Argued: October 24, 2017
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)
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.
Drake, United States Attorney, Columbia, South Carolina, Eric
J. Klumb, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Charleston, South Carolina, for
GREGORY, Chief Judge, FLOYD, and HARRIS, Circuit Judges.
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.
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.
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'
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.
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
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).
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.
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. §
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. §
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 ...