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Fourth Circuit Rules Assault on Government Official Under North Carolina Statute Not a ‘Crime of Violence’

by Chad Marks

The U.S. Court of Appeals for the Fourth Circuit ruled that Tomonta Simmons’ conviction for assault with a deadly weapon on a government official (“AWDWOGO”) under N.C. Gen. Stat. § 14-34.2 is not a crime of violence that can trigger a Grade A supervised release violation, and thus the Court vacated his 36-month sentence. 

Simmons was on federal supervised release after serving time for conspiracy to commit bank robbery. He was involved in a high-speed chase with North Carolina state troopers when one of the trooper vehicles was sideswiped. U.S. Probation petitioned the district court for revocation of Simmons’ supervised release. The court held a revocation hearing, finding that Simmons committed a Grade A supervised-release violation when he committed a North Carolina AWDWOGO. The court imposed a 36-month term of imprisonment—the high end of the range applicable for a Grade A violation.

Simmons’ attorney filed a so-called Anders brief on appeal, arguing there were no meritorious arguments on appeal. Anders v. California, 386 U.S. 738 (1967). However, in accordance with its obligations under Anders, the Fourth Circuit reviewed the record and discovered a nonfrivolous issue on appeal, i.e., “whether the North Carolina offense of AWDWOGO is a ‘crime of violence’ under the 2016 Sentencing Guidelines such that it constituted a Grade A violation of Simmons’s supervised release.”

The Court concluded that North Carolina AWDWOGO does not meet the definition of a “crime of violence” for purposes of U.S.S.G. § 7B1.1.

The Guidelines classify supervised-release violations into three categories. In order for a violation to constitute a Grade A violation, it must involve “conduct constituting a federal, state, or local offense punishable by a term of imprisonment exceeding one year that is a crime of violence.”

The Guidelines define a “crime of violence” as any federal or state offense punishable by imprisonment for a term exceeding one year that either “has as an element the use, attempted use, or threatened use of physical force against the person of another.” This is commonly referred to as the force clause. The Guidelines further define a crime of violence as follows: “or is murder, voluntary manslaughter, kidnapping, aggravated assault, or a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. § 5845(a) or explosive material as defined in 18 § 841(c).” This is the enumerated offense clause.

The Court, in determining whether North Carolina AWDWOGO is a crime of violence for purposes of the Guidelines, applied the categorical approach. This requires courts to determine if the offense can be committed without satisfying the definition of “crime of violence,” and if so, it is overbroad and not a categorical match. Taylor v. United States, 495 U.S. 575 (1990). 

Consistent with the U.S. Supreme Court’s guidance provided in Mathis v. United States, 136 S. Ct. 2243 (2016), the Fourth Circuit could only look to the elements of North Carolina AWDWOGO and not Simmons’ specific conduct.

The Government argued that the North Carolina offense in question categorically matched the generic enumerated offense of aggravated assault. After carefully examining the North Carolina statute, the Court disagreed, concluding that the statute does not define “assault” and is silent on the requisite mens reas. The element of assault and the required mens rea are established by common law in North Carolina. Those common law definitions encompass conduct that does not constitute a “crime of violence” under the Guidelines, as one can be convicted of assault with a mens rea of “culpable negligence.” State v. Jones 538 S.E. 2d 917 (N.C. 2000). The Court was satisfied that North Carolina AWDWOGO punishes conduct that is broader in scope than that punished by generic aggravated assault.

The Court next analyzed North Carolina AWDWOGO under the force clause and for the same reasons determined that the statute fails to satisfy the definition of a “crime of violence” under the force clause.

The Court then concluded that the district court erred by improperly calculating Simmons’ applicable Guidelines range, which should have been based upon a Grade B violation. Given Simmons’ criminal history, that would put his correct Guidelines range between 18 to 24 months. 

Accordingly, the Court vacated Simmons’ revocation sentence and remanded for resentencing. See: United States v. Simmons, 917 F.3d 312 (4th Cir. 2019). 

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