By requiring not only the causation of bodily injury but also the specific intent to maim, disfigure, disable, or kill, Virginia unlawful wounding offense necessarily involves the use of violent force or, at minimum, the attempted or threatened use of such force. Thus, unlawful wounding qualifies as a “violent felony” under the Armed Career Criminal Act.
Appellant Edmund Jenkins admitted to police during a traffic stop that he had a handgun hidden under his car seat. Due to a prior felony conviction, Jenkins was charged with possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1). His pre-sentencing report recommended sentencing under the Armed Career Criminal Act, based on his prior convictions in Virginia for unlawful and malicious wounding. Jenkins argued that these offenses are not “violent offenses” under the Act. The district court overruled his objection, and this appeal followed.
The Act defines the term “violent felony” as an offense that has as an element “the use, attempted use, or threatened use of physical force against the person of another.” To determine whether unlawful wounding qualifies as a violent felony, the court employs the “categorical approach,” based on the minimum conduct required to sustain a conviction.
Unlawful wounding and malicious wounding are both defined in Code § 18.2-51, which makes it a felony to “shoot, stab, cut, or wound any person or by any means cause him bodily injury, with the intent to maim, disfigure, disable, or kill.” The severity of the crime depends on whether the prohibited conduct is done “maliciously” or simply “unlawfully.”
Here, the least serious wounding offense of which Jenkins was convicted is unlawful wounding, which still requires proof of a bodily injury with the specific intent to maim, disfigure, disable, or kill the victim. As a practical matter, the means employed toward that end will involve violent force. Put differently, it’s not plausible that a conviction requiring an intent to kill or severely injure will rest on conduct that is incapable of fulfilling that intent.
This straightforward reading of Virginia’s unlawful wounding statute is confirmed by state cases confining its application to acts of violence. Under precedent from the Supreme Court of Virginia, a perpetrator may intend to maim, disfigure, disable, or kill even with fists, but “only if the force is applied with violence and brutality.” On the other hand, striking a person with a fist, standing alone, normally does not suffice to prove an intent to permanently harm.
Jenkins has cited no Virginia decisions charging unlawful wounding for conduct involving uses of non-violent force, and this court’s review also has revealed no such case. The absence of illustrative cases confirms the conclusion that Virginia law does not allow for unlawful wounding convictions based on the kinds of non-violent force that Jenkins imagines. Not being permitted to go beyond a state’s own understanding of its criminal offenses, the court therefore concludes that the minimum conduct necessary to sustain a conviction for unlawful wounding requires the attempted or threatened use of physical force under the Act.
United States v. Jenkins, Case No. 16-4121, Mar. 9, 2018. 4th Cir. (Harris), from WDVA at Roanoke (Urbanski). Fay Frances Spence for Appellant; Jean Barrett Hudson for Appellee. VLW No. 018-2-048, 9 pp.