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NC Second-Degree Rape Not ‘Violent Crime’

Deborah Elkins//June 17, 2015

NC Second-Degree Rape Not ‘Violent Crime’

Deborah Elkins//June 17, 2015//

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A district court erred in enhancing defendant’s firearm possession sentence for his prior North Carolina conviction of second-degree rape as a “violent crime,” and for driving recklessly while fleeing a law enforcement officer, when evidence indicated he did not know he was being pursued; the 4th Circuit vacates defendant’s 57-month sentence and remands for resentencing.

Defendant pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g) (2012). At sentencing, the district court applied an enhanced base offense level on the ground that defendant’s prior North Carolina conviction for second-degree rape constituted a crime of violence under USSG § 2K2.1(a)(4)(A). The district court also applied a two-level enhancement under USSG § 3C1.2, for recklessly creating a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer. Defendant challenges the district court’s application of both enhancements.

The parties agree that in considering whether defendant’s prior conviction constitutes a crime of violence, we must apply what is called the “categorical approach,” which focuses on the elements, rather than the facts, of the prior offense. Whether North Carolina second-degree rape categorically qualifies as a crime of violence under this approach is a question of first impression for our court, and we agree with defendant that it does not.

We think it clear that the second subsection of North Carolina’s second-degree rape statute, which does not require the state to prove force at all and may instead be violated if there is legally insufficient consent, does not meet this “violent force” standard. Nor do we believe the North Carolina offense qualifies as a crime of violence under § 4B1.2’s “residual clause” or “otherwise clause.”

In applying § 4B1.2’s definition of crime of violence, we see no grounds for distinguishing between sexual intercourse with a victim whose consent is legally invalid because he or she is 14 years old, and sexual intercourse with an adult victim whose consent is legally invalid because he or she has the mental capacity of a 14-year-old.

The government contends that because sex offenses resting on legally insufficient consent constitute “forcible sex offenses” under a different section of the guidelines – § 2L1.2 – they must be crimes of violence under the commentary to § 4B1.2, as well. The 6th and 10th Circuits have rejected precisely that argument, and we join them now. We hold that defendant’s prior conviction for North Carolina second-degree rape is not categorically a crime of violence under § 4B1.2. Our decision should not be understood to minimize in any way the seriousness of the offenses proscribed by the North Carolina statute or the importance of the state’s interest in protecting the most vulnerable of victims. But whether the full range of conduct covered by that state statute constitutes a crime of violence under § 4B1.2, as construed both by our court and the Supreme Court, is a different question, which we are obliged to answer in the negative. Because the district court erred in characterizing defendant’s prior conviction as a crime of violence and thereby enhancing defendant’s base offense level for illegally possessing a firearm, we vacate defendant’s sentence and remand for resentencing.

Reckless driving

The district court also enhanced defendant’s sentence under USSG § 3C1.2. Our court has not addressed whether the § 3C1.2 enhancement applies if the defendant was unaware that he was being pursued by an officer. But every circuit to consider the question has concluded the enhancement is not warranted where an officer is following a defendant but the defendant does not know that the officer is in pursuit, and is driving recklessly for some other reason.

At argument, the government conceded that this is the correct reading of § 3C1.2. We agree, and now adopt that reading, joining our sister circuits in holding that the § 3C1.2 enhancement does not apply where a defendant was unaware that he was being pursued by a law enforcement officer. We remand on this issue as well.

Vacated and remanded.


Wilkinson, J.: North Carolina’s second-degree rape statute punishes predatory acts committed against society’s most vulnerable individuals. To violate the contested portion of N.C. Gen. Stat. § 14-27.3(a)(2), one must have taken advantage of a mentally or physically defenseless person to engage in sexual intercourse — all the while knowing of the victim’s impaired condition. This law protects people considered incapable of volitional acts from such callous conduct. I do not understand how the knowing, forcible sexual subjugation of helpless human beings fails to qualify as a crime of violence. With all respect for my friends in the majority, I dissent.

The victims here cannot resist; they cannot consent. But they yet retain the capacity to feel the trauma and, yes, the violence that has been so visited upon their very beings. The majority nevertheless maintains that the rape of someone known to be mentally disabled, mentally incapacitated, or physically helpless is neither a forcible sex offense nor a crime of violence. The victims, were they even sentient, would beg to differ. They know not our precedents. They know not our doctrines. But somewhere in the recesses of consciousness they do know they have been wronged, and we now know that law has failed to duly recognize it.

U.S. v. Shell (Harris) No. 14-4211, June 12, 2015; USDC at Statesville, N.C. (Voorhees) Joshua B. Carpenter for appellant; William M. Miller, AUSA. VLW 015-2-096, 55 pp.

VLW 015-2-096

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