USCA4 Appeal: 21-4217 Doc: 58 Filed: 10/21/2022 Pg: 1 of 6

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21−4217

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

JEROME DAVIS, a/k/a Jerome Salathiel Davis, a/k/a Rome,

Defendant – Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. Louise W. Flanagan, District Judge. (7:19−cr−00183−FL−1)

Submitted: October 3, 2022 Decided: October 21, 2022

Before WILKINSON and KING, Circuit Judges, and FLOYD, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Anne Margaret Hayes, Cary, North Carolina, for Appellant. Kenneth A. Polite, Jr., Assistant Attorney General, Lisa H. Miller, Deputy Assistant Attorney General, David M. Lieberman, Appellate Section, Criminal Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Michael F. Easley, Jr., United States Attorney, Joshua L. Rogers, Assistant United States Attorney, OFFICE OF THE UNITED STATE ATTORNEY, Raleigh, North Carolina, for Appellee.

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PER CURIAM:

Jerome Davis pled guilty to five federal drug and firearms offenses and was

sentenced as a career offender. He appeals his career-offender enhancement, arguing that

his 2005 conviction for resisting an officer with violence in violation of

does not meet the federal definition of a “crime of violence” under U.S.S.G. § 4B1.2(a)(1).

For the following reasons, we affirm. We also deny Davis’s motion to file a supplemental

brief raising, for the first time, a challenge to his other career-offender predicate.

I.

Davis pled guilty to conspiracy to possess with intent to distribute cocaine, cocaine

base, heroin, and marijuana; distribution of heroin; possession with intent to distribute

cocaine, cocaine base and marijuana; possession of a firearm as a felon; and possession of

a firearm in furtherance of a drug-trafficking crime. J.A. 135. The Probation Office

recommended that Davis be sentenced as a career offender under U.S.S.G. § 4B1.1. Id. at

145. That provision subjects defendants to enhanced sentences if they have at least two

prior felony convictions for a “crime of violence” or a “controlled substance offense.”

U.S.S.G. § 4B1.1(a). The Probation Office determined that Davis qualified based on a 2005

Florida conviction for resisting an officer with violence and three 2012 North Carolina

convictions for selling or delivering a controlled substance. 1 J.A. 145.

1 The Probation Office determined—and the parties agree—that the three North Carolina convictions, which occurred on the same day, count as just one for purposes of the career- offender provision. See J.A. 140; U.S.S.G. § 4B1.2(c).

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Davis objected to being sentenced as a career offender, arguing that the Florida

resisting-an-officer-with-violence offense does not qualify as a crime of violence for

purposes of the career-offender provision. Id. at 149. The district court stated that it viewed

the Probation Office’s position as correct and overruled Davis’s objection. Id. at 57. The

court calculated Davis’s guideline sentence as 262–327 months and varied downward to

impose a sentence of 240 months. Id. at 77, 90.

Davis timely appealed. Id. at 105. The only issue raised in his opening brief is

whether the resisting-an-officer-with-violence offense,

, qualifies as a

crime of violence. Opening Br. of Appellant at 8. Davis argues that under Johnson v. State,

(Fla. 1909), any unlawful force counts as violent force sufficient to satisfy the

violence element of

. Opening Br. at 12–13. But, according to Davis, the

Supreme Court has held that in order to constitute a crime of violence under federal law,

an offense must require “violent force” that is “capable of causing physical pain or injury

to another person.”

at 10 (quoting Johnson v. United States,

(2010)).

After the opening, response, and reply briefs all had been filed, Davis moved to file

a supplemental brief raising, for the first time, a challenge to whether his North Carolina

drug convictions count as a “controlled substance offense” for purposes of the career-

offender provision. See Dkt. Entry 46.

II.

“This Court reviews de novo the question whether a prior state conviction qualifies

as a crime of violence.” United States v. Covington,

, 131–32 (4th Cir. 2018).

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The career-offender provision of the Sentencing Guidelines defines “crime of

violence” as, inter alia, “any offense under federal or state law, punishable by

imprisonment for a term exceeding one year, that . . . has as an element the use, attempted

use, or threatened use of physical force against the person of another.” U.S.S.G.

§ 4B1.2(a)(1). To determine whether an offense qualifies, we apply the categorical

approach, under which we compare the elements required for conviction of the offense to

the elements required for application of the sentencing enhancement. Covington,

. The Supreme Court has interpreted “physical force” as “violent force—that is, force

capable of causing physical pain or injury to another person.” Johnson,

.

“[T]he force necessary to overcome a victim’s physical resistance is inherently ‘violent’ in

the sense contemplated by Johnson.” Stokeling v. United States,

(2019).

The Florida resisting-an-officer-with-violence offense has as an element the use,

attempted use, or threatened use of physical force against the person of another. The offense

is a felony that punishes “[w]hoever knowingly and willfully resists, obstructs, or opposes

any officer . . . in the lawful execution of any legal duty, by offering or doing violence to

the person of such officer.” Fla. Stat § 843.01. Florida’s appellate courts have uniformly

concluded that “violence is a necessary element of the offense.” Rawlings v. State,

(Fla. Dist. Ct. App. 2008). They have held that offering or doing violence

“plainly involves” using or threatening “physical force or violence.” Harris v. State,

(Fla. Dist. Ct. App. 2009) (quotation marks omitted).

We likewise conclude that offering or doing “violence” to the person of an officer

entails using or threatening to use “physical force” against a person—as federal law defines

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“crime of violence.” In so holding, we join the considered view of the Eleventh Circuit,

which has repeatedly reaffirmed that

is a crime of violence under federal

law. See, e.g., United States v. Joyner,

(11th Cir. 2018); United States

v. Romo-Villalobos,

, 1248–51 (11th Cir. 2012).

Davis’s only counterargument to this commonsense conclusion is based on a single

sentence in Johnson v. State,

(Fla. 1909). There, the Court upheld a conviction

under a predecessor to § 843.01 where the defendant “gripped the hand of the officer, and

forcibly prevented him from opening the door for the purpose of making the arrest.” Id. at

530. It stated that “[t]he force alleged is unlawful, and as such is synonymous with

violence.” Id. So, Davis’s argument goes, “violence” under Florida law includes any

unlawful force, even if that force does not meet the federal threshold for violent force.

We are unpersuaded. First, the force actually used in Johnson v. State was force

sufficient “to overcome a victim’s physical resistance”; it qualified as violent force under

Stokeling.

. Second, Davis has pointed to no Florida case in which a

defendant was convicted under § 843.01 despite his conduct not reaching the threshold for

violent force under federal law. Third, as a matter of logic and statutory text, we find it

unlikely that someone could “knowingly and willfully resist[], obstruct[], or oppose[]” an

officer with “violence” against the officer’s person,

, without using or

threatening force that is at least capable of overcoming the officer’s “physical resistance,”

Stokeling,

. One would not willfully and violently resist an officer with a

mere touch.

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Davis’s 2005 conviction under

was a conviction for a “crime of

violence” under U.S.S.G. § 4B1.2(a)(1). The district court correctly concluded that this

crime was a predicate offense for purposes of the career-offender sentencing enhancement.

III.

Finally, we deny Davis’s motion to file a supplemental brief challenging, for the

first time, whether his North Carolina convictions qualify as a “controlled substance

offense” for purposes of the Sentencing Guidelines. See Dkt. Entry 46. It is a blackletter

rule of appellate procedure that “contentions not raised in the argument section of the

opening brief are abandoned.” United States v. Al-Hamdi,

, 571 n.8 (4th Cir.

2004). Davis had two months before his opening brief was filed to raise the issue he would

now bring to our attention. Because Davis “fail[ed] to preserve the issue in [his] opening

brief,” he abandoned it, and “[n]o subsequent filing can revive it.” Hensley ex rel. North

Carolina v. Price,

, 580 n.5 (4th Cir. 2017). We will not deviate from this rule

here.

IV.

For the foregoing reasons, the judgment is affirmed.

AFFIRMED

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