                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 13-4556


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

          v.

SHAWN PATRICK MANNING,

                 Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Roanoke.  Samuel G. Wilson, District
Judge. (7:12-cr-00042-SGW-3)


Submitted:   February 25, 2014                 Decided:    April 3, 2014


Before GREGORY    and   FLOYD,   Circuit   Judges,   and   DAVIS,   Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


L. Brad Braford, L. BRAD BRAFORD P.C., Roanoke, Virginia, for
Appellant. Timothy J. Heaphy, United States Attorney, R. Andrew
Bassford, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Roanoke, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      A    grand    jury       indicted       Shawn     Manning          on    one     count    of

conspiring to possess with the intent to distribute a controlled

substance, in violation of 21 U.S.C. §§ 841 and 846, and two

counts of money laundering, in violation of 18 U.S.C. § 1956.

Manning     subsequently            pleaded    guilty       to   one       count       of    money

laundering        and     a    lesser-included          offense          relating       to     the

conspiracy charge.             At Manning’s sentencing, the district court

categorized Manning as a career offender, a determination that

Manning now challenges on appeal.                          For the reasons set forth

below, we affirm.



                                               I.

        The criminal activities giving rise to Manning’s indictment

and     guilty     plea       are    largely       irrelevant       to    the        sole    issue

presented by this appeal.                 It suffices to say that during the

course of several years, Manning was involved in a conspiracy to

distribute hundreds of kilograms of marijuana and to channel

hundreds     of     thousands        of   dollars      in     related          proceeds        from

Virginia to persons in places as far away as California and

Jamaica.         What     is   relevant       is    that    prior    to        the    underlying

indictment and plea, Manning was convicted in 2010 in Virginia

state     court    of     possessing      with       the    intent        to    distribute       a

controlled substance.                Manning was also convicted in 1997 in


                                               2
New Jersey    state       court    of    theft    pursuant      to    New       Jersey    Code

section 2C:20-3(a), the umbrella provision for theft.

     The    U.S.       Sentencing      Guidelines      Manual    (the       “Guidelines”)

provides    in     relevant       part    that,       “A    defendant       is    a     career

offender if . . . the defendant has at least two prior felony

convictions       of    either    a     crime    of    violence       or    a    controlled

substance offense.”          U.S.S.G. § 4B1.1(a)(3).              The district court

categorized      Manning     as    a    career    offender      based      on     his    prior

convictions in Virginia and New Jersey, respectively.                             Manning’s

sentence consists of 188 months’ imprisonment and five years of

supervised release based on a total offense level of 31 and a

category VI criminal history.

     Manning’s plea agreement reserved his right to appeal the

district    court’s       determination          regarding      his     career-offender

status, which is the sole issue before the Court. On appeal,

Manning    does    not    challenge       the    district      court’s          decision   to

count his Virginia conviction for purposes of categorizing him

as a career offender, but he does challenge the decision to

count his New Jersey conviction.                 Specifically, Manning contends

that his theft conviction was not for a “crime of violence” for

purposes of Guidelines section 4B1.1(a)(3).

          This Court reviews de novo a district court’s designation

of a defendant as a career offender.                       United States v. Johnson,

114 F.3d 435, 444 (4th Cir. 1997); see also United States v.


                                            3
Smith, 359 F.3d 662, 663–64 (4th Cir. 2004) (district court’s

determination regarding whether a crime is a “crime of violence”

is a legal question reviewed de novo).



                                        II.

       Prior to reaching the question presented by this appeal, we

first must address a preliminary issue raised by Manning: which

approach—the     categorical       approach    or    the   modified   categorical

approach—applies to the New Jersey theft conviction.                       Pursuant

to    the   categorical     approach,       courts   need    only   “compare     the

elements of the statute forming the basis of the defendant’s

conviction with the elements of the ‘generic’ crime—i.e., the

offense as commonly understood.”                Descamps v. United States,

__ U.S. __,     133    S.    Ct.    2276,     2281    (2013).       The    modified

categorical approach, on the other hand, applies to “divisible

statutes,” i.e., statutes that “set[] out one or more elements

of    the   offense   in    the    alternative.”       Id.      Pursuant    to   the

modified categorical approach, courts may

       consult a limited class of documents, such as
       indictments and jury instructions, to determine which
       alternative formed the basis of the defendant’s prior
       conviction.     The court   can   then  do  what  the
       categorical approach demands: compare the elements of
       the crime of conviction (including the alternative
       element used in the case) with the elements of the
       generic crime.

Id.



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    Manning argues that the New Jersey statute under which he

was convicted is “divisible” pursuant to Descamps, and thus the

district court erred by not looking at additional documents when

determining that his conviction was for a “crime of violence.”

In support of his position, Manning cites State v. Sein for the

notion that theft pursuant to New Jersey Code section 2C:20-3

“may be committed in many ways, i.e., by a stranger acting by

stealth or snatching from the presence or even the grasp of the

owner   or   by   a   person   entrusted   with   the   property   as   agent,

bailee, trustee, fiduciary or otherwise.”               590 A.2d 665, 670

(N.J.   1991)     (emphasis     omitted)    (citation     omitted)      (block

quotation formatting omitted).         Although Manning is correct that

the New Jersey Code sets forth several variations of theft—some

that can involve violence (e.g., section 2C:20-2(b)(1)(b), “The

property is taken by extortion”) and others that do not involve

violence (e.g., section 2C:20-2(b)(2)(j), “The property stolen

is a New Jersey Prescription Blank”)—the judgment pertaining to

Manning’s New Jersey conviction does not leave open the question

of whether Manning was an “agent, bailee, trustee, fiduciary,”

etc., Stein, 590 A.2d at 670; he plainly was not.             Specifically,

the “Description” heading of the “Final Charges” section of the

Amended Judgment against Manning states, “Theft from Person (As

Amended),” and the “Degree” heading lists “3”.               In looking at

the ways by which a person can commit third-degree theft in New


                                      5
Jersey, it is clear to us (as it was to the district court) that

Manning was convicted of stealing property from the victim’s

person pursuant to New Jersey Code section 2C:20-2(b)(2)(d) and

not of theft by breach of an entrustment or otherwise.

     We turn now to the issue presented by this appeal: whether

section 2C:20-2(b)(2)(d) constitutes a “crime of violence” for

purposes of categorizing Manning as a career-offender pursuant

to the Guidelines.



                                   III.

     The Guidelines define “crime of violence” as

     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 burglary of a dwelling, arson, or
     extortion, involves use of explosives, or otherwise
     involves conduct that presents a serious potential
     risk of physical injury to another.

U.S.S.G. § 4B1.2(a).

     Here,    the    offense   elements    of   New   Jersey   Code   section

2C:20-2(b)(2)(d) are that the defendant “[1] unlawfully takes,

or exercises unlawful control over, movable property of another

[person] [2] with purpose to deprive him thereof,” N.J. Rev.

Stat. § 2C:20-3(a), and “[3] [the taking] is from the person of

the victim,” id. § 2C:20-2(b)(2)(d).             New Jersey courts have

interpreted    the    phrase   “from   the   person”    to   mean   from   the



                                       6
victim’s “possession and immediate presence.”                             State v. Blow,

334 A.2d 341, 343 (N.J. Super. Ct. App. Div. 1975).

       In considering these offense elements, third-degree theft

from the person does not fit the description of any crime that

the Guidelines categorize explicitly as a “crime of violence”—it

does    not    “ha[ve]      as     an      element     the    use,     attempted         use,       or

threatened use of physical force against the person of another,”

nor does it entail “burglary of a dwelling, arson, or extortion,

[or] involve[] [the] use of explosives.”                          U.S.S.G. § 4B1.2(a).

Thus,    if    we    are    to    categorize         section    2C:20-2(b)(2)(d)               as    a

“crime    of    violence,”         its       elements    must    “otherwise             involve[]

conduct       that    presents         a     serious    potential      risk       of    physical

injury to another.”              Id.

       In United States v. Jarmon, this Court determined that the

North Carolina crime of larceny from the person is a crime of

violence       pursuant      to        the     “otherwise”      clause       of     Guidelines

section 4B1.2(a).                596 F.3d 228, 233 (4th Cir. 2010).                             The

offense elements of North Carolina larceny from the person are

that     the        defendant          “(1) took       the     property       of         another;

(2) carried it away; (3) without the owner’s consent[;] . . .

(4)    with    the     intent      to        deprive    the    owner    of    the       property

permanently”;         and    (5)       “the     property      stolen    must       be     in    the

immediate presence of and under the protection or control of the

victim    at     the    time       the       property    is    taken.”            Id.     at    230


                                                 7
(citations   omitted)   (internal   quotation    marks    omitted).       In

categorizing larceny from the person as a “crime of violence,”

the Jarmon   court   compared   larceny   to   robbery,   the   latter    of

which has as an offense element in both New Jersey and North

Carolina “the use, attempted use, or threatened use of physical

force against the person of another,” U.S.S.G. §          4B1.2(a).      See

N.J. Rev. Stat. § 2C:15-1; State v. Carter, 650 S.E.2d 650, 653

(N.C. Ct. App. 2007).    The court stated:

     [W]hile larceny from the person entails less violence
     than robbery, that fact does not prove that larceny
     from   the  person   is  nonviolent.   Indeed,  Jarmon
     acknowledges that larceny from the person can involve
     violence because it encompasses forceful takings like
     the snatching of a purse from a shoulder. The act of
     snatching a purse (or any other property) from the
     victim’s person may not inflict severe pain or injury,
     but it may do so, and in any event it is certainly
     aggressive.

Jarmon, 596 F.3d at 232; see, e.g., State v. Link, 485 A.2d

1069, 1071 (N.J. Sup. Ct. App. Div. 1984) (affirming conviction

for attempted theft pursuant to section 2C:20-2(b)(2)(d) in a

case involving an unsuccessful purse snatch).

     The court then compared larceny from the person to burglary

of a dwelling, which is among the crimes listed expressly as a

“crime of violence” in Guidelines section 4B1.2(a):

     Burglary does not necessarily involve violence, but it
     always requires that the offender intentionally enter
     a building where a victim might be present.       This
     purposeful, aggressive act creates a serious risk of
     violent confrontation.    Similarly, larceny from the
     person does not necessarily involve violence, but it


                                    8
      requires the offender to make purposeful, aggressive
      moves to part the victim from his or her property,
      creating a similar risk of violent confrontation.  In
      fact, because larceny from the person requires that
      the offender take the property from the protection or
      control of the victim, the victim’s presence is
      assured, and the odds of a violent confrontation are
      even higher than in a generic burglary, where the
      victim is often absent.

Jarmon, 596 F.3d at 232–33; see Blow, 334 A.2d at 343 (“A danger

of   confrontation      between      thief       and   victim      [becomes]      present

[when] the victim's person and privacy [are] invaded.”).

      Here,      inasmuch    as   the    New     Jersey     crime    of    third-degree

theft     from    the    person      has       substantively        indistinguishable

offense elements from the North Carolina crime of larceny from

the person—particularly with respect to the element wherein the

stolen    property      is   taken      from     the   victim’s      “possession      and

immediate presence,” Blow, 334 A.2d at 343, thus requiring a

potentially violent confrontation, see id.—we hold for the same

reasons articulated in Jarmon that third-degree theft pursuant

to New Jersey Code section 2C:20-2(b)(2)(d) also constitutes a

“crime of violence.”



                                           IV.

        For the reasons set forth above, we affirm the district

court’s decision to categorize Manning as a career offender for

purposes    of    sentencing      him    pursuant      to    the    Guidelines.       We

dispense      with   oral     argument         because      the    facts    and    legal


                                           9
contentions are presented adequately in the materials before the

Court and argument would not assist our decision-making process. ∗



                                                          AFFIRMED




     ∗
       This Court previously determined that a conviction for
third-degree theft from the person pursuant to New Jersey Code
section 2C:20-2(b)(2)(d)—the precise statutory provision at
issue here—constitutes a “crime of violence” for sentencing
pursuant to the Guidelines.     United States v. Clark, 373 F.
App’x 365 (4th Cir. 2010) (per curiam). Our decision in Clark,
however, is not published and therefore is not binding on this
Court when considering Manning’s appeal.



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