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United States v. Middleton

United States Court of Appeals, Fourth Circuit

February 26, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
JARNARO C. MIDDLETON, Defendant-Appellant.

          Argued: October 24, 2017

         Appeal from the United States District Court for the District of South Carolina, at Charleston. Patrick Michael Duffy, Senior District Judge. (2:04-cr-01094-PMD-1; 2:16-cv-01327-PMD)

         ARGUED:

          Emily Deck Harrill, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Columbia, South Carolina, for Appellant.

          William Jacob Watkins, Jr., OFFICE OF THE UNITED STATES ATTORNEY, Greenville, South Carolina, for Appellee.

         ON BRIEF:

          Beth Drake, United States Attorney, Columbia, South Carolina, Eric J. Klumb, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South Carolina, for Appellee.

          Before GREGORY, Chief Judge, FLOYD, and HARRIS, Circuit Judges.

         Reversed and remanded by published opinion. Chief Judge Gregory wrote the opinion, in which Judge Harris joined. Judge Floyd joined in part and concurred in the judgment. Judge Floyd wrote a concurring opinion, in which Judge Harris joined as to Parts II.A. and B.

          GREGORY, Chief Judge.

         Jarnaro Carlos Middleton was sentenced as an armed career criminal pursuant to the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). Middleton challenges the district court's determination that his prior conviction for South Carolina involuntary manslaughter qualifies as a violent felony under the ACCA. Due to the idiosyncrasies of the Supreme Court's "categorical approach, " the ultimate issue in this case is whether selling alcohol to a minor involves the requisite use of violent force. We conclude that it does not and reverse.

         I.

         On December 29, 2005, Middleton pled guilty to being a felon in possession of firearms and ammunition, in violation of 18 U.S.C. § 922(g)(1). Defendants who violate § 922(g) typically face a sentence of up to ten years' imprisonment. See 18 U.S.C. § 924(a)(2). Under the ACCA, however, § 922(g) violators who have been convicted of three or more violent felonies or serious drug offenses qualify as armed career criminals and are subject to a fifteen-year mandatory minimum sentence. Id. § 924(e)(1). According to Middleton's Pre-sentence Report, three of his prior South Carolina convictions qualified as violent felonies under the ACCA: (1) a 1976 conviction for housebreaking; (2) a 1980 conviction for involuntary manslaughter; and (3) a 1990 conviction for trafficking and conspiracy to traffic cocaine. At sentencing, the district court found Middleton to be an armed career criminal and sentenced him to fifteen years' imprisonment.

         Middleton's direct appeal left this conviction and sentence unchanged. Middleton then sought, unsuccessfully, post-conviction relief under 28 U.S.C. § 2255. In 2016, Middleton requested and this Court granted authorization to file a second § 2255 petition in light of the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015) (hereinafter "Johnson II"), which invalidated part of the ACCA's definition of a violent felony. Id. at 2563.

         In his second § 2255 petition, Middleton argued that all three of his prior felony convictions no longer qualify as violent felonies under the ACCA. On November 3, 2016, the district court rejected Middleton's arguments and dismissed the petition. However, the court issued a certificate of appealability with respect to whether Middleton's South Carolina involuntary manslaughter conviction meets the ACCA's definition of a violent felony, post-Johnson II.

         II.

         To determine whether South Carolina involuntary manslaughter falls within the ACCA's definition of a violent felony, we apply the "categorical approach." United States v. Baxter, 642 F.3d 475, 476 (4th Cir. 2011). Under the traditional categorical approach, this Court is "bound by the interpretation of [the] offense articulated by that state's courts." See United States v. Winston, 850 F.3d 677, 684 (4th Cir. 2017). This characteristic of the categorical approach is sometimes counterintuitive because it requires courts to review the "most innocent conduct" that the law criminalizes, rather than the specific facts on which the defendant was convicted. See United States v. Diaz-Ibarra, 522 F.3d 343, 348 (4th Cir. 2008). Notwithstanding the categorical approach's quirks, in-depth analysis of state law helps to ensure that courts analyze realistic criminal conduct and not just "legal imagination." See Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007). After determining the minimum conduct needed to commit an offense, we then compare the elements of the offense to the ACCA's definition of violent felony. United States v. Doctor, 842 F.3d 306, 309 (4th Cir. 2016). If the offense "sweeps more broadly" than the ACCA's definition of a violent felony, the offense does not qualify as an ACCA predicate. Descamps v. United States, 133 S.Ct. 2276, 2283 (2013).

         We review de novo whether a prior conviction qualifies as an ACCA violent felony. United States v. Hemingway, 734 F.3d 323, 331 (4th Cir. 2013). We begin with the ACCA's definition of violent felony and then compare it to the elements of South Carolina involuntary manslaughter.

         A.

         The ACCA defines a "violent felony" as any crime, punishable by more than a year in prison, 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 presents a serious potential risk of physical injury to another.

§ 924(e)(2)(B). Subsection (i) is commonly referred to as the "force clause." United States v. Gardner, 823 F.3d 793, 802 (4th Cir. 2016). The language in subsection (ii) beginning with "or otherwise" is commonly referred to as the "residual clause." Beckles v. United States, 137 S.Ct. 886, 891 (2017). In Johnson II, the Supreme Court struck down the residual clause as unconstitutionally vague. 135 S.Ct. at 2562-63. Thus, the effective language in subsection (ii) now reads, "is burglary, arson, or extortion, [or] involves use of explosives." See id.; 18 U.S.C. § 924(e)(2)(B)(ii).

         It is undisputed that South Carolina involuntary manslaughter does not qualify as a violent felony under subsection (ii) as "amended" by Johnson II. The offense cannot be categorized as burglary, arson, or extortion; nor does the offense require the use of explosives. See State v. Collins, 763 S.E.2d 22, 26 (S.C. 2014) (discussing the elements of South Carolina involuntary manslaughter). And although this Court held in United States v. Williams, 67 F.3d 527 (4th Cir. 1995), that South Carolina involuntary manslaughter qualifies as a violent felony under subsection (ii), that case relied on the residual clause. Id. at 528 (finding that South Carolina involuntary manslaughter involved conduct that presented a "serious potential risk of physical injury to another."). After Johnson II, our decision in Williams no longer reaches the issue presented here. Thus, the only question before us is whether South Carolina's involuntary manslaughter offense qualifies as a violent felony under subsection (i), the ACCA's "force clause." See 18 U.S.C. § 924(e)(2)(B)(i).

         The ACCA's force clause requires "the use, attempted use, or threatened use of physical force against the person of another." Id. (emphasis added). Congress did not define the term "physical force." Johnson v. United States, 559 U.S. 133, 138 (2010) (hereinafter "Johnson I"). But the Supreme Court gave the phrase its ordinary meaning: "force exerted by and through concrete bodies" as opposed to "intellectual force or emotional force." Id. In Johnson I, the Court further explained that "because the term 'physical force' contributes to the definition of a 'violent felony, ' it is understood to mean 'violent force-that is, force capable of causing physical pain or injury to another person.'" United States v. Reid, 861 F.3d 523, 527 (4th Cir. 2017) (quoting Johnson I, 559 U.S. at 140). Therefore, "physical force" under the ACCA's force clause must be both physical (exerted through concrete bodies) and violent (capable of causing pain or injury to another). De minimus physical force, such as mere offensive touching, is insufficient to trigger the ACCA's force clause because it is not violent. Compare United States v. Gardner, 823 F.3d 793, 803 (4th Cir. 2016) (holding that North Carolina robbery is not a violent felony under the ...


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