ON REHEARING EN BANC
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 09-4298
TORRELL CHUVALA VANN,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, District Judge.
(7:08-cr-00098-BO-1)
Argued: May 11, 2011
Decided: October 11, 2011
Before TRAXLER, Chief Judge, and WILKINSON,
NIEMEYER, MOTZ, KING, GREGORY, SHEDD, AGEE,
DAVIS, KEENAN, WYNN, and DIAZ, Circuit Judges.*
Vacated and remanded by published opinion. A per curiam
opinion, in which Chief Judge Traxler and Judges Motz,
King, Gregory, Agee, Davis, Keenan, Wynn, and Diaz joined,
was issued on behalf of the en banc majority. Judge King
wrote a concurring opinion, in which Judges Motz, Gregory,
*Judge Duncan did not participate in this appeal.
2 UNITED STATES v. VANN
and Davis joined. Judge Agee wrote an opinion concurring in
the judgment, concurring in the en banc majority opinion, and
concurring in the opinion of Judge Keenan. Judge Davis
wrote a concurring opinion. Judge Keenan wrote a concurring
opinion, in which Chief Judge Traxler and Judges Agee,
Wynn, and Diaz joined. Judge Wilkinson wrote an opinion
concurring in the judgment. Judge Niemeyer wrote an opinion
concurring in part and dissenting in part, in which Judge
Shedd joined.
COUNSEL
ARGUED: Eric Joseph Brignac, OFFICE OF THE FED-
ERAL PUBLIC DEFENDER, Raleigh, North Carolina, for
Appellant. Clay Campbell Wheeler, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee. ON BRIEF: Thomas P. McNamara, Federal
Public Defender, G. Alan DuBois, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant. George
E. B. Holding, United States Attorney, Jennifer P. May-
Parker, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.
OPINION
PER CURIAM, for the en banc majority:1
On January 20, 2008, following a domestic altercation,
Torrell Vann was arrested in possession of a handgun. In
1
This per curiam opinion is adopted and joined by nine members of the
en banc Court: Chief Judge Traxler and Judges Motz, King, Gregory,
Agee, Davis, Keenan, Wynn, and Diaz.
UNITED STATES v. VANN 3
November of that year, the grand jury returned a single-count
superseding indictment charging Vann with violating 18
U.S.C. §§ 922(g)(1) and 924. The indictment also alleged that
Vann had at least three previous convictions for ACCA vio-
lent felonies, rendering him eligible for the sentencing
enhancement provided for in § 924(e)(1). On December 15,
2008, Vann pleaded guilty to the offense charged, and his sen-
tencing proceedings were scheduled for the following March.
A § 922(g) offense typically carries a statutory maximum
sentence of ten years in prison. See § 924(a)(2). If the accused
has three or more previous convictions for ACCA violent fel-
onies, however, he is subject to an enhanced minimum sen-
tence of fifteen years with a maximum of life imprisonment.
See § 924(e)(1). Vann’s presentence investigation report (the
"PSR") reflected that he had three previous convictions for
violating North Carolina General Statute section 14-202.1 (the
"Indecent Liberties Statute" or "Statute") that, according to
the probation officer, constituted ACCA violent felony con-
victions and subjected Vann to the sentencing enhancement.
The text of the Indecent Liberties Statute provides, in perti-
nent part, as follows:
(a) A person is guilty of taking indecent liberties
with children if, being 16 years of age or more and
at least five years older than the child in question, he
either:
(1) Willfully takes or attempts to take any
immoral, improper, or indecent liberties
with any child of either sex under the age
of 16 years for the purpose of arousing or
gratifying sexual desire ["subsection
(a)(1)"]; or
(2) Willfully commits or attempts to com-
mit any lewd or lascivious act upon or with
4 UNITED STATES v. VANN
the body or any part or member of the body
of any child of either sex under the age of
16 years ["subsection (a)(2)"].
N.C. Gen. Stat. § 14-202.1(a). The Statute plainly prohibits a
wide range of objectionable acts and was designed to "encom-
pass more types of deviant behavior, giving children broader
protection than available under other statutes proscribing sex-
ual acts." State v. Etheridge, 352 S.E.2d 673, 682 (N.C.
1987).
Vann objected to the district court’s application of the
enhancement, asserting that recent Supreme Court and Fourth
Circuit decisions undermined the PSR’s contention that his
previous convictions were for ACCA violent felonies. See
Begay v. United States, 553 U.S. 137 (2008) (declining to des-
ignate New Mexico felony driving under influence ("DUI")
offense as ACCA violent felony); United States v. Thornton,
554 F.3d 443 (4th Cir. 2009) (same; Virginia statutory rape
offense). The government, relying primarily on United States
v. Pierce, 278 F.3d 282 (4th Cir. 2002), responded that the
PSR had correctly counted each of Vann’s three previous
indecent liberties offenses as ACCA violent felonies. In
Pierce, decided six years prior to Begay, we ruled that a con-
viction under the Indecent Liberties Statute is a "crime of vio-
lence" as contemplated by the career offender enhancement of
the Sentencing Guidelines. See 278 F.3d at 284. In so ruling,
we reasoned that the conduct underlying such a conviction
"creates a serious potential risk of physical injury." Id.2
2
The ACCA’s definition of a "violent felony" is nearly identical to and
materially indistinguishable from the definition of a "crime of violence"
under the career offender enhancement of the Sentencing Guidelines.
Compare § 924(e)(2)(B), with USSG § 4B1.2(a). We routinely rely on
decisions interpreting either of those enhancement provisions in ascertain-
ing whether a prior conviction is a crime of violence under the Guidelines
or a violent felony under the ACCA. See United States v. Jenkins, 631
F.3d 680, 683 (4th Cir. 2011); United States v. Rivers, 595 F.3d 558, 560
n.1 (4th Cir. 2010).
UNITED STATES v. VANN 5
The district court rejected Vann’s characterization of his
three previous indecent liberties convictions, concluding that
they were for ACCA violent felonies and that he was thus
subject to § 924(e)(1)’s sentencing enhancement. As a result,
on March 17, 2009, the court sentenced Vann to the statutory
minimum of fifteen years in prison.3 Vann filed a timely
notice of appeal, and we have appellate jurisdiction pursuant
to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. A divided panel
of this Court affirmed Vann’s sentence, employing the "modi-
fied categorical approach" first announced in Taylor v. United
States, 495 U.S. 575, 602 (1990), for the purpose of analyzing
prior offenses to determine whether they constitute ACCA
violent felonies. See United States v. Vann, 620 F.3d 431 (4th
Cir. 2010). Upon granting Vann’s petition for rehearing en
banc, we vacated the panel opinion.
I.
A.
If we assume that we may resort to the modified categorical
approach employed by the panel majority, and also assume
that doing so would lead to the ineluctable conclusion that a
subsection (a)(2) offense is a violent felony for ACCA pur-
poses, the government nonetheless cannot prove that Vann
was convicted of violating subsection (a)(2). Judge Niemey-
er’s separate opinion, concurring in part and dissenting in part
("the dissent"), contends that because Vann’s indecent liber-
ties convictions arose from guilty pleas to conjunctively
drawn indictments tracking the language of both (a)(1) and
(a)(2), Vann necessarily pleaded guilty to violating both of
those subsections. That position is untenable, however, as
demonstrated by the legal principles generally applicable to
charging documents.
3
If the district court had not ruled that Vann’s indecent liberties convic-
tions were for violent felonies, the ACCA’s sentencing enhancement
would have been inapplicable. Vann would have then faced an advisory
Guidelines range of 77 to 96 months, with a ten-year statutory maximum.
6 UNITED STATES v. VANN
First, it is settled that a charging document must allege con-
junctively the disjunctive components of an underlying stat-
ute. See State v. Armstead, 562 S.E.2d 450, 452 (N.C. Ct.
App. 2002) ("Where a statute sets forth disjunctively several
means or ways by which the offense may be committed, a
warrant thereunder correctly charges them conjunctively."
(internal quotation marks omitted)); see also United States v.
Rhynes, 206 F.3d 349, 384 (4th Cir. 1999) ("Where a statute
is worded in the disjunctive, federal pleading requires the
Government to charge in the conjunctive.").4 That Vann’s
predicate charging documents properly use the conjunctive
term "and," rather than the disjunctive "or," does not mean
that Vann "necessarily" pleaded guilty to subsection (a)(2).
Similarly, in trials by jury, it has been established that a
defendant convicted under a conjunctively charged indictment
cannot be sentenced — in the absence of a special verdict
identifying the factual bases for conviction — to a term of
imprisonment exceeding the statutory maximum for the
"least-punished" of the disjunctive statutory conduct. See
Rhynes, 206 F.3d at 379-81.
Presented with a single charging document alleging alterna-
tive types of conduct in the conjunctive, the dissent effec-
tively distinguishes a conviction like the one in Rhynes,
obtained as the result of a jury verdict, from one like Vann’s,
which was entered on a guilty plea. The dissent draws this
critical distinction on the basis of its theory that, when a
defendant pleads guilty, he necessarily admits all allegations
charged conjunctively. See post at 85-88. The opposite con-
clusion, however, is the better-reasoned view. See Omari v.
Gonzales, 419 F.3d 303, 308 n.10 (5th Cir. 2005)
4
Indeed, a disjunctive charge in an indictment contravenes an accused’s
constitutional rights. See, e.g., The Confiscation Cases, 87 U.S. 92, 104
(1874) (explaining that a disjunctive charge is "wholly insufficient" and
lacks "necessary certainty," as it fails to provide "definite notice of the
offence charged" and does not protect against "subsequent prosecution for
one of the several offences").
UNITED STATES v. VANN 7
("Indictments often allege conjunctively elements that are dis-
junctive in the corresponding statute, and this does not require
either that the government prove all of the statutorily disjunc-
tive elements or that a defendant admit to all of them when
pleading guilty."); see also Malta-Espinoza v. Gonzales, 478
F.3d 1080, 1082 n.3 (9th Cir. 2007) ("[A] plea of guilty
admits only the elements of the charge necessary for a convic-
tion."); Valansi v. Ashcroft, 278 F.3d 203, 214-17 (3d Cir.
2002) (rejecting assertion that defendant’s guilty plea to
indictment charging embezzlement with "intent to injure and
defraud" admitted both states of mind where intent to do
either was sufficient to sustain conviction).5
5
The court in Valansi acknowledged by footnote the "common practice"
of government prosecutors to "plead in the conjunctive, but instruct in the
disjunctive." 278 F.3d at 216 n.10 (quoting Dep’t of Justice Criminal
Resource Manual § 227). According to the Third Circuit, the purpose of
indicting in the conjunctive is to "avoid uncertainty only; just as the Gov-
ernment may obtain a conviction if only one of the several allegations
linked in the conjunctive in the indictment is proven, so may a defendant
plead guilty to only one of the allegations required to prove an element of
her crime." Id. (citation and internal quotation marks omitted). Viewed in
its proper context, this footnote stands only for the proposition that, with
respect to convictions based on jury verdicts and those obtained by guilty
pleas, the legal effect is the same. The latter clause, quoted in isolation by
the dissent, post at 86, in no way supports its assertion that guilty pleas
are broader in scope. Nor does the Valansi court’s use of the word "may"
connote any duty on the part of a defendant to specify the precise basis
for his conviction, else suffer the consequences.
Attempting to bolster its position, the dissent also relies on United
States v. Still, 102 F.3d 118, 124-25 (5th Cir. 1996). See post at 87-88.
However, the Fifth Circuit’s observation in that case that "[w]hen Still
pleaded guilty to count three [charging that he used and carried a firearm
in violation of 18 U.S.C. § 924(c)(1), which prohibits such use or carry-
ing], he admitted both to using and to carrying a firearm during and in
relation to a drug trafficking crime," is in some tension with the court’s
subsequent decision in Omari. We are satisfied that Omari, which
involved the application of the modified categorical approach to the Immi-
gration and Nationality Act’s "aggravated felony" exception to appellate
jurisdiction of removal decisions, is the more apposite Fifth Circuit
authority in this instance.
8 UNITED STATES v. VANN
Furthermore, the dissent’s theory is incompatible with our
Rhynes precedent and its underlying principles, as enunciated
in Edwards v. United States, 523 U.S. 511 (1998), and United
States v. Quicksey, 525 F.2d 337 (4th Cir. 1975). See Rhynes,
206 F.3d at 379-81. The dissent’s reliance on United States v.
Gosselin World Wide Moving, N.V., 411 F.3d 502 (4th Cir.
2005), post at 86, is misplaced, as that decision stands only
for the proposition that a guilty plea admits "all the elements
of a formal criminal charge." Id. at 515. The "formal criminal
charge," as explained in Rhynes, is nothing more than the
least serious of the disjunctive statutory conduct, not the
entirety of the conduct alleged in the conjunctive.
B.
The materials in this case present a much flimsier founda-
tion than that in Shepard v. United States, 544 U.S. 13 (2005),
for determining the nature of the prior offenses. The charging
documents against Vann relied on by the dissent, see post at
84-85, merely recite the language of the Indecent Liberties
Statute, provide the dates of the alleged offenses and identities
of Vann and the minor, and aver that the age requirements
were satisfied. Each charging document alleges a violation of
the Statute, without specifying either subsection thereof. And,
consistent with North Carolina law, each properly alleges the
indecent liberties offense in conjunctive fashion. Similarly,
each judgment simply specifies the file number, identifies the
offense as "Indecent Liberties with Minor Child" or "Indecent
Liberties with Child," denotes the pertinent statute only as
"14-202.1," and recognizes that no written findings were
made. We disagree with the dissent that on this evidence we
can conclude that Vann necessarily violated subsection (a)(2)
of the Statute.
The dissent’s view that each of Vann’s three contested con-
victions violated subsection (a)(2) of the Statute is erroneous
in multiple respects. First, it relies on evidence never pre-
UNITED STATES v. VANN 9
sented to the district court.6 It is one thing for a federal court
to look at a state court docket in asserting jurisdiction over a
removed case, or to note a subsequent arson conviction in
determining the propriety of rescinding a fire insurance settle-
ment offer. See post at 85 (citing Lolavar v. de Santibañes,
430 F.3d 221 (4th Cir. 2005); Colonial Penn Ins. Co. v. Coil,
887 F.2d 1236 (4th Cir. 1989)). It is materially different to
rest a sentencing decision — transforming a ten-year maxi-
mum into a fifteen-year minimum — on the basis of evidence
never presented to the district court, particularly when such
evidence was not requested until after oral argument.
Moreover, it bears emphasis that the basis of the dissent’s
view that Vann’s convictions "necessarily" rest on subsection
(a)(2) is that the charging documents simply recite the lan-
guage of the Indecent Liberties Statute. Recently, however,
we ruled that a conviction under a so-called Alford plea —
where the defendant does not confirm the factual basis for the
plea, see North Carolina v. Alford, 400 U.S. 25 (1970) —
does not qualify as an ACCA predicate offense when the stat-
utory definition contains both qualifying and non-qualifying
predicate crimes and no other Shepard-approved documents
establish the offense on which the defendant was convicted.
United States v. Alston, 611 F.3d 219, 227-28 (4th Cir. 2010).
As Judge Niemeyer properly recognized in Alston, "Shepard
6
The state charging documents were not part of the district court record,
but were obtained from the parties following the panel argument in this
appeal. As such, the district court had no opportunity to consider the
charging documents, nor did the parties have the opportunity to litigate
their validity or gauge their implications. Thus, to the extent the propriety
of treating Vann’s convictions as qualifying ACCA violent felonies
depends on the charging documents, the district court should consider
those materials in the first instance. See, e.g., United States v. Alston, 611
F.3d 219, 225 (4th Cir. 2010) (recognizing that "sentencing court" con-
ducts ACCA analysis); Sykes, 131 S. Ct. at 2286 (Scalia, J., dissenting)
("Supreme Court briefs are an inappropriate place to develop the key facts
in a case. We normally give parties more robust protection, leaving impor-
tant factual questions to district courts and juries aided by expert witnesses
and the procedural protections of discovery." (citation omitted)).
10 UNITED STATES v. VANN
prevents sentencing courts from assessing whether a prior
conviction counts as an ACCA predicate conviction by rely-
ing on facts neither inherent in the conviction nor admitted by
the defendant." Id. at 226.
Under the Alston precedent, it is inconsistent for the dissent
to find that Vann "necessarily" pleaded guilty to the subsec-
tion of the Statute (subsection (a)(2)) that the dissent and
Judge Keenan’s concurrence deem a violent felony under the
ACCA. Indeed, to borrow from Alston its analogy derived
from Shepard and from Taylor v. United States, 495 U.S. 575
(1990), if Vann had gone to trial in the underlying cases, any
resulting conviction could only be used as an ACCA predicate
conviction if the jury had returned a special verdict (or
answered an interrogatory) specifically finding him guilty of
violating subsection (a)(2) of the Statute. See Alston, 611 F.3d
at 228. Instead, the dissent would have us engage in the very
behavior the categorical approach is intended to avert: inap-
propriate judicial factfinding on appeal. See Taylor, 495 U.S.
at 601 (explaining that categorical approach avoids difficulty
associated with pleaded cases in which "there often is no
record of the underlying facts").
When we consider Vann’s charging documents in their
proper legal context, we cannot determine that he was con-
victed of violating subsection (a)(2) of the Statute. Conse-
quently, Vann’s indecent liberties offenses are not ACCA
violent felonies.
II.
Pursuant to the foregoing, we vacate the sentence imposed
by the district court and remand for such other and further
proceedings as may be appropriate.
VACATED AND REMANDED
UNITED STATES v. VANN 11
KING, Circuit Judge, concurring:
Although the en banc majority utilizes the modified cate-
gorical approach to analyze whether a prior conviction for
violating North Carolina General Statute section 14-202.1 (the
"Indecent Liberties Statute" or "Statute") qualifies as an
ACCA "violent felony," I am convinced that we are required
by precedent to evaluate Vann’s convictions under the Statute
by sole resort to the categorical approach. Either approach
produces the same result in Vann’s case, but tomorrow is
another day.1 I fear that our Court’s stamp of approval on
future ACCA enhancements predicated on the inappropriate
invocation of the modified categorical approach will contra-
vene Supreme Court precedent and the interests of justice.
I.
Whether an offense constitutes a "violent felony" under the
ACCA is a question of law that we review de novo. See
United States v. White, 571 F.3d 365, 367 (4th Cir. 2009).
Nevertheless, as a federal court evaluating a state offense, we
are "bound by the [state supreme court’s] interpretation of
state law, including its determination of the elements of" the
offense. Johnson v. United States, 130 S. Ct. 1265, 1269
(2010). Where the state’s highest court has not decided an
issue of state law, the federal courts defer to state intermediate
appellate court decisions, unless we are convinced that the
state supreme court would rule to the contrary. See Assicura-
zioni Generali, S.p.A. v. Neil, 160 F.3d 997, 1002 (4th Cir.
1998) (citing West v. AT&T Co., 311 U.S. 223, 237 (1940)).
Deference to the intermediate appellate court makes espe-
1
The result of today’s en banc decision, as expressed in the Court’s
judgment, is ten votes (Chief Judge Traxler and Judges Wilkinson, Motz,
King, Gregory, Agee, Davis, Keenan, Wynn, and Diaz) to vacate Vann’s
ACCA-enhanced sentence and remand for resentencing on the ground that
his convictions under the Indecent Liberties Statute do not constitute
ACCA violent felonies, against two votes (Judges Niemeyer and Shedd)
to affirm Vann’s sentence.
12 UNITED STATES v. VANN
cially good sense in jurisdictions like North Carolina, where
the decisions of the Court of Appeals of North Carolina are
binding on all state courts save its highest, and panel opinions
bind subsequent panels. See State v. Jones, 598 S.E.2d 125,
133 (N.C. 2005) ("Where a panel of the Court of Appeals has
decided the same issue, albeit in a different case, a subsequent
panel of the same court is bound by that precedent, unless it
has been overturned by a higher court." (internal quotation
marks omitted)).
II.
The ACCA’s provision for an enhanced sentence — a stat-
utory range of fifteen years to life — is applicable when a
defendant has "three previous convictions . . . for a violent
felony or a serious drug offense." 18 U.S.C. § 924(e)(1). The
ACCA defines a "violent felony" as an offense punishable by
imprisonment for a term exceeding one year that
(i) has as an element the use, attempted use, or
threatened use of physical force against the person of
another; or
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that pre-
sents a serious potential risk of physical injury to
another.
§ 924(e)(2)(B). The issue in this appeal is whether Vann’s
previous convictions for violating the Indecent Liberties Stat-
ute constitute violent felony convictions under the "residual
clause" of § 924(e)(2)(B)(ii) — that is, whether his indecent
liberties offenses "otherwise involve[d] conduct that presents
a serious potential risk of physical injury to another."
UNITED STATES v. VANN 13
A.
1.
In assessing whether a previous offense properly consti-
tutes an ACCA violent felony, the federal courts typically
employ the "categorical approach," under which we consider
the fact of conviction and the elements of the offense, but not
the particular underlying acts. See James v. United States, 550
U.S. 192, 202 (2007); Taylor v. United States, 495 U.S. 575,
599-602 (1992). If "the elements of the offense are of the type
that would justify its inclusion within the residual provision,
without inquiry into the specific conduct of [the] particular
offender," the previous offense is a violent felony for sentenc-
ing purposes. James, 550 U.S. at 202 (emphasis omitted).
In limited circumstances, however, the courts may take
account of more than the fact of conviction and the bare ele-
ments of the previous offense, resorting to the "modified cate-
gorical approach." See United States v. Harcum, 587 F.3d
219, 223 (4th Cir. 2009). Use of the modified categorical
approach is only appropriate when the statute of conviction
encompasses multiple distinct categories of behavior, and at
least one of those categories constitutes an ACCA violent fel-
ony. See Johnson v. United States, 130 S. Ct. 1265, 1273
(2010). The modified categorical approach permits a sentenc-
ing court, in conducting its ACCA analysis, to determine
which category of behavior underlies the conviction. See id.
To illustrate, a statute might criminalize both the burglary
of a building and the burglary of a motor vehicle. See, e.g.,
Mass. Gen. Laws, ch. 266, § 16. Inasmuch as the burglary of
a vehicle is not a violent felony under the ACCA, the categor-
ical approach would preclude a sentencing court from count-
ing any conviction under that statute toward an ACCA
enhanced sentence. See Shepard v. United States, 544 U.S.
13, 16-17 (2005). The modified categorical approach, how-
ever, authorizes the court to divide the prohibited conduct into
14 UNITED STATES v. VANN
two categories: burglary of a building (an ACCA violent fel-
ony) and burglary of a vehicle (not an ACCA violent felony).
See id.
In applying the modified categorical approach, a sentencing
court is entitled to consult certain court records, such as
charging documents, plea agreements, transcripts of plea col-
loquies, judicial findings of fact and conclusions of law, jury
instructions, and verdict forms. See Shepard, 544 U.S. at 26.
These "Shepard-approved documents" may identify which
category of behavior underlies a defendant’s previous convic-
tion, enabling the sentencing court to determine whether that
offense constitutes an ACCA violent felony — e.g., burglary
of a building. See id.
The modified categorical approach thus serves to augment
the record on which a sentencing court may rely, allowing the
court to "choose the right category" of offending behavior
with respect to a previous conviction under a broad statute.
Chambers v. United States, 129 S. Ct. 687, 690 (2009). Like
the categorical approach, however, the modified categorical
approach does not authorize a sentencing court to use
Shepard-approved documents to consider the particular acts
underlying the previous conviction. See id. Thus, regardless
of which analytical approach applies, a conclusion that a pre-
vious offense constitutes an ACCA violent felony must derive
solely from the category of behavior regulated. See id.
2.
Notably, Vann’s previous indecent liberties offenses do not
have any element of force, are neither burglary, arson, nor
extortion, and did not involve explosives. Those offenses,
therefore, can only constitute ACCA violent felonies if they
fall within the ambit of the residual clause.2 The task of prop-
2
Before the panel in this appeal, the government maintained that, in
light of the essential age disparity between a child victim and an adult per-
UNITED STATES v. VANN 15
erly analyzing that question is more difficult than it might first
appear; ascertaining the breadth of the residual clause has
been a challenging endeavor for the federal courts.
In Begay v. United States, 553 U.S. 137, 142 (2008), the
Supreme Court explained that not every felony offense
involving a risk of injury to a third party must be considered
a violent felony under the ACCA. To fall within the residual
clause, the previous offense must be "roughly similar, in kind
as well as in degree of risk posed," to the ACCA-enumerated
crimes of burglary, arson, extortion, and offenses involving
explosives. Id. at 143. The Court elaborated that the enumer-
ated offenses "typically involve purposeful, violent, and
aggressive conduct," and such conduct makes it "more likely
that an offender, later possessing a gun, will use that gun
deliberately to harm a victim." Id. at 145 (internal quotation
marks omitted). In order to qualify as an ACCA violent fel-
ony, the previous offense must be one that is "characteristic
of the armed career criminal," tending to "show an increased
likelihood that the offender is the kind of person who might
deliberately point the gun and pull the trigger." Id. at 145-46
(internal quotation marks omitted). Applying those principles,
the Begay Court ruled that a felony DUI under New Mexico
law, which the Court considered to be similar to a strict liabil-
ity crime, is not "associated with a likelihood of future vio-
lent, aggressive, and purposeful ‘armed career criminal’
behavior." Id. at 148. The New Mexico felony DUI was thus
petrator under the Indecent Liberties Statute, a violation thereof implies
constructive force. Thus, the government contended, such a violation is
necessarily an ACCA violent felony, because it has "as an element, the
use, attempted use, or threatened use of physical force against the person
of another." 18 U.S.C. § 924(e)(2)(B)(i). In its en banc brief, however, the
government abandoned that position, the argument having been foreclosed
by the Supreme Court’s recent decision in Johnson. See 130 S. Ct. 1265.
There, the Court explained that, in order to constitute a violent felony
under § 924(e)(2)(B)(i), the predicate offense must have violent physical
force as an element; slight touching, "intellectual force or emotional
force," is insufficient. See id. at 1270.
16 UNITED STATES v. VANN
determined by the Court to be outside the scope of the resid-
ual clause. See id.
After the Begay decision, our Court had occasion to evalu-
ate whether a violation of Virginia’s statutory rape law —
which makes it a criminal offense for a person to "‘carnally
know[ ], without the use of force, a child’" between the ages
of thirteen and fifteen — constitutes a violent felony under the
residual clause. United States v. Thornton, 554 F.3d 443, 444
(4th Cir. 2009) (alteration in original) (quoting Va. Code Ann.
§ 18.2-63). In Thornton, the government maintained that all
violations of the Virginia statute were, similar to the enumer-
ated offenses of § 924(e)(2)(B)(ii), necessarily purposeful,
creating a serious risk of confrontation and bodily injury
(including pregnancy and sexually transmitted diseases). See
id. at 447.
We rejected the government’s position in Thornton, how-
ever, reasoning that Virginia’s definition of carnal knowledge
did "not support an inference that any or all instances of the
offense are violent and aggressive." See 554 F.3d at 449. In
so ruling, we recognized that nonforcible adult-minor sexual
activity does not create risks that are "roughly similar, in kind
as well as in degree of risk posed, to the examples of burglary,
arson, extortion, and crimes involving explosives." Id. at 446
(internal quotation marks omitted). Notably, we explained
that "[t]he enumerated crimes create immediate, serious, and
foreseeable physical risks that arise concurrently with the
commission of the crimes themselves." Id. at 449. On the
other hand, the risks associated with statutory rape "are not
immediate or violent in nature and do not inherently support
an inference that an offender will later commit a violent
crime." Id. Although we did not "minimize the risks associ-
ated with adult-minor sexual activity," we concluded in
Thornton that "a conviction under Virginia’s carnal knowl-
edge offense is not ‘associated with a likelihood of future vio-
lent, aggressive, and purposeful "armed career criminal"
UNITED STATES v. VANN 17
behavior’ and cannot constitute a violent felony under the
ACCA." Id. (quoting Begay, 553 U.S. at 148).
Earlier this year, in Sykes v. United States, the Supreme
Court revisited the breadth of the residual clause, concluding
that the Indiana offense of knowingly fleeing from a law
enforcement officer in a motor vehicle constitutes an ACCA
violent felony. See 131 S. Ct. 2267 (2011).3 The Court recog-
nized that, based on the elements of that offense, fleeing from
the police in a vehicle is a deliberate act that presents risks of
third-party physical injury similar to the enumerated crimes of
arson and burglary. See id. at 2273-74. More particularly,
both arson and vehicular flight involve an "intentional release
of a destructive force dangerous to others." Id. at 2273. Like-
wise, the risks posed by vehicular flight are similar to those
presented by a burglary, in that both offenses "can end in con-
frontation leading to violence." Id.
The Supreme Court thus rejected Sykes’s contention that
his vehicular flight offense did not entail the type of conduct
necessary to bring it within the ACCA’s residual clause. See
Sykes, 131 S. Ct. at 2275. As the Court explained, the analysis
should focus on the level of risk associated with the previous
offense of conviction, notwithstanding the "purposeful, vio-
lent, and aggressive" conduct stressed by the Begay Court in
the context of a strict liability offense. See Sykes, 131 S. Ct.
at 2275. Significantly, the Sykes decision reiterated that the
ACCA
limits the residual clause to crimes "typically com-
mitted by those whom one normally labels ‘armed
career criminals,’" that is, crimes that "show an
increased likelihood that the offender is the kind of
person who might deliberately point the gun and pull
the trigger."
3
The Supreme Court issued its Sykes decision in June 2011, subsequent
to our en banc argument. We thereafter obtained supplemental briefing on
the potential effect of Sykes on this appeal.
18 UNITED STATES v. VANN
Id. (quoting Begay, 553 U.S. at 146). Thus, although Sykes
may be said to distance the Court from its earlier emphasis on
purposeful, violent, and aggressive conduct, the essential hall-
marks of Begay were reaffirmed.
B.
Vann maintains that we are obliged to employ the categori-
cal approach in our analysis, the inevitable consequence of
which is that his previous indecent liberties offenses cannot
be considered ACCA violent felonies. The government
entreats to the contrary, insisting that we should invoke the
modified categorical approach, which, it posits, establishes
that Vann’s previous convictions are for ACCA violent felo-
nies. The government alternatively asserts that, regardless of
the approach used, we are bound to affirm the sentence
imposed by the district court.
1.
Importantly, a violation of the Statute does not require
physical contact. See, e.g., State v. Hammett, 642 S.E.2d 454,
459 (N.C. Ct. App. 2007). Additionally, the physical proxim-
ity of the offender to the victim is not determinative; convic-
tions have been obtained in situations where the offender has
been merely constructively present, i.e., by making inappro-
priate telephone calls or secretly videotaping a minor during
a change of clothing. See State v. Every, 578 S.E.2d 642 (N.C.
Ct. App. 2003) (telephone conversations); State v. McClees,
424 S.E.2d 687 (N.C. Ct. App. 1993) (clandestine videotap-
ing).
Because a violation of the Indecent Liberties Statute does
not require either touching or physical proximity, and does
not necessarily implicate any awareness on the part of the
minor victim, the risks associated with its proscribed conduct
are fundamentally different than those associated with the
offenses enumerated in 18 U.S.C. § 924(e)(2)(B)(ii). A viola-
UNITED STATES v. VANN 19
tion of the Statute does not categorically involve a release of
a destructive force capable of causing physical injury to
another, as would an arson or offense involving explosives.
Nor does a violation of the Statute necessarily show a disre-
gard for the safety of others, as does vehicular flight from the
police. See Sykes, 131 S. Ct. at 2273-74. Similarly, the risks
posed by a violation of the Statute are unlike those posed by
a burglary, as there exists no categorical likelihood that a vio-
lation would "end in [a] confrontation leading to violence."
Id. at 2273.4
Moreover, although an accused must knowingly commit
the acts underlying an indecent liberties conviction in North
Carolina, a good faith "mistake of age is not a defense to the
offense of taking indecent liberties with a minor." Cinema I
Video, Inc. v. Thornburg, 351 S.E.2d 305, 320 (N.C. Ct. App.
1986). A violation of the Indecent Liberties Statute therefore
resonates in strict liability, reminiscent of the Begay DUI
offense, which is not an ACCA violent felony. See 553 U.S.
at 148.
Unlike the offenses of vehicular flight and those enumer-
ated in § 924(e)(2)(B)(ii) — each of which "create immediate,
serious, and foreseeable physical risks that arise concurrently
with the commission of the crimes themselves," Thornton,
554 F.3d at 446 — a violation of the Indecent Liberties Stat-
ute is not the type of offense "‘typically committed by those
whom one normally labels armed career criminals,’" Sykes,
131 S. Ct. at 2275 (quoting Begay, 553 U.S. at 146 (internal
quotation marks omitted)). At bottom, a violation of the Stat-
4
Interestingly, the Indecent Liberties Statute is not codified with such
crimes as rape — including statutory rape, see N.C. Gen. Stat. § 14-27.7A
— at Subchapter III ("Offenses Against the Person"). Instead, the Statute
is in Subchapter VII ("Offenses Against Public Morality and Decency"),
alongside offenses like incest, see id. § 14-178; bigamy, see id. § 14-183;
indecent exposure, see id. § 14-190.9; displaying material harmful to
minors, see id. § 14-190.14; and secretly peeping into a room occupied by
another person, see id. § 14-202.
20 UNITED STATES v. VANN
ute, although a serious offense, is unlikely to "‘show an
increased likelihood that the offender is the kind of person
who might deliberately point [a] gun and pull the trigger.’" Id.
(quoting Begay, 553 U.S. at 146). As a result, such a violation
is categorically not a violent felony under the ACCA.
2.
Having concluded that Vann’s indecent liberties convic-
tions are categorically not violent felonies within the meaning
of the ACCA, I would reject the government’s invitation to
reach a different result through application of the modified
categorical approach. The categorical approach, when it
applies — as it does here — is mandatory and dispositive. See
United States v. Rivers, 595 F.3d 558, 564 (4th Cir. 2010)
(instructing that, where "the statute only contains one cate-
gory of crime . . . a court may not vary from the categorical
approach"). Importantly, there is no precedent for the proposi-
tion that the categorical approach is a tool of convenience that
can be discarded when the other methodology might advance
the government’s interest.
On the face of the Indecent Liberties Statute, it may appear
that its subsection (a)(1) (taking any indecent liberty with a
child for the purpose of arousing or gratifying sexual desire)
and its subsection (a)(2) (committing any lewd or lascivious
act upon or with the body of a child) could regulate suffi-
ciently distinct behaviors to justify our use of the modified
categorical approach. If we were writing on a blank slate, I
might conclude that a violation of subsection (a)(1) is a less
serious offense that does not require physical contact with the
minor victim, while a violation of subsection (a)(2) is a more
serious offense that requires some form of physical contact —
a lewd or lascivious act upon the body of a child.
The North Carolina courts, however, have declined to so
interpret the Statute. And time-tested principles of federalism
bar us from construing it otherwise. See Johnson v. Fankell,
UNITED STATES v. VANN 21
520 U.S. 911, 916 (1997) (explaining that no "federal tribunal
has any authority to place a construction on a state statute dif-
ferent from the one rendered by the highest court of the
State"). As Justice Stevens explained for the unanimous Court
in Johnson, the foregoing "proposition is fundamental to our
system of federalism." Id.
The courts of North Carolina have ruled time and again
that, in enacting the Statute, the state legislature chose not to
"distinguish between the types of indecent liberties," State v.
Jones, 393 S.E.2d 585, 589 (N.C. Ct. App. 1990), and instead
made "[t]he crime of indecent liberties . . . a single offense,"
State v. Hartness, 391 S.E.2d 177, 180 (N.C. 1990); see also
State v. Jones, 616 S.E.2d 15, 20 (N.C. Ct. App. 2005) (reject-
ing proposition that "[s]ubsections (a)(1) and (a)(2) are sepa-
rate criminal offenses with different elements" (emphasis
omitted)). In order to prove an offense under the Statute, the
State must establish five elements:
(1) the defendant was at least 16 years of age; (2) he
was five years older than his victim; (3) he willfully
took or attempted to take an indecent liberty with the
victim; (4) the victim was under 16 years of age at
the time the alleged act or attempted act occurred;
and (5) the action by the defendant was for the pur-
pose of arousing or gratifying sexual desire.
State v. Coleman, 684 S.E.2d 513, 519 (N.C. Ct. App. 2009)
(internal quotation marks omitted). In prosecutions under sub-
section (a)(2) involving a lewd or lascivious act, "[h]owever,
it may be logically assumed that acts described as ‘lewd’ and
‘lascivious’ are committed ‘for the purpose of arousing or
gratifying sexual desire.’" State v. Wilson, 361 S.E.2d 105,
108 (N.C. Ct. App. 1987). Nonetheless, neither subsection of
the Statute requires as proof of an essential element any kind
of touching — sexual or otherwise. See Hammett, 642 S.E.2d
at 459 (rejecting contention "that, in order to be convicted
under [subsection (a)(2)], the accused must actually touch the
22 UNITED STATES v. VANN
victim"); Every, 578 S.E.2d at 648 (recognizing that subsec-
tion (a)(1) does not require touching).
Although theoretically distinguishable, the Indecent Liber-
ties Statute’s two subsections have been treated interchange-
ably by the North Carolina courts, and those courts have
consistently recognized that the same behavior can be prose-
cuted under either subsection. See, e.g., State v. Banks, 370
S.E.2d 398, 407 (N.C. 1988) (prosecuting "acts of kissing"
under subsection (a)(1) and subsection (a)(2)). Indeed, per-
sons engaging in the same objectionable behavior, not involv-
ing physical contact, are sometimes prosecuted under
subsection (a)(1), but otherwise under subsection (a)(2). See
Hammett, 642 S.E.2d at 459 (prosecuting masturbation in
another’s presence under subsection (a)(2)); State v. Turman,
278 S.E.2d 574, 575 (N.C. Ct. App. 1981) (same; subsection
(a)(1)); State v. McClees, 424 S.E.2d 687 (N.C. Ct. App.
1993) (prosecuting videotaping of disrobing teenager under
subsection (a)(1)); State v. Kistle, 297 S.E.2d 626 (N.C. Ct.
App. 1982) (prosecuting photographing of unclothed child
under subsection (a)(2)).
Deference to the North Carolina courts in this instance is
consistent with the approach followed by the Supreme Court
in similar cases. In James, the Court considered whether
attempted burglary under Florida law categorically qualified
as an ACCA violent felony. The Court began by noting that
"[o]n its face, Florida’s attempt statute requires only that
defendant take ‘any act toward the commission’ of burglary."
550 U.S. at 202. The Court, however, then consulted the inter-
pretation of the attempt statute by Florida courts, which "con-
siderably narrowed" its application by requiring that the "act"
be "directed toward the entry of a structure." Id. The Court
conducted a similar analysis regarding the scope of "curti-
lage" under the burglary law. See id. at 212-13 ("We must
again turn to state law in order to answer this question."); see
also Johnson, 130 S. Ct at 1269-70 (relying on the state
courts’ construction of the required degree of "touching"
UNITED STATES v. VANN 23
under the state battery law). The Supreme Court has therefore
rejected an approach that simply considers the statutory text
and instead has grounded its analysis on the state courts’ con-
struction of the statute.
Thus, "the particular act performed is immaterial," and the
accused’s "purpose for committing such act is the gravamen
of this offense." Hartness, 391 S.E.2d at 180. Because, under
North Carolina law, the Indecent Liberties Statute’s two sub-
sections are interchangeable and do not have different ele-
ments, the Statute regulates only one category of behavior. Cf.
Rivers, 595 F.3d at 564 (declining to apply modified categori-
cal approach to South Carolina blue light statute because
"[t]here is no varied behavior underlying the elements of a
blue light offense"). A violation of the Statute, therefore, does
not fall in that "narrow range of cases" where the court is enti-
tled to "go beyond the mere fact of conviction" in making a
violent felony determination. See Taylor, 495 U.S. at 602.
III.
A.
My good dissenting friends, as well as several of my col-
leagues in the en banc majority, disagree that we are bound
by North Carolina precedent to conclude that subsections
(a)(1) and (a)(2) of the Indecent Liberties Statute regulate the
same category of behavior, thereby foreclosing resort to the
modified categorical approach.5 Indeed, whether a violation of
5
My good friend Judge Niemeyer denominates his opinion as "concur-
ring in part and dissenting in part," but it is rather amorphous what that
nomenclature means. Judge Niemeyer is certainly dissenting from the en
banc judgment vacating Vann’s sentence and remanding for resentencing,
however, and he does not concur in either the per curiam opinion of the
en banc majority or any of the Court’s several other opinions. The judg-
ment of the Court to vacate and remand is unitary, and may not be parsed
as Judge Niemeyer suggests, post at 67-68 & nn. 1-2, though various
24 UNITED STATES v. VANN
subsection (a)(2) constitutes a violent felony under the ACCA
is quintessentially a federal question.
The ultimate federal question of whether the ACCA
applies, however, can only be answered through the resolution
of component inquiries, one of which is the number of
offenses encapsulated in a single state statute. If the state
courts have provided the answer to that subordinate question,
we are obliged to accept it. See Johnson v. United States, 130
S. Ct. 1265, 1269 (2010) (citing Johnson v. Fankell, 520 U.S.
911, 916 (1997)). In this case, the answer to the subordinate
question of the number of offenses set forth in the Indecent
Liberties Statute has been provided by the Supreme Court of
North Carolina in State v. Hartness, 391 S.E.2d 177, 180
(N.C. 1990), and the State’s intermediate appellate courts, see
State v. Jones, 393 S.E.2d 585, 589 (N.C. Ct. App. 1990); see
also State v. Jones, 616 S.E.2d 15, 20 (N.C. Ct. App. 2005).
That answer is "one." Because the answer is not "two or
more," the modified categorical approach cannot apply to
Vann’s situation.6
judges supporting the judgment may express through separate opinions
different reasons for so doing, and may even agree with judges opposed
to the judgment as to constituent propositions or conclusions short of the
ultimate issue. See Fed. R. App. P. 36 (specifying that clerk enters "judg-
ment" upon receiving court’s conceptually distinct "opinion" or instruc-
tions); Fed. R. App. P. 41(a) (defining court’s mandate as comprised of,
inter alia, "a certified copy of the judgment [and] a copy of the court’s
opinion, if any"). Thus, although Judge Niemeyer might accurately pre-
dict, post at 68 n.2, that a majority of this Court, in a hypothetical future
case, would somehow conclude a properly proved violation of subsection
(a)(2) to be an ACCA violent felony, there is certainly no majority consen-
sus emanating from our decision today as to why that may be so.
6
The non-precedential decision of the Court of Appeals of North Caro-
lina in State v. Moss, No. COA07-607, 2008 WL 435095 (N.C. Ct. App.
Feb. 19, 2008) (unpublished), trumpeted by the dissent, post at 82-83, is
in no way contrary to the consistent body of authoritative North Carolina
case law. The court in Moss vacated the defendant’s conviction under the
Indecent Liberties Statute because a so-called "fatal variance" at trial
UNITED STATES v. VANN 25
Had the court in Hartness ventured beyond a pure construc-
tion of state law to address the broader federal question of
whether a violation of the Statute implicates the ACCA, its
decision would be of little moment here and the dissent would
have a point. See Johnson v. United States, 130 S. Ct. at 1269
(rejecting contention that federal courts are bound by state
court interpretation of terms found in federal statute). But the
Hartness court did not stray outside its domain, and there is,
therefore, no point to be had.
The dissent’s reluctance to accept the Indecent Liberties
Statute as interpreted by the North Carolina courts flouts well-
settled principles of federalism. Our system of dual govern-
ment unequivocally designates the state courts as the arbiters
of state law, and it demands that federal courts not usurp that
function. See Johnson v. Fankell, 520 U.S. at 916 (underscor-
ing that no "federal tribunal has any authority to place a con-
struction on a state statute different from the one rendered by
the highest court of the State").
B.
Even accommodating the position that the two subsections
of the Indecent Liberties Statute are separate offenses, how-
ever, Vann prevails under the modified categorical approach.7
amounted to plain error. The variance occurred because the indictment
charged the defendant solely under subsection (a)(1), but the jury was
instructed to convict only if it found the specific conduct underlying sub-
section (a)(2). See id. at *2. The court’s decision was not premised, as the
dissent would have it, upon the two subsections describing different
offenses, but upon the deprivation of fundamental due process rights "on
a theory not supported by the indictment." Id. at *3 (emphasis added).
7
Notwithstanding my friend Judge Niemeyer’s characterization of my
opinion, post at 67, my view of this appeal is unabashedly uncomplicated.
The categorical approach resolves the sentencing issue in Vann’s favor,
and we are not entitled to reach and address the modified categorical
approach. Assuming the modified categorical approach applies, however,
Vann prevails in any event.
26 UNITED STATES v. VANN
The offense of sexual assault contained within the Model
Penal Code is not, as the dissent supposes, a stand-in for sub-
section (a)(2). See post at 78-79. Although portions of the text
describing the Code’s sexual assault offense bear some super-
ficial similarity to subsection (a)(2), North Carolina precedent
demonstrates that the essential elements of the two provisions
are materially dissimilar.
Most pertinently, a sexual assault under the Code has as an
element "sexual contact with another," defined as "any touch-
ing of the sexual or other intimate parts of the person for the
purpose of arousing or gratifying sexual desire." Model Penal
Code § 213.4. A violation of the Statute via subsection (a)(2),
on the other hand, requires no touching or physical contact at
all. See State v. Hammett, 642 S.E.2d 454, 459 (N.C. Ct. App.
2007) (masturbating in presence of minor violates subsection
(a)(2)); State v. Kistle, 297 S.E.2d 626, 628 (N.C. Ct. App.
1982) (photographing nude minor violates subsection (a)(2)).
All the sound and fury summoned forth by the dissent,
spewing statistics documenting the injury rate for sexual
assault victims, hence signifies nothing. The dissent frankly
admits that the study it cites "included conduct that may have
a higher incidence of physical harm, like rape," post at 94,
illustrating one problem of using statistics to pinpoint "the
ordinary case — i.e., the most common form" of an offense
for the purpose of determining its potential risk of physical
injury to another. Sykes v. United States, 131 S. Ct. 2267,
2291 n.4 (2011) (Kagan, J., dissenting). Even the Sykes
majority acknowledged that "statistics are not dispositive,"
but are merely useful in an appropriate context to inform a
court’s "commonsense conclusion" regarding an offense’s
character as an ACCA violent felony. Id. at 2274.
Here, common sense dictates the conclusion that significant
differences exist between the risk of physical injury occa-
sioned in the ordinary case by violations of subsection (a)(2)
and the risk typically presented by the intentional vehicular
UNITED STATES v. VANN 27
flight offense at issue in Sykes. Committing a lewd or lascivi-
ous act upon the body of a minor does not "def[y] a law
enforcement command" and "entail[ ] intentional release of a
destructive force dangerous to others." 131 S. Ct. at 2273.
Unlike vehicular flight, immediate police confrontation is not
the "expected result" of a subsection (a)(2) violation, inevita-
bly "plac[ing] property and persons at serious risk of injury."
Id. at 2274. According to the Sykes Court, a "[r]isk of vio-
lence" inheres in the offense of vehicular flight. Id. I discern
no similar risk inherent in ordinary violations of subsection
(a)(2), notwithstanding the worst-case scenarios paraded by
the dissent, post at 95-96, the most sinister aspects of which
entail empty threats of physical violence.8
The mention in Sykes of the risk of violence, apart from the
risk of physical injury, is hardly surprising in light of the
Court’s ultimate task of deciding whether vehicular flight
should be deemed a "violent felony." The dissent chides me
for daring to determine whether a putative violent felony "in-
volve[s] . . . purposeful, violent, and aggressive conduct," post
at 67, but I think the prescribed commonsense approach coun-
sels just that sort of inquiry. The residual clause speaks sim-
ply of the "risk of physical injury," without specifying the
injury’s kind or degree, but the Sykes Court’s recitation of the
risk of violence as a factor in its calculus indicates that we
should consider, at least at the margins, what makes a particu-
lar felony "violent." There is, after all, a principled difference
between a hangnail and a homicide.
8
Writing separately in Sykes, Justice Thomas observed that "[t]he fact
that Sykes can imagine a nonrisky way to violate [the Indiana statute] does
not disprove that intentional vehicular flight is dangerous in the ordinary
case." Sykes, 131 S. Ct. at 2281 (Thomas, J., concurring in the judgment)
(citation and internal quotation marks omitted). Surely the converse propo-
sition is also true: that the dissent can illustrate risky ways to violate sub-
section (a)(2) does not establish that such violations are dangerous in their
most common form.
28 UNITED STATES v. VANN
In that vein, and without understating the despicability of
the conduct underlying violations of the Indecent Liberties
Statute or the conduct’s propensity to inflict psychic harm
upon its target, I cannot help but pay heed to the common-
sense notion that vehicular flight is far more likely to end vio-
lently in death or debilitating physical injury. Moreover,
dissimilar to the discrete perpetrator/victim dynamic invari-
ably associated with a violation of subsection (a)(2), the
sphere of effect with attendant risk of injury emanating from
vehicular flight extends far beyond whoever occupies the pas-
senger seat to envelop the driver, the police, and innocent
bystanders. See Sykes, 131 S. Ct. at 2274 (citing Justice
Thomas’s concurring opinion to emphasize that violations of
the Indiana statute "are effected with a vehicle that can be
used in a way to cause serious potential risk of physical injury
to another," and expressing concern that "chase-related
crashes kill more than 100 nonsuspects every year" (emphasis
added)). Engaging in this sort of intentional conduct evidenc-
ing a flagrant "lack of concern for the safety of property and
persons of pedestrians and other drivers," id. at 2273, distin-
guishes the vehicular flight defendant from the drunk driver
in Begay v. United States, 553 U.S. 137 (2008), and we may
conclude that the former is more likely to be "the kind of per-
son who might deliberately point the gun and pull the trigger."
Sykes, 131 S. Ct. at 2275 (quoting Begay, 553 U.S. at 145-46
(internal quotation marks omitted)).9
9
I admire and appreciate the characteristically well-crafted separate
opinion of my good friend Judge Wilkinson, concurring in the judgment,
but I take especial issue with one aspect of it. Employing the categorical
approach in this case would not, as the separate opinion prognosticates,
"have the unintended effect of visiting serious harms on children." Post at
63. This opinion simply results, as do the various separate opinions, from
conscientious efforts to apply the applicable law to the relevant facts.
Indeed, our Court possesses no power or authority to do otherwise. The
concern of my good friend should therefore not be directed at his court
colleagues, but to the governmental bodies that created the controlling
legal principles. That said, I am pleased that my friend agrees with the
result that our Court has reached in this case.
UNITED STATES v. VANN 29
IV.
All that said, I concur in the judgment of the Court, as
reflected in the per curiam opinion in that regard. I disagree
with several of my colleagues of the en banc majority, how-
ever, in that I believe that the categorical approach resolves
this appeal and that the modified categorical approach should
therefore not be reached. I am pleased and honored to confirm
that Judge Motz, Judge Gregory, and Judge Davis join in this
opinion.
AGEE, Circuit Judge, concurring in the judgment, concurring
in the en banc majority opinion, and concurring in the opinion
of Judge Keenan:
"Only Congress can rescue the federal courts from the mire
into which ACCA’s draftsmanship and Taylor’s ‘categorical
approach’ have pushed us," Justice Alito presciently observed
in Chambers v. United States, 555 U.S. 122, 132 (2009)
(Alito, J., concurring). As the multiple opinions in this case
reflect, no matter how diligently and painstakingly my col-
leagues and I labor over the mystery of the ACCA "residual
clause," a black hole of confusion and uncertainty stymies our
best efforts.
Once application of the ACCA enhancement departs from
the clarity in § 924(e)(2)(B)(ii) — "burglary, arson, or extor-
tion, involves the use of explosives" — and seeks to ascertain
prior criminal convictions that "otherwise involve[ ] conduct
that presents a serious potential risk of physical injury to
another," we enter a judicial morass that defies systemic solu-
tion.* Id. The dockets of our court and all federal courts are
now clogged with these cases. Unless Congress acts to pro-
vide clarity to its intent for this statute, the problem will only
continue.
*The same concern applies with equal force to the indistinguishable
application of similar enhancements under United States Sentencing
Guidelines § 4B1.2.
30 UNITED STATES v. VANN
All of my colleagues who have written in this case have
made a good faith effort to bring some sense of order and
direction to a congressional expression, however well inten-
tioned, that was poorly drafted and seemingly defies the best
efforts of us all to apply the "residual clause" within the
intendment of Congress. While the dilemma we face in our
task of adjudication is difficult enough, it pales in comparison
to what is at stake for the parties: be it the defendant or the
general public as represented by the Government. The dou-
bling (or more) of a sentence to the ACCA minimum manda-
tory sentence of 15 years imprisonment should be of grave
concern when that decision is based on statutory language that
a member of the Supreme Court has concluded "does not give
a person of ordinary intelligence fair notice of its reach. . ."
and "is too vague to yield an intelligible principle." Sykes v.
United States, 564 U.S. ___, slip op. at 7, 8 (2011) (Scalia, J.,
dissenting).
As Justice Alito concluded in Chambers:
[a]t this point, the only tenable, long-term solution is
for Congress to formulate a specific list of expressly
defined crimes that are deemed to be worthy of
ACCA’s sentencing enhancement. That is the
approach that Congress took in 1984, when it
applied ACCA to two enumerated and expressly
defined felonies. And that approach is the only way
to right ACCA’s ship.
555 U.S. at 134 (Alito, J., concurring).
Should Congress fail to act to timely rewrite this statute in
a comprehensible and practical way, it will have only itself to
blame should a majority of the Supreme Court come to find
Justice Scalia’s conclusion the only constitutionally valid
course.
UNITED STATES v. VANN 31
DAVIS, Circuit Judge, concurring:
I am pleased to join Judge King’s fine opinion in full. He
demonstrates that without doubt the correct approach in this
case (and to the North Carolina indecent liberties statute gen-
erally) is the categorical approach and not the modified cate-
gorical approach. I write separately to offer the following
additional observations.
I.
I admire the thoughtful efforts of my authoring colleagues
to rationalize the challenging legal standards confronting us.
As I understand the opinions that contend the modified cate-
gorical approach applies in this case, three distinct constructs
seem to be put forward: (1) the presumed legislative intent
underlying the ACCA (Op. of Wilkinson, J.); (2) the supposed
existence of a "categorically violent" subsection within the
overall "nongeneric" indecent liberties statute (Op. of Keenan,
J.); and (3) the assertion that the indecent liberties statute con-
tains two "substantive" "generic" indecent liberties offenses,
the "more violent" of which poses, as a matter of law in all
instances, a "serious potential risk of physical injury" under
the residual clause of the ACCA (Op. of Niemeyer, J.). With
genuine respect for my colleagues’ differing views, I believe
for the following reasons that each of these constructs is
infirm.
A.
Judge Wilkinson seems forthrightly to acknowledge that
the North Carolina appellate courts have always treated the
two discrete subsections of the indecent liberties statute inter-
changeably and in ways that, as Judge King shows, render it
impossible, as a matter of logic or legal analysis, to differenti-
ate among the two subsections as a categorical matter. In
other words, viewed pragmatically, there are no discrete "cat-
egories" of offense behaviors from which to "choose." See
32 UNITED STATES v. VANN
ante at 14 (Op. of King, J.). Thus, Judge Wilkinson effec-
tively agrees with Judge King that as the indecent liberties
statute has been interpreted and applied, no matter the acts
committed by a particular defendant, that defendant is cate-
gorically amenable to prosecution under both subsection
(a)(1) or subsection (a)(2) of the statute. Any plausible deter-
mination of a "risk of injury" within the contemplation of the
ACCA residual clause is not driven by which statutory sub-
section a prosecutor invokes. The published opinions of the
North Carolina appellate courts demonstrate that the state’s
prosecutors regularly take advantage of the generous prosecu-
torial discretion afforded by the indecent liberties statute. See
ante at 22 (Op. of King, J.).
Nevertheless, although Judge Wilkinson seemingly
eschews the contention that based on its "alternative ele-
ments" the indecent liberties statute can be treated as if it pro-
scribed two categories of offense behaviors, he concludes that
Congress should be deemed to have intended that offenders
who have been convicted of what amounts to physical sexual
assaults under the indecent liberties statute against minors
should receive enhanced sentences when and if they are later
convicted in federal court for a violation of 18 U.S.C. §
922(g)(1).
The difficulty with Judge Wilkinson’s presumed-
legislative-intent construct, of course, is that there is neither
evidence nor established legal principle to support it. If we
know nothing else about Congress, we know that Congress
understands fully how to punish repeat wrongdoers who pose
a danger to the community. Cf. 21 U.S.C. § 851 (2006). Con-
gress did not list "sexual assault of a child" along with "bur-
glary," "arson," "extortion," and "explosives offenses" as one
of the enumerated offenses it included in the ACCA sentenc-
ing enhancement, although it has done so elsewhere. See infra
n.1 (discussing application notes to U.S.S.G.
§ 2L1.2(b)(1)(A)). It could do so tomorrow if it wished.
UNITED STATES v. VANN 33
Moreover, Judge Wilkinson acknowledges, in agreement
with Judge King, that other provisions of North Carolina law
cover a myriad of despicable, heinous acts of physical sexual
depredation committed against adults as well as children. See
ante at 19 n.4 (Op. of King, J.); see also N.C. Gen. Stat. Ch.
14, Subch. III, Art. 7A ("Rape and Other Sex Offenses").
There can be little doubt that such offenses will inevitably be
captured by the ACCA residual clause as creating "a serious
potential risk of physical injury to victims" (if not the more
likely "use of physical force" clause). It is not easy to discern
the need for a judicially-created supplement to Congress’s
(admittedly less than optimal) statutory design.
But Judge Wilkinson defends his conclusion as based on
his belief that federalism concerns require federal judges to
step in to fill gaps in the law left by the drafting decisions of
state legislators, charging decisions of state prosecutors, and
the law-making decisions of Congress itself. See post at 62
("Other defendants [prosecuted and convicted solely under the
indecent liberties statute] have been convicted of more serious
forms of sexual assault, see, e.g., State v. Askew, 643 S.E.2d
678 (N.C. Ct. App. 2007) . . . .") (Op. of Wilkinson, J.).1 This
notion is troubling.
1
Judge Wilkinson’s gap-filling approach effectively collapses the dis-
tinct but open-ended requirements of the residual clause of the ACCA, on
the one hand, and the more refined requirements of the Sentencing Guide-
lines, on the other hand. See, e.g., United States v. Ramirez-Garcia, 646
F.3d 778 (11th Cir. 2011). In Ramirez-Garcia, the same North Carolina
indecent liberties statute before us was before the Eleventh Circuit. Id. at
779. The issue presented was whether a violation of the indecent liberties
statute "constituted ‘sexual abuse of a minor’ and, thus, was a ‘crime of
violence’ pursuant to the Sentencing Guidelines." Id. The applicable
guideline, § 2L1.2(b)(1)(A), increased the base offense level for a viola-
tion of the illegal reentry statute, 8 U.S.C. § 1326(a) and (b)(2), if the
defendant had a prior conviction for a "crime of violence." Id. at 781 &
n.1. The application notes to U.S.S.G. § 2L1.2(b)(1)(A) defined a crime of
violence to include "sexual abuse of a minor." Id. at 781 & n.2. Rejecting
the modified categorical approach in favor of the categorical approach, the
34 UNITED STATES v. VANN
With respect, Judge Wilkinson’s argument in favor of
application of the modified categorical approach in this case
seems to me to rely heavily on a novel notion of federalism.
All agree that federalism interests inform our work in cases
such as this one. Nevertheless, I do not believe it was the pur-
pose of Congress in enacting the ACCA "to punish particular
types of crimes – serious drug offenses and violent felonies."
Post at 56 (Op. of Wilkinson, J.). Rather, as the plain text of
the statute reveals, the purpose of the ACCA is to increase
Eleventh Circuit held that a violation of the North Carolina indecent liber-
ties statute indeed constituted "sexual abuse of a minor." Critical to its
holding, the court relied on its precedents that "sexual abuse of a minor"
is evidenced by "‘a perpetrator’s physical or nonphysical misuse or mal-
treatment of a minor for a purpose associated with sexual gratification.’"
Id. at 782 (quoting United States v. Padilla–Reyes, 247 F.3d 1158, 1163
(11th Cir. 2001)). In particular, the court "noted that the plain meaning of
‘abuse’ includes ‘acts that involve physical contact between the perpetra-
tor and the victim and acts that do not.’" Id.; accord United States v.
Izaguirre–Flores, 405 F.3d 270, 271 (5th Cir. 2005) (per curiam) (holding
that a violation of the North Carolina indecent liberties statute constituted
"sexual abuse of a minor" under U.S.S.G. § 2L1.2(b)(1)(A)); United States
v. Salas, 372 F. App’x 355, 2010 WL 1258242 (4th Cir. 2010) (per
curiam) (unpublished) (same); see United States v. Gonzalez-Michel, 112
F. App’x 261, 262 (4th Cir. 2004) (per curiam) (unpublished) (noting
defendant did not contend that a conviction under the North Carolina inde-
cent liberties statute did not constitute "sexual abuse of a minor"); see also
Bahar v. Ashcroft, 264 F.3d 1309, 1311, 1313 (11th Cir. 2001) (holding
that term "sexual abuse of a minor," as used in 8 U.S.C. § 1101(a)(43)(A),
includes all of the conduct proscribed by the North Carolina indecent lib-
erties statute); United States v. Gilbert, 425 F. App’x 212, 2011 WL
1595055 (4th Cir. 2011) (per curiam) (unpublished) (holding that North
Carolina’s indecent liberties statute triggers sentencing enhancement
under 18 U.S.C. § 2252A(b)(2), possession of child pornography).
Deeming it imperative to close a perceived gap in the punishments
authorized by the residual clause of the ACCA resulting from the Supreme
Court’s "intricate webs of doctrine" thereunder in its crafting of the cate-
gorical approach to ACCA, Judge Wilkinson effectively imports a "sexual
assault of a minor" refinement from the Sentencing Guidelines into the
ACCA analysis in this case. Respectfully, it seems to me that such judicial
lawmaking exceeds the proper bounds of our role.
UNITED STATES v. VANN 35
punishments for certain federal offenders who unlawfully pos-
sess a firearm.
Nor are Article III judges the roving protectors of all chil-
dren, from every conceivable harm, encountered everywhere.
Rather, that role is quintessentially a police power retained by
the individual sovereign states of our union. It would be wise
not to confuse the important law-making tasks committed by
our constitutional structure to the legislature of North Caro-
lina (as implemented by its Executive Branch officials,
including its prosecuting authorities) with the adjudicative
tasks committed to federal judges. Judge Wilkinson’s
approach poses more questions than it answers.
B.
In contrast to Judge Wilkinson’s "implied-legislative-
intent/gap-filing" approach, Judge Keenan seems to rely on
what might be described as a "blank slate" approach. Cf. ante
at 20 (Op. of King, J.) ("If we were writing on a blank slate,
I might conclude that a violation of subsection (a)(1) is a less
serious offense that does not require physical contact with the
minor victim, while a violation of subsection (a)(2) is a more
serious offense that requires some form of physical contact —
a lewd or lascivious act upon the body of a child."). Judge
Keenan readily concedes that, under the circumstances pre-
sented here, she does not accept as authoritative the North
Carolina appellate courts’ repeated admonitions that the inde-
cent liberties statute consists of "five fixed elements." Post at
52 n.1 (Op. of Keenan, J.). Rather, Judge Keenan seizes upon
the patently ambiguous statement in State v. Hartness, 391
S.E.2d 177 (N.C. 1990), that the indecent liberties statute con-
sists of "alternative elements." See id. (citing Hartness, 391
S.E.2d at 180). She then examines the "plain language" of the
statute, as if undertaking to analyze it for the first time, and
concludes, like the Hartness court did, that the statute con-
tains "alternative elements." Unlike Hartness, however, Judge
36 UNITED STATES v. VANN
Keenan is convinced that those "alternative elements" are
nicely aligned in two structural subsections.
There are several unresolved difficulties with this approach.
First, as Judge Keenan acknowledges, we are not free to reject
the state courts’ clear instruction as to the elements of the stat-
ute. To the extent, therefore, that Judge Keenan’s rejection of
the statutory elements is implicitly based on the conclusion
that the "fixed elements" identified by North Carolina’s courts
are limited to subsection (a)(1) only, her approach is funda-
mentally flawed. There is no evidence that the elements are
so limited, and, more importantly, there is overwhelming evi-
dence that this is not so.
As Judge King correctly explains, the North Carolina
Supreme Court and the North Carolina Court of Appeals have
been unfailingly consistent in their identification of the ele-
ments of the indecent liberties statute:
(1) the defendant was at least 16 years of age; (2) he
was five years older than his victim; (3) he willfully
took or attempted to take an indecent liberty with the
victim; (4) the victim was under 16 years of age at
the time the alleged act or attempted act occurred;
and (5) the action by the defendant was for the pur-
pose of arousing or gratifying sexual desire.
State v. Rhodes, 361 S.E.2d 578, 579 (N.C. 1987); State v.
Thaggard, 608 S.E.2d 774, 786–87 (N.C. 2005); State v.
Khouri, No. COA10–1030, 2011 WL 3569504, at *4 (N.C.
Ct. App. Aug. 16, 2011). Furthermore, in our non-
precedential per curiam opinion in United States v. Fernando,
291 F. App’x 494 (4th Cir. 2008), we specifically identified
the elements of the North Carolina indecent liberties statute as
the five discrete elements listed above. 291 F. App’x at 495
n.2 (citing Thaggard, 608 S.E.2d at 786-87).2
2
Fernando was a prosecution under 18 U.S.C. § 2422(b) (prohibiting
the use of interstate commerce to coerce or entice a minor to engage in
UNITED STATES v. VANN 37
To be sure, no one reading the North Carolina indecent lib-
erties statute could deny that it plainly criminalizes "lewd and
lascivious acts upon or with the body of a child." But, as
Judge King persuasively demonstrates, the better view is that
the statutory provision, properly understood, cannot reason-
ably support application of the modified categorical approach
in this case.3
The genealogy of the indecent liberties statute is instruc-
tive. The statute was enacted by the state legislature in 1955
and became effective on or about April 29, 1955. As origi-
nally enacted, the statute read as follows:
illegal sexual activity). Under that statute, a conviction may rest on an
underlying violation of (or attempted violation of) state law, such as, in
Fernando, the North Carolina indecent liberties statute.
3
Importantly, as Judge King points out, the government has abandoned
its contention that the "use of physical force" prong of the ACCA is appli-
cable in this case. Ante at 15 n.2 (Op. of King, J.). As Justice Scalia
explained in Johnson, it is "when the law under which the defendant has
been convicted contains statutory phrases that cover several different
generic crimes, some of which require violent force and some of which do
not," that the modified categorical approach is authorized. Johnson v.
United States, 130 S. Ct. 1265, 1273 (2010) (emphasis added). Johnson,
of course, was a "use of force" case and Taylor and Shepard were "enu-
merated offenses" cases. It is surprising, therefore, that those arguing in
favor of applying the modified categorical approach have failed to recon-
cile support for their view with the manifest difference between the possi-
ble application of the "use of physical force" prong and the "risk of
physical injury prong." They rely heavily on Johnson. Thus, their unspo-
ken (but unmistakable) underlying assumption is that physical force is
inherent in the "lewd and lascivious" manner of violating the indecent lib-
erties statute. The North Carolina precedents spread throughout our raft of
opinions in this case soundly rebut that assumption.
In any event, Judge Keenan’s heavy reliance on what Chambers says
"about" Shepard, and on Johnson’s "use of physical force" analysis, to jus-
tify application of the modified categorical approach in this "risk of
injury" case, provides scant support for the application of the modified
categorical approach here. See post at 50-54 (Op. of Keenan, J.).
38 UNITED STATES v. VANN
Section 1. Any person over 16 years of age who,
with intent to commit an unnatural sexual act, shall
take, or attempt to take, any immoral, improper, or
indecent liberties with any child of either sex, under
the age of 16 years, or who shall, with such intent,
commit, or attempt to commit, any lewd or lascivi-
ous act upon or with the body, or any part or member
thereof, of such child, shall, for the first offense, be
guilty of a misdemeanor and for a second or subse-
quent offense shall be guilty of a felony, and shall be
fined or imprisoned in the discretion of the court.
Sec. 2. All laws and clauses of laws in conflict with
this Act are hereby repealed.
An Act to Provide for the Protection of Children from Sexual
Psychopaths and Perverts, ch. 764, 1955 N.C. Sess. Laws 708,
708 (amended 1975).
Early on, defendants argued that the enactment of the stat-
ute effected an implied repeal of the existing North Carolina
statute prohibiting crimes against nature, N.C. Gen. Stat. § 14-
177. See, e.g., State v. Harward, 142 S.E.2d 691 (N.C. 1965);
State v. Lance, 94 S.E.2d 335 (N.C. 1956). The North Caro-
lina Supreme Court flatly rejected that contention. See Har-
ward, 142 S.E.2d at 694 (rejecting defendant’s contention that
passage of N.C. Gen. Stat. § 14-202.1 impliedly repealed the
offense of attempt to commit a "crime against nature" or
reduced it from a felony to a misdemeanor); Lance, 94 S.E.2d
at 339 (holding that the offense of "crime against nature" was
not impliedly repealed by N.C. Gen. Stat. § 14-202.1 insofar
as the former concerns the commission of a "crime against
nature" when the defendant is over sixteen years of age and
the child is under sixteen years of age).
In rejecting this contention, the North Carolina Supreme
Court explained that N.C. Gen. Stat. § 14-177 condemns
"crimes against nature," including acts with animals and acts
between humans whether committed against children or
UNITED STATES v. VANN 39
adults, while the indecent liberties statute, N.C. Gen. Stat.
§ 14-202.1, condemns offenses of an "unnatural" sexual
nature against children under sixteen years of age by those
over sixteen years of age that could not "be reached and pun-
ished" under the "crime against nature" statute, as well as
"other acts against children than unnatural sex acts." Lance,
94 S.E.2d at 339; Harward, 142 S.E.2d at 746. In drawing its
conclusion that the legislative intent in passing N.C. Gen.
Stat. § 14-202.1 was to supplement the "crime against nature"
statute and to give broader protection to children, the Supreme
Court relied on "The Law of Crime Against Nature," an arti-
cle that called for a law covering "the entire subject of unnatu-
ral intercourse" and drafted a proposed statute, which
incorporated a child molestation provision from a District of
Columbia statute treating indecent liberties with a minor.
Harward, 142 S.E.2d at 694; James R. Spence, The Law of
Crime Against Nature, 32 N.C. L. Rev. 313, 323–24 (1954)
(citing D.C. Code Ann. § 22-3501 (1951)). The Supreme
Court explained that it was "reasonable to infer that the
[North Carolina] General Assembly fully considered the rec-
ommendations made" by the article in passing the North Car-
olina indecent liberties statute. Harward, 142 S.E.2d at 694.
Notably, the District of Columbia statute, on which N.C. Gen.
Stat. § 14-202.1 was modeled, contained elements wholly
consistent with the contemporary elements of the North Caro-
lina indecent liberties statute. See Allison v. United States, 409
F.2d 445, 451 (D.C. Cir. 1969) (listing "(1) taking immoral,
improper, or indecent liberties with (2) a child under the age
of 16, (3) with the intent of arousing, appealing to, or gratify-
ing the lust, passions, or sexual desires of the child or of the
accused" as the elements of the indecent liberties with a minor
child offense).
As mentioned, the original North Carolina indecent liber-
ties statute consisted of a single statutory provision without
subsections. See N.C. Gen. Stat. § 14-202.1 (Replacement
1969). Indeed, the legislature did not create what are now sep-
arate subsections (a)(1) and (a)(2) until 1975, twenty years
40 UNITED STATES v. VANN
after the enactment of the statute. See An Act to Amend G.S.
14-202.1, 1975 N.C. Sess. Laws 1105. This amendment also
removed the requirement of intent to commit an unnatural
sexual act and increased the punishment, making the offense
a felony rather than a misdemeanor. 1975 N.C. Sess. Laws
1105; State v. Banks, 370 S.E.2d 398, 407 (N.C. 1988). But,
the Supreme Court of North Carolina noted when considering
the 1975 change to the statute, "[t]he substantive features of
the statute have remained unchanged since this rewrite."
Banks, 370 S.E.2d at 407 (explaining what the State must
prove under (a)(1) and (a)(2) to sustain a conviction under the
indecent liberties statute).
The gist of this historical account is that the essential ele-
ments of the North Carolina indecent liberties statute are
today what they have always been. See Rivers v. Roadway
Express, Inc., 511 U.S. 298, 312–13 (1994) ("A judicial con-
struction of a statute is an authoritative statement of what the
statute meant before as well as after the decision of the case
giving rise to that construction.") (cited in United States v.
Baxter, 642 F.3d 475, 478 n.3 (4th Cir. 2011) (holding that,
under the modified categorical approach to the ACCA, the
Virginia Supreme Court’s authoritative interpretation of the
state burglary statute in 1985 applied to the defendant’s 1976
burglary conviction, where the defendant was sentenced in
federal court in 2010 for violation of 18 U.S.C. § 922(g)(1))).
Thus, the fundamental difficulty I perceive in Judge Kee-
nan’s effort lies in its promotion of the interchangeable use of
the terms "elements [of the indecent liberties statute]," "be-
haviors," "acts," "means," and "theories."4
(Text continued on page 42)
4
Contrary to the reading of Hartness advanced by Judge Keenan and
Judge Niemeyer, to the extent that subsections (a)(1) and (a)(2) of the
indecent liberties statute create either (1) an overarching, nongeneric
offense having a subsumed generic offense (a la Taylor and Shepard)
(Judge Keenan), or (2) two generic offenses (a la Chambers and Johnson)
(Judge Niemeyer), subsequent cases in North Carolina demonstrate the
UNITED STATES v. VANN 41
correctness of Judge King’s reading of that case. The North Carolina
Supreme Court’s ambiguous reference to "alternative elements" in Hart-
ness has been clearly elaborated:
In our recent opinion in State v. Hartness, 326 N.C. 561, 391
S.E.2d 177 (1990), this Court held that it was not error to instruct
the jury disjunctively as to various alternative acts, either of
which would establish an element of the offense charged.
Although some of the jurors may find the defendant guilty based
on their belief that the defendant committed act A and some may
base their vote of guilty on the defendant’s participation in act B,
such alternative findings do not render the jury’s verdict nonu-
nanimous as long as the alternative acts found establish an ele-
ment of the offense and do not, in and of themselves, constitute
a separate offense . . . . As in Hartness, the defendant in this case
was convicted under a statute proscribing a single offense that
may be established by a finding of any one of several alternative
acts . . . . Just as in Hartness, wherein we concluded that the
offense of indecent liberties may be proved by several different
acts, a violation of N.C.G.S. § 14-31 may be proved by showing
an assault and battery upon one or more victims. In Hartness, we
concluded that it was immaterial that the jurors may have differed
as to which specific sexual act they believed the defendant to
have committed as long as all of the jurors found that the defen-
dant had committed a sexual act. We stated:
The risk of a nonunanimous verdict does not arise in cases
such as the one at bar because the statute proscribing inde-
cent liberties does not list, as elements of the offense, dis-
crete criminal activities in the disjunctive . . . . Defendant’s
purpose for committing such act is the gravamen of this
offense; the particular act performed is immaterial.
Hartness, 326 N.C. at 564, 567, 391 S.E.2d at 179, 180 . . . . The
Hartness reasoning applies equally well here.
State v. Lyons, 412 S.E.2d 308, 316-17 (N.C. 1991) (Meyer, J., dissenting)
(emphases added); see also State v. Almond, 435 S.E.2d 91, 96 (N.C.
1993) ("In Lyons, Justice Whichard went on to stress the importance of
examining the gravamen of the offense which the legislature intended to
prevent. In Lyons, it was held that the ‘gravamen of the offense of mali-
ciously assaulting in a secret manner is the assaulting of a particular indi-
vidual in that manner.’ Id. at 307, 412 S.E.2d at 314. The gravamen of the
42 UNITED STATES v. VANN
For me, the upshot is that it simply is not true that "the stat-
ute is composed of alternative elements" in the manner in
which Judge Keenan (and Judge Niemeyer) insist; the ele-
ments are the five that the state courts say they are. For the
reasons explained by Judge King, what is surely true is that
proof of an offense proscribed by the statute can be sustained
by evidence showing beyond a reasonable doubt that the
defendant committed one or more "alternative acts," engaged
in "alternative behaviors," or that the defendant violated the
statute by "alternative means," any one or more of which
might satisfy the third element of the statutory offense (i.e.,
that "he willfully took or attempted to take an indecent liberty
with the victim"), but not one of which is necessarily required
to be an act (or attempted act) "upon" or "with" "the body of,"
or "a part or a member of," a child, let alone a forceful or vio-
lent act inevitably leading to the infliction of, or inherently
posing a "risk of physical injury" as required by the residual
clause of the ACCA. One might also say that a prosecutor is
authorized to proceed against a culpable defendant on "alter-
native theories," which one federal court appellant has argued
could number as many as 16.5
(Text continued on page 44)
offense in Hartness was not the conduct of the defendant, but his intent
or purpose. Id.").
Thus, the focus of Hartness was on the alternative acts or means by
which a violation of the indecent liberties statute could be proven.
5
In contrast to the actual holdings of the North Carolina courts, Judge
Keenan would apparently identify 16 discrete offenses based on the "alter-
native elements" of the indecent liberties statute, apparently along the fol-
lowing lines:
1) Did take immoral liberties for the purpose of arousing sexual
desire;
2) Did take improper liberties for the purpose of arousing sexual
desire;
3) Did take indecent liberties for the purpose of arousing sexual
desire;
UNITED STATES v. VANN 43
4) Did attempt to take immoral liberties for the purpose of arous-
ing sexual desire;
5) Did attempt to take improper liberties for the purpose of arous-
ing sexual desire;
6) Did attempt to take indecent liberties for the purpose of arous-
ing sexual desire;
7) Did take immoral liberties for the purpose of gratifying sexual
desire;
8) Did take improper liberties for the purpose of gratifying sexual
desire;
9) Did take indecent liberties for the purpose of gratifying sexual
desire;
10) Did attempt to take immoral liberties for the purpose of grati-
fying sexual desire;
11) Did attempt to take improper liberties for the purpose of grat-
ifying sexual desire;
12) Did attempt to take indecent liberties for the purpose of grati-
fying sexual desire;
13) Did commit a lewd act upon the body of the child;
14) Did commit a lascivious act upon the body of the child;
15) Did attempt to commit a lewd act upon the body of the child;
and
16) Did attempt to commit a lascivious act upon the body of the
child.
Brief of Appellant at 15 n.5, United States v. Ramirez-Garcia, 646 F.3d
778 (11th Cir. 2011) (No. 10-13279-FF), 2010 WL 5622138 at *15 n.5
(describing the foregoing as 16 ways to violate one of the elements of the
North Carolina indecent liberties statute).
It is not entirely clear which of the above 16 clusters of "alternative ele-
ments" are encompassed by Judge Keenan’s "blank slate" approach, but
presumably only convictions resting on clusters 13 and 14 would qualify.
Thus, I would presume, even if a defendant pled guilty to a "subsection
(a)(2) offense," it would be open to that defendant in a subsequent federal
court prosecution to show, through application of the modified categorical
44 UNITED STATES v. VANN
Notably, the very statutory terms which Judge Keenan
identifies as "alternative elements" of the indecent liberties
offense are elastic in the extreme. Specifically, as to Judge
Keenan’s suppositions regarding subsection (a)(2) of the inde-
cent liberties statute, the supposedly discrete elements of
"lewd" and "lascivious" harken back to the venerable legal
redundancies of old, see, e.g., "null and void," and "cease and
desist," and provide scant reason to deviate from clear hold-
ings of the state courts as to the "elements and character" of
the indecent liberties statute and the clear command of our
Supreme Court that we apply a categorical approach under the
ACCA.
In fact, in construing the indecent liberties statute, at least
one North Carolina appellate court has defined the word
"lewd" "broadly" as, among other things, "lascivious." State
v. Manley, 381 S.E.2d 900, 902 (N.C. Ct. App. 1989) (citing
Webster’s Third New International Dictionary at 1301
(1968)), disc. review denied, 388 S.E.2d 467 (N.C. 1989).
Such circularity of meaning is not entirely surprising under
the circumstances. Moreover, the trial judge has no duty
under North Carolina law even to define the essential terms
in the indecent liberties statute for the jury. See State v. Stell,
249 S.E.2d 480 (N.C. Ct. App. 1978); State v. Jenkins, 242
S.E.2d 505, 506-07 (N.C. Ct. App. 1978), disc. review denied,
246 S.E.2d 11 (1978); State v. Withers, 162 S.E.2d 638 (N.C.
Ct. App. 1968). The kind of unguided jury factfinding fos-
tered by historical practice under the North Carolina indecent
approach favored by my colleagues, that he in fact committed one of the
other "categories" of offenses under the indecent liberties statute (i.e., one
that did not pose a risk of physical injury), and therefore was ineligible for
a sentence enhancement or an increase in his guidelines base offense level.
See post at 52 n.1 (Op. of Keenan, J.).
These questions are left open by the en banc decision in this case, but
surely my colleagues do not mean to suggest that the modified categorical
approach applies only when it aids the government, but not when it aids
the defendant.
UNITED STATES v. VANN 45
liberties statute, an "all things to all people" approach to crim-
inal adjudication, presents a poor candidate for application of
the modified categorical approach under the residual clause of
the ACCA.
For all these reasons, with sincere respect for Judge Kee-
nan’s effort, I am unconvinced that the case has been made
for the application of the modified categorical approach here.
C.
Judge Niemeyer’s dissenting opinion contends that the
modified categorical approach applies but, unlike Judge Kee-
nan’s concurring opinion, it would find that "North Carolina’s
indecent liberties statute contains at least two separate generic
offenses for ACCA purposes." Post at 66 (Op. of Niemeyer,
J.). What has already been said regarding Judge Keenan’s
approach identifies the difficulties with Judge Niemeyer’s
approach. Furthermore, to say, as does the dissent, "whether
Vann’s guilty pleas establish that he was convicted of the
more violent of the two offenses set forth in N.C. Gen. Stat.
§ 14-202.1, as stated in subsection (a)(2)," post at 72 (Op. of
Niemeyer, J.) (emphasis added), is question-begging of the
most regrettable sort. There is no Supreme Court authority for
surgery on a state statute to discover which of two statutory
subsections is the "more violent,"6 when that statute has been
6
I am uncertain, as were the dissenting justices in Sykes, precisely how
the Sykes majority’s "risk assessment" approach actually is likely to be
employed in future cases. See Sykes, 131 S. Ct. at 2285 (Scalia, J., dissent-
ing) ("But what about the test that determined the outcome in our second
case in this "series"—the "purposeful, violent, and aggressive" test of
Begay? Fear not. That incompatible variation has been neither overlooked
nor renounced in today’s tutti-frutti opinion."); id. at 2289 n.1 (Kagan, J.,
dissenting) ("I understand the majority to retain the ‘purposeful, violent,
and aggressive’ test, but to conclude that it is ‘redundant’ in this case . . . .
I assume this test will make a resurgence—that it will be declared non-
redundant—the next time the Court considers a crime, whether intentional
or not, that involves risk of injury but not aggression or violence.").
46 UNITED STATES v. VANN
authoritatively interpreted by the state supreme court as not
having as an element a perpetrator’s use of violence or force.
Indeed, our dissenting colleague actually identifies the very
rule regarding the elements of the offense applied by Judge
King. See post at 81 n.4 (Op. of Niemeyer, J.) (quoting State
v. Jones, 616 S.E.2d 15, 20 (N.C. 1990), for the proposition
that the statute "states disjunctively two alternative means of
proving one element of the offense"). In any event, to the
extent that the dissent equates a "lewd and lascivious act upon
or with the body or any part or member of the body of any
child" under the North Carolina indecent liberties statute with
a "sexual act" or a "sexual assault," it plainly deviates from
clear North Carolina law. Manley, 381 S.E.2d at 902 (observ-
ing that "a ‘lewd or lascivious act’ is not necessarily a ‘sexual
act’"). Resort to ostensible analogues of the North Carolina
indecent liberties act from the Model Penal Code does not
change this result. See post at 78-79 (Op. of Niemeyer, J.).
D.
Despite my good colleagues’ heroic struggles to apply
faithfully their understanding of the law in this difficult area,
I find their efforts wanting. So far as I can discern, with per-
haps one or two exceptions, every one of the more than 25
federal courts that have examined how the North Carolina
indecent liberties statute should be assessed and applied in
varying sentence enhancement contexts have applied the cate-
gorical approach, as does Judge King. See supra n.1; see also
In any event, it bears emphasis, as Judge King explains, ante at 19 (Op.
of King, J.), that just as Begay involved a kind of strict liability statute,
so too does the North Carolina indecent liberties statute sound in strict lia-
bility. That is to say, a good faith mistake as to the victim’s age is not a
defense to such a charge. State v. Breathette, 690 S.E.2d 1 (N.C. Ct. App.
2010). Although the statute is commonly understood to be a "specific
intent" crime, requiring as it does that the purpose of the defendant’s pro-
hibited acts be for sexual gratification, there is nonetheless no mens rea
requirement as to the element of the victim’s age.
UNITED STATES v. VANN 47
United States v. Baza–Martinez, 464 F.3d 1010 (9th Cir.
2006) (applying the categorical approach in an illegal reentry
case and finding that violation of North Carolina’s statute was
not categorically a crime of violence under the child sexual
abuse provision of U.S.S.G. § 2L1.2(b)(1)(A)(ii)); United
States v. Witsher, 2011 WL 2261022 (W.D. Pa. June 8, 2011)
(finding North Carolina indecent liberties conviction was not
a "crime of violence" as "sexual abuse of a minor" under the
"Career Offender" guideline, U.S.S.G. § 4B1.1). And, of
course, we did likewise in our now superseded decision,
United States v. Pierce, 278 F.3d 282 (4th Cir. 2002) (con-
struing the "Career Offender" guideline, U.S.S.G. § 4B1.1).7
I regret the en banc court’s refusal to adopt the sound analysis
reflected in those cases.
II.
For all that one might say in critiquing the Supreme Court’s
"weav[ing of] intricate webs of doctrine" in its ACCA juris-
prudence, post at 55 (Op. of Wilkinson, J.), one thing is cer-
tain: we are not to concern ourselves with the manner or
means by which a generic crime was committed in a particu-
lar instance. Ante at 14 (Op. of King, J.) ("Like the categorical
approach, however, the modified categorical approach does
not authorize a sentencing court to use Shepard-approved
documents to consider the particular acts underlying the pre-
vious conviction." (citing Chambers, 129 S. Ct. at 690)). In
the case at bar, I fear that the proponents of the modified cate-
gorical approach fall into an easily avoidable trap by insisting
that, despite the controlling state court precedents to the con-
trary, subsection (a)(2) of the indecent liberties statute can be
7
The sole exception appears to be United States v. Martinez-Vazquez,
410 F. App’x 28, 30 (9th Cir. 2010) (stating that Baza–Martinez declined
to apply modified categorical approach "only because" no Shepard-
approved documents were in the record, and going on to apply the modi-
fied categorical approach to find that a North Carolina indecent liberties
conviction supported an offense level increase under U.S.S.G. § 2L1.2).
48 UNITED STATES v. VANN
disaggregated from the statute as a whole and treated as a sep-
arate offense characterized by the perpetrator’s use of force
against child victims in all its iterations, such that a "serious
potential risk of physical injury" is inherent in their commis-
sion.
At the end of the day, it may well be that Justice Scalia is
right: that the residual clause of the Armed Career Criminal
Act is unconstitutionally vague.8 This business of adjudicating
"levels of risk" by "intuition" is problematic, to say the least.
See Chambers, 129 S. Ct. at 692 ("[T]he study strongly sup-
ports the intuitive belief that failure to report does not involve
a serious potential risk of physical injury." (emphasis added));
Sykes, 131 S. Ct. at 2291 (Kagan, J., dissenting) ("But the
majority’s intuition that dangerous flights outstrip mere fail-
ures to stop—that the aggravated form of the activity is also
the ordinary form—seems consistent with common sense and
experience." (emphasis added)).9 But until Justice Scalia per-
suades at least four of his colleagues of the correctness of his
view, we lower court judges owe fealty to the Supreme
Court’s teaching on how we are to implement Congress’s
less-than-crystal-clear design.
8
See Sykes, 131 S. Ct. at 2287 (Scalia, J., dissenting):
The Court’s ever-evolving interpretation of the residual clause
will keep defendants and judges guessing for years to come. The
reality is that the phrase "otherwise involves conduct that pre-
sents a serious potential risk of physical injury to another" does
not clearly define the crimes that will subject defendants to the
greatly increased ACCA penalties. It is not the job of this Court
to impose a clarity which the text itself does not honestly contain.
And even if that were our job, the further reality is that we have
by now demonstrated our inability to accomplish the task.
9
See also United States v. Harrison, 558 F.3d 1280, 1294-95 (11th Cir.
2009) ("In some crimes, such as armed robbery, rape, and arson, the seri-
ous potential risk of physical injury is obvious. But in lesser crimes,
courts, without empirical evidence, are left to rely on their own intuition
about whether certain kinds of behavior pose serious potential risks of
physical injury.").
UNITED STATES v. VANN 49
Judge King’s analysis manifests that fealty and I am
pleased to join his opinion.
KEENAN, Circuit Judge, concurring:
I concur in the per curiam opinion of the majority of the
members of this Court. I write separately to explain why I
conclude that we are permitted to use the "modified categori-
cal approach" in determining whether Vann’s indecent liber-
ties convictions qualify as violent felonies within the meaning
of the Armed Career Criminal Act, 18 U.S.C. § 924(e) (the
ACCA).
The offense of "taking indecent liberties with children," set
forth in Section 14-202.1 of the North Carolina General Stat-
utes (the indecent liberties statute), provides that:
(a) A person is guilty of taking indecent liberties
with children if, being 16 years of age or more and
at least five years older than the child in question, he
either:
(1) Willfully takes or attempts to take any
immoral, improper, or indecent liberties
with any child of either sex under the age
of 16 years for the purpose of arousing or
gratifying sexual desire; or
(2) Willfully commits or attempts to com-
mit any lewd or lascivious act upon or with
the body or any part or member of the body
of any child of either sex under the age of
16 years.
(b) Taking indecent liberties with children is punish-
able as a Class F felony.
N.C. Gen. Stat. § 14-202.1.
As Judge King observes in his concurring opinion, North
Carolina’s appellate courts have construed the indecent liber-
50 UNITED STATES v. VANN
ties statute as encompassing only one offense, rather than
multiple offenses. See ante at 21 (discussing State v. Hart-
ness, 391 S.E.2d 177 (N.C. 1990); State v. Jones, 616 S.E.2d
15 (N.C. Ct. App. 2005); State v. Jones, 393 S.E.2d 585 (N.C.
Ct. App. 1990)). But this characterization of the statute as a
single offense, without more, oversimplifies the Supreme
Court of North Carolina’s analysis in Hartness. The court in
Hartness stated that, in the indecent liberties statute, the "sin-
gle wrong is established by a finding of various alternative
elements." 391 S.E.2d at 180 (emphasis added). Additionally,
the court explained that the single offense proscribed by the
statute "may be proved by evidence of the commission of any
one of a number of acts." Id.
The Hartness analysis, explaining that the statute is com-
posed of alternative elements, is supported by the plain lan-
guage of the statute, which is cast throughout in the
disjunctive. In addition to the two subsections of paragraph
(a) that are stated in the disjunctive, each subsection contains
more than one disjunctive reference, providing alternative ele-
ments that serve to establish the different statutory prohibi-
tions comprising the single wrong recognized by North
Carolina’s highest court.
The task in determining whether Vann was convicted of a
"violent felony," within the meaning of the ACCA, starts with
consideration under the "categorical approach" of the fact of
Vann’s conviction and the alternative statutory elements of
the offense. See Taylor v. United States, 495 U.S. 575, 599-
602 (1990). Under this approach, a court considers only the
various elements of the indecent liberties offense, not the facts
leading to Vann’s conviction under that statute. See Chambers
v. United States, 555 U.S. 122, 125 (2009). I agree with Judge
King’s conclusion that, in employing the categorical approach
in this case, the government cannot establish that any of
Vann’s previous convictions were for a "violent felony."
I disagree, however, with Judge King’s conclusion that we
may not employ the modified categorical approach in analyz-
UNITED STATES v. VANN 51
ing Vann’s prior convictions. Although Judge King correctly
states that principles of federalism require us to apply the
North Carolina courts’ construction of the indecent liberties
statute as being composed of a "single offense," this statement
is incomplete. Here, principles of federalism require that we
conduct our ACCA analysis within the structural context of a
statute that is composed of a single offense, but has been rec-
ognized by North Carolina’s highest court as having alterna-
tive elements describing different behaviors constituting an
offense under the statute. These alternative elements are
found in both subsections of paragraph (a) of the statute.
In determining whether this statutory framework of alterna-
tive elements permits us to employ the modified categorical
approach in consideration of Vann’s prior convictions, the
Supreme Court’s decision in Chambers provides helpful guid-
ance. There, the Supreme Court discussed a Massachusetts
statute at issue in an earlier case, Shepard v. United States,
which contained alternative elements placing "within a single,
separately numbered statutory section entitled ‘Breaking and
entering at night,’ burglary of a ‘building, ship, vessel or vehi-
cle.’" Chambers, 555 U.S. 122, 126 (2009) (discussing Shep-
ard, 544 U.S. 13, 16-17 (2005)) (citation omitted). The
Supreme Court explained in Chambers that although the vari-
ous proscribed behaviors were located within a single section
of the Massachusetts statute, the different natures of the
behaviors were the determinative factor in analyzing whether
the statute encompassed more than one crime for purposes of
the ACCA. Id. Thus, the Court stated that because "the behav-
ior underlying, say, breaking into a building differs so signifi-
cantly from the behavior underlying, say, breaking into a
vehicle[,] that for ACCA purposes a sentencing court must
treat the two as different crimes." Id. (emphasis added).
The ultimate holding of Chambers involved the Court’s
consideration of an Illinois statute that proscribed the different
behaviors of failing to report for periodic imprisonment and
of intentionally escaping from a penal institution. The
52 UNITED STATES v. VANN
Supreme Court concluded that the statute stated distinct crimi-
nal acts constituting two crimes for purposes of the ACCA.
Id. at 126-27.
The above discussion in Chambers, and its ultimate hold-
ing, reflect the fact that an essential function of the ACCA
analysis is to determine, subject to constitutional restrictions,
which proscribed criminal behavior in a disjunctively-worded
statute formed the basis of a defendant’s conviction. This part
of the ACCA analysis is rooted in identifying the acts pro-
scribed by the various statutory elements, and does not
depend on whether those behaviors are listed in one or several
different sections of a particular statute.1 Thus, if a statute
alternatively proscribes different acts that essentially consti-
tute different crimes, only some of which would qualify as a
"violent felony" within the meaning of the ACCA, the "modi-
fied categorical" approach may be employed to help a sen-
tencing court identify the correct category of proscribed
behavior of which the defendant was convicted. See Cham-
bers, 555 U.S. at 126-27; Taylor, 495 U.S. at 602.
Upon examination of the indecent liberties statute and its
alternative elements, it is apparent that the proscriptions of the
statute, like the various behavioral proscriptions in the statutes
discussed in Chambers, encompass behaviors that differ so
significantly that they constitute conceptually distinct crimes
for purposes of applying the ACCA. For example, under the
indecent liberties statute, an adult’s act of taking an "im-
proper," as distinct from an "immoral" or "indecent," liberty
with a child "for the purpose of arousing or gratifying sexual
desire" constitutes a violation of the indecent liberties statute
under the first subsection of paragraph (a) of the statute. N.C.
1
I disagree with Judge King’s conclusion that the indecent liberties stat-
ute as a whole, including both subsection (a)(1) and subsection (a)(2), sets
forth five fixed elements. In my view, this conclusion cannot be reconciled
with the analysis of the highest court of North Carolina in Hartness that
the statute is composed of alternative elements. See 391 S.E.2d at 180.
UNITED STATES v. VANN 53
Gen. Stat. § 14-202.1(a)(1). Conversely, under a portion of
the second subsection of paragraph (a), the statute is violated
by an adult’s act of committing a lewd or lascivious act upon
"any part or member of the body of the child." N.C. Gen. Stat.
§ 14-202.1(a)(2).
In accordance with the Chambers analysis, although both
proscribed behaviors would be statutory violations under
alternative elements stated in the statute, the radically distinct
natures of the above two proscribed acts require that they be
treated as different crimes for ACCA purposes. The elements
of the first violation identified above reference statutorily-
proscribed behavior that is merely "improper" and, thus, is
non-violent. By contrast, the elements of the second violation
identified above proscribe acts that under the ACCA would be
considered violent in nature.2 In such situations, use of the
modified categorical approach is appropriate to analyze the
different behaviors proscribed by the statute to determine
which statutory elements formed the basis of the defendant’s
conviction. See Johnson v. United States, 130 S. Ct. 1265,
1273 (2010). Thus, because the indecent liberties statute
encompasses behaviors so radically different that the single
statutory offense covers conceptually different crimes for
2
In my view, a violation of subsection (a)(2) of the indecent liberties
statute, "in the ordinary case," United States v. James, 550 U.S. 192, 208
(2007), carries the requisite "degree of risk" comparable to the enumerated
crimes in 18 U.S.C. § 924(e)(2)(B)(ii). See Sykes v. United States, 131 S.
Ct. 2267, 2273 (2011). Under subsection (a)(2) of the North Carolina stat-
ute, as discussed, the indecent act must be committed "upon or with the
body or any part or member of the body" of the minor. N.C. Gen. Stat.
§ 14-202.1(a)(2). Just as the "risk of violence is inherent to vehicle flight,"
Sykes, 131 S. Ct. at 2273, so too the risk of violence is inherent in an
adult’s commission of a "lewd or lascivious act" "upon or with the body
or any part or member of the body" of the minor victim. Id.; see also
Sykes, 131 S. Ct. at 2273 (observing that vehicle flight, like burglary, is
dangerous because it can end in confrontation leading to violence). Thus,
a violation of subsection (a)(2) of the indecent liberties statute ordinarily
"presents a serious potential risk of physical injury to another" within the
meaning of the ACCA’s residual clause. See 18 U.S.C. § 924(e)(2)(B)(ii).
54 UNITED STATES v. VANN
ACCA purposes, I conclude that Vann’s convictions may be
examined under the modified categorical approach approved
by the Supreme Court. See Chambers, 555 U.S. at 126.
This conclusion is not altered by the fact that North Caroli-
na’s courts have held that the same conduct may be prose-
cuted under different alternative elements of the statute. The
issue whether we may apply the modified categorical
approach under the ACCA depends on an examination of the
different criminal elements of a statute and on the stated
behaviors that these elements proscribe, not on any particular
conduct that may be encompassed by a given statutory pro-
scription. See Johnson, 130 S. Ct. at 1273; Chambers, 555
U.S. at 125-27.
As the above discussion illustrates, the single offense of
indecent liberties, as set forth in the North Carolina statute,
can qualify as a "violent felony" under the ACCA, depending
on which of the statute’s alternative elements are satisfied in
a particular case. Therefore, in my view, we must consider
whether the Shepard-approved documents in Vann’s case
establish which of the conceptually different crimes Vann
committed. Only if those documents yield a clear answer to
this question may we proceed to the next step to determine
whether the crime for which Vann was convicted was a "vio-
lent felony," within the meaning of the ACCA. See Shepard,
544 U.S. at 24-26; Taylor, 494 U.S. at 602.
For the reasons stated in the per curiam opinion of the en
banc majority, I conclude that, upon examining the applicable
Shepard-approved documents under the modified categorical
approach, the government cannot satisfy its burden of estab-
lishing the distinct statutory proscription of the indecent liber-
ties statute underlying Vann’s convictions. Therefore, I
conclude that we are not permitted to consider further whether
Vann was previously convicted of a violent felony under the
ACCA. Accordingly, I concur in the judgment of the Court
vacating Vann’s sentence and remanding the case to the dis-
UNITED STATES v. VANN 55
trict court for further proceedings. I am pleased to state that
Chief Judge Traxler, Judge Agee, Judge Wynn, and Judge
Diaz join in this opinion.
WILKINSON, Circuit Judge, concurring in the judgment:
The North Carolina indecent liberties statute is singularly
broad and the Shepard-approved documents are singularly
unedifying. For these reasons and in these narrow circum-
stances, I cannot find the three predicate crimes of violence
necessary to support an Armed Career Criminal Act
("ACCA") enhancement. Because I believe too many courts
are too deep in the weeds on the matter of the ACCA’s resid-
ual clause, I reluctantly feel required to write separately.
I appreciate very much the conscientious attention of my
colleagues to this case. The profusion of opinions here, how-
ever, illustrates the obvious difficulties that courts are experi-
encing in applying the residual clause of 18 U.S.C.
§ 924(e)(2)(B)(ii). Whether this is due to the fondness of Con-
gress for vague formulations or the propensity of judges to
weave intricate webs of doctrine, I do not know. Whatever the
reason, when an inquiry becomes overly complex, the best
course is to repair to simplicity, which in this case is the con-
gressional intent underlying the ACCA.
It cannot have been the intent of Congress to categorically
sweep up all sorts of non-violent indecent liberties offenses as
predicate ACCA crimes. Neither, however, can it possibly
have been the intent of Congress to categorically exclude as
predicates those crimes where minors were victimized by vio-
lent sexual assaults. For the reasons that follow, I believe the
court has no choice but to adopt in this case a modified cate-
gorical approach.
56 UNITED STATES v. VANN
I.
As its name implies, the ACCA sought to punish particular
types of crimes -– serious drug offenses and violent felonies.
Congress could have attached the ACCA enhancement to a
larger universe of felonies or indeed to all felonies, but it did
not do so. Instead, it addressed violent felonies, and the inclu-
sion of that conduct necessarily means the exclusion of some
other. See H.R. Rep. No. 98-1073, at 3 (1985), reprinted in
1984 U.S.C.C.A.N. 3661, 3662 ("Having established this
need [to enhance sentences for repeat offenders] generally,
the question then remained for the Committee to determine
what particular segment of the career criminal population the
Federal Government should target.").1
II.
In this case, somewhat unusually, Vann’s alleged ACCA
predicates all involved violations of the same indecent liber-
ties statute. That statute, N.C. Gen. Stat. § 14-202.1, is stag-
geringly broad, making it more difficult to determine whether
"[s]erious and substantial risks" of physical injury akin to
those presented by the enumerated crimes "are an inherent
part" of a typical offense. Sykes v. United States, 131 S. Ct.
2267, 2276 (2011).
Nor does parsing the statute into separate offenses under
subsections 14-202.1(a)(1) and 14-202.1(a)(2) help much –-
both are written in such sweeping terms as to confound a cate-
gorical analysis of the risk presented by the "typical" viola-
tion. Section (a)(1) criminalizes "immoral, improper, or
1
It bears note that the status of Vann’s convictions as qualifying ACCA
predicates is all that is at issue here. The validity of those convictions is
not in question, nor could that validity be drawn into doubt in this federal
sentencing proceeding. See Johnson v. United States, 544 U.S. 295 (2005);
Daniels v. United States, 532 U.S. 374 (2001); Custis v. United States, 511
U.S. 485 (1994).
UNITED STATES v. VANN 57
indecent liberties," but those terms are so imprecise as to offer
virtually no guidance as to what conduct is an inherent part
of a § 14-202.1(a)(1) violation. See State v. Lawrence, 612
S.E.2d 678, 687 (N.C. Ct. App. 2005) ("While some action on
the part of the defendant is necessary, what acts are immoral,
improper, or indecent is not statutorily defined.")
Section (a)(2) is not much better. For example, it repeatedly
uses the term "any," reaching "any lewd or lascivious act
upon or with the body or any part or member of the body of
any child." N.C. Gen. Stat. § 14-202.1(a)(2) (emphasis
added). It is well-accepted that this is a broadening term, but
although a "catchall the phrase surely is; . . . to say this is not
to define what it catches." Flora v. United States, 362 U.S.
145, 149 (1960) (discussing the meaning of "any sum"). Nor
do the precise terms of the statute narrow its scope: courts in
North Carolina have adopted dictionary definitions of "lewd"
-– meaning "inciting to sensual desire or imagination" –- and
"lascivious" -– meaning "tending to arouse sexual desire."
See, e.g., State v. Hammett, 642 S.E.2d 454, 458 (N.C. Ct.
App. 2007).
Thus, in addition to the repeated use of the word "any," the
many adjectives in the statute are both fuzzy and expansive,
encompassing a spectrum of acts from the immensely serious
to the more innocuous. The extraordinary breadth of § 14-
202.1 is by design: "the legislature enacted [it] to encompass
more types of [wrongful] behavior, giving children broader
protection than available under other statutes proscribing sex-
ual acts." State v. Etheridge, 352 S.E.2d 673, 682 (N.C.
1987). The statute has achieved this remarkable scope by
making the "[d]efendant’s purpose for committing such act
. . . the gravamen of this offense; the particular act performed
is immaterial." State v. Hartness, 391 S.E.2d 177, 180 (N.C.
1990). We may not, however, take such a shortcut in our
ACCA analysis; we must determine whether an indecent lib-
erties offense "involves conduct" –- the particular act per-
formed in committing a generic violation of the statute -– that
58 UNITED STATES v. VANN
poses a risk comparable to that presented by any of the enu-
merated ACCA predicates.
It bears note that not only does the breadth of the statute
complicate our task of determining what is a typical indecent
liberties offense, but it also stands in sharp contrast to the
notably specific elements of the crimes ACCA does list. For
example, the Supreme Court has held that "burglary" neces-
sarily "contains at least the following elements: an unlawful
or unprivileged entry into, or remaining in, a building or other
structure, with intent to commit a crime." Taylor v. United
States, 495 U.S. 575, 598 (1990). Similarly, the federal Hobbs
Act defines extortion as "the obtaining of property from
another, with his consent, induced by wrongful use of actual
or threatened force." 18 U.S.C. § 1951(b)(2) (2006). These
precise formulations diverge remarkably from the criminaliza-
tion in § 14-202.1(a)(2) of virtually any act done with a pruri-
ent intent either in or out of the presence of a minor. The
indecent liberties offense also differs substantially from other
prohibitions on sexual abuse (and more likely candidates for
categorical treatment) in the North Carolina General Statutes,
such as N.C. Gen. Stat. § 14-27.5A(a),2 which provides that:
(a) A person is guilty of sexual battery if the person,
for the purpose of sexual arousal, sexual gratifica-
tion, or sexual abuse, engages in sexual contact with
another person:
(1) By force and against the will of the other person;
or
(2) Who is mentally disabled, mentally incapaci-
2
This statute provides for punishment as a Class A1 misdemeanor. It is
of course up to the North Carolina legislature how it chooses to categorize
its offenses -– another state could just as easily classify this crime as a fel-
ony. Compare N.C. Gen. Stat. §14-27.5A(a), with Vt. Stat. Ann. tit. 13,
§ 3252(a).
UNITED STATES v. VANN 59
tated, or physically helpless, and the person perform-
ing the act knows or should reasonably know that the
other person is mentally disabled, mentally incapaci-
tated, or physically helpless.
Significantly, this statute incorporates a highly specific def-
inition of "sexual contact" -– "(i) touching the sexual organ,
anus, breast, groin, or buttocks of any person, (ii) a person
touching another person with their own sexual organ, anus,
breast, groin, or buttocks, or (iii) a person ejaculating, emit-
ting, or placing semen, urine, or feces upon any part of
another person." N.C. Gen. Stat. § 14-27.1.5.
It is these sort of specific requirements that enable us to say
with some certainty of a crime that the standard offense car-
ries a serious risk of physical injury to another or "can end in
confrontation leading to violence." Sykes, 131 S. Ct. at 2269.
Thus, the categorical approach will be the one courts most
frequently utilize. But in this case, we are left with a broad
statute that North Carolina courts have described virtually tau-
tologically. See, e.g., State v. McClees, 424 S.E.2d 687, 690
(N.C. Ct. App. 1993) ("Indecent liberties are defined as such
liberties as the common sense of society would regard as
indecent and improper." (internal quotation marks omitted)
(quoting Black’s Law Dictionary (6th ed. 1991))); cf. Osborne
v. Ohio, 495 U.S. 103, 135-36 (1990) ("At common law, the
term ‘lewd’ included any gross indecency so notorious as to
tend to corrupt community morals, an approach that was sub-
jective and dependent entirely on a speaker’s social, moral,
and cultural bias." (internal quotation marks and citations
omitted)).
I simply cannot say that a typical violation of the indecent
liberties statute necessarily entails a risk of physical injury
when the statute does so little to define the conduct necessary
to commit a violation. I have no doubt that many of the
crimes punished under § 14-202.1 are repugnant, and many
may be emotionally traumatizing for the young victims -–
60 UNITED STATES v. VANN
North Carolina does well to punish such conduct. But vile
conduct is not necessarily violent conduct, and psychological
injury alone, though no less real than the physical injury
required by the statute, is not an adequate basis for an ACCA
predicate. See Johnson v. United States, 130 S. Ct. 1265, 1270
(2010) ("The adjective ‘physical’ . . . plainly refers to force
exerted by and through concrete bodies—distinguishing phys-
ical force from, for example, intellectual force or emotional
force.") It is an emotionally tempting but legally unacceptable
use of the ACCA’s residual clause to draw within it any crim-
inal conduct that we as judges understandably deplore and
truly do not like.
"Congress chose to frame ACCA in general and qualitative,
rather than encyclopedic, terms," Sykes, 131 S. Ct. at 2277,
but the quality ACCA predicates share is an unacceptable risk
of physical injury arising in the usual course. Although Sykes
clarifies that the risk of physical harm need not necessarily
arise from "purposeful, violent, and aggressive" conduct to
qualify as an ACCA predicate, id. at 2275 (quoting Begay,
553 U.S. at 145), it reaffirmed the statutory requirement that
the risk posed be physical. In Sykes, there was no need to dif-
ferentiate types of risk; "an inherent part of the offense" of
vehicular flight from law enforcement is a "lack of concern
for the safety of property and persons of pedestrians and other
drivers." Id. at 2269. But the breadth of the indecent liberties
statute includes forms of risk that, while terrible, fall outside
the statute. See State v. Breathette, 690 S.E.2d 1, 5-6 (N.C. Ct.
App. 2010) ("Undoubtedly [N.C. Gen. Stat. § 14-202.1’s]
breadth is in recognition of the significantly greater risk of
psychological damage to an impressionable child from overt
sexual acts." (quoting State v. Banks, 370 S.E.2d 398, 407
(N.C. 1988) (alteration in original))).
In sum, I cannot see how an indecent liberties offense
under either prong of the North Carolina statute can categori-
cally be deemed an ACCA predicate crime of violence. I fur-
ther conclude, as the Supreme Court has instructed, that when
UNITED STATES v. VANN 61
a statute is too broad to categorically serve as an ACCA pred-
icate, the proper approach is not to throw up our hands and
abandon the purpose of the statute, but rather to proceed with
the modified categorical approach.
III.
To say that North Carolina’s indecent liberties statute is so
broad as to preclude categorical classification is thus only a
first step. It does not mean that a violation of § 14-202.1 can
never be an ACCA predicate under the residual clause. In
dealing with statutes such as this one, the Supreme Court has
approved the use of the "modified categorical approach,"
using charging documents, plea colloquys, jury instructions,
and other "conclusive court documents," to assess whether a
defendant was in fact convicted of a crime that in its generic
form would be an ACCA predicate. See Shepard v. United
States, 544 U.S. 13, 26 (2005); Taylor, 495 U.S. at 599-600.
Such analysis is appropriate when "the behavior underlying,
say, breaking into a building differs so significantly from the
behavior underlying, say, breaking into a vehicle that for
ACCA purposes a sentencing court must treat the two as dif-
ferent crimes." Chambers v. United States, 129 S. Ct. 687,
690 (2009). Of course, whether a statute is susceptible to
modified categorical analysis under the ACCA is a federal
question, but one whose answer is often informed by analysis
not only of the statute itself but of accompanying state deci-
sional law.
Here, the modified categorical approach should apply.
Under the North Carolina statute, it is clearly possible for
defendants to be convicted for various forms of conduct that
would constitute "different crimes," some of which would
generically be ACCA predicates. Some defendants have been
charged under § 14-202.1 with conduct amounting to statu-
tory rape, see, e.g., State v. McLean, 580 S.E.2d 431 (N.C. Ct.
App. 2003), which we have previously held not to serve as an
ACCA predicate in United States v. Thornton, 554 F.3d 443
62 UNITED STATES v. VANN
(4th Cir. 2009). Other defendants have been convicted of
more serious forms of sexual assault, see, e.g., State v. Askew,
643 S.E.2d 678 (N.C. Ct. App. 2007), akin to that proscribed
by the Vermont statute that the Second Circuit held qualified
as an ACCA predicate in United States v. Daye, 571 F.3d 225
(2d Cir. 2009) (addressing statute that defined sexual assault
as any "contact between the penis and the vulva, the penis and
the anus, the mouth and the penis, the mouth and the vulva,
or any intrusion, however slight, by any part of a person’s
body or any object into the genital or anal opening of
another." Id. at 230 (quoting Vt. Stat. Ann. tit. 13,
§ 3251(1)).).
Here, however, the Shepard documents -– a 1991 indict-
ment and a 1998 information -– do no more than parrot back
the wide-ranging words of the North Carolina statute itself,
and so do not describe "[t]he nature of the behavior that likely
underlies [the] statutory phrase." Chambers, 129 S. Ct. at 690.
As a result, the modified categorical approach in this case is
no more illuminating than the categorical one, and we are left
with the bare words of a statute that is written about as
broadly as it possibly could be. Given the pattern of miscon-
duct here, I suspect the defendant committed qualifying viola-
tions, but suspicions are insufficient, and the record, like the
proverbial cupboard, is too bare.3
Thus, even though application of the modified categorical
approach is appropriate, it yields no victory for the govern-
ment here. My dear friend Judge King’s concurring opinion—
which I hereinafter refer to as "the concurrence"—goes fur-
ther, however, and declares that modified categorical analysis
is not suitable. The concurrence insists on rejecting the gov-
ernment’s contention that the modified categorical approach
is implicated here, ante at 20, and reiterates that "the modified
3
Because the per curiam opinion’s holding is ultimately premised on
this conclusion, I believe the discussion of Vann’s guilty pleas, ante at
8-10, is unnecessary to the disposition of the case.
UNITED STATES v. VANN 63
categorical approach cannot apply to Vann’s situation," ante
at 24. With the greatest respect, I think that the categorical
approach of the concurrence would have the unintended effect
of visiting serious harms on children.
This categorical approach also strips the North Carolina
statute of all effect. While I agree that for purposes of predict-
ability and conserving trial court resources, the categorical
approach is to be preferred, a respect for the efforts of the leg-
islative branch may require that we recognize through a modi-
fied approach those instances of violent conduct that a statute
seeks to reach. A different case might come out differently;
a more specific set of Shepard charging documents could
reveal "whether the plea had necessarily rested on" the sort of
sexual assault that generally presents a serious potential risk
of physical injury. Shepard, 544 U.S. at 21. I cannot under-
stand how the concurrence can properly note the breadth of
the statute and fail to recognize that it is that very breadth that
makes further inquiry under the strict Shepard standards
appropriate.
The concurrence suggests that my differences must be with
"the governmental bodies that created the controlling legal
principles." Ante at 28 n9. Judge Davis similarly charges that
I have "confuse[d] the important law-making tasks committed
by our constitutional structure to the legislature of North Car-
olina . . . with the adjudicative tasks committed to federal
judges." Ante at 35 (Op. of Davis, J.). But I have no quarrel
with either of these two duly enacted and presumptively valid
statutes. My reservations have to do with the fact that ruling
all indecent liberties offenses non-violent gives neither the
state nor the federal statute any real effect. A state has every
expectation that its convictions will be properly treated and
respected under federal law, and this is no less true of North
Carolina’s efforts here to protect the most vulnerable mem-
bers of our society. The concurrence repeatedly invokes prin-
ciples of federalism, but its refusal to recognize any role here
for the North Carolina statute is the very antithesis of what
64 UNITED STATES v. VANN
dual sovereignty is about. Under the concurrence’s ACCA
analysis, even the most savage sexual assault against even the
youngest child counts for nothing—nothing—just because it
was prosecuted as a violation of § 14-202.1. I do not under-
stand why this is so.
The categorical approach, as described by the concurrence,
immunizes from the ACCA’s reach a wide range of violent
crimes that, although punished under this broad statute, could
undoubtedly serve as ACCA predicates in their generic form.
If, for example, a federal district judge was persuaded by a
charge or plea colloquy that a young child had been bruised
and beaten in the course of sexual aggression, how can that
act not generically implicate ACCA? See, e.g., Model Penal
Code § 213.2 (2001) (Deviate Sexual Intercourse by Force or
Imposition).4
4
The concurrence considers it dispositive that "North Carolina prece-
dent demonstrates that the essential elements of [§ 14-202.1 and parallel
provisions of the Model Penal Code] are materially dissimilar." Ante at 26.
Judge Davis posits that the modified categorical approach is unacceptable
here because the North Carolina courts have not required an act of vio-
lence as an element of an indecent liberties offense. Ante at 42 (Op. of
Davis, J.). Both of these statements misapprehend the whole purpose of
the modified categorical approach, which applies in instances, such as this
one, where the statutory definition of the crime is broader than the generic
definition. See Taylor, 495 U.S. at 600 ("A few States’ burglary statutes,
however, . . . define burglary more broadly, e.g., by eliminating the
requirement that the entry be unlawful . . . . We therefore must address the
question whether, in the case of a defendant who has been convicted under
a nongeneric-burglary statute, the Government may seek enhancement on
the ground that he actually committed a generic burglary.")
It is thus irrelevant to the modified categorical approach that the North
Carolina statute does not perfectly track the elements of generic sexual
assault; the proper course under those circumstances is "to determine
whether a plea of guilty to [a crime] defined by a nongeneric statute neces-
sarily admitted elements of the generic offense" by reference to "the
charging document, the terms of a plea agreement or transcript of colloquy
between judge and defendant in which the factual basis for the plea was
confirmed by the defendant, or to some comparable judicial record of this
information." Shepard, 544 U.S. at 26.
UNITED STATES v. VANN 65
IV.
Congress wanted violent crimes to count as predicates
under the ACCA and non-violent crimes not to count. A mod-
ified categorical approach here best honors its intent. Hewing
to categorical absolutes will have the most serious effects.
Ruling indecent liberties offenses categorically non-violent
will allow brutal acts committed against children under a state
statute designed to protect them to escape recognition under
ACCA, eviscerating all the while the reach of a federal statute
that is itself designed to protect citizens from just such depre-
dations. Conversely, ruling indecent liberties violations cate-
gorically to be ACCA predicates will impermissibly sweep up
who knows what prurient, but non-violent, acts. I fear we are
so ensnared by our doctrine (federal or state question, single
or dual offense, conjunctive or disjunctive charges, etc.) that
we forget both those whom Congress and the state of North
Carolina are attempting to protect and the nature of the acts
from which law is trying to shield them. There is a way to
safeguard defendants from the breadth of this enactment, to
require that the evidence as to them meet strict Shepard stan-
dards, and still to preserve some place for children as special
wards of the law and state. Because the modified categorical
approach herein applied best captures each of these three
aims, I am happy to concur in the judgment.
NIEMEYER, Circuit Judge, concurring in part and dissenting
in part:
This case presents the question whether Torrell Vann’s sen-
tence for possessing a firearm in violation of 18 U.S.C.
§ 922(g) was properly enhanced under ACCA for his three
previous convictions under the North Carolina indecent liber-
ties statute, N.C. Gen. Stat. § 14-202.1. More specifically, we
must determine whether each of Vann’s three previous con-
victions constitutes a "violent felony," as that term is used in
18 U.S.C. § 924(e)(2).
66 UNITED STATES v. VANN
The district court concluded that Vann’s three previous
convictions under the North Carolina indecent liberties statute
constituted violent felonies and accordingly sentenced him to
a statutory minimum sentence of 15-years’ imprisonment. I
would affirm the district court’s sentence.
Because North Carolina’s indecent liberties statute contains
at least two separate generic offenses for ACCA purposes, it
is appropriate, as the majority of this court concludes, to
employ the modified categorical approach articulated in Tay-
lor v. United States, 495 U.S. 575, 602 (1990), to determine
whether the offenses used to enhance Vann’s sentence were
"violent felonies." Under the modified categorical approach,
I would conclude (1) that each of Vann’s three previous con-
victions necessarily encompassed both of the offenses set
forth in N.C. Gen. Stat. § 14-202.1, given the conjunctive
wording of the charging documents and Vann’s unqualified
guilty pleas to the charges so stated; and (2) that the latter of
the two offenses in § 14-202.1—"[w]illfully commit[ing] or
attempt[ing] to commit any lewd or lascivious act upon or
with the body or any part or member of the body of any child
of either sex under the age of 16 years"—was properly classi-
fied as a "violent felony" under 18 U.S.C. § 924(e)(2)(B)(ii),
applying the analysis prescribed by the Supreme Court in its
recent decision in Sykes v. United States, 131 S. Ct. 2267
(2011).
A majority of the judges of this court conclude that even
though the modified categorical approach may be applied in
determining whether Vann’s previous convictions were for
violent felonies, the Shepard-approved documents before the
district court were not sufficient to determine whether Vann’s
previous convictions qualified as violent felonies for ACCA
purposes. In supporting this holding, Judge Keenan’s opinion,
in which four judges concur, concludes that subsection (a)(1)
of N.C. Gen. Stat. § 14-202.1 "reference[s] statutorily-
proscribed behavior that is merely ‘improper’ and, thus, is
non-violent. By contrast, the elements of [subsection (a)(2)]
UNITED STATES v. VANN 67
proscribe acts that under the ACCA would be considered vio-
lent in nature," citing Sykes. Ante, at 53-54, 53 n.2. Judge Wil-
kinson appears to agree more generally that "it is clearly
possible for defendants to be convicted for various forms of
conduct that would constitute ‘different crimes’ [under the
indecent liberties statute], some of which would generically
be ACCA predicates." Ante, at 67.
Judge King’s opinion, in which three judges concur, con-
cludes, however, that even if it were determined that Vann
willfully committed or attempted to commit a lewd of lascivi-
ous act upon the body of a child, in violation of N.C. Gen.
Stat. § 14-202.1(a)(2), the crime would not constitute a "vio-
lent felony" for ACCA purposes. In reaching this conclusion,
Judge King’s opinion fails to conduct the Sykes analysis, sim-
ply concluding ipse dixit that Vann’s crimes did not place his
victims at serious potential risk of injury. See ante, at 19-20.
Instead of conducting the Sykes analysis, he applies an irrele-
vant and discarded standard that, he suggests, requires that the
crime, in order to be a violent felony, involve "physical con-
tact" or a "touching" or perhaps even purposeful, violent, and
aggressive conduct. Ante, at 18, 20, 21-22, 26.
Because I conclude that we can determine that Vann’s
guilty pleas included pleas to the generic crime encompassed
in "willfully committing or attempting to commit a lewd or
lascivious act upon or with the body" of a child, as prohibited
in § 14-202.1(a)(2), I reach the question of whether these pre-
vious convictions were violent felonies under ACCA and con-
clude, as the majority concludes, that they were violent
felonies.
Accordingly, I concur in those portions of the judgment
holding that the modified categorical approach may be used
in this case1 and concluding that a violation of N.C. Gen. Stat.
1
This portion of the judgment is joined by eight judges (Chief Judge
Traxler and Judges Wilkinson, Niemeyer, Shedd, Agee, Keenan, Wynn
and Diaz).
68 UNITED STATES v. VANN
§ 14-202.1(a)(2) constitutes a violent felony under ACCA,2
and I dissent from the judgment insofar as it holds that the
Shepard-approved documents in this case do not justify a
determination that Vann pleaded guilty to violations of sub-
section (a)(2) of the statute.
I
In the early morning hours of January 20, 2008, officers in
Lumberton, North Carolina, responded to a 911 call from Tor-
rell Vann’s ex-girlfriend, who complained that Vann was
insisting that he be let inside her house. By the time officers
arrived, however, Vann had left. About an hour later, Vann
returned and entered the ex-girlfriend’s house through an
unlocked back door. When the ex-girlfriend asked him to
leave, Vann pulled out a pistol, put it to his head, and threat-
ened to kill himself if she would not talk to him. Although
Vann put the weapon away when the ex-girlfriend became
upset and eventually left the residence, the ex-girlfriend again
called the police. A short time later, officers stopped Vann’s
vehicle, finding that his speech was slurred, his license had
been suspended, and he was in possession of a Bersa .380 pis-
tol and ammunition.
Vann was charged with being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1), and the indict-
ment included the allegation that he had three previous con-
2
This portion of the judgment is joined by seven judges (Chief Judge
Traxler and Judges Niemeyer, Shedd, Agee, Keenan, Wynn, and Diaz). In
her opinion, representing five judges, Judge Keenan concludes that a vio-
lation of N.C. Gen. Stat. § 14-202.1(a)(2) is a violent felony, stating, "a
violation of subsection (a)(2) of the indecent liberties statute ordinarily
‘presents a serious potential risk of physical injury to another’ within the
meaning of the ACCA’s residual clause. See 18 U.S.C. § 924(e)(2)(B)(ii)."
Ante, at 53 n.2. Thus, because I, with the concurrence of Judge Shedd,
reach the same conclusion, seven judges (a majority of the twelve sitting
on this case) conclude that a violation of subsection (a)(2) would consti-
tute a violent felony for purposes of ACCA.
UNITED STATES v. VANN 69
victions for "violent felonies," as defined in 18 U.S.C.
§ 924(e)(2)(B). Vann pleaded guilty to the charge pursuant to
a written plea agreement.
Vann’s presentence report described his extensive criminal
history, including three prior convictions for taking indecent
liberties with a child, in violation of N.C. Gen. Stat. § 14-
202.1. The statute provides:
(a) A person is guilty of taking indecent liberties
with children if, being 16 years of age or more and
at least five years older than the child in question, he
either:
(1) Willfully takes or attempts to take any
immoral, improper, or indecent liberties
with any child of either sex under the age
of 16 years for the purpose of arousing or
gratifying sexual desire; or
(2) Willfully commits or attempts to com-
mit any lewd or lascivious act upon or with
the body or any part or member of the body
of any child of either sex under the age of
16 years.
(b) Taking indecent liberties with children is punish-
able as a Class F felony.
The probation officer concluded that Vann’s indecent liberties
convictions were "violent felonies," and thus classified Vann
as an armed career criminal under ACCA, subjecting Vann to
a Sentencing Guidelines range of 180 to 210 months’ impris-
onment and a mandatory minimum sentence of 180 months’
imprisonment.
At sentencing, Vann objected to the probation officer’s
application of the ACCA enhancement, arguing that his inde-
70 UNITED STATES v. VANN
cent liberties convictions were not violent felonies under
Begay v. United States, 553 U.S. 137 (2008), and United
States v. Thornton, 554 F.3d 443 (4th Cir. 2009) (holding that
Virginia’s statutory rape offense is not a violent felony under
ACCA). The government, in contrast, argued that the matter
was controlled by United States v. Pierce, 278 F.3d 282 (4th
Cir. 2002), which held that a violation of N.C. Gen. Stat.
§ 14-202.1 is a "crime of violence" for purposes of the Sen-
tencing Guidelines’ career offender enhancement, U.S.S.G.
§§ 4B1.1, 4B1.2(a). The district court overruled Vann’s
objection, held that Vann was an armed career criminal under
ACCA, and sentenced him to 180 months’ imprisonment.
This appeal followed.
II
A violation of 18 U.S.C. § 922(g) ordinarily carries a maxi-
mum sentence of 10 years’ imprisonment. 18 U.S.C.
§ 924(a)(2). But ACCA provides a sentencing enhancement
based on the defendant’s criminal history, providing that a
person who violates § 922(g) and has "three previous convic-
tions . . . for a violent felony or a serious drug offense, or
both, committed on occasions different from one another"
must be sentenced to at least 15 years’ imprisonment. Id.
§ 924(e)(1). The Act defines a "violent felony" as "any crime
punishable by imprisonment for a term exceeding one year"
that:
(i) has as an element the use, attempted use, or
threatened use of physical force against the person of
another; or
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that pre-
sents a serious potential risk of physical injury to
another[.]
Id. § 924(e)(2)(B).
UNITED STATES v. VANN 71
The government contends that Vann’s three indecent liber-
ties convictions qualify as "violent felonies" under the final,
or "residual" clause in subparagraph (ii) of § 924(e)(2)(B),
which qualifies crimes that "present[ ] a serious potential risk
of physical injury to another" as "violent felonies." To reach
this conclusion, it makes three points.
First, the government asserts that N.C. Gen. Stat. § 14-
202.1 contains two distinct offenses for ACCA purposes, one
set forth in subsection (a)(1) and the other in subsection
(a)(2), such that the "modified categorical approach" is appro-
priate to determine which of the offenses formed the basis for
Vann’s prior convictions. See Chambers v. United States, 555
U.S. 122, 126 (2009) (applying the modified categorical
approach to a statute which "place[d] together in a single
numbered statutory section several different kinds of behav-
ior"). Second, it maintains that Vann was convicted of com-
mitting both offenses contained in the indecent liberties
statute because he pleaded guilty to charging documents
which alleged that he had violated subsection (a)(1) and sub-
section (a)(2). See Shepard v. United States, 544 U.S. 13, 25
(2005) (plurality opinion) (indicating that the nature of a prior
conviction may be determined by "the defendant’s own
admissions"). And third, it claims that the offense described
in subsection (a)(2), "[w]illfully commit[ting] or attempt[ing]
to commit any lewd or lascivious act upon or with the body
. . . of any child . . . under the age of 16 years," qualifies as
a "violent felony" because it ordinarily involves the degree of
risk required by the residual clause and the Supreme Court’s
decisions interpreting that clause. See 18 U.S.C.
§ 924(e)(2)(B)(ii); Sykes v. United States, 131 S. Ct. 2267
(2011); James v. United States, 550 U.S. 192 (2007).
Vann contests all three of these points. He argues that the
modified categorical approach is inapplicable because the
North Carolina courts have construed the indecent liberties
statute as containing "a single offense." State v. Hartness, 391
S.E.2d 177, 180 (N.C. 1990); see State v. Jones, 616 S.E.2d
72 UNITED STATES v. VANN
15, 20 (N.C. Ct. App. 2005). He maintains that these state
court decisions are binding upon us, such that we must evalu-
ate the indecent liberties statute as a whole, using the more
traditional "categorical approach." He claims that under that
approach, his convictions cannot qualify as violent felonies
because the indecent liberties statute’s two subsections, taken
together, cover a broad range of conduct, some of which is
not "purposeful, violent, and aggressive." Begay, 553 U.S. at
143-44; see State v. Etheridge, 352 S.E.2d 673, 682 (N.C.
1987) (stating that the indecent liberties statute is intended to
cover a broad range of behavior).
Vann insists that the result remains the same if the modified
categorical approach does apply, either because the records of
his prior convictions are not properly before the court, thus
leaving us without any basis upon which to conclude that he
was convicted of the more violent subsection (a)(2) offense;
or because his guilty pleas, like a jury verdict, could not
establish which alternative statutory element formed the basis
for his convictions. See Malta-Espinoza v. Gonzales, 478 F.3d
1080, 1082-83 & n.3 (9th Cir. 2007).
Finally, Vann contends that even if both of the issues
described above are resolved in the government’s favor, his
convictions still do not qualify as violent felonies because
N.C. Gen. Stat. § 14-202.1(a)(2) does not require physical
contact between the defendant and the victim, see State v.
Hammett, 642 S.E.2d 454, 458 (N.C. Ct. App. 2007), and
therefore does not categorically involve violent and aggres-
sive behavior, see Begay, 553 U.S. at 143-44.
The parties’ positions thus raise three questions: (1)
whether the modified categorical approach should be used to
classify Vann’s indecent liberties convictions; (2) whether
Vann’s guilty pleas establish that he was convicted of the
more violent of the two offenses set forth in N.C. Gen. Stat.
§ 14-202.1, as stated in subsection (a)(2); and (3) whether
"[w]illfully commit[ting] or attempt[ing] to commit any lewd
UNITED STATES v. VANN 73
or lascivious act upon or with the body or any part or member
of the body of any child of either sex under the age of 16
years" qualifies as a "violent felony" under 18 U.S.C.
§ 924(e)(2)(B)(ii). I address each of these questions seriatim.
A
Beginning with Taylor, the Supreme Court has held that
determining whether previous convictions qualify as "violent
felonies" under ACCA "generally requires [a sentencing]
court to look only to the fact of conviction and the statutory
definition of the prior offense." Taylor, 495 U.S. at 602. This
"categorical approach" essentially requires courts to consider
only the elements of the offense of conviction and not the
facts giving rise to the conviction. See Chambers, 555 U.S. at
125 ("[ACCA’s] defining language, read naturally, uses ‘fel-
ony’ to refer to a crime as generally committed. And by so
construing the statute, one avoids the practical difficulty of
trying to ascertain at sentencing . . . whether the present
defendant’s prior crime, as committed on a particular occa-
sion, did or did not involve violent behavior"). Thus, when
confronting the question in James whether an attempted bur-
glary conviction was a "violent felony," the Court "ex-
amine[d], not the unsuccessful burglary the defendant
attempted on a particular occasion, but the generic crime of
attempted burglary." Chambers, 555 U.S. at 125 (characteriz-
ing James, 550 U.S. at 204-06).
The Court has qualified this general principle, however, by
adding that the categorical approach may be modified to "per-
mit the sentencing court to go beyond the mere fact of convic-
tion" in a narrow range of cases where the statute of
conviction essentially contains multiple offenses. See Taylor,
495 U.S. at 602; see also Nijhawan v. Holder, 129 S. Ct.
2294, 2299 (2009). In these instances, the modified categori-
cal approach helps courts "choose the right category," Cham-
bers, 555 U.S. at 126, and therefore "which crime within a
74 UNITED STATES v. VANN
statute the defendant committed," United States v. Woods, 576
F.3d 400, 405 (7th Cir. 2009).
Two recent ACCA cases decided by the Supreme Court,
Chambers and Johnson v. United States, 130 S. Ct. 1265
(2010), demonstrate how the modified categorical approach
works in practice. In each of those cases, the defendant was
potentially subject to a sentence enhancement under ACCA,
depending on how one of the defendant’s previous convic-
tions was classified. Identifying the proper classification
required further analysis, however, because the statute under-
lying the previous conviction was, on its face, divisible into
multiple offenses, in that it listed within a single section two
or more groupings of elements, each of which (1) covered a
conceptually distinct criminal act and (2) was sufficient to
constitute a complete offense.
In Chambers, the defendant’s prior conviction arose under
an Illinois statute which provided:
[Any felon who] intentionally escapes from any
penal institution or from the custody of an employee
of that institution commits a Class 2 felony; how-
ever, [a felon] who knowingly fails to report to a
penal institution or to report for periodic imprison-
ment at any time or knowingly fails to return from
furlough or from work and day release or who know-
ingly fails to abide by the terms of home confine-
ment is guilty of a Class 3 felony.
Ill. Comp. Stat., ch. 720, § 5/31-6(a) (West Supp. 2008).
Stressing that "[t]he nature of the behavior that likely under-
lies a statutory phrase matters," the Chambers Court applied
the modified categorical approach because the statute con-
tained "at least two separate crimes": "failure to report," on
the one hand, and "escape from custody" on the other. Cham-
bers, 555 U.S. at 126-27. To support this conclusion, the
Court reasoned (1) that "failure to report" "seem[ed] less
UNITED STATES v. VANN 75
likely to involve a risk of physical harm than the less passive,
more aggressive behavior" associated with escape crimes, and
(2) that the statute listed failure to report and escape sepa-
rately in its title and body. Id. at 127.
Likewise, in Johnson the Court assessed a defendant’s con-
viction under a Florida battery statute which proscribed
1. Actually and intentionally touch[ing] or str[iking]
another person against the will of the other; or
2. Intentionally caus[ing] bodily harm to another per-
son.
Fla. Stat. § 784.03(1)(a) (2003). Because the statute’s ele-
ments were stated in the disjunctive and covered qualitatively
different types of behavior, the Court concluded that it con-
sisted of three separate offenses for ACCA purposes: (1)
intentionally causing bodily harm; (2) intentionally striking a
victim; or (3) actually and intentionally touching a victim. See
Johnson, 130 S. Ct. at 1269. With this application of the mod-
ified categorical approach to the defendant’s battery convic-
tion, the Court provided the general rule for using the
modified categorical approach when confronted with a statute
having alternative elements: "When the law under which the
defendant has been convicted contains statutory phrases that
cover several different generic crimes . . . the ‘modified cate-
gorical approach’ . . . permits a court to determine which stat-
utory phrase was the basis for the conviction." Id. at 1273
(internal citation omitted).
In keeping with Chambers and Johnson, this court has
applied the modified categorical approach when "different
types of behavior satisfy an element of the offense and the
proscribed behaviors constitute at least two separate crimes
for ACCA purposes," United States v. Rivers, 595 F.3d 558,
562-63 (4th Cir. 2010), or when "the fact of conviction and
the statutory definition of the offense are unduly vague or
76 UNITED STATES v. VANN
ambiguous," United States v. Harcum, 587 F.3d 219, 223 (4th
Cir. 2009).
Applied to the instant case, these precedents set up an ini-
tial, binary decision for the court to make: if the indecent lib-
erties statute contains only one substantive offense, the
categorical approach applies. But if it contains two or more
substantive offenses, the modified categorical approach must
be used instead.
The North Carolina indecent liberties statute at issue here
is no different than the laws at issue in Johnson and Cham-
bers, as it contains multiple, alternative elements, each of
which addresses a different form of criminal behavior. As
does the majority of this court, I conclude, as a matter of fed-
eral law, that the modified categorical approach is the proper
device for evaluating Vann’s prior convictions.
On its face, the indecent liberties statute provides that a
defendant who is "16 years of age or more and at least five
years older than the child in question" is guilty of "taking
indecent liberties with children if . . . he either":
(1) Willfully takes or attempts to take any immoral,
improper, or indecent liberties with any child of
either sex under the age of 16 years for the purpose
of arousing or gratifying sexual desire; or
(2) Willfully commits or attempts to commit any
lewd or lascivious act upon or with the body or any
part or member of the body of any child of either sex
under the age of 16 years.
N.C. Gen. Stat. § 14-202.1(a) (emphasis added). The indecent
liberties statute is in this regard quite similar to the Florida
battery law at issue in Johnson, as "the elements of [each]
offense" are stated in the "disjunctive." Johnson, 130 S. Ct. at
1269. North Carolina courts have made this point repeatedly,
UNITED STATES v. VANN 77
observing that a defendant’s guilt may be "established by a
finding of various alternative elements," Hartness, 391 S.E.2d
at 180 (emphasis added); that "G.S. § 14-202.1 states disjunc-
tively two alternative means of proving one element of the
offense of indecent liberties," Jones, 616 S.E.2d at 20
(emphasis added and omitted); and that "the statute sets forth
two theories upon which a conviction for indecent liberties
may be based," State v. Moss, No. COA07-607, 2008 N.C.
App. LEXIS 237, at *5 (N.C. Ct. App. Feb. 19, 2008)
(emphasis added).3
The North Carolina indecent liberties statute, N.C. Gen.
Stat. § 14-202.1, is also analogous to the escape provision
addressed in Chambers, as both "place[ ] together in a single
numbered statutory section several different kinds of behav-
ior." Chambers, 555 U.S. at 126 (emphasis added). Just as
"[t]he behavior that likely underlies a failure to report [is] less
likely to involve a risk of physical harm than the less passive,
more aggressive behavior underlying an escape from cus-
tody," id. at 127, the flashing, illicit photography, and other
acts covered by subsection (a)(1) of the North Carolina statute
present a lower risk of physical harm than instances in which
a defendant "willfully commits or attempts to commit [a]
lewd or lascivious act upon or with the body" of a child cov-
ered by subsection (a)(2) of the North Carolina statute
(emphasis added). Compare State v. Every, 578 S.E.2d 642,
648 (N.C. Ct. App. 2003) (cataloging typical subsection (a)(1)
offenses, some of which can be committed at a distance), with
State v. Wilson, 361 S.E.2d 105, 106-07 (N.C. Ct. App. 1987)
and State v. Byrd, 312 S.E.2d 528, 530 (N.C. Ct. App. 1984)
(describing garden-variety subsection (a)(2) violations involv-
3
Although we are normally bound by the North Carolina Supreme
Court’s construction of the elements of the underlying offense, see John-
son v. United States, 130 S. Ct. 1265, 1269 (2010), where, as here, the
North Carolina Supreme Court has not passed upon all of the relevant
issues, we may consider and defer to North Carolina intermediate court
decisions, see Assicurazioni Generali, S.p.A. v. Neil, 160 F.3d 997, 1002
(4th Cir. 1998).
78 UNITED STATES v. VANN
ing physical contact or sexual conduct occurring in close
quarters).
Subsections (a)(1) and (a)(2) of the North Carolina statute
also correspond to two different sections of the Model Penal
Code, on which both the Supreme Court and our court have
relied to differentiate between various "generic" crimes for
ACCA purposes. See Taylor, 495 U.S. at 598 n.8; United
States v. Peterson, 629 F.3d 432, 436 (4th Cir. 2011). Specifi-
cally, the offense defined in subsection (a)(2) is quite similar
to what the Model Penal Code labels "sexual assault." Under
the Model Penal Code, "A person who has sexual contact with
another not his spouse, or causes such other to have sexual
contact with him, is guilty of sexual assault . . . if . . . the other
person is less than [16] years old and the actor is at least
[four] years older than the other person." Model Penal Code
§ 213.4 (1962) (brackets in original). The Model Penal Code
defines "sexual contact" as "any touching of the sexual or
other intimate parts of the person for the purpose of arousing
or gratifying sexual desire." Id. Taken together, these ele-
ments closely approximate subsection (a)(2)’s coverage of
"lewd or lascivious act[s] upon or with the body or any part
or member of the body of any child of either sex under the
age of 16 years." Both provisions have a gratification or las-
civiousness component, both require a similar age differential,
and both focus on physical contact of a sexual or intimate
nature. See State v. Strickland, 335 S.E.2d 74, 75 (N.C. Ct.
App. 1985) ("Section (a)(2) . . . concerns a lewd or lascivious
act committed or attempted on a child" (emphasis added)).
The crime contained in subsection (a)(1), in contrast, is
more closely aligned with the Model Penal Code’s definition
of "indecent exposure." A person is guilty of indecent expo-
sure under the Model Penal Code "if, for the purpose of
arousing or gratifying sexual desire of himself or of any per-
son other than his spouse, he exposes his genitals under cir-
cumstances in which he knows his conduct is likely to cause
affront or alarm." Model Penal Code § 213.5 (1962). Subsec-
UNITED STATES v. VANN 79
tion (a)(1) contains a nearly identical arousal or gratification
element, and, while it proscribes a broader range of conduct,
it also unquestionably applies to indecent exposure of the kind
described in the Model Penal Code. See, e.g., State v. Law-
rence, 627 S.E.2d 609, 610 (N.C. 2006) (describing a "game"
in which the defendant exposed himself to a child as a "spe-
cific incident[ ] of indecent liberties with a minor"); Strick-
land, 335 S.E.2d at 75 (holding that masturbating outdoors,
62 feet away from minor children, violated subsection (a)(1)).
It does not, on the other hand, contain a "sexual contact" ele-
ment akin to that found in the Model Penal Code’s definition
of "sexual assault." See Strickland, 335 S.E.2d at 75 (differen-
tiating subsections (a)(1) and (a)(2) on this basis).
Because subsections (a)(1) and (a)(2) substantially corre-
spond to two different Model Penal Code provisions, prece-
dent dictates that they should be treated as presumptively
different generic crimes mandating application of the modi-
fied categorical approach. Cf. Peterson, 629 F.3d at 436-37.
Vann offers a superficially appealing, albeit flawed, syllo-
gism in response. He reasons that (1) federal courts are
"bound by [state courts’] interpretation of state law, including
[their] determination of [a statute’s] elements," Johnson, 130
S. Ct. at 1269; (2) the North Carolina Supreme Court has
stated that "[t]he crime of indecent liberties is a single offense
which may be proved by evidence of the commission of any
one of a number of acts," Hartness, 391 S.E.2d at 180
(emphasis added); therefore (3) we must treat the indecent lib-
erties statute as a single offense and apply the categorical
approach in our ACCA analysis.
This argument rests upon a mistaken understanding of the
role state court decisions, such as Hartness, play in the ACCA
analysis. We are bound by North Carolina’s construction of
§ 14-202.1, including, for instance, its definition of various
terms, its identification of the necessary elements of an
offense, or its application of exceptions. This rule requires us,
80 UNITED STATES v. VANN
for example, to adhere to state court decisions which interpret
the phrase "with any child" in subsection (a)(1) to encompass
both the physical and "constructive" presence of the child. See
State v. McClees, 424 S.E.2d 687, 689 (N.C. Ct. App. 1993).
At the same time, state court decisions cannot bind us on
questions of federal law, such as whether a crime contains
more than one offense and thus requires that we use the modi-
fied categorical approach in our ACCA analysis. Even if the
North Carolina courts had answered this question—which
they have not—we would not be bound by their conclusion.
In Johnson, the Supreme Court observed that it was "bound
by the Florida Supreme Court’s interpretation of state law,
including its determination of the elements of" Florida’s bat-
tery statute. 130 S. Ct. at 1269. The Court thus relied on the
Florida Supreme Court’s interpretation of the statute’s "actu-
ally and intentionally touching" element as encompassing
"any intentional physical contact, ‘no matter how slight,’" in
determining whether the defendant’s prior battery conviction
qualified as an ACCA predicate. Id. at 1269-70 (quoting State
v. Hearns, 960 So. 2d 211, 218 (Fla. 2007)). At the same
time, however, the Johnson Court rejected the defendant’s
argument that it was "bound by the Florida Supreme Court’s
conclusion in Hearns that [unwanted physical touching] does
not constitute ‘physical force’" for ACCA purposes. Id. at
1269. It explained:
The meaning of "physical force" in § 924(e)(2)(B)(i)
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.
Id.4
4
Judge King’s opinion, purporting to apply North Carolina law, states
that the North Carolina courts have ruled that the indecent liberties statute
constitutes a single offense and that therefore the use of the modified cate-
gorical approach is inappropriate. This conclusion, however, is flawed.
UNITED STATES v. VANN 81
The Supreme Court’s handling of state law in Shepard rein-
forces this point for the case before us. In Shepard, the Court
analyzed a defendant’s prior convictions arising under a Mas-
sachusetts statute which, in a single sentence, proscribed two
different types of burglary: "generic" burglary of buildings
and "non-generic" burglary of cars and boats. See Shepard,
544 U.S. at 17. The Court concluded that the modified cate-
gorical approach applied to the defendant’s convictions, given
the statute’s alternative elements, see id. at 26, and did so
Once the elements of a state-law crime have been defined by state law,
the question whether the statute contains two crimes so as to justify appli-
cation of the modified categorical approach is a question of federal, not
North Carolina, law. See Johnson, 130 S. Ct. at 1269-70; Taylor, 495 U.S.
at 589.
Furthermore, the North Carolina courts do recognize that the two sub-
sections of the indecent liberties statute provide alternative elements of
one offense. See Jones, 616 S.E.2d at 20 (noting that the statute "states
disjunctively two alternative means of proving one element of the offense"
(emphasis omitted)); Hartness, 391 S.E.2d at 180 (noting the indecent lib-
erties statute’s "alternative elements"); Strickland, 335 S.E.2d at 75 (treat-
ing subsections (a)(1) and (a)(2) of the indecent liberties statute
distinctively).
Indeed, Judge King cites Jones to support its statement that the crime
of indecent liberties is a single offense, without recognizing that the same
case also holds that the indecent liberties statute contains alternative ele-
ments for violating that single offense. See Jones, 616 S.E.2d at 20. In
Jones, the defendant was charged with two counts of taking indecent liber-
ties based on a single act of sexual intercourse with a child. See id. The
State attempted to justify both charges by arguing that "[s]ubsections
(a)(1) and (a)(2) are separate criminal offenses with different elements."
Id. But the court logically rejected this argument, holding that "although
the statute sets out alternative acts that might establish an element of the
offense, a single act can support only one conviction." Id. Thus, Jones
stands not for the proposition that subsections (a)(1) and (a)(2) constitute
a single, undifferentiated offense, but rather that one incident may not sup-
port separate convictions under each subsection. Indeed, Jones explicitly
undercuts Judge King’s argument by its pronouncement that N.C. Gen.
Stat. § 14-202.1 "states disjunctively two alternative means of proving one
element of the offense of indecent liberties." Id.
82 UNITED STATES v. VANN
despite the fact that Massachusetts state courts treat burglary
as a single offense, see Commonwealth v. Rudenko, 907
N.E.2d 254, 257 (Mass. Ct. App. 2009) (referring to "[t]he
crime of breaking and entering" (emphasis added)).
Shepard, Johnson, and the rest of the body of ACCA case
law make clear that it is the elements of an offense, and not
the label state law puts upon it, that determines whether the
modified categorical approach applies. As the Court explained
in Taylor, "Congress intended that the enhancement provision
be triggered by crimes having certain specified elements, not
by crimes that happened to be labeled ‘robbery’ or ‘bur-
glary.’" 495 U.S. at 588-89. Whether or not a crime is subject
to explication through the modified categorical approach thus
turns on its "characteristics" rather than the way in which it
is "labeled by state law." Id. at 589. Under this principle, the
North Carolina Supreme Court’s conclusion in Hartness that
the indecent liberties statute contains "various alternative ele-
ments," 391 S.E.2d at 180, disposes of Vann’s federalism
argument.
Vann presses yet further, arguing that even if the statute
contains two different elements, the North Carolina courts
nonetheless treat each of them "interchangeably." This prac-
tice, Vann contends, means that the two elements collapse
into one as a practical matter. Although decisions applying
one subsection do occasionally rely upon precedents involv-
ing the other, see State v. Kistle, 297 S.E.2d 626 (N.C. Ct.
App. 1982), or state that the two subsections overlap in some
circumstances, see Wilson, 361 S.E.2d at 108, the North Caro-
lina courts have nonetheless consistently differentiated
between subsections (a)(1) and (a)(2), for instance by empha-
sizing differences in their respective elements, see, e.g.,
Strickland, 335 S.E.2d at 75. Any lingering doubt that the tex-
tual differences between subsections (a)(1) and (a)(2) matter
is surely put to rest by State v. Moss, a recent case in which
the North Carolina Court of Appeals held that a trial court
committed plain error by using a jury instruction based on
UNITED STATES v. VANN 83
subsection (a)(2) when the defendant was charged under sub-
section (a)(1). See No. COA07-607, 2008 N.C. App. LEXIS
237, at *4-7 (N.C. Ct. App. Feb. 19, 2008).
At bottom, this case involves a routine application of the
rule expressed in Johnson: "When the law under which the
defendant has been convicted contains statutory phrases that
cover several different generic crimes . . . the ‘modified cate-
gorical approach’ . . . permits a court to determine which stat-
utory phrase was the basis for the conviction." 130 S. Ct. at
1273 (internal citation omitted). The North Carolina indecent
liberties statute states disjunctively two elements, each of
which relates to criminal behavior that is "different in-kind"
from the other. United States v. Bethea, 603 F.3d 254, 258 n.3
(4th Cir. 2010).
The North Carolina indecent liberties statute therefore
undoubtedly calls for application of the modified categorical
approach under federal law, as a majority of this court holds
today.
B
On concluding that the modified categorical approach
should underlie the ACCA analysis here, the next step is to
determine which of the two possible offenses formed the basis
of Vann’s convictions. See Chambers, 555 U.S. at 126 (stat-
ing that courts must use the modified categorical approach to
"choose the right category"). And to do so, we consult a nar-
row class of "conclusive records made or used in adjudicating
guilt," which, when the defendant pleads guilty, includes "the
terms of the charging document, the terms of a plea agree-
ment or transcript of colloquy between judge and defendant
in which the factual basis for the plea was confirmed by the
defendant, [and any] comparable judicial record[s]." Shepard,
544 U.S. at 21, 26.
Here, the district court relied on the presentence report’s
descriptions of Vann’s three indecent liberties convictions,
84 UNITED STATES v. VANN
referring to an indictment and "court records." As to the 1991
conviction, the report stated:
According to the indictment, on December 17, 1991,
Vann willfully did take and attempt to take immoral,
improper, and indecent liberties with a child . . . for
the purpose of arousing and gratifying sexual desire
and did commit a lewd and lascivious act upon the
body of said child.
J.A. 51 (emphasis added). The report indicated that Vann
pleaded guilty to this charge. Id. Although the paragraphs of
the presentence report describing Vann’s two other indecent
liberties convictions arising from conduct in July 1998 and
August 1998, which were also obtained through guilty pleas,
state that they were based on "court records," id. at 52, the
descriptions of these offenses were materially identical to the
description of the first, again tracking the statutory language,
indicating that they too were based on the charging docu-
ments. Because the presentence report was derived from
Shepard-approved sources and Vann did not object to its sub-
stance during the sentencing hearing, the district court was
entitled to rely on it in classifying Vann’s prior offenses as
violent felonies. See United States v. Thompson, 421 F.3d
278, 285 (4th Cir. 2005).
Even so, accommodating our request, the parties provided
us with the actual charging documents and judgment forms
from Vann’s prior convictions, which are now part of the
record in this court and which confirm that the presentence
report accurately described the charges to which Vann
pleaded guilty. See ECF No. 46 (Feb. 22, 2010). Specifically,
the December 1991 indictment alleged that Vann
willfully and feloniously did take and attempt to take
immoral, improper, and indecent liberties with the
child named below for the purpose of arousing and
gratifying sexual desire and did commit and attempt
UNITED STATES v. VANN 85
to commit a lewd and lascivious act upon the body
of the child named below. At the time of this
offense, the child named below was under the age of
16 years and the defendant named above was over
16 years of age and at least five years older than the
child. The name of the child is [SLH].
The July 1998 charging document (an information) included
the somewhat more detailed statement—that Vann
willfully and feloniously did take and attempt to take
immoral, improper, and indecent liberties with the
child named below for the purpose of arousing and
gratifying sexual desir[e] and did commit and
attempt to commit a lewd and lascivious act upon
[ENL], a child 13 years of age, the defendant being
more than six years older than the child and was not
lawfully married to the victim . . . .
The August 1998 charging document (also an information)
included a statement similar to that included in the July 1998
charging document and named the same victim.
At oral argument, Vann’s counsel asserted that "the court
of appeals cannot consider an indictment that was not first
produced to the district court." Oral Arg. at 9:13:11. Our pre-
cedent, however, does not support his claim. We have held
that appellate courts "may properly take judicial notice" of
state court proceedings that were not part of the district court
record, particularly when such proceedings are "relevant and
critical to the matter on appeal." Colonial Penn Ins. Co. v.
Coil, 887 F.2d 1236, 1239 (4th Cir. 1989); see also Lolavar
v. de Santibanes, 430 F.3d 221, 224 n.2 (4th Cir. 2005) (tak-
ing "judicial notice of the records of a court of record").
Thus, the Shepard-approved materials documenting Vann’s
previous convictions demonstrate that Vann "necessarily
admitted" to violating both subsections of the indecent liber-
86 UNITED STATES v. VANN
ties statute each time he pleaded guilty to the charges (in
December 1991, July 1998, and August 1998). All three
charging documents alleged that Vann "did take and attempt
to take immoral, improper, and indecent liberties" with a child
"for the purpose of arousing and gratifying sexual desire" and
"did commit and attempt to commit a lewd and lascivious act
upon the body" of the child. Further, in each case Vann
pleaded guilty to the offenses charged without any reserva-
tion. Just as the charges against Vann covered violations of
North Carolina General Statutes § 14-202.1(a)(1) and (a)(2),
so too did his admissions, as embodied in his unqualified
guilty pleas. See Shepard, 544 U.S. at 25 (plurality opinion)
(noting that the nature of a prior conviction may be deter-
mined by "the defendant’s own admissions").
In contrast to a jury verdict, which may rely on either alter-
native statutory element to support a finding of guilt, with the
logical result that the verdict cannot "necessarily" be said to
depend on either element in particular, see United States v.
Robinson, 627 F.3d 941, 956 (4th Cir. 2010); United States v.
Gonzales, 484 F.3d 712, 715 (5th Cir. 2007), in a pleaded
case, it is the defendant who controls the basis for the convic-
tion, see, e.g., United States v. White, 408 F.3d 399, 402 (8th
Cir. 2005) (holding that a defendant’s guilty plea did not con-
stitute an admission to facts the defendant expressly dis-
avowed during his plea hearing); Valansi v. Ashcroft, 278
F.3d 203, 216 (3d Cir. 2002) (indicating that a defendant
"may . . . plead guilty to only one of the allegations required
to prove an element of her crime").
Because the defendant holds that control when pleading
guilty, courts have routinely held that when a defendant does
plead guilty without reservation, he necessarily admits all of
the material facts alleged in the charging document. See, e.g.,
United States v. Gosselin World Wide Moving, N.V., 411 F.3d
502, 515 (4th Cir. 2005); White, 408 F.3d at 402; United
States v. Still, 102 F.3d 118, 124 (5th Cir. 1996); United
States v. Kelsey, 15 F.3d 152, 153 (10th Cir. 1994); United
UNITED STATES v. VANN 87
States v. Tolson, 988 F.2d 1494, 1501 (7th Cir. 1993); United
States v. Parker, 874 F.2d 174, 178 (3d Cir. 1989); see also
1A Charles Alan Wright & Andrew D. Leipold, Federal
Practice and Procedure § 172 (4th ed. 2008) (recognizing this
position as the majority rule). But see United States v.
Cazares, 121 F.3d 1241, 1246-48 (9th Cir. 1997) (concluding
that a guilty plea admits only "the facts essential to the valid-
ity of the conviction").
This approach comports with the Supreme Court’s observa-
tion in United States v. Broce, 488 U.S. 563 (1989), that "[b]y
entering a plea of guilty, the accused is not simply stating that
he did the discrete acts described in the indictment; he is
admitting guilt of a substantive crime." Id. at 570 (emphasis
added). It is also consistent with the way North Carolina
courts have interpreted guilty pleas, see State v. Thompson,
336 S.E.2d 78, 81 (N.C. 1985) ("A valid guilty plea . . . serves
as an admission of all the facts alleged in the indictment or
other criminal process" (emphasis added)); State v. Cobb, 652
S.E.2d 699, 701 (N.C. Ct. App. 2007) (same), a point at least
one other circuit has found significant when applying the
modified categorical approach, see United States v. Morales-
Martinez, 496 F.3d 356, 358-60 (5th Cir. 2007).
The Fifth Circuit’s decision in Still well illustrates how this
principle applies to situations such as the one presented here.
In Still, the defendant "pleaded guilty to a conjunctive charge
of ‘using and carrying a firearm . . . during and in relation to
the commission of a drug trafficking crime.’" Still, 102 F.3d
at 124. This guilty plea, the court explained, operated differ-
ently than a jury verdict:
A disjunctive statute may be pleaded conjunctively
and proven disjunctively. In other words, despite
having charged Still with "using and carrying" a fire-
arm during and in relation to a drug trafficking
crime, the government had only to prove that Still
"used or carried" a firearm to convict Still of count
88 UNITED STATES v. VANN
three. When Still pleaded guilty to count three, he
admitted both to using and to carrying a firearm dur-
ing and in relation to a drug trafficking crime.
Id. at 124-25 (final emphasis added).
Each of Vann’s guilty pleas is precisely like the one at
issue in Still, as Vann pleaded guilty to the compound charges
against him without any reservation. As a result, his guilty
pleas establish that he "necessarily admitted" to all of the alle-
gations in the charging documents—i.e., that he violated sub-
sections (a)(1) and (a)(2) of the indecent liberties statute each
time he was convicted. See Shepard, 544 U.S. at 26.
C
Because Vann pleaded guilty to both substantive offenses
set forth in North Carolina’s indecent liberties statute, he must
be classified as an armed career criminal if either of those
offenses qualifies as a "violent felony" under ACCA. See 18
U.S.C. § 924(e)(2)(B). Thus, in conducting the analysis, it
makes sense to focus on the apparently more violent offense
set forth in N.C. Gen. Stat. § 14-202.1(a)(2), involving the
commission of a "lewd or lascivious act upon or with the
body" of a child.
A previous conviction qualifies as a "violent felony" under
the residual clause in 18 U.S.C. § 924(e)(2)(B)(ii) so long as
it is "punishable by imprisonment for a term exceeding one
year" and "involves conduct that presents a serious potential
risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B).
Two recent Supreme Court decisions, Sykes and James, pro-
vide the relevant analysis for determining when a previous
conviction "involves conduct that presents a serious potential
risk of physical injury to another."
In Sykes, the Court held that a defendant’s previous convic-
tion for using a motor vehicle to "knowingly or intentionally
UNITED STATES v. VANN 89
. . . flee[ ] from a law enforcement officer" fell within the
residual clause and was thus a "violent felony." Sykes, 131 S.
Ct. at 2270, 2277 (internal quotation marks omitted). Explain-
ing the relevant analysis, the Court focused on the statutory
language to determine whether a subject crime was, in degree
of risk, sufficiently comparable to the offenses enumerated in
§ 924(e)(2)(B)(ii)—burglary, extortion, arson, and crimes
involving the use of explosives. It stated that the subject crime
"involves the requisite risk when" that crime involves a risk
of injury "‘comparable to that posed by its closest analog
among the enumerated offenses.’" Sykes, 131 S. Ct. at 2273
(quoting James, 550 U.S. at 203). The analysis thus involves
a "commonsense" comparison between the subject crime and
the enumerated crimes in terms of risk. Id. at 2274. Using this
approach, the Court concluded that vehicular flight was suffi-
ciently similar in degree of risk to arson and burglary so as to
make it a crime of violence under ACCA. It noted with
respect to burglary, for instance, that the crime was "danger-
ous because it can end in confrontation leading to violence.
The same is true of vehicle flight, but to an even greater
degree." Id. at 2273. It explained:
The attempt to elude capture is a direct challenge to
an officer’s authority. It is a provocative and danger-
ous act that dares, and in a typical case requires, the
officer to give chase. The felon’s conduct gives the
officer reason to believe that the defendant has
something more serious than a traffic violation to
hide.
Id.
The Sykes Court also used a statistical analysis to confirm
these "commonsense conclusion[s]." Id. at 2274-75. Specifi-
cally, the Court pointed to data indicating that vehicular flight
results in "4 injuries to . . . nonsuspects per 100 pursuits,"
whereas burglary and arson account for only 3.2 and 3.3 inju-
ries per 100 incidents, respectively—an increase in risk of
90 UNITED STATES v. VANN
roughly 25%. See id.; see also id. at 2279-80 (Thomas, J.,
concurring in the judgment).
In James, the other key residual clause case, the Supreme
Court held that a violation of Florida’s attempted burglary
statute was a "violent felony" under § 924(e)(2)(B)(ii). See
550 U.S. 192. The Court stressed that the residual clause does
not "requir[e] that every conceivable factual offense covered
by a statute must necessarily present a serious potential risk
of injury before the offense can be deemed a violent felony."
Id. at 208. Instead, a crime need only present the required
degree of risk "in the ordinary case." Id. The Court illustrated
this concept by noting:
One could, of course, imagine a situation in which
attempted burglary might not pose a realistic risk of
confrontation or injury to anyone—for example, a
break-in of an unoccupied structure located far off
the beaten path and away from any potential interve-
nors. But ACCA does not require metaphysical cer-
tainty. Rather, § 924(e)(2)(B)(ii)’s residual provision
speaks in terms of a "potential risk." These are inher-
ently probabilistic concepts. Indeed, the combination
of the two terms suggests that Congress intended to
encompass possibilities even more contingent or
remote than a simple "risk," much less a certainty.
Id. at 207-08. In essence, James directs courts to focus on the
heartland of a particular crime when analyzing it for ACCA
purposes—a point reaffirmed in Sykes by the Court’s focus on
the risk posed by "typical" instances of vehicular flight. See
Sykes, 131 S. Ct. at 2273, 2275.
Like Vann, the defendant in Sykes argued that "Begay and
Chambers require ACCA predicates to be purposeful, violent,
and aggressive in ways that" his crime was not. Sykes, 131 S.
Ct. at 2275 (emphasis added). The Sykes Court, however,
expressly rejected this claim, explaining that Sykes had "over-
UNITED STATES v. VANN 91
read[ ]" the Court’s prior ACCA precedents, all but one of
which focused on the level of risk as the determining factor.
See id. ("In general, levels of risk divide crimes that qualify
[as violent felonies] from those that do not"). The Court
observed:
The phrase "purposeful, violent, and aggressive" has
no precise textual link to the residual clause, which
requires that an ACCA predicate "otherwise
involv[e] conduct that presents a serious potential
risk of physical injury to another." § 924(e)(2)(B)(ii).
The Begay phrase is an addition to the statutory text.
In many cases the purposeful, violent, and aggres-
sive inquiry will be redundant with the inquiry into
risk, for crimes that fall within the former formula-
tion and those that present serious potential risks of
physical injury to others tend to be one and the same.
As between the two inquiries, risk levels provide a
categorical and manageable standard that suffices to
resolve the case before us.
Begay involved a crime akin to strict liability, negli-
gence, and recklessness crimes; and the purposeful,
violent, and aggressive formulation was used in that
case to explain the result. The felony at issue here is
not a strict liability, negligence, or recklessness
crime and because it is, for the reasons stated and as
a categorical matter, similar in risk to the listed
crimes, it is a crime that "otherwise involves conduct
that presents a serious potential risk of physical
injury to another." § 924(e)(2)(B)(ii).
131 S. Ct. at 2275-76 (emphasis added).
As the Court indicated, most crimes must now be analyzed
according to the risk they present, rather than whether they
are "purposeful, violent, and aggressive," as was the case
under Begay. Sykes, 131 S. Ct. at 2275-76. Of course, the lan-
92 UNITED STATES v. VANN
guage in Begay will likely continue to be relevant when
applying the ACCA standard to offenses "akin to strict liabil-
ity, negligence, and recklessness crimes." Sykes, 131 S. Ct. at
2276. But see id. at 2277 (Thomas, J., concurring in the judg-
ment) ("The majority errs by implying that the ‘purposeful,
violent, and aggressive’ test may still apply to [strict liability]
offenses"); id. at 2285 (Scalia, J., dissenting) (disapproving of
the majority’s implication); id. at 2289 n.1 (Kagan, J., dissent-
ing) (preferring to retain the "purposeful, violent, and aggres-
sive" test when it is not redundant with the risk analysis). We
need not resort to that analysis here, however, because "spe-
cific intent is an element of the offense of taking indecent lib-
erties with children." State v. Craven, 324 S.E.2d 599, 584
(N.C. 1985).5
The question thus framed by Sykes and James’ analysis is
whether "[w]illfully commit[ting] or attempt[ing] to commit
any lewd or lascivious act upon or with the body" of a child
ordinarily involves a degree of risk comparable to that posed
by any of the example crimes contained in § 924(e)(2)(B)(ii).
I submit that it surely does.
5
Judge King’s opinion, continuing its misplaced application of the
Begay standard to this case, see, e.g., ante, at 18 ("[A]lthough Sykes may
be said to distance the Court from its earlier emphasis on purposeful, vio-
lent, and aggressive conduct, the essential hallmarks of Begay were reaf-
firmed"); ante, at 18 ("Importantly, a violation of the [North Carolina]
Statute does not require physical contact"), also recognizes that Begay’s
analysis is limited to crimes of the kind before the Court in Begay, such
as ones involving strict liability, ante, at 17. To justify application of the
Begay standard, Judge King concludes that the North Carolina indecent
liberties statute "resonates in strict liability, reminiscent of the Begay DUI
offense." Ante, at 19. This conclusion, however, is clearly wrong. The
North Carolina statute is a specific intent statute, not a strict liability stat-
ute. As the statutory text makes clear, indecent liberties offenses must be
committed "[w]illfully" by the offender. N.C. Gen. Stat. § 14-202.1(a).
Moreover, the North Carolina courts have amplified this point, stating that
"specific intent is an element of the offense of taking indecent liberties
with children." State v. Craven, 324 S.E.2d 599, 602 (N.C. 1985); see also
State v. Creech, 495 S.E.2d 752, 756 (N.C. Ct. App. 1998) (same); State
v. Connell, 493 S.E.2d 292, 294 (N.C. Ct. App. 1997) (same).
UNITED STATES v. VANN 93
Typical violations of subsection (a)(2) present a potential
risk of physical injury to the child that is at least as serious as
the risk facing a victim of arson, burglary, or extortion. To
begin with, subsection (a)(2) applies only when the perpetra-
tor is "16 years of age or more and at least five years older
than the child in question." N.C. Gen. Stat. § 14-202.1. That
age differential gives rise to a power disparity between the
adult perpetrator and the child victim which, like the threat
element in extortion cases, naturally poses a risk that the per-
petrator will employ coercive conduct that can readily esca-
late to physical violence. Cf. Banks, 370 S.E.2d at 407 ("We
also bear in mind the enhanced power and control that adults,
even strangers, may exercise over children who are outside
the protection of home or school" (quoting State v. Hicks, 339
S.E. 2d 806, 809 (N.C. Ct. App. 1986))).
This risk is compounded by subsection (a)(2)’s second ele-
ment, which requires the willful commission or attempted
commission of a "lewd or lascivious act" by the perpetrator.
N.C. Gen. Stat. § 14-202.1(a)(2). Inherent in any "lewd or las-
civious act" is a drive for sexual satisfaction, frequently
accompanied by an abdication of rational thought and self
control. Such a loss of control injects unpredictability into the
encounter and increases the odds that the perpetrator will
resort to violent behavior to achieve his objective if met with
resistance, just as a perpetrator of burglary or extortion might
resort to violence to overcome resistance. Cf. James, 550 U.S.
at 203-04.
Finally, subsection (a)(2) violations present a serious poten-
tial risk of injury because they must involve a sexual act com-
mitted "upon or with the body" of a minor child. N.C. Gen.
Stat. § 14-202.1(a)(2). Perpetrators ordinarily satisfy this ele-
ment by engaging in intimate physical contact with the child
victim, such as fondling, French kissing, or sexual penetra-
tion. See, e.g., State v. Baker, 426 S.E.2d 73, 75-76 (N.C.
1993); State v. Banks, 370 S.E.2d 398, 400 (N.C. 1988). Such
contact often presents a potential risk of harm to children,
94 UNITED STATES v. VANN
who may be unable to endure adult sexual contact without
injury. See United States v. Daye, 571 F.3d 225, 231 (2d Cir.
2009); cf. David Finkelhor et al., U.S. Department of Justice,
Office of Justice Programs, Sexually Assaulted Children:
National Estimates and Characteristics 5 (2008), available at
http://www.ncjrs.gov/pdffiles1/ojjdp/214383.pdf (stating that
17% of juvenile sexual assault6 victims sustain injuries). A
17% injury rate for juvenile sexual assault victims is far
greater than the 3.2% injury rate for burglary victims, as
found in Sykes. While the study included conduct that may
have a higher incidence of physical harm, like rape, it is
surely indicative of the potential for physical harm in sexual
assault crimes generally. Even when the perpetrator does not
actually touch the victim, the "upon or with the body" require-
ment dictates that the offending conduct will take place in
such close physical proximity to the victim that the adult has
the ability to restrict the child’s freedom of movement,
thereby creating a serious risk that the child will be injured if
he or she attempts to escape. See Pierce, 278 F.3d at 289.
Either way, the potential for injury to the victim inherent in
the encounter easily surpasses the "low baseline level [of]
risk" associated with burglary. See Sykes, 131 S. Ct. at 2278
(Thomas, J., concurring in the judgment).
Other courts have come to the same conclusion when
assessing similar statutes. In Daye, for example, the Second
Circuit observed that "a sexual act inflicted upon a child by
an adult ordinarily creates a serious potential risk of physical
harm to the child" because "the nature of the conduct and the
child’s relative physical weakness give rise to a substantial
likelihood that the adult may employ force to coerce the
child’s accession." 571 F.3d at 232. The court thus had "no
doubt" that engaging in a sexual act with a minor, as pro-
6
The study defined sexual assault to include actual or attempted rape or
other sexual contact, including contact through clothes when the child is
coerced to engage in such contact. Id. at 3, 11 n.1.
UNITED STATES v. VANN 95
scribed by Vermont law, posed at least as much of a risk of
injury as burglary:
Both crimes may often involve, but do not necessar-
ily require, the intentional use of force. Indeed, given
the peculiar susceptibility of minors to coercion by
adults into sexual acts, we think it more likely that
violent and aggressive force will actually be
employed in the course of committing the crime at
issue here [sexual assault of a child] than in the
course of committing an ordinary burglary. See Ten-
nessee v. Garner, 471 U.S. 1, 21-22 (1985) (citing
statistical evidence to the effect that "burglaries only
rarely involve physical violence").
Id. at 234; accord Pierce, 278 F.3d at 290 ("[C]hild abuse . . .
present[s] a serious potential risk of physical injury to the
child, a danger that is quite similar in character to the poten-
tial injury to persons involved in arson or burglary").
A body of subsection (a)(2) case law reinforces these
points. In State v. Banks, 370 S.E.2d 398 (N.C. 1988), for
instance, the defendant, a 30 year-old man, "waited until all
the other adults were in another part of the house" and then
got into bed with a friend’s twin eight year-old daughters. Id.
at 407. At that point, the defendant
kissed each of them, putting his tongue in their
mouths, ears and noses. He touched and rubbed their
genitals, inserting his finger several times into each
twin’s vaginal area. The victims asked defendant to
stop but he persisted. They told him he was hurting
them, asked him to leave and cried. Defendant put
his hand over their mouths when they tried to cry
out. He threatened to slap them and to kill their
mother if they told her what had happened.
Id. at 400. Likewise, in State v. Askew, No. COA06-507, 2007
N.C. App. LEXIS 863 (N.C. Ct. App. May 1, 2007), the
96 UNITED STATES v. VANN
defendant was convicted of six separate violations of subsec-
tion (a)(2), all of which involved physical contact between the
defendant and the victim. See id. at *3-5, 10. These convic-
tions included instances in which the defendant "pok[ed] [his
daughter’s] private part," "thr[ew] [her] on the ground," and
molested her after commanding her to "get out of the
shower." Id. at *4-5. The defendant’s sexual advances were
also accompanied by physical abuse and threats, as the defen-
dant "hit" his daughter, "threw her down a flight of stairs,"
and told her that she would be sent to "a bad foster home
where they would kill [her]" if she told anyone about the
abuse. Id. at *6.
Other subsection (a)(2) cases, while not always involving
express threats or violence, nonetheless present a "potential
risk" of injury, see 18 U.S.C. § 924(e)(2)(B)(ii), based on the
location of the sexual encounter, the power relationship
between the perpetrator and victim, and the physical nature of
the perpetrator’s conduct. See, e.g., State v. Wilson, 361
S.E.2d 105, 106-07 (N.C. Ct. App. 1987) (adult defendant
"insert[ed] a foreign object into [a] child’s vagina" during an
incident which occurred in their "shared residence").7
Taken together, these considerations lead to the conclusion,
reached by a majority of this court, that the conduct pro-
scribed by N.C. Gen. Stat. § 14-202.1(a)(2) is categorically
"similar in risk"—if not greater in risk—"to the listed crimes,"
Sykes, 131 S. Ct. at 2276, and therefore that a conviction
7
Indeed, it can be noted, that in Pierce, this court conducted an exhaus-
tive statistical analysis of the physical danger presented to children by all
violations of N.C. Gen. Stat. § 14-202.1, including both subsections (a)(1)
and (a)(2), and found that based on a review of 150 reported convictions
between 1980 and 2002, "in 98% of the cases, the crime [was] committed
in situations where the victim [was] in such close proximity to the perpe-
trator that the victim was exposed to the serious risk of injury." Pierce,
278 F.3d at 289 & n.*. Surely, a 98% exposure to risk of injury passes
muster under Sykes to show the risk in "typical" convictions. See Sykes,
131 S. Ct. at 2273, 2275.
UNITED STATES v. VANN 97
under § 14-202.1(a)(2) qualifies as a "violent felony" under
18 U.S.C. § 924(e)(2)(B)(ii).
Vann raises two counter-arguments, which Judge King
accepts. But neither is persuasive. First he asserts that one can
violate § 14-202.1(a)(2) without making physical contact with
the victim, and that subsection (a)(2) violations are therefore
not categorically "violent and aggressive."8 For support, he
focuses on a single case, State v. Hammett, in which the North
Carolina Court of Appeals rejected a defendant’s argument
that "to be convicted under G.S. § 14-202.1(a)(2), the accused
must physically touch the victim." 642 S.E.2d at 459.
Vann’s reliance on Hammett is problematic in several
respects. To begin with, the Sykes decision strongly suggests
that a crime need not be "violent" or "aggressive" to qualify
as a violent felony under § 924(e)(2), so long as it poses the
requisite degree of risk. See Sykes, 131 S. Ct. at 2275-76.
Thus, it is absolutely immaterial that there was no actual vio-
lence or physical contact in Hammett, because under ACCA,
it is the "potential risk" of violence—in the typical case—that
counts. See James, 550 U.S. at 207-08 ("[T]he combination of
the two terms [‘potential’ and ‘risk’] suggests that Congress
intended to encompass possibilities even more contingent or
remote than a simple ‘risk,’ much less a certainty").
Moreover, Hammett itself exemplifies the serious potential
risk of physical harm that is typically present in subsection
(a)(2) cases. There, the defendant was convicted of seven
counts of indecent liberties, all of which occurred in a resi-
dence shared by the adult defendant and his daughter, who
was between five and ten years old when the violations were
8
Judge King also notes, repeatedly, the absence of physical contact or
touching. See, e.g., ante at 18, 20, 21-22, 26. But, as we explain, that
observation is immaterial to the analysis because it is the potential risk of
injury that is critical. See 18 U.S.C. § 924(e)(2)(B)(ii); James, 550 U.S. at
207-08.
98 UNITED STATES v. VANN
committed. See Hammett, 625 S.E.2d at 169. One of these
counts—the one on which Vann focuses all of his attention—
involved an incident in which the defendant forced his young
daughter to "watch a pornographic DVD with him" while he
masturbated. See Bill of Particulars, Hammett, at *3-4 (N.C.
Ct. App. filed Feb. 2, 2004). The other six counts, however,
all involved intimate, physical contact between the defendant
and his daughter, such as instances in which the defendant
forced his daughter to straddle him in bed and "bounce up and
down upon him," simulating sexual intercourse, or in which
the defendant touched his daughter’s genitalia "while she lay
naked on a bed." Id. at *2-3. Thus even in Hammett, the case
Vann highlights for its lack of risk and physicality, 85% of the
indecent liberties charges involved sexual contact between an
adult and a child, amply demonstrating the "potential risk" of
physical injury to the child.
Furthermore, the one count involving no physical contact in
Hammett is the exact kind of outlier scenario that the Supreme
Court in James directed lower courts to discount. There, the
Court stressed that the proper focus in residual clause cases is
on the risk "typically" associated with an offense—that is, the
risk present "in the ordinary case." 550 U.S. at 208 (emphasis
added); see United States v. Billups, 536 F.3d 574, 580 (7th
Cir. 2008) ("The ‘serious potential risk’ language of the resid-
ual clause . . . is indicative of probability, rather than inevita-
bility; therefore, an offense need not pose a serious risk of
harm in every conceivable factual manifestation in order to
constitute a crime of violence"). Under James, it simply does
not matter that one can commit burglary or arson without cre-
ating any appreciable risk of injury to others, for instance by
breaking into "an unoccupied structure located far off the
beaten path and away from any potential intervenors," 550
U.S. at 207, or that one can imagine subsection (a)(2) viola-
tions that might be fairly characterized as nonrisky. What
matters is that when an adult perpetrator "[w]illfully commits
or attempts to commit any lewd or lascivious act upon or with
the body" of a minor child, the encounter ordinarily involves
UNITED STATES v. VANN 99
a substantial risk to the child’s safety, either through the sex-
ual abuse itself, or through the perpetrator’s actions in secur-
ing the child’s accession to the act and subsequent silence
about the matter. Cf. Daye, 571 F.3d at 232; Banks, 370
S.E.2d at 400.
Vann’s second counter-argument relies heavily on our
holding in Thornton. In that decision, we held that Virginia’s
carnal knowledge offense, which makes it a crime to "carnally
know[ ], without the use of force, a child thirteen years of age
or older but under fifteen years of age," Va. Code Ann.
§ 18.2-63, does not qualify as a violent felony under ACCA.
Thornton, 554 F.3d at 444. Although Virginia’s carnal knowl-
edge offense overlaps to some extent with North Carolina’s
indecent liberties offense, important and material differences
exist that distinguish that statute from the one at issue here.
Most notably, the Virginia offense is, by its own terms, com-
mitted "without the use of force," while the North Carolina
crime is not so limited. Indeed, as noted above, the North Car-
olina crime often involves coercive conduct that can readily
escalate to physical violence. The North Carolina statute also
requires that the defendant be at least 16 years old and at least
5 years older than the victim, heightening the power differen-
tial and risk to the child and reducing the likelihood for any
semblance, however impossible to give, of "consent." The
result of these differences is that a typical violation of subsec-
tion (a)(2) involves a greater risk of injury than an ordinary
violation of the Virginia statute considered in Thornton, and
therefore it qualifies as a violent felony under ACCA, even
though Virginia’s carnal knowledge offense does not.9
9
Moreover, after Sykes, Thornton may no longer be good law. Sykes
relied heavily on statistical evidence regarding risk, and statistical evi-
dence might show that the risk of injury from conduct violating Virginia’s
statute is actually higher than the 3.2% risk associated with burglary. See
Sykes, 131 S. Ct. at 2274-75; cf. David Finkelhor et al., U.S. Dept. of Jus-
tice, Office of Justice Programs, Sexually Assaulted Children: National
Estimates and Characteristics 5 (2008), available at http://www.ncjrs.gov/
pdffiles1/ojjdp/214383.pdf.
100 UNITED STATES v. VANN
III
Just as burglary, attempted burglary, arson, and extortion
pose "a serious potential risk of physical injury" to others, a
typical violation of N.C. Gen. Stat. § 14-202.1(a)(2), involv-
ing "a lewd or lascivious act upon or with the body" of any
child, poses a similar risk to the victim. Indeed, based on a
canvas of the statute’s elements and North Carolina case law,
it appears that the relevant risk under the North Carolina stat-
ute is even greater. For these reasons, I have little difficulty
in concluding, as does the majority, that a typical violation of
§ 14-202.1(a)(2) would constitute a "violent felony" for pur-
poses of ACCA.
In addition to the statutory need to apply ACCA to enhance
Vann’s sentence, the context of Vann’s conduct confirms that
need in this case. Congress designed ACCA to incapacitate
individuals whose prior conduct "makes [it] more likely that
[they], later possessing a gun, will use that gun deliberately to
harm a victim." Begay, 553 U.S. at 145. Vann’s criminal his-
tory is of precisely that nature. Vann has pleaded guilty to tak-
ing indecent liberties with a child on three separate occasions,
two of which involved a victim who was only 13 years old.
J.A. 50-56. This crime involves a substantial power differen-
tial between perpetrator and victim, and the perpetrator was
necessarily in close physical proximity to the victim. Individ-
uals who commit this type of crime are just the type of people
ACCA means to dissuade from possessing a gun.
At bottom, Vann is legally and factually an armed career
criminal who should be sentenced accordingly.
Judge Shedd has authorized me to indicate that he joins this
opinion.