IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 6, 2009
No. 08-60075 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
WILLIAM FREDRICK MOHR
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Mississippi
Before GARWOOD, GARZA, and OWEN, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Defendant-appellant William Fredrick Mohr (“Mohr”) appeals the sentence
imposed after he pleaded guilty to being a felon in possession of a firearm. Mohr
argues that the district court erred in finding that a prior South Carolina
conviction for stalking was a “crime of violence” for the purposes of sentence
enhancement under § 2K2.1(a)(4)(A) of the federal Sentencing Guidelines. For
the following reasons, we AFFIRM the judgment of the district court.
I
Mohr was convicted on a guilty plea of knowingly possessing ammunition
in and affecting commerce, having previously been convicted of a felony. At his
sentencing hearing, Mohr objected to the pre-sentence report (PSR), which
No. 08-60075
recommended increasing the base offense level under USSG § 2K2.1(a)(4)(A)
because Mohr had sustained previous felony convictions for crimes of violence.
Mohr argued that his convictions for stalking under South Carolina law were not
crimes of violence as defined in USSG § 4B1.2. The district judge adopted the
PSR’s recommendation and sentenced Mohr to forty-five months imprisonment
and a three-year period of supervised release. Mohr timely appeals.
II
We review the district court’s application of the Sentencing Guidelines de
novo. United States v. Sanchez-Ramirez, 497 F.3d 531, 534 (5th Cir. 2007).
USSG § 2K2.1(a)(4)(A) sets the base offense level at 20 for defendants who
have committed the instant offense subsequent to a felony conviction for a crime
of violence. The Guideline adopts the definition of “crime of violence” set out in
USSG § 4B1.2:
(a) The term “crime of violence” means any offense under federal or state
law, punishable by imprisonment for a term exceeding one year, that–
(1) has as an element the use, attempted use, or threatened use of
physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a serious
potential risk of physical injury to another.
The Commentary to § 4B1.2 provides:
“Crime of violence” includes murder, manslaughter, kidnapping,
aggravated assault, forcible sex offenses, robbery, arson, extortion,
extortionate extension of credit, and burglary of a dwelling. Other offenses
are included as “crimes of violence” if (A) that offense has as an element
the use, attempted use, or threatened use of physical force against the
person of another, or (B) the conduct set forth (i.e., expressly charged) in
the count of which the defendant was convicted involved use of explosives
(including any explosive material or destructive device) or, by its nature,
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No. 08-60075
presented a serious potential risk of physical injury to another. [Emphasis
added].1
Thus, in order to be found a crime of violence under § 4B1.2, an offense
must do one of the following: (1) contain as a statutory element the “use,
attempted use, or threatened use of physical force against the person of
another”; (2) belong to the list of enumerated offenses; (3) or fall under the
“residual clause” of § 4B1.2(a)(2) by presenting a “serious risk of physical injury
to another.” It is the residual clause that is at issue here; the parties dispute
whether Mohr’s convictions for stalking qualify as crimes of violence because
they posed a serious risk of physical injury to another.2
In determining whether an offense qualifies as a crime of violence under
the residual clause, this Court applies the categorical approach set out in Taylor
v. United States, 495 U.S. 575 (1990) and Shepard v. United States, 544 U.S. 13
(2005). We look to the statutory elements, charging documents, and jury
instructions in cases tried to a jury, and in cases tried without a jury, we may
consider the judge's formal rulings of law and findings of fact. Id. at 20. In cases
in which there was a plea, we may consider the statement of factual basis for the
charge, a transcript of the plea colloquy or written plea agreement, or a record
of comparable findings of fact adopted by the defendant upon entering the plea
regarding the prior offenses. Id. When a defendant is convicted under a statute
that contains disjunctive subsections, the court may look to the charging
1
We regard Guidelines commentary that interprets or explains a guideline as
authoritative unless it violates the Constitution or a statute or is inconsistent with, or a plainly
erroneous reading of, that guideline. United States v. Gonzalez-Ramirez, 477 F.3d 310, 312
n.10 (5th Cir. 2007)(quoting Stinson v. United States, 508 U.S. 36, 38 (1993)).
2
The South Carolina stalking statute does not contain as an element the use,
attempted use, or threatened use of force; while this element is clearly implicit in some forms
of stalking, the use, attempted use or threatened use of force are not required in order to
violate the law. In any case, the parties do not argue this point.
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No. 08-60075
documents “to determine by which method the crime was committed in a
particular case,” United States v. Riva, 440 U.S. 722, 723 (5th Cir. 2006), or to
documents that “have sufficient indicia of reliability to support their probable
accuracy such that the documents can be used as evidence of [a] prior conviction
under the subsection of a statute that qualifies as a crime of violence.” United
States v. Neri-Hernandes, 504 F.3d 587, 591-92 (5th Cir. 2007). Thus, the court
may use the indictment and records regarding the conviction to “pare down” the
statute to the disjunctive alternative under which the conviction falls.
Montgomery, 402 F.3d at 486. Where the indictment is silent or may be read to
cover both violent and non-violent conduct, the court should proceed with the
assumption that the conduct constituted the “least culpable act” satisfying the
count of conviction, United States v. Houston, 364 F.3d 243, 246 (5th Cir. 2007),
unless reliable records establish that the prior conviction was under one of the
violent prongs of the statute. Neri-Hernandes, 504 F.3d at 589.
With these legal principles in mind, we turn now to Mohr’s arguments that
his previous convictions for stalking were not crimes of violence under § 4B1.2.
A
Mohr was previously charged and pleaded guilty to three counts of
stalking in Sumter County, South Carolina. The applicable South Carolina
statute defines stalking as:
[A] a pattern of words, whether verbal, written, or electronic, or a pattern
of conduct that serves no legitimate purpose and is intended to cause and
does cause a targeted person and would cause a reasonable person in the
targeted person's position to fear:
(1) death of the person or a member of his family;
(2) assault upon the person or a member of his family;
(3) bodily injury to the person or a member of his family;
(4) criminal sexual contact on the person or a member of his family;
(5) kidnapping of the person or a member of his family; or
(6) damage to the property of the person or a member of his family.
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No. 08-60075
S.C. CODE ANN. § 16-3-1700(B)(2002).
At his sentencing hearing for the instant offense, Mohr pointed to § 16-3-
1700(B)(6), relating to property damage, as a disjunctive element to the statute
that renders it ambiguous whether his charged conduct was a crime of violence.
Mohr argued that because property damage does not create a risk of physical
injury, his conviction under the statute could not be used as a crime of violence
enhancement. The district judge looked to Mohr’s indictment for stalking to
determine whether the crime charged met the crime of violence definition. The
indictment shows that Mohr was charged with three counts of “willfully,
maliciously and repeatedly follow[ing] or harass[ing] [victim], and ma[king] a
credible threat with the intent to place [victim] in reasonable fear of great bodily
injury.”3 The district judge relied upon our precedent in United States v.
Insaulgarat, 378 F.3d 456 (5th Cir. 2004) to determine that the indictment
charged Mohr with stalking for creating a reasonable fear of great bodily injury
to three different victims. Reading the indictment in conjunction with the
statute, the district judge found that the charged conduct met the definition of
crime of violence, as it presented a serious potential risk of physical injury to
another. The district court also observed that the judgment reflected that the
conviction was “as indicted.”
Mohr makes two arguments in support of his contention that his stalking
convictions do not meet the definition of crime of violence under § 4B1.2. First,
he argues that application of the recently-decided Supreme Court case of Begay
v. United States precludes finding that stalking under the South Carolina
statute is a crime of violence. Second, Mohr argues that the state court
judgments reflect that the crime of which he was convicted was “non-violent.”
We address each of these arguments in turn.
3
ROA 46.
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No. 08-60075
B
Begay v. United States, 128 S.Ct. 1581 (2008), decided after Mohr’s
sentencing, dealt with the interpretation of a provision of the Armed Career
Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B). The ACCA increases the
mandatory minimum sentence for an offender who has prior convictions for a
violent felony or serious drug offense. 18 U.S.C. § 924(e)(1). The definition of
“violent felony” is identical to that of “crime of violence” in the Guidelines
context. Thus, the Supreme Court’s interpretation of § 924(e)(2)(B) guides us in
applying the categorical approach to the residual clause of § 4B1.2.4
In Begay, the Supreme Court held that driving under the influence of
alcohol (DUI) was not a violent felony under the ACCA because it did not fall
into the scope of the residual clause. Begay limits violent felonies to those
crimes which are similar to the enumerated offenses in § 924(e)(2)(B); namely,
burglary, arson, extortion, or the use of explosives. Begay, 128 S.Ct. at 1585.
The Begay court thus interpreted the residual clause of § 924(e)(2)(B) as covering
only those crimes that are “roughly similar, in kind as well as in degree of risk
posed, to the examples themselves.” Id.
Mohr urges that under a similar interpretive approach, we cannot find
stalking to be a crime of violence. The enumerated offenses under § 4B1.2(a) are
murder, manslaughter, kidnaping, aggravated assault, forcible sex offenses,
robbery, arson, extortion, extortionate extension of credit, and burglary of a
dwelling. Because “stalking” is not “similar” to any of these crimes, Mohr
argues, it cannot be considered a crime of violence under the Guidelines.
4
We have previously applied our holdings under the residual clause of the ACCA to
analyze the definition of crimes of violence under § 4B1.2, and vice versa. See, e.g., U.S. v.
Hawley, 516 F.3d 264, 271-72 (5th Cir. 2008); United States v. Velasco, 465 F.3d 633, 641 n.9
(5th Cir. 2006); Montgomery, 402 F.3d at 488 n.28 (5th Cir. 2005). Additionally, other Circuit
courts have used Begay in defining crimes of violence under the Guidelines. See, e.g. United
States v. Bartee, 529 F.3d 357 (6th Cir. 2008); United States v. Williams, 537 F.3d 969 (8th Cir.
2008); United States v. Gray, 535 F.3d 128 (2nd Cir. 2008).
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No. 08-60075
We disagree. Mohr ignores later language in Begay that clarifies the
inquiry into the “similarity” of the crimes. The Begay court contrasted DUI
crimes from the enumerated offenses by noting that the example crimes all
“typically involve purposeful, violent, and aggressive conduct.” Id. at 1586.
Unlike statutes prohibiting drunk driving, which are analogous to those
imposing strict liability, the crimes listed in § 924(e)(2)(B) all require some form
of criminal intent. Id. at 1586-87.
We apply the same analysis to find that stalking as defined by South
Carolina is a crime of violence. Criminal intent is clearly required by the
statute, which is targeted towards words or conduct that are “intended to cause
and does cause a targeted person” to reasonably fear death, assault, bodily
injury, criminal sexual contact, kidnaping or property damage to him or his
family. S.C. CODE § 16-3-1700(B)(2005).5 These outcomes are roughly analogous
to the enumerated offenses set out in § 4B1.2. Additionally, words or conduct
that are intended to cause and do cause reasonable fear of death, assault, injury
etc., pose at least as much risk of physical injury as the “threatened use of force”;
5
The treatment of stalking under the categorical approach in other cases is illustrative,
though not necessarily persuasive because the state statutes at issue define stalking differently
from South Carolina. In United States v. Insaulgarat, 378 F.3d 456 (5th Cir. 2005), this Court
held that a conviction under Florida’s Aggravated Stalking statute is not a crime of violence.
However, the statute in that case could be violated by mere harassing conduct. Id. at 470-71.
In an unpublished case, United States v. Espinoza, 67 Fed.Appx. 252 (5th Cir. 2003), this Court
also held that a conviction under Colorado's stalking statute was not a crime of violence under
USSG § 2L1.2. However, the Colorado statute could similarly be violated by mere harassing
conduct, where the conduct creates “serious emotional distress.” COLO. REV. STAT.
§18-9-111(4)(b). See also United States v. Esquivel-Arellano, 208 Fed.Appx. 758 (11th Cir.
2006)(unpublished)(holding that violation of Georgia’s Aggravated Stalking statute is not crime
of violence, where statute also incorporates “harassment” and “intimidation”). The South
Carolina stalking statute uses language much more akin to the threat of physical harm, and
criminalizes harassment separately. S.C. CODE ANN. § 16-3-1700(A)(defining harassment in
the first degree). Thus, the statutory elements of stalking in South Carolina may still
represent a serious potential risk of physical injury. But see United States v. Jones, 231 F.3d
508 (9th Cir. 2000) (remanding for resentencing where statutory element of “threat of safety”
was interpreted as not limited to threats of physical force).
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No. 08-60075
and, as previously discussed, under § 4B1.2 the “threatened use of force” as a
statutory element automatically qualifies the offense as a crime of violence.
“Physical injury need not result” in order for a crime to be violent, but the crime
charged must pose the risk. United States v. Garcia, 470 F.3d 1143, 1148 (2006).
Our conclusion is reinforced by the language of the indictment, which
charged Mohr with willfully, maliciously, and repeatedly following or harassing
the victims and making repeated threats to place the victims in reasonable fear
of great bodily harm or bodily injury. This “purposeful, aggressive and violent”
conduct creates a serious potential risk of physical injury, and is sufficiently
similar to the enumerated crimes, to satisfy the definition of crime of violence in
§ 4B1.2.
C
Our inquiry does not end with the application of Begay, however. Because
the statute contains a disjunctive element and can be violated by non-violent as
well as violent methods, Mohr argues the statutory presence of the disjunctive
element of property damage in § 16-3-1700(B)(6) means that the Court should
look not only to the face of the indictment, but to other court documents that
indicate that the crime to which he pleaded guilty was not in fact violent.
Specifically, Mohr points to the State Court Judgments in his stalking case,
which categorize each of the stalking counts as “Non-Violent” crimes.
As the Commentary to §4B1.2 states, “Other offenses are included as
‘crimes of violence’ if. . . the conduct set forth (i.e., expressly charged) in the
count of which the defendant was convicted . . . presented a serious potential risk
of physical injury to another.” (Emphasis added.)
The district court properly applied §4B1.2. The language of the indictment
makes it clear that Mohr was charged for violating § 16-3-1700(B)(6), and the
judgment reflects that the “[t]he charge is . . . ‘as indicted.’” Mohr was charged
with and convicted of “willfully, maliciously and repeatedly following or
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No. 08-60075
harassing the victims and making repeated threats to place the victims in
reasonable fear of great bodily harm or bodily injury.” The fact that the
judgment also contains a checkmark inside a box next to “NON-VIOLENT”
rather that inside a box indicating “VIOLENT” is immaterial. The elements of
state offenses determine whether a prior offense was a crime of violence under
federal law, not labels under state law. See Taylor v. United States, 495 U.S.
575, 590 (1990). The charging and convicting documents thus dispositively
establish that Mohr’s behavior did not implicate the non-violent subsection of
creating a reasonable fear of property damage, as he argues might be the case
based on the statute alone.
The district court was therefore correct in relying on the indictment, the
judgment, and the statute in finding stalking under South Carolina law to be a
crime of violence under § 2K2.1(a)(4)(A). For the foregoing reasons, we AFFIRM
the judgment.
9