statutory rape law. See

Atkins, 666 S.E.2d at 812 (“This is basically a statutory rape

section . . . .”); Banks, 766 S.E.2d at 339. 6 Thornton controls

6
The dissent argues that offenses under the second-degree
rape statute necessarily are “violent” in a way that statutory
rape is not because the second subsection of that statute limits
its reach to defendants who know – or do not know, but should –
that a victim is mentally disabled or otherwise falls within the
protected category. We cannot agree. A defendant’s “guilty
knowledge” that a victim is mentally disabled, post at 13 – or

14
on this question, and we are bound to find that North Carolina’s

second-degree rape statute is not categorically a crime of

violence under § 4B1.2(a)(2)’s residual clause. 7

his failure to discern mental disability when it is found that
he should, see Williams, 698 S.E.2d at 546-47 (despite his own
mental impairments, defendant “reasonably should have
discovered” victim’s mental disability) – of course may bear on
culpability, and, again, we do not doubt the gravity of offenses
under North Carolina’s statute. But that is a distinct question
from whether all such offenses are “inherently violent and
aggressive,” Thornton, 554 F.3d at 448, and as we have held, sex
offenses committed against victims who give factual (but legally
invalid) consent are not “inherently violent” in that sense, id.
Moreover, because North Carolina second-degree rape, like
statutory rape, presumes invalid any consent, it may be
committed even when a defendant lacks the intent to override the
will of a factually consenting victim, and is in that way akin
to a strict liability, recklessness, or negligence offense. See
Sykes, 131 S. Ct. at 2275-76; Begay, 553 U.S. at 144-45;
Thornton, 554 F.3d at 448.
7
Our conclusion here is limited to the second subsection of
North Carolina’s statute. We should note, however, that even if
the second subsection could be reconciled with the text of
§ 4B1.2, there would remain the question of the first. And
because that subsection may be violated through force that is
constructive rather than physical, it, too, raises significant
issues under § 4B1.2. After Johnson, 559 U.S. at 140 (“physical
force” under § 4B1.2(a)(1) means “violent force”), we doubt that
a statute requiring only constructive force in the form of an
inherently coercive relationship, like the first subsection of
the North Carolina law, can be brought within the force clause.
See United States v. Vann, 660 F.3d 771, 779 n.2 (4th Cir. 2011)
(en banc) (King, J., concurring). And there is room to question
whether an offense under the first subsection that is predicated
on an inherently coercive relationship could fall within the
residual clause, as sufficiently similar in kind and degree of
risk of physical injury to § 4B1.2(a)(2)’s listed examples. See
Thornton, 554 F.3d at 448 (rejecting government argument that
sex offense involves constructive force and therefore falls
within residual clause); see also Leshen, 453 F. App’x at 415

15
 D.

We turn now to the government’s argument on appeal. The

government does not contest, at least directly, our holding that

a North Carolina second-degree rape conviction does not qualify

categorically as a crime of violence under either clause of

§ 4B1.2’s definition. Instead, the government rests its

argument entirely on the commentary to § 4B1.2, which lists

“forcible sex offense[]” as an example of a crime of violence.

U.S.S.G. § 4B1.2 cmt. n.1. More specifically, the government

contends that because sex offenses resting on legally

insufficient consent constitute “forcible sex offenses” under a

different section of the Guidelines – Guidelines § 2L1.2 – they

must be crimes of violence under the commentary to § 4B1.2, as

well. Two other circuit courts have rejected precisely that

argument, see Wynn, 579 F.3d at 574–75 (Sixth Circuit); Wray,

776 F.3d at 1187–88 (Tenth Circuit); see also Leshen, 453 F.

App’x at 415–16 (Fourth Circuit, unpublished), and we join them

now.

(constructive force “no longer satisfies either prong” of
§ 4B1.2’s definition of crime of violence). But we need not
resolve those issues today. As we have explained, North
Carolina’s second-degree rape statute can qualify categorically
as a crime of violence only if both its subsections are covered
by § 4B1.2, and so our determination that the second subsection
reaches offenses that fall outside the terms of § 4B1.2 is
enough to dispose of this case.

16
 Section 2L1.2 of the Guidelines enhances the base offense

level for certain immigration violations where the defendant has

committed a prior felony “crime of violence” or misdemeanor

“crimes of violence.” U.S.S.G. § 2L1.2(b)(1)(A), (E). The text

of § 2L1.2 does not define crime of violence and, unlike the

provision under which Shell was sentenced, it does not

incorporate by reference § 4B1.2’s two-clause definition of

crime of violence. Instead, § 2L1.2 includes commentary listing

“forcible sex offense[]” as an example of a crime of violence.

Id. at cmt. n.1(B)(iii).

In United States v. Chacon, we applied § 2L1.2 to a

subsection of a Maryland statute much like the second subsection

of North Carolina’s statute, criminalizing intercourse with a

person who is mentally defective, mentally incapacitated, or

physically helpless. 533 F.3d 250, 255 (4th Cir. 2008). At

the time, § 2L1.2’s commentary provided:

“Crime of violence” means any of the following
offenses under federal, state, or local law: murder,
manslaughter, kidnapping, aggravated assault, forcible
sex offenses, statutory rape, sexual abuse of a minor,
robbery, arson, extortion, extortionate extension of
credit, burglary of a dwelling, or any offense under
federal, state, or local law that has as an element
the use, attempted use, or threatened use of physical
force against the person of another.

U.S.S.G. § 2L1.2 cmt. n.1(B)(iii) (2006) (emphases added). We

held, first, that the Maryland offense did not have “as an

element the use, attempted use, or threatened use of physical

17
force,” and so did not fall within § 2L1.2’s “force clause.”

Chacon, 533 F.3d at 255-56. 8 We went on to find, however, that

it nevertheless qualified as a “forcible sex offense[]” within

the meaning of § 2L1.2. Id. at 256–58. In the absence of a

textual definition, we relied on the “ordinary, contemporary”

meaning of “forcible” and concluded that it reaches not only

physical force but also compulsion effectuated through “power”

or “pressure,” id. at 257, as when a rape is “accomplished by

taking advantage” of someone who cannot give legal consent, id.

at 258. And extending “forcible sex offenses” to statutes that

do not require physical force and instead presume the inability

to consent, we held, is consistent with § 2L1.2’s commentary as

a whole, which expressly enumerates the similar offenses of

“statutory rape” and “sexual abuse of a minor.” See id.

It is Chacon’s “common meaning” analysis on which the

government relies most heavily here. The government argues that

once we have established the common meaning of the phrase

forcible sex offenses, that common meaning stays the same,

traveling with the term wherever it appears in the Guidelines.

8
The dissent relies heavily on Chacon in arguing that North
Carolina second-degree rape falls within § 4B1.2, and presumably
its force clause. But if Chacon’s construction of the § 2L1.2
commentary directly governed this case, as the dissent urges,
then surely this part of Chacon’s holding would govern, as well,
and eliminate § 4B1.2’s force clause as a textual basis for the
dissent’s position.

18
Appellee’s Br. 25 (“It is difficult to imagine how . . .

examining the common meaning of the phrase forcible sex offense

[] would lead to a different result simply based on where the

enumerated offense appears in the guidelines.”). We appreciate

the logic of this position, but, as in Leshen, 453 F. App’x at

414–16, we must disagree.

As the Supreme Court recently reminded us, when it comes to

statutory construction, context matters. See Yates v. United

States, 135 S. Ct. 1074, 1082 (2015) (“In law as in life, [] the

same words, placed in different contexts, sometimes mean

different things.”). Section 4B1.2’s career-offender guideline,

at issue here, and § 2L1.2’s immigration guideline, construed in

Chacon, are different provisions, with significantly different

texts and structures. Accordingly, while we of course do not

question Chacon’s conclusion that offenses presuming the

inability to consent qualify as forcible sex offenses under

§ 2L1.2’s commentary, we reach a different result under § 4B1.2.

Both provisions, as the government says, list forcible sex

offenses in their commentaries. But critically, while § 2L1.2

defines crime of violence entirely through that commentary,

§ 4B1.2 provides a separate two-part definition of crime of

violence in its text, with the commentary serving only to

amplify that definition, and any inconsistency between the two

resolved in favor of the text, Stinson, 508 U.S. at 43. So in

19
interpreting “forcible sex offenses” in § 4B1.2’s commentary, we

do not write on a blank slate; instead, we have a carefully

reticulated definition of crime of violence to which we must

adhere. See Leshen, 453 F. App’x at 415 (under § 4B1.2,

“‘[f]orcible sex offenses’ does not have freestanding

definitional power,” but must instead be linked to a prong of

the textual definition of crime of violence); see also United

States v. Benkahla, 530 F.3d 300, 312 (4th Cir. 2008)

(recognizing courts’ “duty to harmonize Guidelines and

commentary”). And as discussed above, that textual definition

comes to us glossed by Supreme Court and Fourth Circuit

precedent that precludes its application to offenses committed

without “violent” force and predicated on the legal invalidity

of consent. Chacon, on the other hand, interpreted “forcible

sex offenses” as a freestanding phrase, without the constraints

imposed by § 4B1.2’s text, and so had the leeway to canvas

outside sources in search of ordinary meaning. 533 F.3d at 257

(“When a word is not defined by statute, we normally construe it

in accord with its ordinary or natural meaning.” (quoting Smith

v. United States, 508 U.S. 223, 228 (1993))). Those are

markedly different interpretive enterprises, driven by the

different structures of the provisions, and it should be no

surprise that we end up in different places.

20
 Moreover, the full text of the two commentaries themselves

strongly suggests a broader reading of the term “crime of

violence” under the immigration guideline at issue in Chacon

than under the career-offender guideline before us today. As we

explained in Chacon, the commentary to § 2L1.2 includes not only

“forcible sex offenses” but also other offenses that do not

require physical force, such as statutory rape and sexual abuse

of a minor, in its list of enumerated crimes of violence. 533

F.3d at 258 (citing U.S.S.G. § 2L1.2 cmt. n.1(B)(iii)). Section

4B1.2’s commentary, on the other hand, does not list statutory

rape or sexual abuse of a minor, but only offenses that plainly

involve physical force, such as murder and aggravated assault.

U.S.S.G. § 4B1.2 cmt. n.1. On its face, the commentary to the

immigration guideline sweeps further and “expressly cover[s]

more sex crimes” than the career-offender commentary. Wynn, 579

F.3d at 575; see Leshen, 453 F. App’x at 415–16. Reading

“forcible sex offenses” to include offenses committed without

physical force and predicated on legally invalid consent makes

sense under § 2L1.2’s commentary in a way it would not under

§ 4B1.2’s commentary.

Finally, we think it is clear that the Sentencing

Commission intended this result. First, the Commission chose to

include multiple and different definitions of “crime of

violence” in the Guidelines. Had it wanted that term to have

21
the same scope each time it appeared, then the obvious solution

would have been to provide one uniform definition, applicable

throughout. Instead, the Commission set out different “crime of

violence” enhancements for different underlying crimes. The

felon-in-possession guideline under which Shell was sentenced,

§ 2K2.1, by cross-referencing § 4B1.2’s definition, provides for

an enhancement if Shell is a “career offender” – the “kind of

person who might deliberately point the gun and pull the

trigger.” Begay, 553 U.S. at 146. If the Commission had wanted

to enhance felon-in-possession sentences for a broader range of

crimes of violence, including misdemeanor crimes, then it simply

could have cross-referenced § 2L1.2, instead. See Wray, 776

F.3d at 1188.

Second, in 2008 and after we decided Chacon, the Sentencing

Commission amended the commentary to § 2L1.2’s immigration

guideline, adding a parenthetical: “forcible sex offenses

(including where consent to the conduct is not given or is not

legally valid, such as where consent to the conduct is

involuntary, incompetent, or coerced) . . . .” U.S.S.G. § 2L1.2

cmt. n.1(B)(iii) (emphasis added). At the same time, the

Commission left § 4B1.2 intact, explaining that its purpose was

to “clarif[y] the scope of the term ‘forcible sex offense’ as

that term is used in the definition of ‘crime of violence’ in

§ 2L1.1.” U.S. Sentencing Guidelines Manual app. C, vol. III,

22
amend. 722, at 302 (2011) (emphases added). “[T]he logical

conclusion that we must draw is that the Sentencing Commission

did not intend for ‘forcible sex offenses’ under § 4B1.2 to be

defined the same way as ‘forcible sex offenses’ under § 2L1.2.”

Wynn, 579 F.3d at 575; see Wray, 776 F.3d at 1188 (citing maxim

of expressio unius est exclusio alterius and concluding that the

express inclusion of invalid-consent offenses in § 2L1.2

“suggests, at a minimum,” that those offenses are not covered by

§ 4B1.2); Leshen, 453 F. App’x at 415–16 (relying on

Commission’s decision to amend § 2L1.2 but not § 4B1.2).

Following the reasoning of the Sixth and Tenth Circuits, we

hold that Shell’s prior conviction for North Carolina second-

degree rape is not categorically a crime of violence under

§ 4B1.2. Our decision should not be understood to minimize in

any way the seriousness of the offenses proscribed by the North

Carolina statute or the importance of the state’s interest in

protecting the most vulnerable of victims. But whether the full

range of conduct covered by that state statute constitutes a

crime of violence under § 4B1.2, as construed both by our court

and the Supreme Court, is a different question, which we are

obliged to answer in the negative. Because the district court

erred in characterizing Shell’s prior conviction as a crime of

violence and thereby enhancing Shell’s base offense level for

23
illegally possessing a firearm, we vacate Shell’s sentence and

remand for resentencing.

III.

The district court also enhanced Shell’s sentence under

Guidelines § 3C1.2, for “recklessly creat[ing] a substantial

risk of death or serious bodily injury to another person in the

course of fleeing from a law enforcement officer.” Shell

concedes on appeal that he drove recklessly during the incident

leading to his arrest, but argues that the enhancement does not

apply because he was not aware that he was being pursued by a

law enforcement officer. We evaluate that legal claim de novo

and review relevant factual findings by the district court for

clear error. United States v. Carter, 601 F.3d 252, 254 (4th

Cir. 2010).

A.

Our court has not addressed whether the § 3C1.2 enhancement

applies if the defendant was unaware that he was being pursued

by an officer. But every circuit to consider the question has

concluded that the enhancement is not warranted where an officer

is following a defendant but the defendant does not know that

the officer is in pursuit, and is driving recklessly for some

other reason. See United States v. Martikainen, 640 F.3d 1191,

1193–94 (11th Cir. 2011) (per curiam); United States v. Moore,

24
242 F.3d 1080, 1082 (8th Cir. 2001); United States v. Hayes, 49

F.3d 178, 183–84 (6th Cir. 1995). At argument, the government

conceded that this is the correct reading of § 3C1.2. We agree,

and now adopt that reading, joining our sister circuits in

holding that the § 3C1.2 enhancement does not apply where a

defendant was unaware that he was being pursued by a law

enforcement officer.

This interpretation of § 3C1.2 comports with the Sentencing

Commission’s reason for promulgating it. See U.S. Sentencing

Guidelines Manual app. C, vol. I, amend. 347, at 196–99 (2008).

The provision is a derivative of Guidelines § 3C1.1, the

obstruction-of-justice enhancement, which targets defendants who

engage in conduct to mislead authorities or otherwise interfere

with the disposition of criminal charges. See id. at 196. The

Commission found that “reckless endangerment during flight is

sufficiently different from other forms” of obstruction of

justice that it warranted a separate enhancement, and § 3C1.2 is

expressly made applicable to resisting arrest. Id. at 199.

Those origins make clear, we believe, that § 3C1.2 is intended

to capture “behavior that could be viewed as an obstruction of

justice,” and thus requires that a defendant be aware that he or

she is fleeing from a law enforcement officer. Hayes, 49 F.3d

at 183.

25
 B.

At sentencing in this case, the parties contested both

whether Shell recklessly created a risk of injury and – despite

the absence of circuit precedent – whether Shell knew that he

was being pursued by the police. As to reckless endangerment,

the government relied principally on the testimony of Nicole

Smith, who described “screeching tires” and a “black car coming

sideways” that “missed [her] by about two inches.” J.A. 44-45.

Shell sought to rebut that testimony primarily through the

absence of skid marks on the road.

The case as to Shell’s knowledge of police pursuit was

complicated by the fact that Shell already was speeding at the

time Hodges encountered him while traveling in the opposite

direction, and that Shell was no longer within Hodges’s sight

once Hodges activated his siren and turned around to follow

Shell. Shell argued that he was unaware that Hodges had decided

to pursue him, and pointed for support to witness testimony that

Shell had expressed concern when a bystander to his accident

called the police – concern that would have been beside the

point, Shell argued, had he believed that the police already

were in pursuit. The government, for its part, pointed to

Shell’s flight from the scene of the accident and his admission

that he had seen Hodges at some point, though it was unclear

whether before or after Hodges activated his siren. According

26
to the government, Shell’s concern about the call to the police

after his accident could be explained by Shell’s belief that he

had eluded Hodges successfully up until that point.

In imposing the § 3C1.2 enhancement at sentencing, the

district court made the following finding:

The court credits the testimony of Ms. Smith as to the
perception she had at the time of the approach of the
black Mercedes to her car which she described as being
sideways in the roadway and making substantial
skidding noises and that it missed her car by
approximately two inches. And that testimony is
fortified by the fact that no – people don’t tend to
forget that sort of thing. [An inconsistent detail in
Smith’s testimony] is not critical to the analysis
under U.S. Sentencing Guidelines 3C1.2. Defendant did
create a substantial risk of death or serious bodily
injury to her in the course of fleeing from a law
enforcement officer.

J.A. 58–59. The final sentence, incorporating the ultimate

finding, quotes the language of § 3C1.2, in determining that

Shell “created a substantial risk of death or serious bodily

injury,” and did so “in the course of fleeing from a law

enforcement officer.” U.S.S.G. § 3C1.2. But because the

district court did not have the benefit of the ruling we

announce today, it had no occasion to make a separate finding

that Shell was aware that he was being pursued by Hodges. And

given the preceding context, which focuses exclusively on the

separate question of whether Shell recklessly endangered Smith,

we cannot be certain that the district court in fact did make

such a finding. Accordingly, we remand on this issue, as well,

27
so that the district court may apply our newly announced

understanding of § 3C1.2 to this case and clarify whether Shell

knew that he was being pursued by law enforcement.

IV.

For the foregoing reasons, we vacate the district court’s

judgment and remand for resentencing consistent with this

opinion.

VACATED AND REMANDED

28
WILKINSON, Circuit Judge, dissenting:

North Carolina’s second-degree rape statute punishes

predatory acts committed against society’s most vulnerable

individuals. To violate the contested portion of this statute,

one must have taken advantage of a mentally or physically

defenseless person to engage in sexual intercourse -- all the

while knowing of the victim’s impaired condition. N.C. Gen.

Stat. § 14-27.3(a)(2). This law protects people considered

incapable of volitional acts from such callous conduct.

The majority, however, asks us to accept a disquieting

proposition: that a defendant who “engages in vaginal

intercourse with another person . . . [w]ho is mentally

disabled, mentally incapacitated, or physically helpless,” with

knowledge of that vulnerability, has somehow not committed a

forcible sex offense. Id. How can that be? A proper reading of

the law confirms the common intuition about the nature of this

crime. It inherently involves the kind of force that is

emblematic of a “crime of violence” under the relevant provision

of the United States Sentencing Guidelines. U.S.S.G.

§ 4B1.2(a)(1) & cmt. n.1. Both this court and North Carolina’s

courts have specifically recognized the forcible nature of these

sorts of acts, and rightly so. I do not understand how the

knowing, forcible sexual subjugation of helpless human beings

29
fails to qualify as a crime of violence. With all respect for

my friends in the majority, I dissent. 1

I.

Under the Guidelines provisions for firearms offenses, a

defendant who previously sustained a felony conviction for a

“crime of violence” is subject to a heightened base offense

level. U.S.S.G. § 2K2.1(a)(4)(A). A “crime of violence” may

refer to any felony that “has as an element the use, attempted

use, or threatened use of physical force against the person of

another.” Id. § 4B1.2(a)(1); see id. § 2K2.1 cmt. n.1 (cross-

referencing the provision for career offenders). As the

Guidelines commentary explains, the term “crime of violence”

also covers a number of enumerated offenses, including “murder,

manslaughter, kidnapping, aggravated assault, forcible sex

offenses, robbery, arson, extortion, extortionate extension of

credit, and burglary of a dwelling.” Id. § 4B1.2 cmt. n.1; see

id. § 2K2.1 cmt. n.1. This list of crimes by the Sentencing

Commission is “authoritative.” Stinson v. United States, 508

1
I agree with the majority that Shell was required to know,
for the purposes of an enhancement under U.S.S.G. § 3C1.2, that
he was being pursued by a law enforcement officer. While I
think the district court’s discussion has already incorporated
the fact of such knowledge, I have no objection to remanding for
a further finding on the point.

30
U.S. 36, 38 (1993). The term “crime of violence” thus expressly

encompasses forcible sex offenses.

A.

Was Shell’s prior crime a forcible sex offense? We begin

with the state statute under which he was convicted. 2 Our charge

is to determine the range of actions that North Carolina would

realistically classify as second-degree rape. This is a

practical exercise, not a dreamy one about every conceivable

scenario to which the statute might apply. See United States v.

Diaz-Ibarra, 522 F.3d 343, 348 (4th Cir. 2008) (requiring “‘a

realistic probability, not a theoretical possibility,’ that the

state would apply its statute to conduct that falls outside the

2
Of course, the meaning of a federal provision, be it
statutory or regulatory or Sentencing Guideline, is a federal
question. See Johnson v. United States, 559 U.S. 133, 138
(2010). But the elements of a predicate state offense are
obviously a question of state law, see id., and determining
those elements is obviously a critical step here: our express
charge is to compare the elements of the predicate state offense
with the elements of the “generic” crime, see Descamps v. United
States, 133 S. Ct. 2276, 2281 (2013). In fact, in construing
this North Carolina statute, we are bound by the interpretations
and decisions of the Supreme Court of North Carolina. See
Johnson, 559 U.S. at 138; United States v. Aparicio-Soria, 740
F.3d 152, 154 (4th Cir. 2014) (en banc). No federal court “has
any authority to place a construction on a state statute
different from the one rendered by the highest court of the
State.” Johnson v. Fankell, 520 U.S. 911, 916 (1997).
Examining North Carolina’s case law is an essential part of the
inquiry before us.

31
definition of ‘crime of violence’” (quoting Gonzales v. Duenas-

Alvarez, 549 U.S. 183, 193 (2007))).

North Carolina defines the felony of second-degree rape as

follows:

(a) A person is guilty of rape in the second degree if
the person engages in vaginal intercourse with another
person:

(1) By force and against the will of the other
person; or

(2) Who is mentally disabled, mentally
incapacitated, or physically helpless, and the
person performing the act knows or should
reasonably know the other person is mentally
disabled, mentally incapacitated, or physically
helpless.

N.C. Gen. Stat. § 14-27.3(a)(1)-(2). Another state provision,

in turn, defines each of the three mental or physical conditions

identified in the second-degree rape statute:

(1) “Mentally disabled” means (i) a victim who suffers
from mental retardation, or (ii) a victim who suffers
from a mental disorder, either of which temporarily or
permanently renders the victim substantially incapable
of appraising the nature of his or her conduct, or of
resisting the act of vaginal intercourse or a sexual
act, or of communicating unwillingness to submit to
the act of vaginal intercourse or a sexual act.

(2) “Mentally incapacitated” means a victim who due to
any act committed upon the victim is rendered
substantially incapable of either appraising the
nature of his or her conduct, or resisting the act of
vaginal intercourse or a sexual act.

(3) “Physically helpless” means (i) a victim who is
unconscious; or (ii) a victim who is physically unable
to resist an act of vaginal intercourse or a sexual
act or communicate unwillingness to submit to an act
of vaginal intercourse or a sexual act.

32
Id. § 14-27.1(1)-(3). The import of these provisions is plain.

The victims under this North Carolina law cannot comprehend the

situation or resist the aggressor’s sexual advances. In one way

or another, these persons are helpless.

North Carolina’s second-degree rape statute does not suffer

from vagueness. It covers a specific and limited universe of

conduct. And each disjunctive variant under the statute entails

some form of force. The record of Shell’s conviction does not

specify whether he was convicted under subsection (a)(1) or

(a)(2). See J.A. 62, 119-20.

The majority could scarcely argue that subsection (a)(1) --

which criminalizes sex “[b]y force and against the will of the

other person,” N.C. Gen. Stat. § 14-27.3(a)(1) -- falls short of

a crime of violence. The forcible nature of this crime is self-

evident. See U.S.S.G. § 4B1.2(a)(1) & cmt. n.1. Shell’s only

possible refuge lies in subsection (a)(2) of the North Carolina

statute. But raping a mentally disabled, mentally

incapacitated, or physically helpless person is a forcible sex

offense and a crime of violence -- so much so that only our

esteemed profession could complicate the inquiry.

B.

In addressing the nature of this North Carolina predicate

offense, I must first acknowledge the validity of the majority’s

33
concerns. It is important not to let predicate crimes of

violence metastasize. I agree with the majority that it is

unfair to tag defendants with predicate crimes of violence when

a state statute is in reality capable of many nonviolent

applications. Notwithstanding this, I think the majority is

quite wrong to expand the whole concept of nonforcible or

nonviolent rape. Even apart from the cognitive jolt delivered

by such terms, North Carolina’s statute is limited in all kinds

of ways that the majority has failed both to acknowledge and to

appreciate.

Second-degree rape in North Carolina involves the three

basic elements of (1) “vaginal intercourse,” (2) “force,” and

(3) “lack of consent.” State v. Smith, 626 S.E.2d 258, 261

(N.C. 2006); see N.C. Gen. Stat. § 14-27.3(a)(1)-(2). The

critical issue in the present case is force. The Supreme Court

of North Carolina’s binding case law interpreting this state

statute is exceptionally clear. See United States v. Aparicio-

Soria, 740 F.3d 152, 154 (4th Cir. 2014) (en banc). The

Guidelines require “forcible sex offenses.” Second-degree rape

of any kind in North Carolina requires an element of force.

Force may assume various legal labels in different cases --

actual, constructive, implied -- but, under any name, it is

still exactly that: force.

34
 The history of North Carolina’s laws against rape confirms

that force is an indispensable element of the offense. North

Carolina’s rape statutes “essentially codify the common law of

rape.” State v. Moorman, 358 S.E.2d 502, 506 (N.C. 1987). The

common law “implied in law the elements of force and lack of

consent,” with the result that the crime of rape was “complete

upon the mere showing of sexual intercourse with a person who is

asleep, unconscious, or otherwise incapacitated.” Id. at 505.

Under the modern second-degree rape statute, “it makes no

difference whether the indictment alleges that the vaginal

intercourse was by force and against the victim’s will,” as in

§ 14-27.3(a)(1), “or whether it alleges merely the vaginal

intercourse with an incapacitated victim,” as in § 14-

27.3(a)(2). Id. at 506 (emphasis added). In the instances

covered by subsection (a)(2), “sexual intercourse with the

victim is ipso facto rape because the force and lack of consent

are implied in law.” Id. As a legal matter, the threshold force

required for a conviction under either subsection is the same.

The Supreme Court of North Carolina has spoken with utmost

clarity about the nature of crimes of rape in that state. In

the context of North Carolina’s own sentencing laws, the state’s

highest court has stated plainly, “[W]e reject the notion of any

felony which may properly be deemed ‘non-violent rape.’” State

v. Holden, 450 S.E.2d 878, 884 (N.C. 1994) (emphasis added)

35
(discussing N.C. Gen. Stat. § 15A-2000(e)(3)). In North

Carolina, “rape is a felony which has as an element the use or

threat of violence to the person.” Id. at 883. Indeed, even

“the crime of attempted rape always involves at least a ‘threat

of violence.’” Id. at 884.

North Carolina’s highest court has specifically rejected a

claim very much like the one endorsed by today’s majority. In

Holden, the defendant argued that his prior conviction for

attempted second-degree rape did not necessarily constitute a

crime of violence under North Carolina law, because the

conviction could have involved sex with a person who was

mentally disabled, mentally incapacitated, or physically

helpless. N.C. Gen. Stat. § 14-27.3(a)(2). But the court

firmly disagreed. Holden, 450 S.E.2d at 883-84.

The key to the Holden court’s ruling was the presence of

force, and indeed violence, in any instance of rape. Whether

the victim refuses to consent, as in subsection (a)(1), or

whether the victim cannot consent because of a mental or

physical impairment, as in subsection (a)(2), the analysis is

the same. Id. at 884-85. Under North Carolina law, “the force

inherent to having sexual intercourse with a person who is

deemed by law to be unable to consent is sufficient to amount to

‘violence.’” Id. at 884 (emphasis added). In interpreting

North Carolina’s second-degree rape statute, we could hardly ask

36
for a clearer mandate from the state’s highest court. The

majority’s novel felony of “non-violent rape” is an oxymoron not

recognized in North Carolina law. Id.

This interpretation of North Carolina’s rape statutes is

now firmly rooted in the state’s jurisprudence. The Court of

Appeals of North Carolina has heeded the dictates of the state’s

highest court. “The gravamen of the offense of second[-]degree

rape,” the Court of Appeals recently reaffirmed, “is forcible

sexual intercourse.” State v. Haddock, 664 S.E.2d 339, 344

(N.C. Ct. App. 2008). The stipulated conditions of mental

disability, mental incapacity, and physical helplessness simply

constitute “alternative means by which the force necessary to

complete a rape may be shown.” Id. at 345; see, e.g., State v.

Washington, 506 S.E.2d 283, 290 (N.C. Ct. App. 1998); State v.

Martin, 485 S.E.2d 352, 354 (N.C. Ct. App. 1997) (Wynn, J.);

State v. Aiken, 326 S.E.2d 919, 926 (N.C. Ct. App. 1985).

The majority too quickly dismisses the “force clause” of

the career-offender Guidelines provision, § 4B1.2(a)(1), and too

readily assails the straw man of the “residual clause,”

§ 4B1.2(a)(2). See Maj. Op. at 10-16. The residual clause

covers any felony that is a “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)(2). The majority

37
relies on United States v. Thornton, 554 F.3d 443 (4th Cir.

2009). But the differences between that case and this are night

and day. The Virginia law in Thornton criminalized “‘carnal

knowledge’” of a minor “‘without the use of force,’” 554 F.3d at

445 n.2 (emphasis added) -- quite unlike North Carolina’s

forcible crime of second-degree rape. Because the force clause

obviously did not apply, id. at 446, all that remained was the

residual clause, which the court understandably deemed a poor

fit, id. at 446-49. The majority’s discussion of Thornton and

the residual clause is thus inapposite.

C.

The majority maintains that the rape of a mentally

disabled, mentally incapacitated, or physically helpless person

is analogous to statutory rape. The shared logic of those

crimes, according to the majority, is that “the fact of consent

is not a defense where the victim is unable to give legally

valid consent by virtue of age or by virtue of mental

disability.” Maj. Op. at 7. But the analogy is misguided. As

a preliminary matter, North Carolina’s second-degree rape

statute does not target statutory rape. See N.C. Gen. Stat.

§ 14-27.3; J.A. 60-66. It makes no mention of the victim’s age.

It is instead defined by the victim’s mental or physical

38
defenselessness and an inability to fathom the basic situation

or oppose the aggressor’s actions.

I would not equate age and impairment. Some teenagers are

mature and responsible; others are decidedly not. But all the

victims under North Carolina’s second-degree rape statute are by

definition required to be lacking in basic mental or physical

capacity. Unlike with statutory rape, the extent of the

victim’s disability must be individually established, sometimes

with expert testimony. See State v. Hunt, 722 S.E.2d 484, 491-

92 (N.C. 2012). Such circumstances, based on a person’s

particular mental or physical characteristics, differ markedly

from legally insufficient consent based on age alone.

The differences do not stop there. Compulsion is not the

operative factor in the crime of statutory rape. This court has

already underscored that distinction in the Guidelines context

as well. As we observed in an assessment of § 2L1.2, “it is

clear that the Sentencing Commission purposely juxtaposed the

neighboring terms ‘forcible sex offense[]’ and ‘statutory rape,’

with the former intended to connote rape or other qualifying

conduct by compulsion and the latter intended to connote rape on

account of the victim’s age.” United States v. Rangel-

Castaneda, 709 F.3d 373, 380 (4th Cir. 2013) (emphasis added).

Indeed, we specifically held that a Tennessee statutory rape

conviction did not qualify as a forcible sex offense. Id.

39
Before today, at least, the distinction between forcible sex

offenses and statutory rape was sharply defined.

Even the cases cited by the majority actually underscore

the distinction between second-degree rape and statutory rape.

See Maj. Op. at 7-8. The majority quotes a state senator who

likened an underlying 1979 bill to “‘basically a statutory rape

section.’” State v. Atkins, 666 S.E.2d 809, 812 (N.C. Ct. App.

2008) (emphasis added). But the legislator goes on to note a

key distinction: this law would apply “‘in cases where someone

engages in a sex act with a person who is, in fact, incapable of

resisting or communicating resistance’” -- against the

perpetrator’s forcible actions. Id. Atkins itself provides a

telling example: the victim was a severely arthritic eighty-

three-year-old woman who was deemed “physically helpless” based

on her apparent inability “to actively oppose or resist her

attacker.” Id. at 812-13; see also State v. Huss, 734 S.E.2d

612, 615 (N.C. Ct. App. 2012) (noting that the “factors and

attributes” examined in Atkins “were unique and personal to the

victim”), aff’d by an equally divided court, 749 S.E.2d 279

(N.C. 2013) (per curiam). The majority cites another case

comparing second-degree rape and statutory rape. State v.

Banks, 766 S.E.2d 334 (N.C. 2014). In fact, that was a double

jeopardy case -- and the Supreme Court of North Carolina

expressly found them to be separate and distinct offenses. Id.

40
at 339; see Blockburger v. United States, 284 U.S. 299, 304

(1932).

Statutory rape is, finally, a crime of strict liability in

North Carolina. State v. Anthony, 528 S.E.2d 321, 323-25 (N.C.

2000). Laws against statutory rape traditionally lack a mens

rea requirement. 2 Wayne R. LaFave, Substantive Criminal Law

§§ 5.5, 17.4 (2d ed. 2014). Unlike with statutory rape, this

provision contains a strong mens rea requirement. To be

convicted under subsection (a)(2), the perpetrator must have

known, or reasonably should have known, that the victim was

mentally disabled, mentally incapacitated, or physically

helpless. N.C. Gen. Stat. § 14-27.3(a)(2). This knowledge

forms part of the element of force that is present in virtually

all crimes of rape under North Carolina law -- besides the

strict liability offense of statutory rape.

The threshold act under subsection (a)(2) is sexual

intercourse with a mentally or physically defenseless victim.

This is a crime of forcible sexual compulsion. Lack of legally

valid consent is but one feature of this offense. One wonders

how it has come to be that a perpetrator who acted with guilty

knowledge -- to take advantage of a profoundly vulnerable victim

who is unable to resist -- could now escape sanction for the

41
prior commission of what the Guidelines require: a “forcible”

sex offense. 3

D.

“Force” may involve the exertion of “[p]ower, violence, or

pressure” against another person. Black’s Law Dictionary 717

(9th ed. 2009). This conception of force is integral to the

North Carolina statute. Yet the majority’s argument suggests that

3
In its effort to portray many of these crimes as not so
very serious, the majority’s discussion of anecdotal evidence
about Shell’s earlier conviction, see Maj. Op. at 8 n.1,
impermissibly compromises the categorical approach. “Sentencing
courts may ‘look only to the statutory definitions’ -- i.e., the
elements -- of a defendant’s prior offenses, and not ‘to the
particular facts underlying those convictions.’” Descamps v.
United States, 133 S. Ct. 2276, 2283 (2013) (quoting Taylor v.
United States, 495 U.S. 575, 600 (1990)). Despite its
disclaimers, the majority nevertheless proceeds to sift through
the scant and fragmentary indications in the record to try to
ascertain highly questionable “facts” underlying Shell’s
predicate offense. Its efforts illustrate why the categorical
approach obliges courts to examine “elements, not facts.” Id.
The alternative is this sort of attempted factfinding from the
remove of the appellate bench -- here, without the benefit of
the state court’s or the sentencing court’s findings as to those
“facts,” without adequate elucidation of the surrounding
circumstances, and without any indicia of the transparently
self-serving testimony’s reliability. What we do know is that
Shell was convicted of North Carolina’s forcible crime of
second-degree rape, which criminalizes vaginal intercourse with
someone known to be mentally disabled, mentally incapacitated,
or physically helpless. The categorical approach turns on those
statutory elements. The majority, however, slides by that
approach, notwithstanding the heartbreaking instances of second-
degree rape that lie in the weeds of predicate convictions
through which federal courts in the course of Guidelines
calculations such as this are not permitted to trek.

42
second-degree rape is somehow not “forcible” enough to be a

forcible sex offense, or not “violent” enough to be a crime of

violence.

For its own understanding of “force,” the majority relies

on the Supreme Court’s pronouncements in Johnson v. United

States, 559 U.S. 133 (2010). See Maj. Op. at 10-11. But

Johnson is not like this case. Johnson involved a prior Florida

conviction for battery. 559 U.S. at 136-37. With the common

law crime of battery, the element of “force” was “satisfied by

even the slightest offensive touching.” Id. at 139. For the

Court, that threshold was too low when applied to a “violent

felony.” Id. at 140; see also Aparicio-Soria, 740 F.3d at 154-

55. In modern parlance, the various definitions of “force”

generally do not denote slight touching. Johnson, 559 U.S. at

138-41. The degree of power or pressure indicated by the term

“force” is not infinitely expansive. Context does matter. Id.

at 139-40. And de minimis contact is assuredly not the issue

with the pertinent forms of second-degree rape punished under

North Carolina law. Forcible intercourse is light-years removed

from nominal battery.

The majority fails to grasp any of the multiple ways in

which the North Carolina second-degree rape offense is

circumscribed and limited. The forcible nature of this

particular crime is unmistakable. The differences between this

43
offense and statutory rape or nominal battery are clear. Nor

does the majority appreciate the narrow range of mentally or

physically defenseless persons to which this statute applies, on

a personalized basis. The reality of what is happening to these

victims quite eludes the majority’s view. The categorical

approach applied by the majority rightly bars our inquiry into

the particulars of any single predicate offense. It should not

blind us to, in the words of Woody Guthrie, “a picture from

life’s other side.”

II.

The problems with the majority’s approach do not end at the

borders of North Carolina. Its decision is also inconsistent

with precedents that, until now, seemed to speak with a clear

and singular voice about the law governing this circuit. Our

past pronouncements left no doubt about the inexorably forcible

character of this brutal, unfeeling act.

A.

This court has already determined, in the context of a

comparable Guidelines provision, that second-degree rape under a

parallel state statute did constitute a forcible sex offense and

thus qualified as a “crime of violence.” United States v.

Chacon, 533 F.3d 250, 252 (4th Cir. 2008). The pertinent parts

44
of the Maryland second-degree rape statute at issue in Chacon

were functionally identical to those in the North Carolina law

here. The Maryland statute criminalized “vaginal intercourse”

committed (1) “[b]y force or threat of force against the will and

without the consent of the other person”; (2) with a victim who

is “mentally defective, mentally incapacitated, or physically

helpless,” when the perpetrator “knows or should reasonably

know” of the condition; or (3) with a victim “under 14 years of

age,” when the perpetrator is “at least four years older than

the victim.” Md. Code Ann. art. 27, § 463(a)(1)-(3) (repealed

2002) (current version at Md. Code Ann., Crim. Law § 3-

304(a)(1)-(3)).

In Chacon, we recognized the fundamentally forcible nature

of this crime. Examining the Guidelines provision for illegally

reentering the United States, U.S.S.G. § 2L1.2, this court

concluded that a violation of Maryland’s second-degree rape

statute was categorically a forcible sex offense within the

ambit of a “crime of violence,” Chacon, 533 F.3d at 252. The

court’s reasoning was this: even without a requirement of the

use of physical force, a crime under the Maryland statute was

necessarily achieved through some form of compulsion. Id. at

255-56.

Contrary to the majority’s suggestion, see Maj. Op. at 17-

23, this court’s analysis in Chacon applies with equal if not

45
greater power in this case. As with the Guidelines provisions

that applied to Shell, U.S.S.G. §§ 2K2.1, 4B1.2, the illegal-

reentry Guidelines provision at issue in Chacon provided for a

sentencing enhancement if the defendant had previously sustained

a felony conviction for a “crime of violence,” id. § 2L1.2. In

the definition of “crime of violence,” the commentary to the

illegal-reentry provision likewise listed “forcible sex

offenses.” Id. § 2L1.2 cmt. n.1(B)(iii). This court focused on

the “ordinary, contemporary meaning” of the term “forcible sex

offenses,” which is not defined in the Guidelines. Chacon, 533

F.3d at 257; see Smith v. United States, 508 U.S. 223, 228

(1993). Perusing dictionary definitions of “force” and

“forcible,” the court gleaned a significant insight: “a

‘forcible sex offense’ may be accomplished in the absence of

physical force” per se. Chacon, 533 F.3d at 257 (emphasis

added). Properly understood, “the use of force necessarily

involves a degree of compulsion.” Id. And that compulsion “can

be effected through ‘power’ or ‘pressure,’ which do not

necessarily have physical components.” Id.

The Maryland statute in Chacon contained a provision

virtually identical to the disputed North Carolina provision in

this case. Both states’ second-degree rape laws criminalize

sexual intercourse with a person who is mentally or physically

defenseless, where the perpetrator knows or reasonably should

46
know of the victim’s condition. See Md. Code Ann. art. 27,

§ 463(a)(2); N.C. Gen. Stat. § 14-27.3(a)(2). For these crimes,

“any nonconsensual sexual contact is forcible because, if actual

physical force is unnecessary, some degree of compulsion is

nevertheless required to overcome an unwilling victim or take

advantage of a helpless and incapacitated one.” Chacon, 533

F.3d at 255-56. The only difference between this case and

Chacon is that this statute comes from North Carolina, while the

statute in Chacon came from Maryland. That point of distinction

embodies no neutral principle.

B.

The majority makes much of a technical amendment to the

illegal-reentry Guidelines provision that became effective

shortly after we handed down Chacon. U.S.S.G. app. C, amend.

722, at 301-03; see Maj. Op. at 22-23. That amendment made

clear that “forcible sex offenses” do in fact include instances

“where consent to the conduct is not given or is not legally

valid, such as where consent to the conduct is involuntary,

incompetent, or coerced.” Id. § 2L1.2 cmt. n.1(B)(iii). As

this court later confirmed, the amendment “was intended simply

to clarify that the requisite compulsion need not be physical in

nature,” and the revised Guidelines language was fully in line

with our prior holding in Chacon. United States v. Rangel-

47
Castaneda, 709 F.3d 373, 380 (4th Cir. 2013). The amendment did

not alter the governing analysis. If anything, the language of

the amendment specifically reinforces the interpretation that

the term “forcible sex offenses” here does refer to crimes of

compulsion.

In excluding North Carolina’s second-degree rape statute

from the “crime of violence” definition under § 4B1.2, the

majority can only grasp at the thin reed of negative

implication. The trouble is that the positive indications

undercut the majority’s conclusion.

Neither the modified illegal-reentry language in § 2L1.2

nor the unmodified career-offender language in § 4B1.2 supports

the majority’s proffered requirement of the use of physical

force. The Sentencing Commission has not chosen to alter the

language in the career-offender provision to impose such a

requirement. See Chacon 533 F.3d at 257-58.

The Commission simply has not restricted the meaning of

“forcible sex offenses” as the majority does today. Had it

wanted to do so, the Commission could easily have added to

§ 4B1.2 a phrase excluding from the definition of forcible sex

offense cases where consent to the conduct was merely

“involuntary, incompetent, or coerced.” See U.S.S.G. § 2L1.2

cmt. n.1(B)(iii). Yet the Commission did no such thing.

48
 The majority professes not to “question” Chacon’s

interpretation of forcible sex offenses under § 2L1.2, even as

it “reach[es] a different result under § 4B1.2.” Maj. Op. at 19.

The Chacon court, however, would be surprised to learn its

ruling was a ticket for one train only. It is not right to cast

aside precedents on such a slim and precarious basis.

C.

The North Carolina statute requires the state to show

force. See supra Section I.B. The majority suggests, however,

that, even if the statute does require force, that would still

be insufficient, because the text of § 4B1.2 and the

accompanying Guidelines commentary are fatally inconsistent.

The majority stresses that § 4B1.2 requires “physical force,”

whereas the commentary omits the word “physical” and alludes

only to “forcible sex offenses.” See Maj. Op. at 9-11. The

majority’s conclusion of inconsistency not only is incorrect,

but will spell trouble down the road in future Guidelines cases.

First, in finding an inconsistency, the majority

misconstrues the Supreme Court’s mandate in Stinson v. United

States, 508 U.S. 36 (1993). The commentary generally deserves

“‘controlling weight.’” Id. at 45 (quoting Bowles v. Seminole

Rock & Sand Co., 325 U.S. 410, 414 (1945)). After all, the very

same Sentencing Commission promulgates both the Guidelines text

49
and the accompanying commentary. Id. at 40-41. This is not an

instance where an agency rule purports to interpret the work of

a different instrumentality such as Congress. Id. at 44. On

the contrary, the Commission is simply interpreting its own

work. Id. at 44-45. Stipulations contained in the commentary

need “not be compelled by the guideline text.” Id. at 47

(emphasis added). The commentary may give specific form to a

broad textual mandate -- that is precisely why the Commission

provides both.

Second, there is no nettlesome conflict here between

felonies involving “the use, attempted use, or threatened use of

physical force,” U.S.S.G. § 4B1.2(a)(1), and felonies that

qualify as “forcible sex offenses,” id. § 4B1.2 cmt. n.1.

Whether the prosecution proves the defendant had sex by force

and against the other person’s will, or whether the element of

force is fastened to proof that the defendant had sex with a

mentally or physically defenseless victim, these are simply

alternative but equal pathways for demonstrating force. See

N.C. Gen. Stat. § 14-27.3(a)(1)-(2); supra Section I.B.

Pointedly, the illegal-reentry provision specifically equates

“forcible sex offenses” with “any other offense” involving

“physical force.” U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). We should

be loath to find the Commission at war with itself and, in so

doing, to disregard the settled maxim that the provision of

50
specific instructions, a conventional function of Guidelines

commentary, presumptively trumps more general statements. See

RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 132 S. Ct. 2065,

2070-72 (2012).

And third, the instances in which this court has invalidated

part of the commentary as inconsistent with the Guidelines text

are quite rare. See Stinson, 508 U.S. at 38. On what basis is

a federal court, in the role of haruspex, supposed to divine

such a delicate inconsistency hidden among the Commission’s own

pronouncements? Cf. City of Arlington v. FCC, 133 S. Ct. 1863,

1871 (2013). Presumably, the rare occurrences of such purported

“inconsistency” holdings still bespeak an understanding by our

own and other courts that the Sentencing Commission, through its

commentary, can and routinely does provide specific elucidation

of the Guidelines’ more general textual provisions.

D.

Finally, the majority reads too much into the fact that

certain other sex offenses appear in § 2L1.2 but not § 4B1.2.

See Maj. Op. at 21. The illegal-reentry provision, § 2L1.2,

lists not only “forcible sex offenses” but also “statutory rape”

and “sexual abuse of a minor” as examples of crimes of violence.

U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). The career-offender

provision that applied to Shell, § 4B1.2, mentions “forcible sex

51
offenses” but not the other two crimes. Id. § 4B1.2 cmt. n.1.

But here, those differences are immaterial.

It is true that Chacon involved § 2L1.2 rather than

§ 4B1.2. But the logic of the majority turns the old Latin

maxim on its head: instead of applying expressio unius est

exclusio alterius (i.e., “the expression of one thing is the

exclusion of the other”), the majority treats the exclusion of

one term (“statutory rape”) as the expression of another term

(“forcible sex offenses”) with new meaning. The proper

inference, rather, is simply that the Sentencing Commission

deliberately excluded the crime of statutory rape from § 4B1.2,

see Barnhart v. Sigmon Coal Co., 534 U.S. 438, 452-53 (2002) -–

not that it was modifying the definition of “forcible sex

offenses” sub silentio.

In fact, the balance of the available indications suggests

that the Sentencing Commission wanted “forcible sex offenses” to

retain the same meaning in §§ 2L1.2 and 4B1.2. The “‘normal

rule of statutory construction’” is that “‘identical words used

in different parts of the same act are intended to have the same

meaning.’” Gustafson v. Alloyd Co., 513 U.S. 561, 570 (1995)

(quoting Dep’t of Revenue v. ACF Indus., Inc., 510 U.S. 332, 342

(1994)). Context matters, to be sure. But the interpretive

context is not appreciably different here. On the contrary,

52
“forcible sex offenses” is a distinct term with a consistent

meaning across §§ 2L1.2 and 4B1.2.

I doubt that the majority would argue that the crimes of

murder, manslaughter, kidnapping, aggravated assault, robbery,

arson, extortion, extortionate extension of credit, or burglary

of a dwelling -- all, like forcible sex offenses, enumerated in

both Guidelines provisions -- would assume a substantively

different meaning in the two provisions. This is precisely the

point of the categorical approach mandated by the Supreme Court:

we compare the elements of the particular predicate offense with

“the elements of the ‘generic’ crime -- i.e., the offense as

commonly understood.” Descamps v. United States, 133 S. Ct.

2276, 2281 (2013). After today’s ruling, the rest of us are

left to wonder how the generic definition of “forcible sex

offenses” could have changed so swiftly and abruptly.

The term “forcible sex offenses” is not quite the chameleon

the majority says it is. In fact, in advancing a view of

Guidelines interpretation where identical terms assume different

meanings at a blink, the majority has started us down the road

of a confusing and contradictory Guidelines structure, thus

rendering an already difficult interpretive exercise more arcane

and byzantine. In sum, the newly contradictory status of our

precedents, the new receptivity to finding Guidelines text and

commentary at odds, and the new willingness to imbue the same

53
terms with shifting meanings will, whether taken singly or in

combination, create crosscurrents and riptides in Guidelines

jurisprudence. That does not bode well for those who need or

aspire to understand them.

III.

I do understand that the circumstances surrounding sexual

interactions are often hazy, a fact that makes the preservation

of due process protections for accused persons a necessity in

all settings. But here the majority has chosen essentially to

absolve, through its construct of nonviolent rape, individuals

accorded the full slate of protections in our criminal justice

system. Doctrinal analysis is indispensable to judicial

reasoning, but upon occasion it can lead, increment by

increment, from sound beginnings toward untenable conclusions.

So it is here: the real need to protect the unthinking

expansion of “crimes of violence” has led to a race to restrict

them. If such a restriction makes sense in many instances, it

does not in the case at bar. The victims here cannot resist;

they cannot consent. But they yet retain the capacity to feel

the trauma and, yes, the violence that has been so visited upon

their very beings. The majority nevertheless maintains that the

rape of someone known to be mentally disabled, mentally

incapacitated, or physically helpless is neither a forcible sex

54
offense nor a crime of violence. The victims, were they even

sentient, would beg to differ. They know not our precedents.

They know not our doctrines. But somewhere in the recesses of

consciousness they do know they have been wronged, and we now

know that law has failed to duly recognize it.

I respectfully dissent.

55