Wake Forest Law Review

By Mike Stephens

On February 2, 2017, the Fourth Circuit issued a published opinion in the criminal case United States v. Evans. The defendant, Jamal Evans, appealed his conviction and sentencing under 18 U.S.C. § 924(c)(1)(A) for the federal crime of carjacking. The District Court for the Eastern District of North Carolina denied Evans’ motion to dismiss, ruling that carjacking qualified as a “crime of violence” under § 924(c). The Fourth Circuit affirmed Evans’ conviction, holding that carjacking required the use of violent physical force and, therefore, was considered a crime of violence.

Facts and Procedural History

In July 2013, the defendant, Jamal Evans, was riding in a car with his friend, Amani Duke. Evans told Duke to drive to a nearby parking lot to meet Evans’ cousin. However, once in the parking lot, Evans pulled out a pistol, ordered Duke out of the car, and attempted to steal Duke’s wallet. Evans then shot Duke in each leg and drove off in Duke’s car.

A grand jury charged Evans with carjacking resulting in serious bodily injury, a violation of 18 U.S.C. § 2119(2), and with using a firearm during the carjacking, a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A). Evans was also charged with additional crimes not at issue on appeal. Evans filed a motion to dismiss, arguing that the carjacking statute did not qualify as a “crime of violence” within the meaning of § 924(c). The district court denied Evans’ motion, ruling that carjacking qualified as a crime of violence under § 924(c). Evans entered a guilty plea, preserving his right to appeal the district court’s ruling that carjacking qualified as a crime of violence. Evans was ultimately sentenced to serve 216 months’ imprisonment. Evans appealed the district court’s judgment regarding his conviction and sentence for carjacking under § 924(c).

Carjacking is Considered a “Crime of Violence”

The Fourth Circuit’s analysis hinged on determining whether subsection (1) of the carjacking statute qualified as a crime of violence. The Fourth Circuit reasoned that if subsection (1) was considered a crime of violence, then the aggravated offense under subsection (2) that Evans was charged with “necessarily also qualifies as a crime of violence.” The Court examined the definition of a crime of violence under § 924(c)(3) and compared that to the elements of the carjacking statute.

§ 924(c)(3) defines a crime of violence as any felony that either:

(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

The Court determined that the use of “physical force” also required the use of “violent force,” meaning the degree of force employed must be “capable of causing physical pain or injury to another person.” Because § 924(c)(3) contemplates only crimes that have “as an element. . .use of physical force,” the Court applied the “elements-based categorical approach” described by the Supreme Court to determine whether the carjacking statute fit within this definition.

Evans argued that because carjacking could be committed “by intimidation,” the offense did not include “the use, attempted use, or threatened use of force” required under § 924(c)(3). Evans argued that “intimidation,” as it is commonly defined, could include convictions for acts not contemplated by the carjacking statute. The government responded by arguing that “intimidation” within the full statutory phrase found in the carjacking statute signifies a threat to use violent force. The government argued that, under this reading of the statute, the use of intimidation to commit carjacking is covered by § 924(c)(3).

The Fourth Circuit relied their analysis in a recent decision, United States v. McNeal, to determine whether carjacking is considered a crime of violence. In McNeal, an element of the bank robbery statute at issue required the property be taken “by force and violence, or by intimidation.” The Fourth Circuit viewed this language similar enough to the element at issue under the carjacking statute, 18 U.S.C. § 2119. The Fourth Circuit held in McNeal that “intimidation” required the threatened use of physical force and the crime of bank robbery qualified as a crime of violence under § 924(c)(3). The Court noted that their decision in McNeal relied on the holdings from the Eleventh Circuit and the Second Circuit that concluded that carjacking under § 2119 was considered a crime of violence. The Fourth Circuit concluded that taking a motor vehicle “by force and violence” required the use of violent physical force and that the act of taking a motor vehicle “by intimidation” required threatened use of force. The Court was also careful to highlight that this decision did not alter their holding in United States v. Torres-Miguel.

Disposition

The Fourth Circuit ultimately held that the term “intimidation” in § 2119 includes a threat of violent force within the meaning of § 924(c)(3). Thus, Evans conviction for carjacking resulting in bodily injury under § 2119(2) is a crime of violence under 924(c)(3). Evans’ conviction and sentence under § 924(c) was affirmed.

By Taylor Ey

On April 15, 2015, the Fourth Circuit issued its published opinion in United States v. Flores-Granados.  The appellant, Marlon Flores-Granados, appealed the decision of the lower court, alleging that he was improperly given a 16-level enhancement based on a prior conviction.  The Fourth Circuit sided with the appellee, the United States government, holding that under North Carolina law, second degree kidnapping constitutes a “crime of violence,” thus affirming the district court’s enhanced sentencing of Flores-Granados based on his prior conviction.

Origin of “Crime of Violence”

Under the United States Sentencing Guidelines (“Sentencing Guidelines”), a defendant previously deported after a conviction for a “crime of violence,” and having unlawfully returned to the United States, is subject to an enhancement of either 12 or 16 levels depending on whether the conviction receives criminal history points.  U.S.S.G. § 2L1.2(b)(1)(A)(ii).  The Application notes to the Sentencing Guidelines refer to kidnapping as a crime of violence.

On appeal, Flores-Granados argued that, under North Carolina law, his prior conviction for second degree kidnapping did not constitute a “crime of violence.”  Applying the categorical approach outlined by the Supreme Court in Taylor v. United States, 495 U.S. 575 (1990), the Fourth Circuit held that second degree kidnapping is a crime of violence within the meaning of the Sentencing Guidelines.

Applying Supreme Court Precedent to Second Degree Kidnapping Under NC Law

Under the categorial approach, courts must identify the generic contemporary meaning of the crime and then compare the generic definition to the definition given in the state statute of the state where the defendant was previously convicted.  Then, if the state has adopted the generic meaning, or a narrower definition included in the generic meaning, there is no conflict, and the defendant has necessarily been convicted of the crime under the generic meaning.  Thus, the drafters of the Sentencing Guidelines meant to include the crime within its crime of violence definition.

According to the Fourth Circuit, the district court misapplied the analysis of Taylor to Flores-Granados’ previous conviction in determining whether second degree kidnapping is a crime of violence by looking to the specific facts of the case.  However, the Fourth Circuit looked at the record anew to determine whether theories not considered or rejected by the district court could still support the district court’s sentencing decision.

The Fourth Circuit considered commonalities amongst the Model Penal Code (“MPC”), the laws of the states, and sister circuits, to determine the generic definition of kidnapping.  The MPC defines kidnapping as either unlawful removal from a place of business or residence or unlawful confinement in isolation for a prolonged period for one of four enumerated purposes.  See Model Penal Code § 212.2.  Ultimately, drawing from other state and circuit law, the Fourth Circuit concluded that “[t]o be within generic kidnapping, in addition to unlawful restraint by force, threat or fraud, a statute must contain as an element an additional aggravating factor such as nefarious purposes or substantial interference with the victim’s liberty, but need not require both.”

Upholding the District Court’s Decision

Because the generic meaning “substantially corresponds” with the North Carolina statute defining second degree kidnapping, Flores-Granados’ prior conviction was a crime of violence, and thus it was proper for the district court to apply enhanced level sentencing in Flores-Granados’ case.