UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-4165

UNITED STATES OF AMERICA,

Plaintiff – Appellee, v.

LORENZO KEITT,

Defendant – Appellant.

Appeal from the United States District Court for the District of South Carolina, at Columbia. Terry L. Wooten, Senior District Judge. (3:17-cr-00805-TLW-1)

Argued: December 13, 2018 Decided: March 13, 2019

Before NIEMEYER, KING, and WYNN, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

ARGUED: Kimberly Harvey Albro, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Columbia, South Carolina, for Appellant. William Camden Lewis, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. ON BRIEF: Sherri A. Lydon, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Lorenzo Keitt pleaded guilty in the District of South Carolina in 2017 to a single

offense of possession of a firearm and ammunition as a convicted felon, in violation of

(g)(1). After establishing his advisory Sentencing Guidelines range at 70 to

87 months, the district court sentenced Keitt to 72 months in prison. On appeal, Keitt

contends that the court erred in calculating his Guidelines range by incorrectly applying a

provision that increases the offense level for a defendant who already has two felony

convictions for “crime[s] of violence.” As explained below, one of Keitt’s convictions

on which the court relied is not a “crime of violence.” We therefore vacate the judgment

and remand.

I.

In November 2017, Keitt was convicted of the

(g)(1) offense of

possessing a firearm and ammunition as a convicted felon. Prior to the sentencing

hearing, the probation officer prepared Keitt’s presentence report (the “PSR”) under the

Sentencing Guidelines. The PSR suggested a base offense level of 24 under Guidelines

§ 2K2.1(a)(2). That provision increases the base offense level — and thereby the

advisory Guidelines range — if the defendant has certain prior felony convictions. More

specifically, § 2K2.1(a)(2) provides that, if the defendant has at least two prior felony

convictions for a “crime of violence” or a “controlled substance offense,” his base

offense level for the § 922(g)(1) offense increases from 14 to 24. See USSG

§ 2K2.1(a)(6)(A) (providing that, absent other factors, base offense level for § 922(g)(1)

2 offense is 14). As pertinent here, the Guidelines define a “crime of violence” as any

crime punishable by a term of imprisonment exceeding one year that:

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another [the “force clause”], or

(2) is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm described in

(a) or explosive material as defined in

(c) [the “enumerated crimes clause”].

See

§ 4B1.2(a); see also id. § 2K2.1 cmt. n.1 (incorporating definition of “crime of

violence” from Guidelines § 4B1.2(a) into Guidelines § 2K2.1). 1 The Guidelines

definition of a “crime of violence” thus contains two distinct clauses, commonly referred

to as the “force clause” and the “enumerated crimes clause.”

The PSR recommended that the sentencing court in the District of South Carolina

apply § 2K2.1(a)(2) — and a base offense level of 24 — because Keitt had two prior

convictions for a “crime of violence.” That is, the PSR specified that Keitt was

previously convicted in South Carolina state courts for the felony offenses of

(1) assaulting, beating, or wounding a law enforcement officer while resisting arrest, in

violation of South Carolina Code § 16-9-320(B) (hereinafter the “ABWO offense”), and

(2) threatening the life, person, or family of a public official, in violation of South

Carolina Code § 16-3-1040(A) (hereinafter the “threat offense”). After subtracting 3

levels for Keitt’s guilty plea and acceptance of responsibility — resulting in a total

1 The Sentencing Commission amended the Guidelines in August 2016 to revise the “crime of violence” definition spelled out in § 4B1.2(a). That “crime of violence” definition applies in these proceedings.

3 offense level of 21 — the PSR placed Keitt in a criminal history category of V. It then

calculated his advisory Guidelines range as 70 to 87 months.

At the sentencing hearing conducted in Columbia on March 13, 2018, Keitt

objected to the application of § 2K2.1(a)(2). He argued that neither his ABWO offense

nor his threat offense constituted a “crime of violence.” The district court, however,

ruled that both offenses — the ABWO offense and the threat offense — were “crime[s]

of violence” under the force clause of Guidelines § 4B1.2(a). The court thus concluded

that § 2K2.1(a)(2) applied to Keitt’s § 922(g)(1) conviction and required a base offense

level of 24. The court adopted the remainder of Keitt’s PSR, resulting in the advisory

Guidelines range of 70 to 87 months. The court then sentenced Keitt — within that

advisory range — to 72 months in prison. Keitt has appealed the criminal judgment, and

we possess jurisdiction pursuant to

(a) and

.

II.

On appeal, Keitt maintains that the district court erred in calculating his advisory

Guidelines range. That is, Keitt asserts that the court should not have applied the base

offense level provided for in Guidelines § 2K2.1(a)(2), in that his ABWO offense is not a

“crime of violence” under Guidelines § 4B1.2(a). In other words, he argues that he does

not have two prior felony convictions for “crime[s] of violence,” as required by

4 § 2K2.1(a)(2). 2 In response, the government contends that the court correctly ruled that

Keitt’s ABWO offense is a “crime of violence” under § 4B1.2(a)’s force clause. We

review de novo the question of whether a prior conviction is a “crime of violence.” See

United States v. Hammond,

(4th Cir. 2019).

III.

A.

The lawyers agree that we are obliged to apply the familiar “categorical approach”

in assessing whether Keitt’s conviction for the ABWO offense constitutes a “crime of

violence.” See United States v. Jones,

(4th Cir. 2019) (applying

categorical approach to whether ABWO offense was “violent felony” under Armed

Career Criminal Act (the “ACCA”),

(e)(2)(B)). Pursuant to the

categorical approach, we consider only the elements of the offense in dispute, not the

underlying facts of that offense. See United States v. Carthorne,

(4th

Cir. 2013). Accordingly, for an offense to qualify categorically as a “crime of violence”

under the force clause of Guidelines § 4B1.2(a), the offense “necessarily must have as an

element the ‘use, attempted use, or threatened use of physical force against the person of

2 Keitt also maintains on appeal that his conviction for the threat offense is not a “crime of violence” conviction under Guidelines § 4B1.2(a). Because we rule that the ABWO offense is not a “crime of violence,” and that the district court erred in applying Guidelines § 2K2.1(a)(2), we need not decide the threat offense issue. See United States v. Passaro,

(4th Cir. 2009) (declining to decide Guidelines challenge where other error required remand).

5 another.’” See United States v. Hammond,

(4th Cir. 2019) (quoting

USSG § 4B1.2(a)(1)). The Supreme Court has instructed that the phrase “physical

force,” as used in § 4B1.2(a)’s force clause, “means violent force — that is, force capable

of causing physical pain or injury to another person.” See Johnson v. United States,

(2010).

In conducting the categorical analysis required by § 4B1.2(a), “[w]e rely on

precedents evaluating whether an offense constitutes a ‘crime of violence’ under the

Guidelines interchangeably with precedents evaluating whether an offense constitutes a

‘violent felony’” under the ACCA. See United States v. Montes-Flores,

(4th Cir. 2013) (quoting United States v. King,

, 279 n.3 (4th Cir.

2012)). 3 Like § 4B1.2(a)’s “crime of violence” definition, the ACCA’s “violent felony”

definition also contains a force clause. See

(e)(2)(B)(i) (defining “violent

felony” as an offense punishable by more than a year in prison that “has as an element the

use, attempted use, or threatened use of physical force against the person of another”).

We have recognized that, if an offense does not qualify as a “violent felony” under the

3 The ACCA defines a “violent felony” as any crime punishable by a term of imprisonment exceeding one year 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.

See

(e)(2)(B).

6 ACCA’s force clause, it is not a “crime of violence” under § 4B1.2(a)’s force clause. See

United States v. Gattis,

(4th Cir. 2017).

B.

With the applicable legal principles so understood, we are satisfied that our recent

published decision in the Jones case requires us to vacate the challenged judgment and

remand. See United States v. Jones,

(4th Cir. Feb. 4, 2019). In Jones, we

assessed whether the ABWO offense was a “violent felony” under the ACCA’s force

clause.

. We therein explained that the ABWO offense can be committed

by three distinct physical actions against a law enforcement officer, that is, by assaulting,

by beating, or by wounding the law officer.

. 4 Focusing on the assault aspect of

the ABWO offense, we recognized that “an assault under South Carolina law can be

committed without the use, attempted use, or threatened use of violent physical force.”

. As Jones related, “a person can perpetrate an assault [in South Carolina]

by attempting to touch another in a rude or angry manner.”

. Moreover, we

4 The South Carolina statute criminalizing the ABWO offense provides, in pertinent part, that it is a felony offense punishable by up to ten years in prison for any person

to knowingly and wilfully assault, beat, or wound a law enforcement officer engaged in serving, executing, or attempting to serve or execute a legal writ or process or to assault, beat, or wound an officer when the person is resisting an arrest being made by one whom the person knows or reasonably should know is a law enforcement officer, whether under process or not.

See

(B).

7 emphasized that South Carolina has actually applied the ABWO offense to conduct that

did not involve violent physical force (i.e., when an arrestee spit blood on a police

officer).

As a result of South Carolina’s application of the ABWO offense to

“conduct that does not involve the use, attempted use, or threatened use of violent

physical force against another,” the Jones decision ruled that the ABWO offense is not

categorically a “violent felony” under the force clause of the ACCA.

Although Jones was decided under the ACCA’s force clause, it informs our

analysis of the force clause in Guidelines § 4B1.2(a). See Gattis,

;

Montes-Flores,

. Based on the reasoning of Jones, we are satisfied that

Keitt’s prior South Carolina conviction for the ABWO offense fails to qualify as a “crime

of violence” under § 4B1.2(a)’s force clause. 5 Consequently, the sentencing court erred

in applying Guidelines § 2K2.1(a)(2), in that Keitt does not have the two requisite prior

felony convictions for “crime[s] of violence.” Because that error resulted in an incorrect

determination of Keitt’s base offense level, he is entitled to be resentenced.

IV.

Pursuant to the foregoing, we vacate the judgment and remand for such other and

further proceedings as may be appropriate.

VACATED AND REMANDED

5 The government did not argue in the district court — and does not contend on appeal — that the ABWO offense is a “crime of violence” under the enumerated crimes clause of § 4B1.2(a).

8