                                   UNPUBLISHED

                     UNITED STATES COURT OF APPEALS
                         FOR THE FOURTH CIRCUIT


                                     No. 17-4111


UNITED STATES OF AMERICA,

                   Plaintiff - Appellee,

             v.

VONZELL D. JAMES, a/k/a Vonzell James,

                   Defendant - Appellant.


Appeal from the United States District Court for the Eastern District of Virginia, at
Richmond. M. Hannah Lauck, District Judge. (3:16-cr-00044-MHL-1)


Argued: January 24, 2018                                     Decided: March 9, 2018


Before GREGORY, Chief Judge, and KING and HARRIS, Circuit Judges.


Affirmed by unpublished opinion. Judge Harris wrote the opinion, in which Chief Judge
Gregory and Judge King joined.


ARGUED: Geremy C. Kamens, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Alexandria, Virginia, for Appellant. Christopher John Catizone, OFFICE OF THE
UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF:
Caroline S. Platt, Appellate Attorney, Carolyn V. Grady, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for
Appellant. Dana J. Boente, United States Attorney, Alexandria, Virginia, Heather Hart
Mansfield, Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




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PAMELA HARRIS, Circuit Judge:

       A jury convicted Vonzell D. James of being a felon in possession of a firearm in

violation of 18 U.S.C. § 922(g)(1). At sentencing, the district court applied a base offense

level enhancement on the ground that James’s prior Virginia conviction for unlawful

wounding qualified as a “crime of violence,” defined as an offense that requires the use,

attempted use, or threatened use of violent physical force.              James challenges the

enhancement, arguing that unlawful wounding may be committed with even de minimis or

indirect force, neither of which constitutes the use of violent force.

       We find that Virginia unlawful wounding, by virtue of requiring not only the

causation of bodily injury but also the specific intent to maim, disfigure, disable, or kill,

necessarily involves the use of violent force or, at minimum, the attempted or threatened

use of such force. On that ground, we hold that unlawful wounding qualifies as a crime of

violence, and affirm the judgment of the district court.



                                              I.

       On December 18, 2015, police encountered Vonzell James in possession of a 9 mm

handgun. Because he had a prior felony conviction, James was arrested and charged with

possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1). A Virginia jury

convicted James of that charge in 2016.

       Following his conviction, the presentence report (“PSR”) calculated James’s base

offense level pursuant to section 2K2.1(a) of the United States Sentencing Guidelines

(“U.S.S.G.” or “Guidelines”), which governs the unlawful possession of firearms. Under

                                              3
that section, a defendant receives an enhanced base offense level of 22 if, among other

conditions, he was previously convicted of a “crime of violence.”              See U.S.S.G.

§ 2K2.1(a)(3) (2016). The PSR deemed those conditions met, noting that James had been

convicted of the Virginia offense of unlawful wounding in 2010, which the PSR labeled a

crime of violence. Pursuant to a base offense level of 22, the PSR calculated a sentencing

range of 84 to 105 months.

       James objected to the enhancement on the ground that Virginia unlawful wounding

is not a crime of violence. The district court overruled that objection, holding that Virginia

unlawful wounding necessarily qualifies categorically as a crime of violence under the

Guidelines.   Applying the enhancement, the court sentenced James to 96 months’

imprisonment.

       James appeals, challenging the district court’s determination that Virginia unlawful

wounding is a crime of violence.



                                             II.

                                             A.

       Section 2K2.1(a)(3) of the Guidelines defines “crime of violence” by reference to

the career offender guideline, § 4B1.2(a). Under that provision, a “crime of violence” is

an offense that “has as an element the use, attempted use, or threatened use of physical




                                              4
force against the person of another.” U.S.S.G. § 4B1.2(a) (2016). 1 And for purposes of

that provision – often referred to as the “force clause” – the Supreme Court has defined

“physical force” to mean “violent force – that is, force capable of causing physical pain or

injury to another person.” Johnson v. United States (Johnson I), 559 U.S. 133, 140 (2010)

(emphasis in original). 2

       The parties agree that to determine whether Virginia unlawful wounding qualifies

as a crime of violence, we must employ the “categorical approach.” See Taylor v. United

States, 495 U.S. 575, 600–02 (1990). 3 The categorical approach asks how Virginia law

“defines the offense generically,” rather than how any “individual might have committed



       1
          Previous versions of this section also included a “residual clause,” reaching
offenses that “involve[] conduct that presents a serious potential risk of physical injury to
another.” See, e.g., U.S.S.G. § 4B1.2(a)(2) (2015). In Johnson v. United States (Johnson
II), 135 S. Ct. 2551, 2557 (2015), the Supreme Court found a nearly identical provision of
the Armed Career Criminal Act (“ACCA”) unconstitutionally vague. Although the
Supreme Court subsequently sustained the Guidelines residual clause, see Beckles v.
United States, 137 S. Ct. 886, 892 (2017), the 2016 version of the Guidelines removed
§ 4B1.2’s residual clause and replaced it with a list of enumerated offenses. See U.S.S.G.
§ 4B1.2(a)(2) (2016). In this case, the government argues in the alternative that Virginia
unlawful wounding qualifies as generic aggravated assault under the new enumerated
offenses clause. See Gov’t Br. at 24–27. Because we find that unlawful wounding is a
crime of violence under the force clause in § 4B1.2(a)(1), we do not reach this argument.
       2
         Although Johnson I analyzed the force clause in 18 U.S.C. § 924(e)(2)(B)(i) of the
ACCA, rather than under § 4B1.2(a)(1)’s force clause, “the two terms have been defined
in a manner that is ‘substantively identical,’” and we treat precedents evaluating them
interchangeably. United States v. Flores-Granados, 783 F.3d 487, 490 (4th Cir. 2015)
(internal quotation marks and citation omitted).
       3
         As the parties agree, there is no need in this case to pursue the “modified
categorical approach,” as set forth in Descamps v. United States, 570 U.S. 254 (2013),
because James was charged with the least serious offense under the Virginia wounding
statute. See J.A. 40–41; Va. Code. Ann. § 18.2-51.
                                             5
the offense on a given occasion.” United States v. Shell, 789 F.3d 335, 338 (4th Cir. 2015).

“In conducting this analysis, we focus on the minimum conduct required to sustain a

conviction for the state crime.” United States v. Doctor, 842 F.3d 306, 308 (4th Cir. 2016)

(internal quotation marks omitted). If even that minimum conduct necessitates the use,

attempted use, or threatened use of violent force, then the defendant’s prior conviction

qualifies as a crime of violence under § 4B1.2(a)’s force clause.

       Whether the defendant’s crime was correctly characterized as a crime of violence

under the force clause is a question of law, which we review de novo. United States v.

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

                                             B.

       We begin with the elements of the offense.          Virginia defines both unlawful

wounding and malicious wounding in a single provision of the Code:

       If any person maliciously shoot, stab, cut, or wound any person or by any
       means cause him bodily injury, with the intent to maim, disfigure, disable, or
       kill, he shall, except where it is otherwise provided, be guilty of a Class 3
       felony. If such act be done unlawfully but not maliciously, with the intent
       aforesaid, the offender shall be guilty of a Class 6 felony.

Va. Code Ann. § 18.2-51. The parties agree that James was convicted only of unlawful

wounding, and that unlawful wounding requires proof of a bodily injury “with the intent

aforesaid” – that is, with “the specific intent to maim, disfigure, disable or kill the victim

of the attack.” Commonwealth v. Vaughn, 557 S.E.2d 220, 222 (Va. 2002) (emphasis

added) (internal quotation marks omitted).

       James contends that these elements do not categorically require violent force

because Virginia law defines “bodily injury” as used in § 18.2-51 to include “any bodily

                                              6
hurt whatsoever” caused by “any means,” which would include injuries caused by de

minimis force. Appellant’s Br. at 11 (quoting English v. Commonwealth, 715 S.E.2d 391,

395 (Va. Ct. App. 2011)). Minimal force – for instance, a “squeeze that causes a bruise”

– does not, according to James, constitute the type of violent physical force described in

Johnson I. Id. at 12 (internal quotation marks and alterations omitted). Similarly, James

argues, the infliction of bodily injury through indirect means would satisfy § 18.2-51’s “by

any means” language, but would not involve the “use” of force under the force clause.

       We disagree. Whatever the strength of such arguments when applied to other

offenses, they are defeated here by § 18.2-51’s mens rea element, requiring the specific

intent to kill or seriously injure the victim. If a perpetrator specifically intends to “maim,

disfigure, disable or kill,” then as a practical matter, the means employed toward that end

will involve violent force. Put differently, it is not plausible that a conviction requiring an

intent to kill or severely injure will rest on conduct that is incapable of fulfilling that intent

– like James’s hypothesized squeeze – unless that conduct is accompanied by an

“attempt[]” or “threat[]” to do more serious bodily harm, U.S.S.G. § 4B1.2(a), as delineated

by the force clause. See United States v. Edwards, 857 F.3d 420, 425 (1st Cir. 2017)

(assault with intent to kill, unlike simple assault, satisfies force clause because intent

element makes it “implausible” that convictions will involve non-violent force); Raybon v.

United States, 867 F.3d 625, 632 (6th Cir. 2017) (assault with intent to do great bodily

harm satisfies force clause because convictions for “nonviolent assault[s]” are not possible

when offense “include[s] as an element an intent to do great bodily harm”).



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       We recently came to a similar conclusion in United States v. Dinkins, --- F. App’x

----, No. 16-4795, 2017 WL 6371255, at *2 (4th Cir. Dec. 12, 2017) (unpublished). There,

we considered whether a defendant’s conviction for the South Carolina offense of assault

and battery with intent to kill satisfied the force clause. In finding that it does, we relied

on the offense’s mens rea element, requiring specific intent to “commit grievous bodily

injury such that, had death occurred, the offense would have been murder.” Id. (internal

quotation marks and citation omitted). Even in a case in which the “actual injury” inflicted

amounts to no more than “a mere offensive touching,” we concluded, when that touching

is committed with the intent to cause “the more severe kind of bodily injury imagined by

the force clause,” it necessarily involves at least the “attempted or threatened” use of

violent force under Johnson I. Id. at *3.

       This straightforward reading of Virginia’s unlawful wounding statute is confirmed

by state cases confining its application to acts of violence. For example, the Supreme Court

of Virginia, addressing the scope of the “bodily injury” element, has explained that the key

“test of the offense” is the “intent with which the result is accomplished,” so that a

perpetrator may intend to “maim, disfigure, disable or kill” even with “fists,” but only “if

the force is applied with violence and brutality.” Dawkins v. Commonwealth, 41 S.E.2d

500, 504 (Va. 1947) (emphasis added). What the statute contemplates, in other words, is

conduct such as to “gouge out the eye of another with his fingers, stomp another to death

with his feet, or bite off a portion of his body.” Id.

       Similarly, in a more recent case, a Virginia appeals court explained that “[t]o be

guilty [of unlawful or malicious wounding] under Code § 18.2-51, a person must intend to

                                               8
permanently, not merely temporarily, harm another person.” Johnson v. Commonwealth,

669 S.E.2d 368, 378 (Va. Ct. App. 2008) (malicious wounding); see also Worrell v.

Commonwealth, No. 2451-09-1, 2010 WL 5149346, at *1–3 (Va. Ct. App. Dec. 21, 2010)

(unlawful wounding). And “striking a person with a fist, standing alone, normally does

not suffice to prove an intent to permanently harm.” Johnson, 669 S.E.2d at 379. To show

intent to permanently harm, a defendant’s assault must instead be “attended with . . .

circumstances of violence and brutality” – for instance by “approach[ing] an unoffending

citizen and deal[ing] him a deadly blow,” or by striking “delicate parts of the body of a

defenceless, unresisting man, on the ground.” Id. (internal quotation marks and alteration

omitted).

       In response, James contends – for the first time in his reply brief – that Virginia

unlawful wounding fails to satisfy the force clause on an additional and independent

ground. According to James, Virginia’s unlawful wounding offense extends to bodily

injuries that result from willful “omissions,” such as a parent’s deliberate failure to provide

food or medicine to a dependent child. It follows, James argues, that a perpetrator may

commit unlawful wounding without performing any action at all, and so without the “use”

of physical force.

       As an initial matter, we ordinarily do not consider arguments that are raised for the

first time in a reply brief and never presented to the district court. See United States v.

Alston, 722 F.3d 603, 606 n.4 (4th Cir. 2013). But even were we to consider James’s claim,

we would find it unconvincing. Under the categorical approach, state appellate court

precedent interpreting “the statutory definition of the [state] offense . . . constrains our

                                              9
analysis of the elements of state law.” Castillo v. Holder, 776 F.3d 262, 268 (4th Cir. 2015)

(internal quotation marks omitted). Here, the state’s appellate courts have made clear that

Virginia unlawful wounding cannot be committed by omission.

       Under Virginia law, assault and battery is a lesser-included offense of unlawful

wounding, and requires the accused to “attempt or offer with force or violence to do a

corporal hurt to another . . . as by striking at him . . . [and] the actual infliction of corporal

hurt on another willfully or in anger, whether by the party’s own hand, or by some means

set in motion by him.” Vaughn, 557 S.E.2d at 222 (emphasis added) (internal quotation

marks omitted); see also Witherow v. Commonwealth, 779 S.E.2d 223, 227, 231 (Va. Ct.

App. 2015). That conduct requires, at minimum, an actual or threatened touching of

another; failing to act altogether will not suffice. See also Perkins v. Commonwealth, 523

S.E.2d 512, 513 (Va. Ct. App. 2000). And if the lesser-included offense of assault and

battery requires, at a minimum, a threatened or attempted touching, then so does the greater

offense of unlawful wounding. See Kauffmann v. Commonwealth, 382 S.E.2d 279, 283

(Va. Ct. App. 1989) (“[E]very commission of [a] greater offense must also be a commission

of the lesser[-included] offense.”). Accordingly, as a matter of Virginia law, unlawful

wounding cannot be committed by omission.

       We note that James has cited no Virginia decision charging an omission under the

unlawful wounding statute, and that our own review has disclosed no such decision. Where

state law makes clear that an offense may be committed without the use of violent physical

force, of course, an absence of illustrative cases charging defendants engaged in non-

violent conduct does not undermine that conclusion. See United States v. Aparicio-Soria,

                                               10
740 F.3d 152, 157–58 (4th Cir. 2014) (en banc). Here, however, the absence of illustrative

cases confirms our conclusion that Virginia law does not allow for unlawful wounding

convictions based on the kinds of omissions that James imagines. As we are not permitted

to go beyond a state’s own understanding of its criminal offenses, see id., we need not

decide in this case whether and under what circumstances criminal omissions might qualify

as uses of physical force under the force clause.



                                            III.

         For the foregoing reasons, we find that James’s prior conviction for unlawful

wounding is a crime of violence under § 4B1.2(a)(1), triggering the sentencing

enhancement under § 2K2.1(a)(3). Accordingly, we affirm the judgment of the district

court.

                                                                             AFFIRMED




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