                             PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 14-4211


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

AARON EUGENE SHELL,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.         Richard L.
Voorhees, District Judge. (5:13-cr-00054-RLV-DSC-1)


Argued:   March 25, 2015                  Decided:   June 12, 2015


Before WILKINSON and HARRIS, Circuit Judges, and DAVIS, Senior
Circuit Judge.


Vacated and remanded by published opinion.    Judge Harris wrote
the majority opinion, in which Senior Judge Davis joined. Judge
Wilkinson wrote a dissenting opinion.


ARGUED: Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Asheville, North Carolina, for Appellant.
William Michael Miller, OFFICE OF THE UNITED STATES ATTORNEY,
Charlotte, North Carolina, for Appellee.  ON BRIEF:   Ross Hall
Richardson, Acting Executive Director, FEDERAL DEFENDERS OF
WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for
Appellant. Anne M. Tompkins, United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for
Appellee.
PAMELA HARRIS, Circuit Judge:

       Defendant-Appellant             Aaron    Eugene      Shell    (“Shell”)         pleaded

guilty to being a felon in possession of a firearm, in violation

of 18 U.S.C. § 922(g) (2012).                  At sentencing, the district court

applied       an   enhanced      base    offense      level     on       the    ground    that

Shell’s prior North Carolina conviction for second-degree rape

constituted        a   crime     of     violence      under    the       U.S.    Sentencing

Guidelines          Manual         (“U.S.S.G.”           or        the         “Guidelines”)

§ 2K2.1(a)(4)(A) (2014).               The district court also applied a two-

level        enhancement     for       obstruction       of    justice         pursuant    to

Guidelines § 3C1.2, concluding that Shell recklessly created a

substantial risk of death or serious bodily injury to another

person in the course of fleeing from a law enforcement officer.

On appeal, Shell challenges the district court’s application of

both    enhancements.            For    the    reasons      that     follow,      we    vacate

Shell’s sentence and remand for resentencing.



                                               I.

        On    December     27,     2012,      Shell   was     driving      southbound       on

Highway 321 in Caldwell County, North Carolina.                            North Carolina

Trooper Christopher Hodges (“Hodges”), traveling northbound, saw

Shell speeding and turned around to follow him.                                 By the time

Hodges was able to complete the turn, Shell had disappeared from



                                               2
sight.     But    in       short     order,       Hodges       discovered       that      Shell’s

vehicle had veered off the road and down an embankment.

     As he fled the scene of the accident, Shell discarded a bag

behind a tree.             Officers searched the bag and found a loaded

semiautomatic     pistol.            Several          days    later,    Shell      voluntarily

submitted to a police interview and admitted that he was the

driver of the vehicle and was in possession of the firearm.

     Shell      was    charged        with    one       count    of    being       a    felon   in

possession of a firearm, in violation of 18 U.S.C. § 922(g), and

pleaded   guilty.            The     presentence            report    (“PSR”)      recommended

raising Shell’s base offense level from 14 to 20 under U.S.S.G.

§ 2K2.1(a)(4)(A), on the ground that Shell committed the instant

offense   after        a     prior     felony          conviction      for     a       “crime    of

violence” – here, a North Carolina conviction for second-degree

rape.     The    PSR       also     recommended         a    two-level    enhancement           for

obstruction of justice, pursuant to U.S.S.G. § 3C1.2, because

Shell's reckless driving in the course of fleeing from a law

enforcement      officer          created     a       substantial      risk     of      death    or

serious   bodily           injury     to     another         person.         Applying       those

provisions, the PSR calculated a Guidelines range of 57 to 71

months’ imprisonment.

     Shell objected to both enhancements.                              At sentencing, the

district court overruled Shell’s objections.                                 As to reckless

endangerment      under       §     3C1.2,        the    district      court       credited      a

                                                  3
witness who testified that Shell sped, skidded, and almost hit

her vehicle, and thus concluded that Shell created a substantial

risk of death in the course of fleeing from a law enforcement

officer.       The court also held that Shell’s prior second-degree

rape    conviction     qualified      as        a     “crime    of    violence”      under

§ 2K2.1.

       The district court adopted the PSR and sentenced Shell to

57 months’ imprisonment and three years of supervised release.

Shell appeals, challenging the district court’s application of

both enhancements.



                                          II.

                                           A.

       Under    the   Guidelines,     a     defendant          convicted    of    being    a

felon   in     possession    of   a   firearm          receives      an   enhanced    base

offense level of 20 if he or she has committed a prior “crime of

violence,” as defined in Guidelines § 4B1.2.                          U.S.S.G. § 2K2.1

cmt.    n.1.      Shell     argues    that      the     district      court      erred    in

characterizing his North Carolina conviction for second-degree

rape as a crime of violence because the state statute does not

require the use of physical force, and may instead be violated

through      constructive     force    or       the    absence       of   legally    valid

consent.       We review de novo that question of law.                     United States

v. Montes-Flores, 736 F.3d 357, 363 (4th Cir. 2013).

                                            4
      The parties agree that in considering whether Shell’s North

Carolina conviction constitutes a crime of violence, we must

apply     what       is    called         the   “categorical         approach,”       which

“focus[es] on the elements, rather than the facts,” of the prior

offense.        United States v. Carthorne, 726 F.3d 503, 511 (4th

Cir. 2013) (quoting Descamps v. United States, 133 S. Ct. 2276,

2285 (2013)).         What matters for the categorical approach is how

the law defines the offense generically, and not the particulars

of how an individual might have committed the offense on a given

occasion.        Begay v. United States, 553 U.S. 137, 141 (2008);

United States v. Seay, 553 F.3d 732, 737 (4th Cir. 2009).

      The   question       we     must     decide,     then,    is   whether    the   full

range of conduct covered by North Carolina’s second-degree rape

statute, “including the most innocent conduct,” would qualify as

a       crime         of        violence             for       purposes        of       the

§ 4B1.2 enhancement.                 United States v. Diaz-Ibarra, 522 F.3d

343, 348, 352 (4th Cir. 2008).                        If it is “evident from the

statutory definition of the state crime that some violations of

the statute are ‘crimes of violence’ and others are not,” then

the     state    offense        is    deemed        “categorically      overbroad”      and

§ 4B1.2 does not apply.               United States v. Rangel-Castaneda, 709

F.3d 373, 376 (4th Cir. 2013) (quoting Diaz-Ibarra, 522 F.3d at

348).     Whether North Carolina second-degree rape categorically

qualifies       as   a    crime      of   violence      under    this   approach      is   a

                                                5
question of first impression for our court, and for the reasons

that follow, we agree with Shell that it does not.

                                        B.

       In comparing the elements of North Carolina second-degree

rape to § 4B1.2’s definition of “crime of violence,” we begin

with     the    North   Carolina      statute     and    the   state    precedent

construing      it.     North   Carolina’s       second-degree    rape   statute

consists of two separate offenses, providing that:

       (a) A person is guilty of rape in the second degree if
       the person engages in vaginal intercourse with another
       person:

               (1) By force and against the will of the other
               person; or

               (2)    Who   is    mentally     disabled,    mentally
               incapacitated, or physically helpless, and the
               person   performing   the   act   knows   or   should
               reasonably know the other person is mentally
               disabled, mentally incapacitated, or physically
               helpless.

N.C. Gen. Stat. § 14-27.3 (West 2004).                  Because the records of

Shell’s      conviction    do   not    specify    which    subsection    of   the

statute formed the basis for his conviction, the parties agree,

that conviction may be treated as a crime of violence only if

both subsections so qualify.

       The      first     subsection     is      applicable     where     “sexual

intercourse is effectuated by force and against the victim’s

will.”       State v. Atkins, 666 S.E.2d 809, 812 (N.C. Ct. App.

2008).       Under North Carolina law, that force requirement may be

                                         6
satisfied either by “actual, physical force or by constructive

force in the form of fear, fright, or coercion.”          State v.

Etheridge, 352 S.E.2d 673, 680 (N.C. 1987).     Constructive force

may be demonstrated by proof of compulsion or threats of force,

and also will be inferred from certain relationships - such as a

parent-child relationship – that are deemed inherently coercive.

See id. at 680–82; State v. Morrison, 380 S.E.2d 608, 611–12

(N.C. Ct. App. 1989).

     The second subsection, by contrast, does not require the

state to prove either force or the absence of consent.     Atkins,

666 S.E.2d at 812.       Instead, it applies to victims who are

deemed by law incapable of validly consenting to intercourse or

resisting sexual acts,    State v. Williams, 698 S.E.2d 542, 544–

45 (N.C. Ct. App. 2010), and it is used by the state in cases

where there is factual but legally insufficient consent, see

State v. Ramey, No. COA10–1197, 2011 WL 3276720, at *4–5 (N.C.

Ct. App. Aug. 2, 2011) (unpublished) (conviction for second-

degree   rape   of   mentally   disabled   victim   who   initiated

intercourse).   In this sense, it is analogous to the age element

of North Carolina’s statutory rape law: the fact of consent is

not a defense where the victim is unable to give legally valid

consent by virtue of age or by virtue of mental disability. See

Atkins, 666 S.E.2d at 812 (comparing second-degree and statutory

rape and quoting legislative history:      “In second degree rape,

                                 7
we   are    adding   persons      who   are   mentally    defective,    mentally

incapacitated,       or   physically    helpless.        This   is   basically    a

statutory rape section . . . .”); see also State v. Banks, 766

S.E.2d 334, 339 (N.C. 2014) (statutory and second-degree rape

“separately punish the act of intercourse with a victim who,

because of her age, is unable to consent to the act, and the act

of intercourse with a victim who, because of a mental disability

or mental incapacity, is unable to consent to the act”). 1

                                         C.

      Our    other   point   of    comparison    is   the   phrase     “crime    of

violence,” as used in the Sentencing Guidelines. 2               As will become

important in this case, different guideline provisions describe

      1
       To the extent our dissenting colleague suggests that lack
of legally valid consent cannot alone sustain a conviction for
North Carolina second-degree rape, as opposed to statutory rape,
we must respectfully disagree. See Williams, 698 S.E.2d at 544-
45. Nor is the prospect of prosecution in cases of factual but
legally insufficient consent so fanciful that we may overlook it
under the categorical approach. See Ramey, 2011 WL 3276720, at
*4-5.     Indeed, at his sentencing hearing, Shell adduced
testimony that his own conviction under the statute was for
engaging in sexual intercourse with his stepsister by marriage
when both were young and with factual consent. The particulars
of Shell’s offense, of course, do not control the analysis under
the categorical approach we apply.       But they may help to
illustrate the practical scope of the North Carolina statute at
issue.
      2
       As is customary, we rely as well on cases construing the
phrase “violent felony” under the Armed Career Criminal Act,
“because the two terms have been defined in a manner that is
substantively identical.”     Montes-Flores, 736 F.3d at 363
(internal quotation marks omitted).



                                         8
“crime    of    violence”     differently.           But    Shell’s         sentence     was

enhanced for a prior crime of violence under U.S.S.G. § 2K2.1,

which    defines    that    term   by    reference         to   the    career-offender

guideline,      U.S.S.G.    §    4B1.2.          U.S.S.G.       §    2K2.1    cmt.     n.1.

Section 4B1.2, in turn, defines a crime of violence as:

     (a) . . . 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).            The commentary elaborates, in relevant

part:

     “Crime of violence” includes murder, manslaughter,
     kidnapping, aggravated assault, forcible sex offenses,
     robbery, arson, extortion, extortionate extension of
     credit, and burglary of a dwelling.

U.S.S.G. § 4B1.2 cmt. n.1 (emphasis added).

     In   its     argument,     the    government      skips        past    the   text   of

§ 4B1.2 to focus on its commentary, and in particular the phrase

“forcible sex offenses.”              But it is the text, of course, that

takes precedence, see Stinson v. United States, 508 U.S. 36, 43

(1993)    (where     commentary        is       inconsistent         with    text,     text

controls), and so that is where we begin.                           And like two other


                                            9
circuit   courts,      as    well     as    our   own   court    in    an    unpublished

opinion, we conclude that offenses that may be committed without

physical force and predicated instead on the absence of legally

valid consent – as under the North Carolina second-degree rape

statute – are not categorically crimes of violence under either

clause of § 4B1.2.            See United States v. Wray, 776 F.3d 1182,

1187–91 (10th Cir. 2015) (conviction for sexual assault with a

10-year age difference not categorically a crime of violence

under § 4B1.2); United States v. Wynn, 579 F.3d 567, 572–75 (6th

Cir.    2009)    (sexual          battery    based      on    coercive       nature   of

relationship     not        categorically         a   crime     of     violence    under

§ 4B1.2); United States v. Leshen, 453 F. App’x 408, 412–16 (4th

Cir.    2011)   (unpublished)          (third-degree          rape     and    aggravated

sexual assault based on age of victim not categorically crimes

of violence under § 4B1.2).

       We can dispense relatively quickly with the first clause of

the career-offender guideline – the so-called “force clause” -

which covers crimes that have “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).         For    these    purposes,     the

Supreme Court held in Johnson v. United States, “physical force”

means   “violent    force         -   that    is,     force     capable      of   causing

physical pain or injury to another person.”                       559 U.S. 133, 140

(2010); see also United States v. Aparicio-Soria, 740 F.3d 152,

                                             10
154–55 (4th Cir. 2014) (en banc) (applying Johnson).                            We think

it clear that the second subsection of North Carolina’s second-

degree rape statute, which does not require the state to prove

force at all and may instead be violated if there is legally

insufficient     consent,       does   not          meet    this    “violent      force”

standard, and indeed, the government does not argue otherwise. 3

Nor   do   we   believe    that    North       Carolina’s       second-degree       rape

offense    qualifies      as   a   crime       of    violence      under    §    4B1.2’s

“residual clause” or “otherwise clause,” covering any crime that

“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)(2). 4       Sex     offenses    are        not   among    the    enumerated


      3
       As the dissent notes, the North Carolina Supreme Court has
held that for purposes of the state’s own sentencing laws,
felony rape necessarily is a crime of violence.     See State v.
Holden, 450 S.E.2d 878, 884 (N.C. 1994).      But the meaning of
“physical force” under § 4B1.2(a)(1) is a question of federal
law, not state law, and in answering that question, we “are not
bound by a state court’s interpretation of a similar – or even
identical – state statute.” Johnson, 559 U.S. at 138. Instead,
we follow Johnson and other Supreme Court and Fourth Circuit
precedent that bears on the relevant federal provision before
us.
      4
       The dissent chides us for giving too much attention to the
“straw man of the ‘residual clause’” at the expense of § 4B1.2’s
force clause. Post at 9. But this is an unusual case in that
the government ignores both clauses equally, and that makes it
hard for us to say which is the straw man.     On the assumption
that the government’s argument must be anchored at least
implicitly in one of § 4B1.2’s textual clauses, and without


                                          11
crimes.     And the final clause, the Supreme Court instructs, does

not reach every crime that “otherwise . . . presents a serious

potential risk of physical injury,” U.S.S.G. § 4B1.2(a)(2), but

only those “that are roughly similar [] in kind” to the listed

examples – involving conduct that is “purposeful, violent and

aggressive” – as well as similar in the “degree of risk” of

physical injury they pose.         Begay, 553 U.S. at 142-45. 5        That

standard, we have held already, is not met by sex offenses that

do not require the use of physical force and may be predicated

instead on the legal insufficiency of purported consent.                See

United States v. Thornton, 554 F.3d 443, 446–49 (4th Cir. 2009)

(conviction for statutory rape does not fall within residual

clause); see also Leshen, 453 F. App’x at 413–14 (same).

     That    precedent   governs   here.    Like   the   statutory     rape

offense considered in Thornton, the second subsection of North

Carolina’s statute may be violated without the threat or use of

physical force, and on the legal presumption that the victim is




further guidance from the government          as   to    which,   we   feel
ourselves obliged to address both.
     5
       Although the Supreme Court refined the Begay approach in
Sykes v. United States, 131 S. Ct. 2267, 2275–76 (2011), we
continue to require that an offense be similar to the listed
examples both in kind and in degree of risk before it can
qualify as a crime of violence under the residual clause.   See
United States v. Martin, 753 F.3d 485, 490 (4th Cir. 2014).



                                    12
unable to consent.         See Atkins, 666 S.E.2d at 812.                 That does

not mean, of course, that the crime is not serious; but it does

mean, we held in Thornton, that unlike the crimes enumerated in

the career-offender guideline, it “does not support an inference

that   any   or   all     instances     of    the     offense   are    violent    and

aggressive.”      554 F.3d at 449; see also Leshen, 453 F. App’x at

414; Wynn, 579 F.3d at 574.             Similarly, we do not doubt that sex

offenses committed without physical force and against vulnerable

victims can present physical as well as psychological risks, in

the form of sexually transmitted diseases or health concerns

attendant to pregnancy.          But we have concluded that those risks

are not comparable to the physical risks generated by the crimes

listed in § 4B1.2(a)(2), both because they are more attenuated

and because they are not “violent in nature.”                         Thornton, 554

F.3d at 449; see Leshen, 453 F. App’x at 414.

       At issue in Thornton (and Leshen, as well) was a statute

criminalizing adult sexual contact with minors, whereas North

Carolina’s    statute     criminalizes        sexual    intercourse     with    those

who are mentally disabled or incapacitated.                     But nothing about

that    distinction       renders     the     logic    of   Thornton      any    less

applicable here.          Like statutory rape laws, North Carolina’s

second-degree rape statute does not require the state to prove

force or the absence of consent in fact, Atkins, 666 S.E.2d at

812,   and   there   is    at   least    a    “realistic    probability,”       Diaz-

                                         13
Ibarra,       522    F.3d     at   348,   that      the   statute     would    apply    in

situations in which a victim is presumed unable to give legally

valid consent, Williams, 698 S.E.2d at 544–45; Ramey, 2011 WL

3276720, at *4–5.             Those are precisely the features that led us

to conclude in Thornton that statutory rape is not a crime of

violence under § 4B1.2.             See 554 F.3d at 448 (“[A] victim’s lack

of ability to give legal consent” does not make statutory rape

“inherently violent and aggressive.”); see also Leshen, 453 F.

App’x at 414.               In applying § 4B1.2’s definition of crime of

violence, we see no grounds for distinguishing between sexual

intercourse          with    a   victim   whose       consent   is    legally    invalid

because he or she is fourteen years old, and sexual intercourse

with an adult victim whose consent is legally invalid because he

or she has the mental capacity of a fourteen-year-old.                           Indeed,

as noted above, North Carolina law itself draws precisely this

parallel, treating the second subsection of its second-degree

rape       statute    as     analogous    to    its    statutory     rape     law.     See

Atkins, 666 S.E.2d at 812 (“This is basically a statutory rape

section . . . .”); Banks, 766 S.E.2d at 339. 6                       Thornton controls


       6
       The dissent argues that offenses under the second-degree
rape statute necessarily are “violent” in a way that statutory
rape is not because the second subsection of that statute limits
its reach to defendants who know – or do not know, but should –
that a victim is mentally disabled or otherwise falls within the
protected category.   We cannot agree.    A defendant’s “guilty
knowledge” that a victim is mentally disabled, post at 13 – or


                                               14
on this question, and we are bound to find that North Carolina’s

second-degree   rape   statute   is    not   categorically   a   crime   of

violence under § 4B1.2(a)(2)’s residual clause. 7




his failure to discern mental disability when it is found that
he should, see Williams, 698 S.E.2d at 546-47 (despite his own
mental   impairments,    defendant   “reasonably   should   have
discovered” victim’s mental disability) – of course may bear on
culpability, and, again, we do not doubt the gravity of offenses
under North Carolina’s statute. But that is a distinct question
from whether all such offenses are “inherently violent and
aggressive,” Thornton, 554 F.3d at 448, and as we have held, sex
offenses committed against victims who give factual (but legally
invalid) consent are not “inherently violent” in that sense, id.
Moreover, because North Carolina second-degree rape, like
statutory rape, presumes invalid any consent, it may be
committed even when a defendant lacks the intent to override the
will of a factually consenting victim, and is in that way akin
to a strict liability, recklessness, or negligence offense. See
Sykes, 131 S. Ct. at 2275-76; Begay, 553 U.S. at 144-45;
Thornton, 554 F.3d at 448.
     7
       Our conclusion here is limited to the second subsection of
North Carolina’s statute. We should note, however, that even if
the second subsection could be reconciled with the text of
§ 4B1.2, there would remain the question of the first.        And
because that subsection may be violated through force that is
constructive rather than physical, it, too, raises significant
issues under § 4B1.2. After Johnson, 559 U.S. at 140 (“physical
force” under § 4B1.2(a)(1) means “violent force”), we doubt that
a statute requiring only constructive force in the form of an
inherently coercive relationship, like the first subsection of
the North Carolina law, can be brought within the force clause.
See United States v. Vann, 660 F.3d 771, 779 n.2 (4th Cir. 2011)
(en banc) (King, J., concurring). And there is room to question
whether an offense under the first subsection that is predicated
on an inherently coercive relationship could fall within the
residual clause, as sufficiently similar in kind and degree of
risk of physical injury to § 4B1.2(a)(2)’s listed examples. See
Thornton, 554 F.3d at 448 (rejecting government argument that
sex offense involves constructive force and therefore falls
within residual clause); see also Leshen, 453 F. App’x at 415


                                  15
                                         D.

       We turn now to the government’s argument on appeal.                         The

government does not contest, at least directly, our holding that

a North Carolina second-degree rape conviction does not qualify

categorically    as    a   crime   of    violence     under   either      clause    of

§   4B1.2’s    definition.         Instead,    the     government      rests       its

argument    entirely    on   the   commentary    to     §   4B1.2,   which     lists

“forcible sex offense[]” as an example of a crime of violence.

U.S.S.G. § 4B1.2 cmt. n.1.               More specifically, the government

contends      that    because      sex     offenses     resting      on     legally

insufficient consent constitute “forcible sex offenses” under a

different section of the Guidelines – Guidelines § 2L1.2 – they

must be crimes of violence under the commentary to § 4B1.2, as

well.      Two other circuit courts have rejected precisely that

argument, see Wynn, 579 F.3d at 574–75 (Sixth Circuit); Wray,

776 F.3d at 1187–88 (Tenth Circuit); see also Leshen, 453 F.

App’x at 415–16 (Fourth Circuit, unpublished), and we join them

now.



(constructive force “no longer satisfies either prong” of
§ 4B1.2’s definition of crime of violence).    But we need not
resolve those issues today.      As we have explained, North
Carolina’s second-degree rape statute can qualify categorically
as a crime of violence only if both its subsections are covered
by § 4B1.2, and so our determination that the second subsection
reaches offenses that fall outside the terms of § 4B1.2 is
enough to dispose of this case.



                                         16
     Section 2L1.2 of the Guidelines enhances the base offense

level for certain immigration violations where the defendant has

committed       a    prior    felony      “crime        of    violence”   or      misdemeanor

“crimes of violence.”               U.S.S.G. § 2L1.2(b)(1)(A), (E).                   The text

of § 2L1.2 does not define crime of violence and, unlike the

provision       under        which    Shell       was        sentenced,      it    does      not

incorporate         by   reference        §    4B1.2’s       two-clause      definition        of

crime of violence.            Instead, § 2L1.2 includes commentary listing

“forcible sex offense[]” as an example of a crime of violence.

Id. at cmt. n.1(B)(iii).

     In    United        States      v.       Chacon,    we    applied    §    2L1.2      to    a

subsection of a Maryland statute much like the second subsection

of North Carolina’s statute, criminalizing intercourse with a

person    who       is   mentally     defective,         mentally      incapacitated,          or

physically          helpless.        533 F.3d 250, 255 (4th Cir. 2008).                        At

the time, § 2L1.2’s commentary provided:

     “Crime of violence” means any of the following
     offenses under federal, state, or local law: murder,
     manslaughter, kidnapping, aggravated assault, forcible
     sex offenses, statutory rape, sexual abuse of a minor,
     robbery, arson, extortion, extortionate extension of
     credit, burglary of a dwelling, or any offense under
     federal, state, or local law that has as an element
     the use, attempted use, or threatened use of physical
     force against the person of another.

U.S.S.G. § 2L1.2 cmt. n.1(B)(iii) (2006) (emphases added).                                     We

held,    first,      that     the    Maryland        offense     did   not     have    “as     an

element the use, attempted use, or threatened use of physical

                                                17
force,” and so did not fall within § 2L1.2’s “force clause.”

Chacon, 533 F.3d at 255-56. 8             We went on to find, however, that

it nevertheless qualified as a “forcible sex offense[]” within

the meaning of § 2L1.2.                Id. at 256–58.        In the absence of a

textual definition, we relied on the “ordinary, contemporary”

meaning of “forcible” and concluded that it reaches not only

physical force but also compulsion effectuated through “power”

or “pressure,” id. at 257, as when a rape is “accomplished by

taking advantage” of someone who cannot give legal consent, id.

at 258.         And extending “forcible sex offenses” to statutes that

do not require physical force and instead presume the inability

to consent, we held, is consistent with § 2L1.2’s commentary as

a   whole,       which    expressly    enumerates      the   similar     offenses    of

“statutory rape” and “sexual abuse of a minor.”                   See id.

       It       is   Chacon’s   “common    meaning”     analysis    on    which     the

government relies most heavily here.                The government argues that

once       we   have     established    the   common    meaning    of    the    phrase

forcible         sex   offenses,   that    common   meaning     stays     the   same,

traveling with the term wherever it appears in the Guidelines.

       8
       The dissent relies heavily on Chacon in arguing that North
Carolina second-degree rape falls within § 4B1.2, and presumably
its force clause.   But if Chacon’s construction of the § 2L1.2
commentary directly governed this case, as the dissent urges,
then surely this part of Chacon’s holding would govern, as well,
and eliminate § 4B1.2’s force clause as a textual basis for the
dissent’s position.



                                           18
Appellee’s    Br.     25       (“It    is    difficult    to    imagine    how    .     .   .

examining the common meaning of the phrase forcible sex offense

[] would lead to a different result simply based on where the

enumerated offense appears in the guidelines.”).                          We appreciate

the logic of this position, but, as in Leshen, 453 F. App’x at

414–16, we must disagree.

       As the Supreme Court recently reminded us, when it comes to

statutory construction, context matters.                        See Yates v. United

States, 135 S. Ct. 1074, 1082 (2015) (“In law as in life, [] the

same    words,      placed       in     different      contexts,      sometimes        mean

different things.”).             Section 4B1.2’s career-offender guideline,

at issue here, and § 2L1.2’s immigration guideline, construed in

Chacon, are different provisions, with significantly different

texts and structures.                 Accordingly, while we of course do not

question     Chacon’s          conclusion       that     offenses     presuming         the

inability    to     consent      qualify      as     forcible   sex   offenses        under

§ 2L1.2’s commentary, we reach a different result under § 4B1.2.

       Both provisions, as the government says, list forcible sex

offenses in their commentaries.                     But critically, while § 2L1.2

defines     crime    of    violence         entirely     through    that    commentary,

§   4B1.2   provides       a    separate      two-part    definition       of   crime       of

violence     in   its      text,      with    the    commentary     serving      only       to

amplify that definition, and any inconsistency between the two

resolved in favor of the text, Stinson, 508 U.S. at 43.                               So in

                                              19
interpreting “forcible sex offenses” in § 4B1.2’s commentary, we

do not write on a blank slate; instead, we have a carefully

reticulated definition of crime of violence to which we must

adhere.         See    Leshen,     453      F.    App’x        at    415    (under    §     4B1.2,

“‘[f]orcible          sex    offenses’            does         not        have     freestanding

definitional power,” but must instead be linked to a prong of

the textual definition of crime of violence); see also United

States     v.     Benkahla,        530      F.3d        300,        312    (4th     Cir.        2008)

(recognizing          courts’        “duty        to     harmonize           Guidelines          and

commentary”).          And as discussed above, that textual definition

comes     to    us    glossed        by   Supreme         Court       and    Fourth        Circuit

precedent that precludes its application to offenses committed

without “violent” force and predicated on the legal invalidity

of consent.           Chacon, on the other hand, interpreted “forcible

sex offenses” as a freestanding phrase, without the constraints

imposed by § 4B1.2’s text, and so had the leeway to canvas

outside sources in search of ordinary meaning.                               533 F.3d at 257

(“When a word is not defined by statute, we normally construe it

in accord with its ordinary or natural meaning.” (quoting Smith

v.   United      States,     508      U.S.       223,    228        (1993))).        Those       are

markedly       different     interpretive              enterprises,          driven        by    the

different       structures      of    the    provisions,             and    it    should    be    no

surprise that we end up in different places.



                                                 20
       Moreover, the full text of the two commentaries themselves

strongly    suggests     a   broader     reading    of    the    term     “crime     of

violence” under the immigration guideline at issue in Chacon

than under the career-offender guideline before us today.                        As we

explained in Chacon, the commentary to § 2L1.2 includes not only

“forcible    sex   offenses”     but     also   other    offenses       that    do   not

require physical force, such as statutory rape and sexual abuse

of a minor, in its list of enumerated crimes of violence.                            533

F.3d at 258 (citing U.S.S.G. § 2L1.2 cmt. n.1(B)(iii)).                         Section

4B1.2’s commentary, on the other hand, does not list statutory

rape or sexual abuse of a minor, but only offenses that plainly

involve physical force, such as murder and aggravated assault.

U.S.S.G. § 4B1.2 cmt. n.1.              On its face, the commentary to the

immigration    guideline       sweeps    further    and    “expressly          cover[s]

more sex crimes” than the career-offender commentary.                      Wynn, 579

F.3d   at   575;   see   Leshen,    453    F.    App’x    at    415–16.         Reading

“forcible sex offenses” to include offenses committed without

physical force and predicated on legally invalid consent makes

sense under § 2L1.2’s commentary in a way it would not under

§ 4B1.2’s commentary.

       Finally,    we    think     it    is     clear    that     the     Sentencing

Commission intended this result.              First, the Commission chose to

include     multiple     and     different      definitions       of      “crime     of

violence” in the Guidelines.              Had it wanted that term to have

                                         21
the same scope each time it appeared, then the obvious solution

would have been to provide one uniform definition, applicable

throughout.       Instead, the Commission set out different “crime of

violence”    enhancements         for    different      underlying         crimes.       The

felon-in-possession guideline under which Shell was sentenced,

§ 2K2.1, by cross-referencing § 4B1.2’s definition, provides for

an enhancement if Shell is a “career offender” – the “kind of

person    who    might     deliberately         point    the    gun    and       pull    the

trigger.”       Begay, 553 U.S. at 146.           If the Commission had wanted

to enhance felon-in-possession sentences for a broader range of

crimes of violence, including misdemeanor crimes, then it simply

could have cross-referenced § 2L1.2, instead.                          See Wray, 776

F.3d at 1188.

       Second, in 2008 and after we decided Chacon, the Sentencing

Commission      amended     the     commentary      to    §    2L1.2’s       immigration

guideline,       adding    a      parenthetical:         “forcible         sex    offenses

(including where consent to the conduct is not given or is not

legally     valid,    such     as       where    consent       to    the     conduct     is

involuntary, incompetent, or coerced) . . . .”                       U.S.S.G. § 2L1.2

cmt.   n.1(B)(iii)        (emphasis      added).         At    the    same       time,   the

Commission left § 4B1.2 intact, explaining that its purpose was

to “clarif[y] the scope of the term ‘forcible sex offense’ as

that term is used in the definition of ‘crime of violence’ in

§ 2L1.1.”       U.S. Sentencing Guidelines Manual app. C, vol. III,

                                           22
amend.    722,   at   302    (2011)    (emphases     added).         “[T]he       logical

conclusion that we must draw is that the Sentencing Commission

did not intend for ‘forcible sex offenses’ under § 4B1.2 to be

defined the same way as ‘forcible sex offenses’ under § 2L1.2.”

Wynn, 579 F.3d at 575; see Wray, 776 F.3d at 1188 (citing maxim

of expressio unius est exclusio alterius and concluding that the

express    inclusion        of   invalid-consent          offenses     in     §    2L1.2

“suggests, at a minimum,” that those offenses are not covered by

§   4B1.2);      Leshen,     453      F.   App’x     at    415–16      (relying       on

Commission’s decision to amend § 2L1.2 but not § 4B1.2).

     Following the reasoning of the Sixth and Tenth Circuits, we

hold that Shell’s prior conviction for North Carolina second-

degree    rape   is   not    categorically      a    crime    of     violence      under

§ 4B1.2.      Our decision should not be understood to minimize in

any way the seriousness of the offenses proscribed by the North

Carolina statute or the importance of the state’s interest in

protecting the most vulnerable of victims.                   But whether the full

range of conduct covered by that state statute constitutes a

crime of violence under § 4B1.2, as construed both by our court

and the Supreme Court, is a different question, which we are

obliged to answer in the negative.                  Because the district court

erred in characterizing Shell’s prior conviction as a crime of

violence and thereby enhancing Shell’s base offense level for



                                           23
illegally possessing a firearm, we vacate Shell’s sentence and

remand for resentencing.



                                         III.

     The   district     court     also    enhanced    Shell’s    sentence   under

Guidelines    §   3C1.2,    for   “recklessly       creat[ing]    a   substantial

risk of death or serious bodily injury to another person in the

course   of   fleeing      from   a   law      enforcement   officer.”      Shell

concedes on appeal that he drove recklessly during the incident

leading to his arrest, but argues that the enhancement does not

apply because he was not aware that he was being pursued by a

law enforcement officer.           We evaluate that legal claim de novo

and review relevant factual findings by the district court for

clear error.      United States v. Carter, 601 F.3d 252, 254 (4th

Cir. 2010).

                                          A.

     Our court has not addressed whether the § 3C1.2 enhancement

applies if the defendant was unaware that he was being pursued

by an officer.      But every circuit to consider the question has

concluded that the enhancement is not warranted where an officer

is following a defendant but the defendant does not know that

the officer is in pursuit, and is driving recklessly for some

other reason.      See United States v. Martikainen, 640 F.3d 1191,

1193–94 (11th Cir. 2011) (per curiam); United States v. Moore,

                                          24
242 F.3d 1080, 1082 (8th Cir. 2001); United States v. Hayes, 49

F.3d 178, 183–84 (6th Cir. 1995).                    At argument, the government

conceded that this is the correct reading of § 3C1.2.                            We agree,

and   now   adopt     that      reading,    joining     our     sister     circuits       in

holding     that    the    § 3C1.2   enhancement        does    not   apply       where    a

defendant     was    unaware      that     he   was    being     pursued     by     a    law

enforcement officer.

      This interpretation of § 3C1.2 comports with the Sentencing

Commission’s reason for promulgating it.                       See U.S. Sentencing

Guidelines Manual app. C, vol. I, amend. 347, at 196–99 (2008).

The   provision       is    a   derivative      of     Guidelines      §    3C1.1,      the

obstruction-of-justice enhancement, which targets defendants who

engage in conduct to mislead authorities or otherwise interfere

with the disposition of criminal charges.                      See id. at 196.           The

Commission found that “reckless endangerment during flight is

sufficiently        different     from     other      forms”    of    obstruction         of

justice that it warranted a separate enhancement, and § 3C1.2 is

expressly     made    applicable     to     resisting     arrest.          Id.    at    199.

Those origins make clear, we believe, that § 3C1.2 is intended

to capture “behavior that could be viewed as an obstruction of

justice,” and thus requires that a defendant be aware that he or

she is fleeing from a law enforcement officer.                        Hayes, 49 F.3d

at 183.



                                           25
                                           B.

       At    sentencing    in     this    case,    the     parties    contested       both

whether Shell recklessly created a risk of injury and – despite

the absence of circuit precedent – whether Shell knew that he

was being pursued by the police.                   As to reckless endangerment,

the government relied principally on the testimony of Nicole

Smith, who described “screeching tires” and a “black car coming

sideways” that “missed [her] by about two inches.”                         J.A. 44-45.

Shell    sought      to   rebut    that    testimony       primarily      through      the

absence of skid marks on the road.

       The    case   as   to    Shell’s    knowledge       of   police     pursuit     was

complicated by the fact that Shell already was speeding at the

time    Hodges    encountered       him    while    traveling        in   the    opposite

direction, and that Shell was no longer within Hodges’s sight

once    Hodges    activated       his    siren    and    turned   around        to   follow

Shell.       Shell argued that he was unaware that Hodges had decided

to pursue him, and pointed for support to witness testimony that

Shell had expressed concern when a bystander to his accident

called the police – concern that would have been beside the

point, Shell argued, had he believed that the police already

were    in    pursuit.      The    government,       for    its   part,     pointed     to

Shell’s flight from the scene of the accident and his admission

that he had seen Hodges at some point, though it was unclear

whether before or after Hodges activated his siren.                             According

                                           26
to the government, Shell’s concern about the call to the police

after his accident could be explained by Shell’s belief that he

had eluded Hodges successfully up until that point.

       In   imposing       the    § 3C1.2      enhancement         at    sentencing,       the

district court made the following finding:

       The court credits the testimony of Ms. Smith as to the
       perception she had at the time of the approach of the
       black Mercedes to her car which she described as being
       sideways   in  the   roadway  and  making  substantial
       skidding noises and that it missed her car by
       approximately two inches.      And that testimony is
       fortified by the fact that no – people don’t tend to
       forget that sort of thing. [An inconsistent detail in
       Smith’s testimony] is not critical to the analysis
       under U.S. Sentencing Guidelines 3C1.2. Defendant did
       create a substantial risk of death or serious bodily
       injury to her in the course of fleeing from a law
       enforcement officer.

J.A.   58–59.        The    final       sentence,        incorporating        the   ultimate

finding, quotes the language of § 3C1.2, in determining that

Shell “created a substantial risk of death or serious bodily

injury,”    and    did     so     “in    the    course      of     fleeing      from   a   law

enforcement       officer.”            U.S.S.G.      §    3C1.2.        But   because      the

district     court    did        not    have   the       benefit    of    the    ruling     we

announce today, it had no occasion to make a separate finding

that Shell was aware that he was being pursued by Hodges.                                  And

given the preceding context, which focuses exclusively on the

separate question of whether Shell recklessly endangered Smith,

we cannot be certain that the district court in fact did make

such a finding.          Accordingly, we remand on this issue, as well,

                                               27
so   that   the   district    court   may   apply    our   newly    announced

understanding of § 3C1.2 to this case and clarify whether Shell

knew that he was being pursued by law enforcement.



                                      IV.

     For the foregoing reasons, we vacate the district court’s

judgment    and   remand     for   resentencing     consistent     with   this

opinion.

                                                      VACATED AND REMANDED




                                      28
WILKINSON, Circuit Judge, dissenting:

      North       Carolina’s        second-degree            rape    statute         punishes

predatory     acts     committed        against       society’s          most    vulnerable

individuals.       To violate the contested portion of this statute,

one   must    have     taken    advantage        of     a    mentally      or    physically

defenseless person to engage in sexual intercourse -- all the

while knowing of the victim’s impaired condition.                                 N.C. Gen.

Stat.    § 14-27.3(a)(2).            This    law      protects       people      considered

incapable of volitional acts from such callous conduct.

      The    majority,     however,      asks      us       to   accept     a    disquieting

proposition:           that     a    defendant        who        “engages       in   vaginal

intercourse        with       another       person . . . [w]ho              is       mentally

disabled, mentally incapacitated, or physically helpless,” with

knowledge of that vulnerability, has somehow not committed a

forcible sex offense.           Id. How can that be?                A proper reading of

the law confirms the common intuition about the nature of this

crime.       It    inherently       involves       the      kind    of    force      that   is

emblematic of a “crime of violence” under the relevant provision

of    the     United      States      Sentencing            Guidelines.              U.S.S.G.

§ 4B1.2(a)(1) & cmt. n.1. Both this court and North Carolina’s

courts have specifically recognized the forcible nature of these

sorts of acts, and rightly so.                     I do not understand how the

knowing, forcible sexual subjugation of helpless human beings



                                            29
fails to qualify as a crime of violence.                With all respect for

my friends in the majority, I dissent. 1



                                     I.

     Under the Guidelines provisions for firearms offenses, a

defendant who previously sustained a felony conviction for a

“crime   of   violence”    is   subject   to    a    heightened   base   offense

level.    U.S.S.G. § 2K2.1(a)(4)(A).            A “crime of violence” may

refer to any felony that “has as an element the use, attempted

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

another.”     Id. § 4B1.2(a)(1); see id. § 2K2.1 cmt. n.1 (cross-

referencing     the   provision    for    career       offenders).       As   the

Guidelines    commentary    explains,     the   term     “crime   of   violence”

also covers a number of enumerated offenses, including “murder,

manslaughter,     kidnapping,      aggravated        assault,     forcible    sex

offenses, robbery, arson, extortion, extortionate extension of

credit, and burglary of a dwelling.”                Id. § 4B1.2 cmt. n.1; see

id. § 2K2.1 cmt. n.1.           This list of crimes by the Sentencing

Commission is “authoritative.”            Stinson v. United States, 508


     1
       I agree with the majority that Shell was required to know,
for the purposes of an enhancement under U.S.S.G. § 3C1.2, that
he was being pursued by a law enforcement officer.       While I
think the district court’s discussion has already incorporated
the fact of such knowledge, I have no objection to remanding for
a further finding on the point.


                                     30
U.S. 36, 38 (1993).   The term “crime of violence” thus expressly

encompasses forcible sex offenses.



                                  A.

     Was Shell’s prior crime a forcible sex offense?       We begin

with the state statute under which he was convicted. 2    Our charge

is to determine the range of actions that North Carolina would

realistically   classify   as   second-degree   rape.    This   is   a

practical exercise, not a dreamy one about every conceivable

scenario to which the statute might apply.      See United States v.

Diaz-Ibarra, 522 F.3d 343, 348 (4th Cir. 2008) (requiring “‘a

realistic probability, not a theoretical possibility,’ that the

state would apply its statute to conduct that falls outside the


     2
        Of course, the meaning of a federal provision, be it
statutory or regulatory or Sentencing Guideline, is a federal
question.    See Johnson v. United States, 559 U.S. 133, 138
(2010).    But the elements of a predicate state offense are
obviously a question of state law, see id., and determining
those elements is obviously a critical step here:    our express
charge is to compare the elements of the predicate state offense
with the elements of the “generic” crime, see Descamps v. United
States, 133 S. Ct. 2276, 2281 (2013).    In fact, in construing
this North Carolina statute, we are bound by the interpretations
and decisions of the Supreme Court of North Carolina.        See
Johnson, 559 U.S. at 138; United States v. Aparicio-Soria, 740
F.3d 152, 154 (4th Cir. 2014) (en banc). No federal court “has
any authority to place a construction on a state statute
different from the one rendered by the highest court of the
State.”     Johnson v. Fankell, 520 U.S. 911, 916 (1997).
Examining North Carolina’s case law is an essential part of the
inquiry before us.


                                  31
definition of ‘crime of violence’” (quoting Gonzales v. Duenas-

Alvarez, 549 U.S. 183, 193 (2007))).

     North Carolina defines the felony of second-degree rape as

follows:

     (a) A person is guilty of rape in the second degree if
     the person engages in vaginal intercourse with another
     person:

           (1) By force and against the will of the other
           person; or

           (2)    Who   is    mentally     disabled,    mentally
           incapacitated, or physically helpless, and the
           person   performing   the   act   knows   or   should
           reasonably know the other person is mentally
           disabled, mentally incapacitated, or physically
           helpless.

N.C. Gen. Stat. § 14-27.3(a)(1)-(2).      Another state provision,

in turn, defines each of the three mental or physical conditions

identified in the second-degree rape statute:

     (1) “Mentally disabled” means (i) a victim who suffers
     from mental retardation, or (ii) a victim who suffers
     from a mental disorder, either of which temporarily or
     permanently renders the victim substantially incapable
     of appraising the nature of his or her conduct, or of
     resisting the act of vaginal intercourse or a sexual
     act, or of communicating unwillingness to submit to
     the act of vaginal intercourse or a sexual act.

     (2) “Mentally incapacitated” means a victim who due to
     any act committed upon the victim is rendered
     substantially incapable of either appraising the
     nature of his or her conduct, or resisting the act of
     vaginal intercourse or a sexual act.

     (3) “Physically helpless” means (i) a victim        who is
     unconscious; or (ii) a victim who is physically      unable
     to resist an act of vaginal intercourse or a        sexual
     act or communicate unwillingness to submit to       an act
     of vaginal intercourse or a sexual act.

                                 32
Id. § 14-27.1(1)-(3).         The import of these provisions is plain.

The victims under this North Carolina law cannot comprehend the

situation or resist the aggressor’s sexual advances.                 In one way

or another, these persons are helpless.

     North Carolina’s second-degree rape statute does not suffer

from vagueness.       It covers a specific and limited universe of

conduct.    And each disjunctive variant under the statute entails

some form of force.         The record of Shell’s conviction does not

specify    whether    he   was   convicted      under   subsection   (a)(1)   or

(a)(2).    See J.A. 62, 119-20.

     The majority could scarcely argue that subsection (a)(1) --

which criminalizes sex “[b]y force and against the will of the

other person,” N.C. Gen. Stat. § 14-27.3(a)(1) -- falls short of

a crime of violence.        The forcible nature of this crime is self-

evident.    See U.S.S.G. § 4B1.2(a)(1) & cmt. n.1.               Shell’s only

possible refuge lies in subsection (a)(2) of the North Carolina

statute.        But        raping   a        mentally    disabled,     mentally

incapacitated, or physically helpless person is a forcible sex

offense and a crime of violence -- so much so that only our

esteemed profession could complicate the inquiry.



                                        B.

     In addressing the nature of this North Carolina predicate

offense, I must first acknowledge the validity of the majority’s

                                        33
concerns.        It    is    important          not    to    let     predicate     crimes      of

violence metastasize.               I agree with the majority that it is

unfair to tag defendants with predicate crimes of violence when

a   state      statute      is     in    reality       capable       of     many   nonviolent

applications.          Notwithstanding this, I think the majority is

quite    wrong    to     expand         the    whole     concept       of    nonforcible       or

nonviolent rape.            Even apart from the cognitive jolt delivered

by such terms, North Carolina’s statute is limited in all kinds

of ways that the majority has failed both to acknowledge and to

appreciate.

     Second-degree           rape       in    North    Carolina       involves     the   three

basic elements of (1) “vaginal intercourse,” (2) “force,” and

(3) “lack of consent.”                   State v. Smith, 626 S.E.2d 258, 261

(N.C.    2006);       see    N.C.       Gen.    Stat.       § 14-27.3(a)(1)-(2).              The

critical issue in the present case is force.                              The Supreme Court

of North Carolina’s binding case law interpreting this state

statute is exceptionally clear.                       See United States v. Aparicio-

Soria,    740    F.3d       152,    154       (4th    Cir.     2014)      (en   banc).        The

Guidelines require “forcible sex offenses.”                            Second-degree rape

of any kind in North Carolina requires an element of force.

Force    may    assume      various          legal    labels    in    different     cases      --

actual,     constructive,          implied       --    but,    under      any   name,    it    is

still exactly that:           force.



                                                34
      The history of North Carolina’s laws against rape confirms

that force is an indispensable element of the offense.                              North

Carolina’s rape statutes “essentially codify the common law of

rape.” State v. Moorman, 358 S.E.2d 502, 506 (N.C. 1987).                            The

common law “implied in law the elements of force and lack of

consent,” with the result that the crime of rape was “complete

upon the mere showing of sexual intercourse with a person who is

asleep, unconscious, or otherwise incapacitated.”                         Id. at 505.

Under   the    modern    second-degree          rape    statute,     “it     makes    no

difference     whether    the     indictment       alleges       that     the    vaginal

intercourse was by force and against the victim’s will,” as in

§ 14-27.3(a)(1),        “or    whether     it    alleges     merely       the    vaginal

intercourse     with      an     incapacitated          victim,”     as     in    § 14-

27.3(a)(2).      Id. at 506 (emphasis added).                    In the instances

covered   by    subsection       (a)(2),       “sexual    intercourse        with    the

victim is ipso facto rape because the force and lack of consent

are implied in law.”           Id. As a legal matter, the threshold force

required for a conviction under either subsection is the same.

      The Supreme Court of North Carolina has spoken with utmost

clarity about the nature of crimes of rape in that state.                              In

the context of North Carolina’s own sentencing laws, the state’s

highest court has stated plainly, “[W]e reject the notion of any

felony which may properly be deemed ‘non-violent rape.’”                          State

v.   Holden,   450   S.E.2d      878,    884    (N.C.    1994)     (emphasis      added)

                                          35
(discussing          N.C.     Gen.     Stat.     § 15A-2000(e)(3)).                       In    North

Carolina, “rape is a felony which has as an element the use or

threat of violence to the person.”                        Id. at 883. Indeed, even

“the crime of attempted rape always involves at least a ‘threat

of violence.’”         Id. at 884.

      North Carolina’s highest court has specifically rejected a

claim very much like the one endorsed by today’s majority.                                           In

Holden,    the       defendant        argued    that      his    prior          conviction           for

attempted second-degree rape did not necessarily constitute a

crime     of    violence        under      North     Carolina          law,          because         the

conviction          could    have     involved      sex    with        a       person      who       was

mentally        disabled,           mentally     incapacitated,                 or       physically

helpless.           N.C.     Gen.    Stat.     § 14-27.3(a)(2).                 But       the    court

firmly disagreed. Holden, 450 S.E.2d at 883-84.

      The key to the Holden court’s ruling was the presence of

force, and indeed violence, in any instance of rape.                                           Whether

the   victim        refuses     to    consent,      as    in    subsection               (a)(1),      or

whether    the        victim    cannot       consent      because          of       a    mental      or

physical impairment, as in subsection (a)(2), the analysis is

the same.       Id. at 884-85.             Under North Carolina law, “the force

inherent       to    having     sexual     intercourse          with       a    person         who    is

deemed by law to be unable to consent is sufficient to amount to

‘violence.’”           Id.     at    884   (emphasis      added).              In       interpreting

North Carolina’s second-degree rape statute, we could hardly ask

                                               36
for   a   clearer      mandate    from      the    state’s     highest      court.        The

majority’s novel felony of “non-violent rape” is an oxymoron not

recognized in North Carolina law.                 Id.

      This interpretation of North Carolina’s rape statutes is

now firmly rooted in the state’s jurisprudence.                             The Court of

Appeals of North Carolina has heeded the dictates of the state’s

highest court.         “The gravamen of the offense of second[-]degree

rape,” the Court of Appeals recently reaffirmed, “is forcible

sexual    intercourse.”          State      v.    Haddock,     664    S.E.2d       339,   344

(N.C.     Ct.   App.    2008).        The    stipulated      conditions           of   mental

disability, mental incapacity, and physical helplessness simply

constitute “alternative means by which the force necessary to

complete a rape may be shown.”                   Id. at 345; see, e.g., State v.

Washington, 506 S.E.2d 283, 290 (N.C. Ct. App. 1998); State v.

Martin, 485 S.E.2d 352, 354 (N.C. Ct. App. 1997) (Wynn, J.);

State v. Aiken, 326 S.E.2d 919, 926 (N.C. Ct. App. 1985).

      The majority too quickly dismisses the “force clause” of

the career-offender Guidelines provision, § 4B1.2(a)(1), and too

readily     assails      the     straw      man     of   the      “residual        clause,”

§ 4B1.2(a)(2).          See Maj. Op. at 10-16.                    The residual clause

covers any felony that is a “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)(2).            The    majority

                                             37
relies on United States v. Thornton, 554 F.3d 443 (4th Cir.

2009).       But the differences between that case and this are night

and day.        The Virginia law in Thornton criminalized “‘carnal

knowledge’” of a minor “‘without the use of force,’” 554 F.3d at

445    n.2    (emphasis       added)      --     quite    unlike        North       Carolina’s

forcible crime of second-degree rape.                         Because the force clause

obviously did not apply, id. at 446, all that remained was the

residual clause, which the court understandably deemed a poor

fit, id. at 446-49.            The majority’s discussion of Thornton and

the residual clause is thus inapposite.



                                               C.

       The     majority      maintains         that    the      rape     of     a        mentally

disabled, mentally incapacitated, or physically helpless person

is    analogous      to    statutory      rape.        The     shared    logic       of     those

crimes, according to the majority, is that “the fact of consent

is not a defense where the victim is unable to give legally

valid      consent     by    virtue       of     age     or     by    virtue        of     mental

disability.”         Maj. Op. at 7.            But the analogy is misguided.                   As

a     preliminary         matter,    North       Carolina’s           second-degree          rape

statute does not target statutory rape.                              See N.C. Gen. Stat.

§ 14-27.3; J.A. 60-66.              It makes no mention of the victim’s age.

It    is   instead        defined    by    the      victim’s         mental    or        physical



                                               38
defenselessness and an inability to fathom the basic situation

or oppose the aggressor’s actions.

     I would not equate age and impairment.                      Some teenagers are

mature and responsible; others are decidedly not.                          But all the

victims under North Carolina’s second-degree rape statute are by

definition required to be lacking in basic mental or physical

capacity.          Unlike      with   statutory       rape,     the   extent    of   the

victim’s disability must be individually established, sometimes

with expert testimony.            See State v. Hunt, 722 S.E.2d 484, 491-

92   (N.C.    2012).           Such   circumstances,          based   on   a    person’s

particular mental or physical characteristics, differ markedly

from legally insufficient consent based on age alone.

     The differences do not stop there.                       Compulsion is not the

operative factor in the crime of statutory rape.                      This court has

already underscored that distinction in the Guidelines context

as well.          As we observed in an assessment of § 2L1.2, “it is

clear that the Sentencing Commission purposely juxtaposed the

neighboring terms ‘forcible sex offense[]’ and ‘statutory rape,’

with the former intended to connote rape or other qualifying

conduct by compulsion and the latter intended to connote rape on

account      of    the    victim’s       age.”        United    States     v.    Rangel-

Castaneda, 709 F.3d 373, 380 (4th Cir. 2013) (emphasis added).

Indeed, we specifically held that a Tennessee statutory rape

conviction        did    not   qualify    as     a   forcible   sex   offense.       Id.

                                            39
Before today, at least, the distinction between forcible sex

offenses and statutory rape was sharply defined.

      Even the cases cited by the majority actually underscore

the distinction between second-degree rape and statutory rape.

See Maj. Op. at 7-8.                The majority quotes a state senator who

likened an underlying 1979 bill to “‘basically a statutory rape

section.’”         State v. Atkins, 666 S.E.2d 809, 812 (N.C. Ct. App.

2008) (emphasis added).               But the legislator goes on to note a

key distinction: this law would apply “‘in cases where someone

engages in a sex act with a person who is, in fact, incapable of

resisting          or   communicating           resistance’”     --     against       the

perpetrator’s forcible actions.                    Id. Atkins itself provides a

telling example:              the victim was a severely arthritic eighty-

three-year-old woman who was deemed “physically helpless” based

on   her    apparent       inability      “to   actively   oppose      or   resist    her

attacker.”         Id. at 812-13; see also State v. Huss, 734 S.E.2d

612, 615 (N.C. Ct. App. 2012) (noting that the “factors and

attributes” examined in Atkins “were unique and personal to the

victim”),     aff’d      by    an   equally     divided    court,     749   S.E.2d    279

(N.C.      2013)    (per     curiam).       The    majority    cites    another      case

comparing      second-degree         rape    and    statutory    rape.        State   v.

Banks, 766 S.E.2d 334 (N.C. 2014).                    In fact, that was a double

jeopardy      case      --    and   the     Supreme    Court    of    North   Carolina

expressly found them to be separate and distinct offenses.                            Id.

                                             40
at 339; see Blockburger v. United States, 284 U.S. 299, 304

(1932).

      Statutory rape is, finally, a crime of strict liability in

North Carolina.         State v. Anthony, 528 S.E.2d 321, 323-25 (N.C.

2000).      Laws against statutory rape traditionally lack a mens

rea requirement.          2 Wayne R. LaFave, Substantive Criminal Law

§§ 5.5, 17.4 (2d ed. 2014).                  Unlike with statutory rape, this

provision      contains       a    strong     mens    rea     requirement.        To    be

convicted      under    subsection         (a)(2),    the     perpetrator    must      have

known, or      reasonably         should     have    known,    that   the    victim    was

mentally       disabled,          mentally     incapacitated,         or     physically

helpless.       N.C.     Gen.      Stat.     § 14-27.3(a)(2).         This    knowledge

forms part of the element of force that is present in virtually

all   crimes    of     rape   under    North        Carolina    law   --    besides    the

strict liability offense of statutory rape.

      The    threshold        act     under       subsection     (a)(2)      is   sexual

intercourse with a mentally or physically defenseless victim.

This is a crime of forcible sexual compulsion.                        Lack of legally

valid consent is but one feature of this offense.                           One wonders

how it has come to be that a perpetrator who acted with guilty

knowledge -- to take advantage of a profoundly vulnerable victim

who is unable to resist -- could now escape sanction for the




                                             41
prior commission of what the Guidelines require: a “forcible”

sex offense. 3



                                D.

     “Force” may involve the exertion of “[p]ower, violence, or

pressure” against another person.     Black’s Law Dictionary 717

(9th ed. 2009).    This conception of force is integral to the

North Carolina statute.   Yet the majority’s argument suggests that

     3
       In its effort to portray many of these crimes as not so
very serious, the majority’s discussion of anecdotal evidence
about Shell’s earlier conviction, see Maj. Op. at 8 n.1,
impermissibly compromises the categorical approach. “Sentencing
courts may ‘look only to the statutory definitions’ -- i.e., the
elements -- of a defendant’s prior offenses, and not ‘to the
particular facts underlying those convictions.’”       Descamps v.
United States, 133 S. Ct. 2276, 2283 (2013) (quoting Taylor v.
United States, 495 U.S. 575, 600 (1990)).             Despite its
disclaimers, the majority nevertheless proceeds to sift through
the scant and fragmentary indications in the record to try to
ascertain   highly   questionable   “facts”   underlying    Shell’s
predicate offense.    Its efforts illustrate why the categorical
approach obliges courts to examine “elements, not facts.”       Id.
The alternative is this sort of attempted factfinding from the
remove of the appellate bench -- here, without the benefit of
the state court’s or the sentencing court’s findings as to those
“facts,”   without  adequate   elucidation   of  the    surrounding
circumstances, and without any indicia of the transparently
self-serving testimony’s reliability.    What we do know is that
Shell was convicted of North Carolina’s forcible crime of
second-degree rape, which criminalizes vaginal intercourse with
someone known to be mentally disabled, mentally incapacitated,
or physically helpless. The categorical approach turns on those
statutory elements.      The majority, however, slides by that
approach, notwithstanding the heartbreaking instances of second-
degree rape that lie in the weeds of predicate convictions
through which federal courts in the course of Guidelines
calculations such as this are not permitted to trek.



                                42
second-degree       rape    is   somehow     not       “forcible”     enough     to    be    a

forcible sex offense, or not “violent” enough to be a crime of

violence.

       For its own understanding of “force,” the majority relies

on    the    Supreme      Court’s   pronouncements          in   Johnson       v.     United

States,      559   U.S.    133   (2010).         See    Maj.    Op.   at   10-11.        But

Johnson is not like this case.               Johnson involved a prior Florida

conviction for battery.             559 U.S. at 136-37.               With the common

law crime of battery, the element of “force” was “satisfied by

even the slightest offensive touching.”                        Id. at 139.          For the

Court, that threshold was too low when applied to a “violent

felony.”      Id. at 140; see also Aparicio-Soria, 740 F.3d at 154-

55.     In    modern      parlance,   the    various       definitions      of      “force”

generally do not denote slight touching.                       Johnson, 559 U.S. at

138-41.      The degree of power or pressure indicated by the term

“force” is not infinitely expansive.                    Context does matter.             Id.

at 139-40.         And de minimis contact is assuredly not the issue

with the pertinent forms of second-degree rape punished under

North Carolina law.          Forcible intercourse is light-years removed

from nominal battery.

       The majority fails to grasp any of the multiple ways in

which       the    North     Carolina      second-degree           rape    offense          is

circumscribed        and    limited.         The        forcible      nature     of     this

particular crime is unmistakable.                  The differences between this

                                            43
offense and statutory rape or nominal battery are clear.                         Nor

does the majority appreciate the narrow range of mentally or

physically defenseless persons to which this statute applies, on

a personalized basis.           The reality of what is happening to these

victims   quite       eludes    the   majority’s     view.      The    categorical

approach applied by the majority rightly bars our inquiry into

the particulars of any single predicate offense.                    It should not

blind us to, in the words of Woody Guthrie, “a picture from

life’s other side.”



                                         II.

       The problems with the majority’s approach do not end at the

borders of North Carolina.               Its decision is also inconsistent

with precedents that, until now, seemed to speak with a clear

and singular voice about the law governing this circuit.                         Our

past pronouncements left no doubt about the inexorably forcible

character of this brutal, unfeeling act.



                                          A.

       This   court    has     already   determined,    in    the   context   of    a

comparable Guidelines provision, that second-degree rape under a

parallel state statute did constitute a forcible sex offense and

thus   qualified      as   a   “crime    of    violence.”     United    States     v.

Chacon, 533 F.3d 250, 252 (4th Cir. 2008).                   The pertinent parts

                                          44
of the Maryland second-degree rape statute at issue in Chacon

were functionally identical to those in the North Carolina law

here.     The Maryland statute criminalized “vaginal intercourse”

committed (1) “[b]y force or threat of force against the will and

without the consent of the other person”; (2) with a victim who

is   “mentally     defective,        mentally     incapacitated,       or    physically

helpless,”       when       the   perpetrator     “knows    or     should    reasonably

know” of the condition; or (3) with a victim “under 14 years of

age,” when the perpetrator is “at least four years older than

the victim.”           Md. Code Ann. art. 27, § 463(a)(1)-(3) (repealed

2002)     (current       version     at    Md.    Code     Ann.,    Crim.    Law     § 3-

304(a)(1)-(3)).

        In Chacon, we recognized the fundamentally forcible nature

of this crime.          Examining the Guidelines provision for illegally

reentering       the    United      States,      U.S.S.G.      § 2L1.2,     this    court

concluded    that       a    violation     of    Maryland’s      second-degree       rape

statute    was    categorically        a   forcible      sex     offense    within    the

ambit of a “crime of violence,” Chacon, 533 F.3d at 252.                              The

court’s reasoning was this:                even without a requirement of the

use of physical force, a crime under the Maryland statute was

necessarily achieved through some form of compulsion.                              Id. at

255-56.

        Contrary to the majority’s suggestion, see Maj. Op. at 17-

23, this court’s analysis in Chacon applies with equal if not

                                            45
greater power in this case.               As with the Guidelines provisions

that applied to Shell, U.S.S.G. §§ 2K2.1, 4B1.2, the illegal-

reentry Guidelines provision at issue in Chacon provided for a

sentencing enhancement if the defendant had previously sustained

a felony conviction for a “crime of violence,” id. § 2L1.2.                                 In

the definition of “crime of violence,” the commentary to the

illegal-reentry       provision       likewise              listed          “forcible      sex

offenses.”     Id. § 2L1.2 cmt. n.1(B)(iii).                     This court focused on

the “ordinary, contemporary meaning” of the term “forcible sex

offenses,” which is not defined in the Guidelines.                              Chacon, 533

F.3d at 257; see Smith v. United States, 508 U.S. 223, 228

(1993).       Perusing      dictionary           definitions           of      “force”     and

“forcible,”     the     court     gleaned       a     significant           insight:       “a

‘forcible sex offense’ may be accomplished in the absence of

physical   force”     per   se.      Chacon,         533        F.3d   at    257     (emphasis

added).      Properly    understood,        “the          use    of    force       necessarily

involves a degree of compulsion.”                   Id.    And that compulsion “can

be   effected    through        ‘power’     or       ‘pressure,’            which     do   not

necessarily have physical components.”                     Id.

     The     Maryland     statute     in        Chacon      contained          a     provision

virtually identical to the disputed North Carolina provision in

this case.      Both states’ second-degree rape laws criminalize

sexual intercourse with a person who is mentally or physically

defenseless, where the perpetrator knows or reasonably should

                                           46
know of the victim’s condition.                   See Md. Code Ann. art. 27,

§ 463(a)(2); N.C. Gen. Stat. § 14-27.3(a)(2).                     For these crimes,

“any nonconsensual sexual contact is forcible because, if actual

physical    force     is   unnecessary,         some   degree   of   compulsion     is

nevertheless required to overcome an unwilling victim or take

advantage of a helpless and incapacitated one.”                         Chacon, 533

F.3d   at   255-56.        The   only   difference       between     this   case   and

Chacon is that this statute comes from North Carolina, while the

statute in Chacon came from Maryland.                  That point of distinction

embodies no neutral principle.



                                           B.

       The majority makes much of a technical amendment to the

illegal-reentry       Guidelines        provision       that    became      effective

shortly after we handed down Chacon.                    U.S.S.G. app. C, amend.

722, at 301-03; see Maj. Op. at 22-23.                      That amendment made

clear that “forcible sex offenses” do in fact include instances

“where consent to the conduct is not given or is not legally

valid, such as        where      consent   to    the    conduct    is   involuntary,

incompetent, or coerced.”               Id. § 2L1.2 cmt. n.1(B)(iii).              As

this court later confirmed, the amendment “was intended simply

to clarify that the requisite compulsion need not be physical in

nature,” and the revised Guidelines language was fully in line

with our prior holding in Chacon.                      United States v. Rangel-

                                           47
Castaneda, 709 F.3d 373, 380 (4th Cir. 2013).                                The amendment did

not alter the governing analysis.                            If anything, the language of

the    amendment        specifically          reinforces         the    interpretation         that

the term “forcible sex offenses” here does refer to crimes of

compulsion.

       In   excluding          North    Carolina’s            second-degree         rape   statute

from    the      “crime       of     violence”      definition          under       § 4B1.2,      the

majority         can     only        grasp    at        the     thin     reed       of     negative

implication.             The       trouble    is    that        the    positive      indications

undercut the majority’s conclusion.

       Neither         the    modified       illegal-reentry           language       in   § 2L1.2

nor the unmodified career-offender language in § 4B1.2 supports

the    majority’s        proffered       requirement            of     the    use    of    physical

force.       The Sentencing Commission has not chosen to alter the

language         in    the    career-offender            provision       to     impose      such    a

requirement.           See Chacon 533 F.3d at 257-58.

       The Commission simply has not restricted the meaning of

“forcible sex offenses” as the majority does today.                                         Had it

wanted      to    do    so,    the     Commission            could    easily    have      added    to

§ 4B1.2 a phrase excluding from the definition of forcible sex

offense       cases          where     consent          to     the     conduct       was     merely

“involuntary, incompetent, or coerced.”                                See U.S.S.G. § 2L1.2

cmt. n.1(B)(iii).              Yet the Commission did no such thing.



                                                   48
      The      majority     professes        not        to        “question”     Chacon’s

interpretation of forcible sex offenses under § 2L1.2, even as

it “reach[es] a different result under § 4B1.2.” Maj. Op. at 19.

The   Chacon    court,     however,    would       be    surprised        to   learn    its

ruling was a ticket for one train only.                      It is not right to cast

aside precedents on such a slim and precarious basis.



                                           C.

      The    North     Carolina     statute      requires          the   state   to    show

force.      See supra Section I.B.           The majority suggests, however,

that, even if the statute does require force, that would still

be    insufficient,        because     the       text        of     § 4B1.2      and    the

accompanying      Guidelines      commentary        are       fatally     inconsistent.

The majority stresses that § 4B1.2 requires “physical force,”

whereas the commentary omits the word “physical” and alludes

only to “forcible sex offenses.”                   See Maj. Op. at 9-11.                The

majority’s conclusion of inconsistency not only is incorrect,

but will spell trouble down the road in future Guidelines cases.

      First,      in      finding     an        inconsistency,           the     majority

misconstrues the Supreme Court’s mandate in Stinson v. United

States, 508 U.S. 36 (1993).                The commentary generally deserves

“‘controlling weight.’”             Id. at 45 (quoting Bowles v. Seminole

Rock & Sand Co., 325 U.S. 410, 414 (1945)).                        After all, the very

same Sentencing Commission promulgates both the Guidelines text

                                           49
and the accompanying commentary.                   Id. at 40-41.        This is not an

instance where an agency rule purports to interpret the work of

a different instrumentality such as Congress.                           Id. at 44.          On

the    contrary,       the    Commission      is    simply     interpreting         its    own

work.     Id. at 44-45.             Stipulations contained in the commentary

need    “not    be     compelled      by   the     guideline     text.”        Id.    at    47

(emphasis added).             The commentary may give specific form to a

broad textual mandate -- that is precisely why the Commission

provides both.

       Second,        there    is     no   nettlesome      conflict         here     between

felonies involving “the use, attempted use, or threatened use of

physical       force,”        U.S.S.G.     § 4B1.2(a)(1),         and      felonies       that

qualify    as       “forcible       sex    offenses,”      id.      § 4B1.2    cmt.       n.1.

Whether the prosecution proves the defendant had sex by force

and against the other person’s will, or whether the element of

force is fastened to proof that the defendant had sex with a

mentally       or    physically       defenseless       victim,      these    are     simply

alternative but equal pathways for demonstrating force.                                    See

N.C.     Gen.       Stat.      § 14-27.3(a)(1)-(2);            supra       Section        I.B.

Pointedly,      the     illegal-reentry          provision       specifically        equates

“forcible       sex    offenses”       with      “any   other     offense”         involving

“physical force.”             U.S.S.G. § 2L1.2 cmt. n.1(B)(iii).                   We should

be loath to find the Commission at war with itself and, in so

doing,    to    disregard       the    settled     maxim     that    the     provision      of

                                              50
specific   instructions,    a   conventional   function    of   Guidelines

commentary, presumptively trumps more general statements.              See

RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 132 S. Ct. 2065,

2070-72 (2012).

     And third, the instances in which this court has invalidated

part of the commentary as inconsistent with the Guidelines text

are quite rare.   See Stinson, 508 U.S. at 38.          On what basis is

a federal court, in the role of haruspex, supposed to divine

such a delicate inconsistency hidden among the Commission’s own

pronouncements?   Cf. City of Arlington v. FCC, 133 S. Ct. 1863,

1871 (2013).   Presumably, the rare occurrences of such purported

“inconsistency” holdings still bespeak an understanding by our

own and other courts that the Sentencing Commission, through its

commentary, can and routinely does provide specific elucidation

of the Guidelines’ more general textual provisions.



                                    D.

     Finally, the majority reads too much into the fact that

certain other sex offenses appear in § 2L1.2 but not § 4B1.2.

See Maj. Op. at 21.        The illegal-reentry provision, § 2L1.2,

lists not only “forcible sex offenses” but also “statutory rape”

and “sexual abuse of a minor” as examples of crimes of violence.

U.S.S.G.   § 2L1.2   cmt.       n.1(B)(iii).      The     career-offender

provision that applied to Shell, § 4B1.2, mentions “forcible sex

                                    51
offenses” but not the other two crimes.                      Id. § 4B1.2 cmt. n.1.

But here, those differences are immaterial.

      It     is    true     that    Chacon        involved   § 2L1.2    rather     than

§ 4B1.2.      But the logic of the majority turns the old Latin

maxim on its head:                instead of applying expressio unius est

exclusio alterius (i.e., “the expression of one thing is the

exclusion of the other”), the majority treats the exclusion of

one term (“statutory rape”) as the expression of another term

(“forcible        sex     offenses”)    with        new   meaning.        The    proper

inference,        rather,    is    simply    that     the    Sentencing    Commission

deliberately excluded the crime of statutory rape from § 4B1.2,

see Barnhart v. Sigmon Coal Co., 534 U.S. 438, 452-53 (2002) -–

not   that    it    was     modifying   the        definition    of    “forcible   sex

offenses” sub silentio.

      In fact, the balance of the available indications suggests

that the Sentencing Commission wanted “forcible sex offenses” to

retain the same meaning in §§ 2L1.2 and 4B1.2.                          The “‘normal

rule of statutory construction’” is that “‘identical words used

in different parts of the same act are intended to have the same

meaning.’”        Gustafson v. Alloyd Co., 513 U.S. 561, 570 (1995)

(quoting Dep’t of Revenue v. ACF Indus., Inc., 510 U.S. 332, 342

(1994)).      Context matters, to be sure.                   But the interpretive

context is not appreciably different here.                       On the contrary,



                                             52
“forcible sex offenses” is a distinct term with a consistent

meaning across §§ 2L1.2 and 4B1.2.

          I doubt that the majority would argue that the crimes of

murder, manslaughter, kidnapping, aggravated assault, robbery,

arson, extortion, extortionate extension of credit, or burglary

of a dwelling -- all, like forcible sex offenses, enumerated in

both      Guidelines    provisions       --     would   assume    a   substantively

different meaning in the two provisions.                     This is precisely the

point of the categorical approach mandated by the Supreme Court:

we compare the elements of the particular predicate offense with

“the elements of the ‘generic’ crime -- i.e., the offense as

commonly understood.”            Descamps v. United States, 133 S. Ct.

2276, 2281 (2013).            After today’s ruling, the rest of us are

left      to   wonder   how    the    generic    definition      of   “forcible     sex

offenses” could have changed so swiftly and abruptly.

          The term “forcible sex offenses” is not quite the chameleon

the    majority    says   it    is.      In    fact,    in   advancing   a   view    of

Guidelines interpretation where identical terms assume different

meanings at a blink, the majority has started us down the road

of    a    confusing    and    contradictory       Guidelines     structure,      thus

rendering an already difficult interpretive exercise more arcane

and byzantine.          In sum, the newly contradictory status of our

precedents, the new receptivity to finding Guidelines text and

commentary at odds, and the new willingness to imbue the same

                                          53
terms with shifting meanings will, whether taken singly or in

combination,       create     crosscurrents         and    riptides    in    Guidelines

jurisprudence.         That does not bode well for those who need or

aspire to understand them.



                                           III.

       I do understand that the circumstances surrounding sexual

interactions are often hazy, a fact that makes the preservation

of due process protections for accused persons a necessity in

all settings.          But here the majority has chosen essentially to

absolve, through its construct of nonviolent rape, individuals

accorded the full slate of protections in our criminal justice

system.          Doctrinal       analysis     is      indispensable     to    judicial

reasoning,       but      upon     occasion      it    can    lead,    increment    by

increment, from sound beginnings toward untenable conclusions.

So   it    is    here:       the    real    need      to   protect    the    unthinking

expansion of “crimes of violence” has led to a race to restrict

them.      If such a restriction makes sense in many instances, it

does not in the case at bar.                  The victims here cannot resist;

they cannot consent.             But they yet retain the capacity to feel

the trauma and, yes, the violence that has been so visited upon

their very beings.          The majority nevertheless maintains that the

rape      of    someone    known     to     be     mentally    disabled,      mentally

incapacitated, or physically helpless is neither a forcible sex

                                            54
offense nor a crime of violence.      The victims, were they even

sentient, would beg to differ.      They know not our precedents.

They know not our doctrines.     But somewhere in the recesses of

consciousness they do know they have been wronged, and we now

know that law has failed to duly recognize it.

     I respectfully dissent.




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