Argued: October 26, 2017
from the United States District Court for the Southern
District of West Virginia, at Charleston. Thomas E. Johnston,
Chief District Judge. (2:14-cr-00006-1)
Henry Wright, OFFICE OF THE UNITED STATES ATTORNEY,
Charleston, West Virginia, for Appellant.
Bradley Sword, SHUMAN, MCCUSKEY & SLICER, PLLC,
Charleston, West Virginia, for Appellee.
A. Casto, United States Attorney, Monica D. Coleman,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Charleston, West Virginia, for Appellant.
TRAXLER and AGEE, Circuit Judges, and Loretta C. BIGGS,
United States District Judge for the Middle District of North
Carolina, sitting by designation.
LORETTA COPELAND BIGGS, DISTRICT JUDGE
government appeals the district court's determination
that the West Virginia criminal offense of unlawful wounding,
W.Va. Code § 61-2-9(a), is not a crime of violence under
the force clause of § 4B1.2 of the United States
Sentencing Guidelines (the "Guidelines"). For the
reasons stated below, we vacate the sentence imposed by the
district court and remand for resentencing.
Covington pleaded guilty to distribution of heroin, in
violation of 21 U.S.C. § 841(a)(1). Covington's
presentence report classified him as a "career
offender" under § 4B1.1(a) of the Guidelines based
on two prior felony convictions: one for robbery with a
firearm, and the other for the offense of unlawful wounding
under West Virginia law. Covington did not object to the
career offender classification; however, prior to sentencing,
the district court sua sponte ordered the parties to brief
the issue whether unlawful wounding qualifies as a crime of
violence under the Guidelines.
sentencing, the district court concluded that West
Virginia's unlawful wounding offense did not qualify as a
crime of violence and, therefore, Covington was not a career
offender. The district court then calculated the advisory
sentencing guideline range applicable to Covington as 18-24
months, rather than, a sentence of "at least 12 and a
half years . . . if the career offender guideline was
applied, " J.A. 106. Since Covington had already been
detained on a pretrial basis for about ...