United States v. Shawn Manning

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4556

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

SHAWN PATRICK MANNING,

Defendant - Appellant.

Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Samuel G. Wilson, District
Judge. (7:12-cr-00042-SGW-3)

Submitted: February 25, 2014 Decided: April 3, 2014

Before GREGORY and FLOYD, Circuit Judges, and DAVIS, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

L. Brad Braford, L. BRAD BRAFORD P.C., Roanoke, Virginia, for
Appellant. Timothy J. Heaphy, United States Attorney, R. Andrew
Bassford, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Roanoke, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

A grand jury indicted Shawn Manning on one count of

conspiring to possess with the intent to distribute a controlled

substance, in violation of 21 U.S.C. §§ 841 and 846, and two

counts of money laundering, in violation of 18 U.S.C. § 1956.

Manning subsequently pleaded guilty to one count of money

laundering and a lesser-included offense relating to the

conspiracy charge. At Manning’s sentencing, the district court

categorized Manning as a career offender, a determination that

Manning now challenges on appeal. For the reasons set forth

below, we affirm.

The criminal activities giving rise to Manning’s indictment

and guilty plea are largely irrelevant to the sole issue

presented by this appeal. It suffices to say that during the

course of several years, Manning was involved in a conspiracy to

distribute hundreds of kilograms of marijuana and to channel

hundreds of thousands of dollars in related proceeds from

Virginia to persons in places as far away as California and

Jamaica. What is relevant is that prior to the underlying

indictment and plea, Manning was convicted in 2010 in Virginia

state court of possessing with the intent to distribute a

controlled substance. Manning was also convicted in 1997 in

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New Jersey state court of theft pursuant to New Jersey Code

section 2C:20-3(a), the umbrella provision for theft.

The U.S. Sentencing Guidelines Manual (the “Guidelines”)

provides in relevant part that, “A defendant is a career

offender if . . . the defendant has at least two prior felony

convictions of either a crime of violence or a controlled

substance offense.” U.S.S.G. § 4B1.1(a)(3). The district court

categorized Manning as a career offender based on his prior

convictions in Virginia and New Jersey, respectively. Manning’s

sentence consists of 188 months’ imprisonment and five years of

supervised release based on a total offense level of 31 and a

category VI criminal history.

Manning’s plea agreement reserved his right to appeal the

district court’s determination regarding his career-offender

status, which is the sole issue before the Court. On appeal,

Manning does not challenge the district court’s decision to

count his Virginia conviction for purposes of categorizing him

as a career offender, but he does challenge the decision to

count his New Jersey conviction. Specifically, Manning contends

that his theft conviction was not for a “crime of violence” for

purposes of Guidelines section 4B1.1(a)(3).

This Court reviews de novo a district court’s designation

of a defendant as a career offender. United States v. Johnson,

114 F.3d 435, 444 (4th Cir. 1997); see also United States v.

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Smith, 359 F.3d 662, 663–64 (4th Cir. 2004) (district court’s

determination regarding whether a crime is a “crime of violence”

is a legal question reviewed de novo).

II.

Prior to reaching the question presented by this appeal, we

first must address a preliminary issue raised by Manning: which

approach—the categorical approach or the modified categorical

approach—applies to the New Jersey theft conviction. Pursuant

to the categorical approach, courts need only “compare the

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

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

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

__ U.S. __, 133 S. Ct. 2276, 2281 (2013). The modified

categorical approach, on the other hand, applies to “divisible

statutes,” i.e., statutes that “set[] out one or more elements

of the offense in the alternative.” Id. Pursuant to the

modified categorical approach, courts may

consult a limited class of documents, such as
indictments and jury instructions, to determine which
alternative formed the basis of the defendant’s prior
conviction. The court can then do what the
categorical approach demands: compare the elements of
the crime of conviction (including the alternative
element used in the case) with the elements of the
generic crime.

Id.

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Manning argues that the New Jersey statute under which he

was convicted is “divisible” pursuant to Descamps, and thus the

district court erred by not looking at additional documents when

determining that his conviction was for a “crime of violence.”

In support of his position, Manning cites State v. Sein for the

notion that theft pursuant to New Jersey Code section 2C:20-3

“may be committed in many ways, i.e., by a stranger acting by

stealth or snatching from the presence or even the grasp of the

owner or by a person entrusted with the property as agent,

bailee, trustee, fiduciary or otherwise.” 590 A.2d 665, 670

(N.J. 1991) (emphasis omitted) (citation omitted) (block

quotation formatting omitted). Although Manning is correct that

the New Jersey Code sets forth several variations of theft—some

that can involve violence (e.g., section 2C:20-2(b)(1)(b), “The

property is taken by extortion”) and others that do not involve

violence (e.g., section 2C:20-2(b)(2)(j), “The property stolen

is a New Jersey Prescription Blank”)—the judgment pertaining to

Manning’s New Jersey conviction does not leave open the question

of whether Manning was an “agent, bailee, trustee, fiduciary,”

etc., Stein, 590 A.2d at 670; he plainly was not. Specifically,

the “Description” heading of the “Final Charges” section of the

Amended Judgment against Manning states, “Theft from Person (As

Amended),” and the “Degree” heading lists “3”. In looking at

the ways by which a person can commit third-degree theft in New

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Jersey, it is clear to us (as it was to the district court) that

Manning was convicted of stealing property from the victim’s

person pursuant to New Jersey Code section 2C:20-2(b)(2)(d) and

not of theft by breach of an entrustment or otherwise.

We turn now to the issue presented by this appeal: whether

section 2C:20-2(b)(2)(d) constitutes a “crime of violence” for

purposes of categorizing Manning as a career-offender pursuant

to the Guidelines.

III.

The Guidelines define “crime of violence” as

any offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that (1)
has as an element the use, attempted use, or
threatened use of physical force against the person of
another, or (2) is burglary of a dwelling, arson, or
extortion, involves use of explosives, or otherwise
involves conduct that presents a serious potential
risk of physical injury to another.

U.S.S.G. § 4B1.2(a).

Here, the offense elements of New Jersey Code section

2C:20-2(b)(2)(d) are that the defendant “[1] unlawfully takes,

or exercises unlawful control over, movable property of another

[person] [2] with purpose to deprive him thereof,” N.J. Rev.

Stat. § 2C:20-3(a), and “[3] [the taking] is from the person of

the victim,” id. § 2C:20-2(b)(2)(d). New Jersey courts have

interpreted the phrase “from the person” to mean from the

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victim’s “possession and immediate presence.” State v. Blow,

334 A.2d 341, 343 (N.J. Super. Ct. App. Div. 1975).

In considering these offense elements, third-degree theft

from the person does not fit the description of any crime that

the Guidelines categorize explicitly as a “crime of violence”—it

does not “ha[ve] as an element the use, attempted use, or

threatened use of physical force against the person of another,”

nor does it entail “burglary of a dwelling, arson, or extortion,

[or] involve[] [the] use of explosives.” U.S.S.G. § 4B1.2(a).

Thus, if we are to categorize section 2C:20-2(b)(2)(d) as a

“crime of violence,” its elements must “otherwise involve[]

conduct that presents a serious potential risk of physical

injury to another.” Id.

In United States v. Jarmon, this Court determined that the

North Carolina crime of larceny from the person is a crime of

violence pursuant to the “otherwise” clause of Guidelines

section 4B1.2(a). 596 F.3d 228, 233 (4th Cir. 2010). The

offense elements of North Carolina larceny from the person are

that the defendant “(1) took the property of another;

(2) carried it away; (3) without the owner’s consent[;] . . .

(4) with the intent to deprive the owner of the property

permanently”; and (5) “the property stolen must be in the

immediate presence of and under the protection or control of the

victim at the time the property is taken.” Id. at 230

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(citations omitted) (internal quotation marks omitted). In

categorizing larceny from the person as a “crime of violence,”

the Jarmon court compared larceny to robbery, the latter of

which has as an offense element in both New Jersey and North

Carolina “the use, attempted use, or threatened use of physical

force against the person of another,” U.S.S.G. § 4B1.2(a). See

N.J. Rev. Stat. § 2C:15-1; State v. Carter, 650 S.E.2d 650, 653

(N.C. Ct. App. 2007). The court stated:

[W]hile larceny from the person entails less violence
than robbery, that fact does not prove that larceny
from the person is nonviolent. Indeed, Jarmon
acknowledges that larceny from the person can involve
violence because it encompasses forceful takings like
the snatching of a purse from a shoulder. The act of
snatching a purse (or any other property) from the
victim’s person may not inflict severe pain or injury,
but it may do so, and in any event it is certainly
aggressive.

Jarmon, 596 F.3d at 232; see, e.g., State v. Link, 485 A.2d

1069, 1071 (N.J. Sup. Ct. App. Div. 1984) (affirming conviction

for attempted theft pursuant to section 2C:20-2(b)(2)(d) in a

case involving an unsuccessful purse snatch).

The court then compared larceny from the person to burglary

of a dwelling, which is among the crimes listed expressly as a

“crime of violence” in Guidelines section 4B1.2(a):

Burglary does not necessarily involve violence, but it
always requires that the offender intentionally enter
a building where a victim might be present. This
purposeful, aggressive act creates a serious risk of
violent confrontation. Similarly, larceny from the
person does not necessarily involve violence, but it

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requires the offender to make purposeful, aggressive
moves to part the victim from his or her property,
creating a similar risk of violent confrontation. In
fact, because larceny from the person requires that
the offender take the property from the protection or
control of the victim, the victim’s presence is
assured, and the odds of a violent confrontation are
even higher than in a generic burglary, where the
victim is often absent.

Jarmon, 596 F.3d at 232–33; see Blow, 334 A.2d at 343 (“A danger

of confrontation between thief and victim [becomes] present

[when] the victim's person and privacy [are] invaded.”).

Here, inasmuch as the New Jersey crime of third-degree

theft from the person has substantively indistinguishable

offense elements from the North Carolina crime of larceny from

the person—particularly with respect to the element wherein the

stolen property is taken from the victim’s “possession and

immediate presence,” Blow, 334 A.2d at 343, thus requiring a

potentially violent confrontation, see id.—we hold for the same

reasons articulated in Jarmon that third-degree theft pursuant

to New Jersey Code section 2C:20-2(b)(2)(d) also constitutes a

“crime of violence.”

IV.

For the reasons set forth above, we affirm the district

court’s decision to categorize Manning as a career offender for

purposes of sentencing him pursuant to the Guidelines. We

dispense with oral argument because the facts and legal

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contentions are presented adequately in the materials before the

Court and argument would not assist our decision-making process. ∗

AFFIRMED

∗
This Court previously determined that a conviction for
third-degree theft from the person pursuant to New Jersey Code
section 2C:20-2(b)(2)(d)—the precise statutory provision at
issue here—constitutes a “crime of violence” for sentencing
pursuant to the Guidelines. United States v. Clark, 373 F.
App’x 365 (4th Cir. 2010) (per curiam). Our decision in Clark,
however, is not published and therefore is not binding on this
Court when considering Manning’s appeal.