                                       PUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                       No. 17-4120


UNITED STATES OF AMERICA,

                     Plaintiff - Appellant,

              v.

DONALD COVINGTON,

                     Defendant - Appellee.



Appeal from the United States District Court for the Southern District of West Virginia, at
Charleston. Thomas E. Johnston, Chief District Judge. (2:14-cr-00006-1)


Argued: October 26, 2017                                       Decided: January 18, 2018


Before TRAXLER and AGEE, Circuit Judges, and Loretta C. BIGGS, United States
District Judge for the Middle District of North Carolina, sitting by designation.


Vacated and remanded by published opinion. Judge Biggs wrote the opinion, in which
Judge Traxler and Judge Agee joined.


ARGUED: Philip Henry Wright, OFFICE OF THE UNITED STATES ATTORNEY,
Charleston, West Virginia, for Appellant.      Philip Bradley Sword, SHUMAN,
MCCUSKEY & SLICER, PLLC, Charleston, West Virginia, for Appellee. ON BRIEF:
Carol A. Casto, United States Attorney, Monica D. Coleman, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia,
for Appellant.
LORETTA COPELAND BIGGS, District Judge:


       The government appeals the district court’s determination that the West Virginia

criminal offense of unlawful wounding, W. Va. Code § 61-2-9(a), is not a crime of violence

under the force clause of § 4B1.2 of the United States Sentencing Guidelines (the

“Guidelines”). For the reasons stated below, we vacate the sentence imposed by the district

court and remand for resentencing.

                                             I.

       Donald Covington pleaded guilty to distribution of heroin, in violation of 21 U.S.C.

§ 841(a)(1). Covington’s presentence report classified him as a “career offender” under

§ 4B1.1(a) of the Guidelines based on two prior felony convictions: one for robbery with

a firearm, and the other for the offense of unlawful wounding under West Virginia law.

Covington did not object to the career offender classification; however, prior to sentencing,

the district court sua sponte ordered the parties to brief the issue whether unlawful

wounding qualifies as a crime of violence under the Guidelines.

       At sentencing, the district court concluded that West Virginia’s unlawful wounding

offense did not qualify as a crime of violence and, therefore, Covington was not a career

offender. The district court then calculated the advisory sentencing guideline range

applicable to Covington as 18–24 months, rather than, a sentence of “at least 12 and a half

years . . . if the career offender guideline was applied,” J.A. 106. Since Covington had

already been detained on a pretrial basis for about thirty-seven months prior to sentencing,

the district court imposed a sentence of time served and ordered Covington’s release.



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                                             II.

       The sole issue before this Court is whether the offense of unlawful wounding under

West Virginia law is a crime of violence under the Guidelines, as the government contends.

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

crime of violence. United States v. Salmons, 873 F.3d 446, 448 (4th Cir. 2017).

                                             A.

       The term “crime of violence” is defined in § 4B1.2 of the Guidelines, which reads

as follows:


       (a)      The term “crime of violence” means any offense under federal or state
                law, punishable by imprisonment for a term exceeding one year,
                that—
             (1) has as an element the use, attempted use, or threatened use of
                 physical force against the person of another, 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 26 U.S.C. § 5845(a)
                 or explosive material as defined in 18 U.S.C. § 841(c).


U.S.S.G. § 4B1.2(a). Section 4B1.2(a)(1) is generally referred to as the “force clause” and

§ 4B1.2(a)(2) as the “enumerated clause.” See, e.g., United States v. Riley, 856 F.3d 326,

328 (4th Cir. 2017), cert. denied, 138 S. Ct. 273 (2017). Because the government does not

argue that the predicate crime at issue in this appeal, unlawful wounding under West

Virginia law, is an enumerated offense, we consider whether it qualifies as a crime of

violence under the force clause only.



                                              3
       To determine whether a defendant’s prior conviction qualifies as a crime of

violence, this Court applies the “categorical approach.” Salmons, 873 F.3d at 448. The

categorical approach directs a court to focus solely on the fact of conviction rather than the

facts of the case. See Taylor v. United States, 495 U.S. 575, 602 (1990). The Court must

compare the elements required for conviction of an offense to the element(s) required for

application of the sentence enhancement, while ignoring the conduct that gave rise to a

particular defendant’s past conviction. United States v. Wilson, 951 F.2d 586, 588 (4th Cir.

1991). As recognized by the Supreme Court, the categorical approach is straightforward

when a statute is indivisible, that is, when the statute defines only a single crime with a

single set of elements. Mathis v. United States, 136 S. Ct. 2243, 2248 (2016). However,

where a statute defines multiple crimes by listing multiple alternative elements, which

renders the statute divisible, the categorical approach is made more difficult. Id. at 2249.

Where a statute is divisible, the Court generally must first apply a “modified categorical

approach” to determine which of the alternative elements are integral to a defendant’s

conviction. Id. This approach allows a court to look at “a limited class of documents (for

example, the indictment, jury instructions, or plea agreement and colloquy) to determine

what crime, with what elements, a defendant was convicted of,” before proceeding “as the

categorical approach commands.” Id. The modified approach acts as a tool, rather than an

exception, to “help[ ] implement the categorical approach when a defendant was convicted

of violating a divisible statute.” Descamps v. United States, 133 S. Ct. 2276, 2285 (2013).

       The statute at issue here, West Virginia Code § 61-2-9(a), reads as follows:




                                              4
      If any person maliciously shoots, stabs, cuts or wounds any person, or by any
      means cause him or her bodily injury with intent to maim, disfigure, disable
      or kill, he or she, except where it is otherwise provided, is guilty of a felony
      and, upon conviction thereof, shall be punished by confinement in a state
      correctional facility not less than two nor more than ten years. If the act is
      done unlawfully, but not maliciously, with the intent aforesaid, the offender
      is guilty of a felony and, upon conviction thereof, shall either be imprisoned
      in a state correctional facility not less than one nor more than five years, or
      be confined in jail not exceeding twelve months and fined not exceeding
      $500.
W. Va. Code § 61-2-9(a) (emphasis added). It is clear that the West Virginia statute in

question is divisible in that it lists two separate crimes with different elements and

punishments. See Mathis, 136 S. Ct. at 2256 (“If statutory alternatives carry different

punishments, then under Apprendi [v. New Jersey, 530 U.S. 466 (2000)] they must be

elements.”). Because neither party challenges the district court’s determination that

Covington was convicted of unlawful, not malicious, wounding, which the record supports,

this Court need not employ the modified categorical approach here. See United States v.

Carthorne, 726 F.3d 503, 512 (4th Cir. 2013) (“The divisible nature of Virginia Code

§ 18.2-57(C), however, does not require application of the modified categorical approach

in the present case because the parties agree, and the record shows, that Carthorne was

convicted under that statute of the distinct offense of assault and battery of a police

officer.”). The Court will, therefore, compare the offense of unlawful wounding with the

requirements of the force clause. See Salmons, 873 F.3d at 449.

                                            B.

      The force clause provides that an offense is a crime of violence when it “has as an

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



                                             5
another.” U.S.S.G. § 4B1.2(a)(1). The Supreme Court has interpreted the term “physical

force” as “violent force—that is, force capable of causing physical pain or injury to another

person.” Johnson v. United States, 559 U.S. 133, 140 (2010). 1 Further, this Court focuses

on the “minimum conduct” required for conviction in categorically comparing the offense

to the controlling definition of the force clause. See United States v. Gardner, 823 F.3d

793, 803 (4th Cir. 2016). Thus, to qualify as a crime of violence under the force clause,

the minimum conduct necessary for conviction of an offense must at least involve violent

force. See id. Therefore, “[a] predicate offense qualifies as a crime of violence if all of the

conduct criminalized by the statute—‘including the most innocent conduct’—matches or

is narrower than the Guidelines’ definition of ‘crime of violence.’” Salmons, 873 F.3d at

448 (quoting United States v. Diaz-Ibarra, 522 F.3d 343, 348 (4th Cir. 2008)).

       Comparing the elements of the force clause as articulated above, with the elements

of the West Virginia offense of unlawful wounding, yields the conclusion that unlawful

wounding under § 61-2-9(a) categorically qualifies as a crime of violence under the force

clause. Section 61-2-9(a) applies only to a defendant who “shoots, stabs, cuts or wounds

any person, or by any means cause[s] him or her bodily injury with intent to maim,

disfigure, disable or kill,” W. Va. Code § 61-2-9(a). The statute’s text thus dictates that




1
  In Johnson, the Supreme Court considered a challenge arising under the “violent felony” sentence
enhancement found in the Armed Career Criminal Act (“ACCA”), not under the Guidelines.
Johnson, 559 U.S. at 135. However, this distinction is immaterial as this Court applies precedents
interpreting “violent felony” under the ACCA and “crime of violence” under the Guidelines
“interchangeably.” United States v. Montes-Flores, 736 F.3d 357, 363 (4th Cir. 2013) (quoting
United States v. King, 673 F.3d 274, 279 n.3 (4th Cir. 2012)).



                                                6
the minimum conduct required for conviction of unlawful wounding must at least involve

physical force capable of causing physical injury to another person. See United States v.

Reid, 861 F.3d 523, 527 (4th Cir. 2017) (concluding that the “‘knowingly and willfully

inflict[ing] bodily injury’ on another person” element of a Virginia criminal offense

“squarely matches ACCA’s force clause, which requires force that is ‘capable of causing

physical pain or injury’” (alteration in original) (first quoting Va. Code Ann. § 18.2-55)

(then quoting Johnson, 559 U.S. at 140)), cert. denied, No. 17-6359, 2017 WL 4574355

(U.S. Nov. 13, 2017).

                                              C.

       The district court in this case, in concluding that unlawful wounding did not qualify

as a crime of violence, relied on this Court’s decision in United States v. Torres-Miguel,

701 F.3d 165 (4th Cir. 2012). There this Court stated that “a crime may result in death or

serious injury without involving the use of physical force,” such as “by threatening to

poison another, which involves no use or threatened use of force.” Torres-Miguel, 701

F.3d at 168–69. Based on Torres-Miguel, the district court hypothesized that a defendant

could commit unlawful wounding by indirect means, such as “by withholding much-

needed medication from someone gravely ill, or by ‘telling the victim he can safely back

his car out while knowing an approaching car driven by an independently acting third party

will hit the victim.’” 2 J.A. 102. The court thus found that “while West Virginia’s unlawful



2
 The district court explained that these examples were taken from Whyte v. Lynch, 807 F.3d 463,
469 (1st Cir. 2015).



                                              7
wounding statute requires a bodily injury [causally] linked to the conduct of the defendant,

it does not require the defendant to have used violent force” as required in the force clause. 3

J.A. 102.

       The government argued before the district court that United States v. Castleman,

134 S. Ct. 1405 (2014), had abrogated the direct versus indirect use of force distinction

articulated in Torres-Miguel. In Castleman, the Supreme Court explained that when a

defendant uses poison against another person, the relevant “‘use of force’ . . . is not the act

of ‘sprinkl[ing]’ the poison; it is the act of employing poison knowingly as a device to

cause physical harm. That the harm occurs indirectly, rather than directly (as with a kick

or punch), does not matter.” Castleman, 134 S. Ct. at 1415. The district court nevertheless

rejected the government’s argument and further concluded that “Castleman is simply not

controlling.” J.A. 100. Since Covington’s sentencing below, however, this Court has

confirmed and reaffirmed in several decisions that the direct versus indirect use of force

distinction articulated in Torres-Miguel has been abrogated by Castleman. 4 See United

States v. Burns-Johnson, 864 F.3d 313, 318 (4th Cir. 2017) (explaining that “Castleman

abrogates [this Court’s] statement in Torres-Miguel that the use of poison would not

constitute the use of force under Johnson I”); Reid, 861 F.3d at 529 (concluding that

following Castleman, “the phrase ‘use of physical force’” includes “indirect


3
  The district court acknowledged that the question whether the offense of unlawful wounding is a
crime of violence under the force clause “is a somewhat close call” and “basically boils down to
the plain language of the statute.” J.A. 102.
4
  Castleman did not however abrogate the causation aspect of Torres-Miguel that “a crime may
result in death or serious injury without involving the use of physical force,” Torres-Miguel, 701
F.3d at 168. See United States v. McNeal, 818 F.3d 141, 156 n.10 (4th Cir. 2016).

                                                8
applications”); In re Irby, 858 F.3d 231, 237–38 (4th Cir. 2017) (noting that “the distinction

[this Court] drew in Torres-Miguel between indirect and direct applications of force . . . no

longer remains valid in light of Castleman’s explicit rejection of such a distinction”). Thus,

the district court’s reliance on Torres-Miguel concerning the issue presented here was error.

       Likewise, the district court erred in considering hypothetical scenarios from cases

that did not interpret the criminal offense at issue here. This Court has made clear that its

focus on the minimum conduct required for conviction “does not give litigants [or courts]

a green light to conjure up fanciful fact patterns in an attempt to find some nonviolent

manner in which a crime could be committed.” Salmons, 873 F.3d at 451. Rather, there

must be a “‘realistic probability, not a theoretical possibility,’ that a state would actually

punish that conduct.” United States v. Doctor, 842 F.3d 306, 308 (4th Cir. 2016) (quoting

Gardner, 823 F.3d at 803), cert. denied, 137 S. Ct. 1831 (2017). See Gonzales v. Duenas-

Alvarez, 549 U.S. 183, 193 (2007). Accordingly, “litigants must point to the statutory text

or to actual cases in order to demonstrate that a conviction for a seemingly violent state

crime could in fact be sustained for nonviolent conduct.” Salmons, 873 F.3d at 451. See

Duenas-Alvarez, 549 U.S. at 193 (“To show that realistic probability, an offender . . . must

at least point to his own case or other cases in which the state courts in fact did apply the

statute in the special . . . manner for which he argues.”). Here, Covington has not identified

a single West Virginia case that interprets the offense of unlawful wounding to apply to

one who uses force that is not “capable of causing physical pain or injury to another

person,” Johnson, 559 U.S. at 140. In contrast, the government has identified scores of




                                              9
cases that confirm that the unlawful wounding offense only criminalizes the degree of force

required under Johnson.

                                           III.

       The Court concludes, based on the text of the statute as well as the examination of

the convictions under the statute, that the crime of unlawful wounding under West Virginia

law, § 61-2-9(a), is categorically a crime of violence under the Guidelines. For the

foregoing reasons, we vacate Covington’s sentence and remand for resentencing in

accordance with this opinion.

                                                           VACATED AND REMANDED




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