                                      PUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 17-4015


UNITED STATES OF AMERICA,

             Plaintiff - Appellee,

v.

ANTOINE DARRELL SMITH,

             Defendant - Appellant.



Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. Catherine C. Eagles, District Judge. (1:16-cr-00078-CCE-1)


Argued: January 25, 2018                                     Decided: February 15, 2018


Before WILKINSON, TRAXLER, and DUNCAN, Circuit Judges.


Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge
Traxler and Judge Duncan joined.


ARGUED: John David Bryson, WYATT, EARLY, HARRIS & WHEELER, LLP, High
Point, North Carolina, for Appellant. JoAnna Gibson McFadden, OFFICE OF THE
UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee. ON
BRIEF: Sandra J. Hairston, Acting United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Greensboro, North Carolina, for Appellee.
WILKINSON, Circuit Judge:

      The district court held that the North Carolina crime of voluntary manslaughter is

a violent felony under the force clause of the Armed Career Criminal Act (ACCA), 18

U.S.C. § 924(e)(2)(B)(i). We agree, and affirm the enhanced sentence imposed on

Antoine Smith as a result.

                                            I.

      Antoine Smith pled guilty to one count of possession with intent to distribute

cocaine hydrochloride in violation of 21 U.S.C. § 841(a)(1) and one count of possession

of ammunition by a convicted felon in violation of 18 U.S.C. § 922(g).

      Smith’s presentence investigative report determined that he was subject to the

enhanced penalties of ACCA because he had “violate[d] section 922(g) . . . and ha[d]

three previous convictions . . . for a violent felony or a serious drug offense, or both,

committed on occasions different from one another.” 18 U.S.C. § 924(e)(1). According to

the report, the qualifying violent felonies were two convictions for North Carolina felony

robbery with a dangerous weapon and one conviction for North Carolina voluntary

manslaughter. Smith objected to the enhancement, arguing that North Carolina voluntary

manslaughter is not a violent felony for purposes of ACCA. The district court disagreed

and applied the enhancement, sentencing Smith to the resulting mandatory minimum of

180 months.

      Smith appeals on the grounds that North Carolina voluntary manslaughter does not

qualify as a violent felony under ACCA because it can be committed with a mens rea of



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mere negligence or recklessness. We review this question de novo. United States v.

Hemingway, 734 F.3d 323, 331 (4th Cir. 2013).

                                            II.

       Under ACCA, “any crime punishable by imprisonment for a term exceeding one

year” that “has as an element the use, attempted use, or threatened use of physical force

against the person of another” is a “violent felony.” 18 U.S.C. § 924(e)(2)(B). To

determine whether a prior conviction qualifies as a “violent felony,” we apply the

categorical approach, and thus look to the elements of the crime of conviction rather than

to the defendant’s actual conduct. See United States v. Doctor, 842 F.3d 306, 308 (4th

Cir. 2016). We therefore begin with the elements of the North Carolina crime of

voluntary manslaughter before considering whether this crime is categorically violent.

       Voluntary manslaughter in North Carolina is “the unlawful killing of a human

being without malice, express or implied, and without premeditation and deliberation.”

State v. McNeil, 518 S.E.2d 486, 506 (N.C. 1999) (quoting State v. Rinck, 280 S.E.2d

912, 923 (N.C. 1981)). As the North Carolina Supreme Court has recognized,

“[g]enerally, voluntary manslaughter occurs when one kills intentionally but does so in

the heat of passion suddenly aroused by adequate provocation or in the exercise of self-

defense where excessive force is utilized or the defendant is the aggressor.” State v.

Barts, 343 S.E.2d 828, 845 (N.C. 1986). The North Carolina Pattern Jury Instructions

provide that the elements of voluntary manslaughter are: (1) “that the defendant killed the

victim by an intentional and unlawful act”; (2) “that the defendant’s act was a proximate

cause of the victim’s death”; (3) “that the defendant [did not act in self-defense] or

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[though acting in self-defense was the aggressor] (or) [though acting in self-defense used

excessive force].” NCPJI Crim. 206.40 (brackets in original) (citation omitted). Trial

courts can refuse to give a voluntary manslaughter jury instruction if the defendant does

not provide evidence of adequate provocation or self-defense. See Barts, 343 S.E.2d at

845.

       Smith correctly notes that North Carolina treats voluntary manslaughter as a lesser

crime than second-degree murder, which is defined as “the unlawful killing of a human

being with malice but without premeditation and deliberation.” State v. McCollum, 579

S.E.2d 467, 470 (N.C. App. 2003) (quoting State v. Wilkerson, 247 S.E.2d 905, 915 (N.C.

1978)). He is wrong to conclude, however, that this means voluntary manslaughter must

criminalize conduct that is merely negligent, or that is otherwise justified or nonviolent.

Basically, what separates voluntary manslaughter from murder is not an absence of intent

but rather the circumstances in which that intent is exercised, namely, as we have noted,

in the heat of passion or under provocation. As the North Carolina courts have stated,

voluntary manslaughter in North Carolina is “essentially a first-degree murder, where the

defendant’s reason is temporarily suspended by legally adequate provocation.” State v.

Rainey, 574 S.E.2d 25, 30 (N.C. App. 2002). The pattern jury instructions, which

specifically require an intentional act, reflect this level of culpability. See NCPJI Crim.

206.40. Pleading guilty to voluntary manslaughter thus necessarily entails acknowledging

that one’s conduct was not justified by the affirmative defenses that would normally

result in acquittal.



                                            4
       Smith’s final line of argument focuses on a sub-issue within a sub-issue of the

definition of voluntary manslaughter: the possibility of conviction based on using an

unreasonable amount of force while acting in self-defense. See State v. Shoemaker, 341

S.E.2d 603, 607–08 (N.C. App. 1986). Pointing to the role of reasonableness in this

formulation, Smith concludes that this form of voluntary manslaughter criminalizes the

negligent use of force. This conflates two distinct aspects of the crime, however. Even if

a defendant acted only negligently in choosing the amount of force to use in such a case,

the underlying decision to use force was still an intentional one. Such a defendant could

not say that his use of force was accidental or that it was merely through negligence or

recklessness that he used “physical force against the person of another.” 18 U.S.C.

§ 924(e)(2)(B).

       While the precise contours of ACCA’s mens rea requirement may be disputed, it

is certain that the intent required for North Carolina voluntary manslaughter is sufficient

to qualify it as a categorically violent predicate. The Supreme Court has interpreted 18

U.S.C. § 16, which contains a nearly identical definition for the term “crime of violence”

as ACCA does for the term “violent felony,” to require “a higher mens rea than [] merely

accidental or negligent conduct.” Leocal v. Ashcroft, 543 U.S. 1, 11 (2004).

       Leocal makes clear that “use” in the force clause of ACCA requires that the force

involved in the qualifying offense be volitional, see id., which it plainly is in a voluntary

manslaughter conviction under North Carolina law. It is beyond dispute that the

intentional use of force satisfies the mens rea requirement of ACCA’s force clause. That

is exactly what is required to support conviction for North Carolina voluntary

                                             5
manslaughter. In similar circumstances, the Sixth and Eighth Circuits have reached the

same conclusion: voluntary manslaughter is a violent felony for purposes of ACCA if it

proscribes conduct that would otherwise be murder except for circumstances that served

as partial justification for the conduct. See United States v. Jackson, 655 F. App’x 290

(6th Cir. 2016) (voluntary manslaughter in Georgia is a violent felony under ACCA);

United States v. Lambers, 527 F. App’x 586 (8th Cir. 2013) (per curiam) (voluntary

manslaughter in Missouri is a violent felony under ACCA). Any other conclusion would

strain North Carolina law beyond the breaking point.

       Simply put, voluntary manslaughter in North Carolina requires an intentional

killing. It thus plainly involves “the use, attempted use, or threatened use of physical

force against the person of another.” 18 U.S.C. § 924(e)(2)(B). The judgment of the

district court is therefore

                                                                           AFFIRMED.




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