                                      UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                       No. 15-4678


UNITED STATES OF AMERICA,

              Plaintiff - Appellee,

              v.

OMAR RAMONE VEREEN,

              Defendant - Appellant.



Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. W. Earl Britt, Senior District Judge. (5:14-cr-00179-FL-1)


Submitted: July 28, 2017                                          Decided: August 14, 2017


Before KING, DIAZ, and FLOYD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon, Assistant Federal
Public Defender, Raleigh, North Carolina, for Appellant. John Stuart Bruce, Acting
United States Attorney, Jennifer P. May-Parker, Barbara D. Kocher, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Omar Ramone Vereen pled guilty to possession of a firearm and ammunition by a

felon, in violation of 18 U.S.C. § 922(g)(1) (2012); possession with intent to distribute

cocaine base and marijuana, in violation of 21 U.S.C. § 841(a)(1) (2012); and possession

of a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C.

§ 924(c) (2012). The district court sentenced Vereen to 106 months’ imprisonment. On

appeal, Vereen argues that the district court plainly erred in calculating his Sentencing

Guidelines range because the district court incorrectly concluded that his prior conviction

for North Carolina assault with a deadly weapon with intent to kill (AWDWIK) is a

crime of violence for purposes of U.S. Sentencing Guidelines Manual §§ 2K2.1(a)(4)(A),

4B1.2(a) (2014). We affirm.

       To establish plain error, Vereen must demonstrate that (1) the district court

committed an error; (2) the error was plain; (3) the error affected his substantial rights;

and (4) the error “seriously affect[s] the fairness, integrity or public reputation of judicial

proceedings.” Puckett v. United States, 556 U.S. 129, 135 (2009) (internal quotation

marks omitted). An error is plain if it is clear or obvious. United States v. Olano, 507

U.S. 725, 734 (1993).

       If a defendant has been previously convicted of a “crime of violence” as defined in

USSG § 4B1.2(a), then the Guidelines require an increase in the base offense level for the

crime of possessing a firearm or ammunition as a felon.            USSG § 2K2.1(a)(4)(A).

Guidelines § 4B1.2(a) defines a “crime of violence” as an offense punishable by

imprisonment for a term exceeding one year that “(1) has an element the use, attempted

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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.” The first clause is

known as the “force clause.” This clause applies to crimes that involve “violent force—

that is, force capable of causing physical pain or injury to another person,” as opposed to

“intellectual force or emotional force.” Johnson v. United States, 559 U.S. 133, 138, 140

(2010). Additionally, we have recognized in the context of similar force clauses that an

offense involves a “use” of force only when the offense requires a mens rea more

culpable than recklessness. See United States v. McNeal, 818 F.3d 141, 154-56 (4th Cir.

2016) (considering § 924(c)’s force clause); Garcia v. Gonzales, 455 F.3d 465, 469 (4th

Cir. 2006) (considering 18 U.S.C § 16 (2012)’s force clause).

       To determine whether a particular crime meets the force clause criteria, we

generally employ the categorical approach. United States v. Montes-Flores, 736 F.3d

357, 364 (4th Cir. 2013); see also Descamps v. United States, 133 S. Ct. 2276, 2285,

2293 (2013). Under the categorical approach, we “focus[] on the elements, rather than

the facts, of the prior offense,” asking “whether the full range of conduct covered by [the

offense], including the most innocent conduct, would qualify as a crime of violence.”

United States v. Shell, 789 F.3d 335, 338-39 (4th Cir. 2015) (alterations and internal

quotation marks omitted).

       The elements of AWDWIK are: “(1) an assault; (2) with a deadly weapon;

(3) with the intent to kill.” State v. Garris, 663 S.E.2d 340, 349 (N.C. Ct. App. 2008)

(internal quotation marks omitted); see also N.C. Gen. Stat. § 14-32(c) (2015). Vereen

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does not dispute that AWDWIK involves violent force. Rather, citing our decision in

United States v. Vinson, 805 F.3d 120 (4th Cir. 2015), Vereen argues that AWDWIK

does not fall within USSG § 4B1.2(a)’s force clause because a conviction for AWDWIK

may be obtained by proving a mens rea less culpable than recklessness, and thus, a

person may be convicted of AWDWIK for conduct that does not involve a “use” of force.

      In Vinson, we considered whether the defendant’s prior conviction for North

Carolina misdemeanor assault on a female categorically qualified as a “misdemeanor

crime of domestic violence” under 18 U.S.C. § 922(g)(9). 805 F.3d at 124-26. The

statutory definition of “misdemeanor crime of domestic violence” is similar to USSG

§ 4B1.2(a)’s definition of “crime of violence” in that both include a force clause. See 18

U.S.C. § 921(a)(33)(A)(ii) (2012). We observed that, for conduct to constitute a “use” of

force within the meaning of § 921(a)(33)(A)(ii), the conduct must involve a mens rea

more culpable than recklessness. Vinson, 805 F.3d at 125. Because North Carolina

permits convictions for assault in cases where the defendant’s conduct is criminally

negligent—a standard less than recklessness—we concluded that North Carolina permits

assault convictions “for conduct that does not amount to a use of force,” and therefore,

North Carolina assault on a female did not categorically qualify as a “misdemeanor crime

of domestic violence.” Id. at 126 (internal quotation marks omitted).

      However, we did not consider in Vinson an assault offense with an intent to kill

element, and North Carolina courts have repeatedly observed that AWDWIK “has, as an

element, specific intent to kill.” State v. Coble, 527 S.E.2d 45, 49 (N.C. 2000); see also

State v. Ferguson, 135 S.E.2d 626, 628 (N.C. 1964); State v. Irwin, 285 S.E.2d 345, 349

                                            4
(N.C. Ct. App. 1982); State v. Christy, 215 S.E.2d 154, 155 (N.C. Ct. App. 1975); cf.

State v. Daniel, 429 S.E.2d 724, 729 (N.C. 1993). Further, the North Carolina pattern

jury instructions for AWDWIK state that the jury must find “that the defendant had the

specific intent to kill.” N.C. Pattern Instructions—Crim. 208.25; see Vinson, 805 F.3d at

126 (citing pattern jury instructions). As North Carolina courts have recognized, proving

specific intent requires more than showing the disregard of risk required to demonstrate

recklessness or criminal negligence. See State v. Rich, 527 S.E.2d 299, 304 (N.C. 2000);

State v. Oakman, 663 S.E.2d 453, 457 (N.C. Ct. App. 2008).

      Although Vereen cites dicta from State v. Jones, 538 S.E.2d 917, 923 (N.C. 2000),

that seems to support his position, we conclude that Vereen cannot demonstrate plain

error. In light of the North Carolina precedent cited herein, Vereen cannot clearly show

that a person may be convicted of AWDWIK through proof of a mens rea less culpable

than recklessness, and therefore, he cannot establish that AWDWIK obviously

encompasses conduct that does not involve a “use” of force. Thus, Vereen cannot

demonstrate plain error in the conclusion that AWDWIK qualifies as a crime of violence

under USSG § 4B1.2(a)’s force clause. *


      *
         Furthermore, we conclude that Vereen cannot establish plain error in the
conclusion that AWDWIK qualifies as a crime of violence under USSG § 4B1.2(a)’s
residual clause. See United States v. Mack, 855 F.3d 581, 585 (4th Cir. 2017)
(considering residual clause to determine whether offense is crime of violence).
Although the residual clause was removed from the Guidelines in August 2016, the
clause was in effect at the time of Vereen’s sentencing hearing. Vereen argues that
AWDWIK does not fall within the residual clause because the residual clause requires, at
a minimum, a mens rea of recklessness. See United States v. Martin, 753 F.3d 485, 493
(4th Cir. 2014). However, Vereen has not clearly demonstrated that a person may be
(Continued)
                                           5
       We also acknowledge that this court has repeatedly, albeit without discussion,

accepted that AWDWIK or similar state offenses are crimes of violence under the Armed

Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii) (2012). See United States v. Smith,

638 F. App’x 216, 219 (4th Cir. 2016) (No. 15-4218) (malicious assault in a secret

manner, which requires proof of assault with deadly weapon with intent to kill); United

States v. Townsend, 453 F. App’x 425, 427 (4th Cir. 2011) (No. 11-4196) (assault with

deadly weapon with intent to kill inflicting serious injury); United States v. Callahan, 179

F. App’x 200, 201-02 (4th Cir. 2006) (No. 04-4409) (assault with deadly weapon with

intent to kill or inflict serious injury); United States v. Williams, 187 F.3d 429, 430-31

(4th Cir. 1999) (AWDWIK). Against this backdrop, we conclude that Vereen has not

established plain error in the district court’s calculation of his Guidelines range. See

United States v. Carthorne, 726 F.3d 503, 516 (4th Cir. 2013).

       Accordingly, we affirm the district court’s judgment. We dispense with oral

argument because the facts and legal contentions are adequately presented in the

materials before this court and argument would not aid the decisional process.



                                                                               AFFIRMED




convicted of AWDWIK based on criminally negligent behavior. To the contrary, the
North Carolina cases cited above explain that AWDWIK is a specific intent crime.


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