                             ON REHEARING

                              PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 14-4078


UNITED STATES OF AMERICA,

                Plaintiff - Appellant,

           v.

RODNEY MARSHALL VINSON,

                Defendant - Appellee.


Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Louise W. Flanagan,
District Judge. (5:13-cr-00121-FL-1)


Argued:   January 27, 2015                  Decided:   November 3, 2015


Before TRAXLER,   Chief   Judge,   and    GREGORY   and   AGEE,   Circuit
Judges.


Affirmed by published opinion.    Chief Judge Traxler wrote the
opinion in which Judge Gregory and Judge Agee concur.


ARGUED: Barbara Dickerson Kocher, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellant.    Robert Earl
Waters, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North
Carolina, for Appellee.    ON BRIEF: Thomas G. Walker, United
States Attorney, Jennifer P. May-Parker, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellant.    Thomas P. McNamara, Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North
Carolina, for Appellee.




                          2
TRAXLER, Chief Judge:

     Police      officers     dispatched          to        the    residence          of   Rodney

Marshall Vinson found a rifle and ammunition during a consensual

search.       After    determining          that       Vinson       had     a     prior     North

Carolina    conviction        amounting          to     a     “misdemeanor             crime     of

domestic violence,” 18 U.S.C. § 921(a)(33)(A), the government

charged Vinson        with   possession          of     a    firearm       by    a    prohibited

person, see 18 U.S.C. § 922(g)(9).                      The district court granted

Vinson’s    motion     to    dismiss        the       indictment,          concluding           that

Vinson was not a prohibited person because the state statute at

issue did not, as a categorical matter, qualify as a misdemeanor

crime of domestic violence.              The government appeals.

     In    our   previous         opinion    in        this       case,    in     which     Judge

Gregory    dissented,        we     vacated        the       district           court’s     order

dismissing the indictment and remanded with instructions that

the district court reinstate the indictment against Vinson.                                      See

United States v. Vinson, No. 14-4078 (4th Cir. filed July 21,

2015).     Vinson     thereafter         filed     a    petition          for    rehearing       in

which he asserted a new basis for affirming the dismissal of the

indictment.       Upon      consideration          of       the    point    raised         in    the

petition   for    rehearing,        we    granted           the    petition          and   we   now




                                             3
affirm    the   district   court’s     order   dismissing   the    indictment

against Vinson. 1

                                       I.

                                       A.

     Section     922(g)    prohibits    the    possession   of   firearms    by

various    classes   of    persons,    including   those    convicted   of    a

“misdemeanor crime of domestic violence” (“MCDV”).                18 U.S.C. §

922(g)(9).      Subject to certain exceptions not relevant here, a

crime qualifies as a MCDV if it:

     (i) is a misdemeanor under Federal, State, or Tribal .
     . . law; and




     1     Vinson did not raise the issue we find dispositive in
his brief before this court or the district court. “Ordinarily,
. . . we do not decide issues on the basis of theories first
raised on appeal.”     Skipper v. French, 130 F.3d 603, 610 (4th
Cir. 1997).      Although this court “may affirm judgments on
alternative grounds to those relied upon by a lower court, this
contemplates that the alternative ground shall first have been
advanced in that court, whether or not there considered.”    Id.
(citation omitted). The rule precluding consideration of issues
raised for the first time on appeal, however, is prudential, not
jurisdictional.    See id.    The issue Vinson raises involves a
pure question of law that is closely related to the arguments
made by the government in its opening and reply briefs, and the
government, at our request, has responded to Vinson’s petition
for rehearing.      Moreover, North Carolina does not have a
mechanism for certifying questions of state law to its Supreme
Court, see Town of Nags Head v. Toloczko, 728 F.3d 391, 398 (4th
Cir. 2013), and failure to consider the issue would leave in
place our incomplete and thus incorrect analysis of North
Carolina law.      Under these circumstances, we exercise our
discretion to consider the issue raised in Vinson’s petition for
rehearing.     See Hormel v. Helvering, 312 U.S. 552, 556-57
(1941).


                                       4
      (ii) has, as an element, the use or attempted use of
      physical force, or the threatened use of a deadly
      weapon, committed by a current or former spouse,
      parent, or guardian of the victim, by a person with
      whom the victim shares a child in common, by a person
      who is cohabiting with or has cohabited with the
      victim as a spouse, parent, or guardian, or by a
      person similarly situated to a spouse, parent, or
      guardian of the victim.

18   U.S.C.    §    921(a)(33)(A).               The    existence        of    the    domestic

relationship between the victim and defendant specified in the

statute is an element of the § 922(g)(9) charge that must be

proven     beyond    a     reasonable   doubt          by   the       government,      but   the

relationship        need    not   be   an       element     of    the    underlying       state

offense.      See United States v. Hayes, 555 U.S. 415, 426 (2009).

As is clear from the terms of the statute, however, the use or

attempted use of physical force, or threatened use of a deadly

weapon, must be an element of the underlying state offense.                                  The

“physical force” element of § 921(a)(33)(A) is satisfied “by the

degree of force that supports a common-law battery conviction,”

United     States     v.    Castleman,          134    S.   Ct.       1405,    1413    (2014),

“namely, offensive touching,” id. at 1410.

      To    determine        whether        a       prior   conviction          renders      the

defendant     a    prohibited      person           under   §    922(g),       we    apply   the

familiar      “categorical        approach.”            Id.      at    1413.         Under   the

categorical approach, we look “only to the fact of conviction

and the statutory definition of the prior offense. . . . ,

focus[ing] on the elements of the prior offense rather than the

                                                5
conduct underlying the conviction.”                         United States v. Cabrera-

Umanzor, 728 F.3d 347, 350 (4th Cir. 2013) (internal quotation

marks omitted).

      A modification to the categorical approach may be used in

cases where the underlying state crime “consists of multiple,

alternative elements creating several different crimes, some of

which would match the generic federal offense and others that

would not.”        Omargharib v. Holder, 775 F.3d 192, 197 (4th Cir.

2014) (internal quotation marks omitted).                          When such “divisible”

crimes    are     at    issue,     we    may    apply       the    “modified        categorical

approach,”      which       permits      us    “to    examine          a   limited    class   of

documents to determine which of a [crime’s] alternative elements

formed the basis of the defendant’s prior conviction.”                                 Descamps

v.   United     States,      133    S.    Ct        2276,    2284      (2013). 2       “General

divisibility,          however,     is        not    enough;       a       [state    crime]   is

divisible       for     purposes    of        applying      the     modified        categorical

approach only if at least one of the categories into which the

[crime]     may        be   divided      constitutes,             by       its   elements,    [a

      2   Although Descamps addressed a state crime defined by
statute, we have since held that the Descamps analysis applies
to state crimes whose elements are defined by case law rather
than by statute. See United States v. Aparicio-Soria, 740 F.3d
152, 155 (4th Cir. 2014) (en banc) (“[T]he categorical/modified
categorical typologies apply equally to statutory and common law
crimes.”); United States v. Hemingway, 734 F.3d 323, 333 (4th
Cir. 2013) (“[T]he Descamps divisibility analysis is applicable
to the question of whether a common law offense constitutes a[]
. . . predicate crime.”).


                                                6
qualifying predicate offense].”                  Cabrera-Umanzor, 728 F.3d at

352; see Descamps, 133 S. Ct. at 2285.

                                            B.

     Vinson’s prior conviction involved a violation of N.C. Gen.

Stat. § 14-33, a statute that classifies simple and aggravated

forms of misdemeanor assault, assault and battery, and affray.

Vinson   was      convicted     of    violating        subsection      (c)(2)   of     the

statute,    which       provides     that       “any    person    who     commits      any

assault, assault and battery, or affray is guilty of a Class A1

misdemeanor       if,   in    the    course      of    the    assault,    assault      and

battery, or affray, he . . . [a]ssaults a female, he being a

male person at least 18 years of age.”                       N.C. Gen. Stat. § 14-

33(c)(2).

     There is no statutory definition of assault, battery, or

affray, so the common-law rules governing these crimes apply to

prosecutions       under     N.C.    Gen.   Stat.      §     14-33.      See   State    v.

Roberts,    155    S.E.2d     303,    305   (N.C.      1967).         Conviction    under

subsection (c)(2) requires proof of the following elements: “(1)

an assault (2) upon a female person (3) by a male person (4) who

is at least eighteen years old.”                  State v. Wortham, 351 S.E.2d

294, 296 (N.C. 1987).

     The district court understood § 14-33(c)(2) as establishing

the crime of assault on a female, a crime that can be committed

through an assault, assault and battery, or an affray.                             In the

                                            7
district       court’s           view,     assault,         battery,       and       affray          were

alternate       means       of    committing          the   same       crime,       not    alternate

elements of different crimes, such that § 14-33(c)(2) was not

divisible       and     the        modified         categorical           approach             was    not

applicable.        See Omargharib, 775 F.3d at 198 (explaining that

alternate means of committing a single crime do make the crime

divisible); see also Descamps, 133 S. Ct. at 2285 n.2.

       Applying       the        categorical            approach,       the     district             court

concluded that a violation of 14-33(c)(2) did not amount to an

MCDV because the use or threatened use of physical force is not

an element of assault under North Carolina law.                                       In reaching

this    conclusion,              the     district        court     applied          this        court’s

decision    in    United          States       v.   White,       606    F.3d     144      (4th        Cir.

2010), and interpreted the “physical force” requirement of §

921(a)(33)(A)(ii)            to        mean    “violent         force,”       see    id.        at     153

(“[T]he phrase ‘physical force’ means violent force -- that is,

force   capable        of    causing          physical      pain    or    injury          to    another

person.” (internal quotation marks omitted)).

       After     the        district          court      granted       Vinson’s           motion       to

dismiss,    however,             the     Supreme        Court    issued       its    decision          in

Castleman and held, directly contrary to our holding in White,

that violent force was not necessary to satisfy the “physical

force” requirement of § 921(a)(33)(A)(ii).                                See Castleman, 134

S.   Ct.   at    1413.            Instead,      the      Court     held    that       the       statute

                                                    8
“incorporated         the    common-law        meaning         of   ‘force’     --    namely,

offensive touching,” id. at 1410, and that “the requirement of

‘physical force’ is satisfied, for purposes of § 922(g)(9), by

the     degree       of     force     that     supports         a    common-law      battery

conviction,” id. at 1413.

                                             II.

       The sole issue on appeal is whether Vinson’s conviction

under N.C. Gen. Stat. § 14-33(c)(2) qualifies as a conviction

for    an    MCDV    as   defined      by    18    U.S.C.      §    921(a)(33)(A).         The

government does not challenge the district court’s determination

that Vinson’s conviction would not qualify as an MCDV under the

categorical         approach.         Instead,       the    government         argues    that,

contrary to the district court’s conclusion, § 14-33(c)(2) is

divisible, such that the modified categorical approach may be

applied.          And because the charging document in this case shows

that    the       conviction    was    predicated         on    a   battery     of   Vinson’s

wife,       the    government       contends       that    the      modified    categorical

approach establishes that Vinson was convicted of an MCDV and

that    the       district     court    therefore          erred     by   dismissing      the

indictment against Vinson.

       In the government’s view, the crime is divisible because

North Carolina law defines “assault” through alternate elements.

North Carolina law includes three different definitions of the

crime       of    assault.          First,    under        what     can   be    called     the

                                               9
“attempted battery” formulation, an assault can be committed by

“an overt act or an attempt, or the unequivocal appearance of an

attempt, with force and violence, to do some immediate physical

injury to the person of another, which show of force or menace

of violence must be sufficient to put a person of reasonable

firmness in fear of immediate bodily harm.”                   Roberts, 155 S.E.2d

at 305 (internal quotation marks omitted).                     Second, under the

“show of violence” formulation, an assault can be committed by

“a show of violence accompanied by reasonable apprehension of

immediate   bodily    harm    or   injury      on     the    part   of   the   person

assailed which causes him to engage in a course of conduct which

he would not otherwise have followed.”                 Id.     Finally, under the

“completed battery” formulation, an assault conviction may be

premised on proof of a battery.              See In re K.C., 742 S.E.2d 239,

243 (N.C. Ct. App. 2013) (“When a battery has occurred, assault

may be proven by a finding of either assault or battery on the

victim.”); State v. Britt, 154 S.E.2d 519, 521 (N.C. 1967) (“A

battery always includes an assault, and is an assault whereby

any force is applied, directly or indirectly, to the person of

another.”).         The    government        argues     that    these      different

formulations of assault are alternate elements that render the

crime   divisible    and   thus    permit      application      of   the    modified

categorical approach.



                                        10
      Whether         the      multiple       assault    formulations          are   alternate

means or alternate elements is the issue that divided this court

in our original opinion, and we need not delve into that issue

again.      As we have explained, whether a statute or criminal

offense     is    divisible         depends      on     the     existence      of    alternate

elements        and   a     matching      category       --    that      is,   the   alternate

elements must create at least one category or form of an offense

that matches up to the elements of the generic federal offense

in question.          See Omargharib, 775 F.3d at 197; Cabrera-Umanzor,

728 F.3d at 352.                Assuming without deciding that the assault

formulations          amount       to    alternate       elements        creating      separate

forms of the offense, none of the forms of the offense require

the level of intent necessary to qualify as an MCDV.

                                                 A.

        As noted above, an MCDV is defined as an offense that “has,

as an element, the use or attempted use of physical force, or

the     threatened          use     of    a     deadly     weapon.”            18    U.S.C.    §

921(a)(33)(A)(ii).                 Because      the     threatened       use    of   a   deadly

weapon is not an element of assault under North Carolina law, we

focus      on    the        “use    or    attempted           use   of     physical       force”

requirement.

      In    Leocal        v.    Ashcroft,       543     U.S.    1   (2004),      the     Supreme

Court, interpreting the “crime of violence” definition of 18

U.S.C. § 16, concluded that “the most common employment of the

                                                 11
word ‘use’ connotes the intentional availment of force.”                          Id. at

9.      The        Court   therefore     held     that    “negligent         or   merely

accidental conduct” does not constitute a use of physical force.

Id.    Although the Leocal Court expressly did not decide whether

reckless conduct could constitute a “use” of force, see id. at

13, this court has since concluded that a reckless use of force

does    not    satisfy      the    requirements     of    §    16,   see     Garcia   v.

Gonzales, 455 F.3d 465, 469 (4th Cir. 2006) (“[R]ecklessness,

like negligence, is not enough to support a determination that a

crime is a ‘crime of violence.’”); accord Bejarano-Urrutia v.

Gonzales, 413 F.3d 444, 447 (4th Cir. 2005).

       Because the relevant language in § 16 is largely identical

to    that    of    §   921(a)(33)(A),       Leocal’s    definition     of    “use”   is

applicable to this case.                Accordingly, if North Carolina law

permits an assault conviction based on negligent or reckless

conduct,      then      none      of   the    different       assault   formulations

categorically qualify as an MCDV.

                                             B.

       North Carolina case law establishes that the defendant must

act intentionally to be guilty of assault.                     See, e.g., State v.

Starr, 703 S.E.2d 876, 880 (N.C. Ct. App. 2011) (“[A]ll that is

necessary to sustain a conviction for assault is evidence of an

overt act showing an intentional offer by force and violence to

do injury to another sufficient to put a person of reasonable

                                             12
firmness in apprehension of immediate bodily harm.” (internal

quotation       marks    and   emphasis        omitted));      State   v.   Britt,     154

S.E.2d 519, 521 (N.C. 1967) (“[A]n assault is an intentional

attempt, by violence, to do injury to the person of another.”

(internal quotation marks omitted)); State v. Davis, 23 N.C.

125, 127 (N.C. 1840) (“[An assault] must be intentional -- for,

if   it   can    be     collected,       notwithstanding        appearances       to   the

contrary, that there is not a present purpose to do an injury,

there is no assault.”).               Likewise, North Carolina’s pattern jury

instructions addressing assault offenses generally provide that

the defendant must act intentionally.                     See, e.g., N.C. Pattern

Instructions       -     Crim.       208.40     (simple     assault);       id.   208.70

(assault on a female).

      Because assaults must be intentional, an assault conviction

under North Carolina law would seem to require a “use” of force

as defined by Leocal.                As Vinson points out in his petition for

rehearing,       however,      the     requisite      intent    can    be   established

through proof of “culpable negligence.”                        State v. Jones, 538

S.E.2d 917, 923 (N.C. 2000) (“actual intent” may be implied from

proof of “culpable or criminal negligence”); State v. Thompson,

454 S.E.2d 271, 273 (N.C. Ct. App. 1995) (“Where an alleged

assault    is     unintentional          and    the    perpetrator     acted      without

wrongful purpose in the course of lawful conduct and without

culpable    negligence,          a    resultant       injury   will    be   excused     as

                                               13
accidental.”        (emphasis        added));        see         also    N.C.     Pattern

Instructions - Crim. 307.11 (“An injury is accidental if it is

unintentional, occurs during the course of lawful conduct, and

does not involve culpable negligence.”).

     North Carolina law defines “culpable negligence” as “such

recklessness or carelessness, proximately resulting in injury or

death, as imports a thoughtless disregard of consequences or a

heedless   indifference       to     the     safety    and        rights    of   others.”

Jones, 538 S.E.2d at 923 (internal quotation marks omitted).                           As

this court explained in United States v. Peterson, 629 F.3d 432

(4th Cir. 2011), this standard, with its focus on thoughtless

disregard,     is      a     lesser        standard         of     culpability        than

recklessness, which requires at least “a conscious disregard of

risk.”   Id. at 437 (emphasis added).

     Accordingly, as Vinson argues, North Carolina law permits

convictions    for     all    forms     of       assault,    including        completed-

battery assault, in cases where the defendant’s conduct does not

rise even to the level of recklessness.                      See State v. Dammons,

461 S.E.2d 6, 8 (N.C. Ct. App. 1995) (completed-battery case

finding no error in jury instructions stating “that defendant

would    not   be    guilty     of    the        assault    if     the     shooting   was

accidental [and] that a shooting is not accidental if it results

from culpable negligence”).             Thus, none of the different forms

of assault categorically qualifies as an MCDV, because each form

                                            14
permits conviction for conduct that does not amount to a “use”

of force under Leocal.         And because none of the assault forms

categorically qualifies as an MCDV, assault is not a divisible

offense, and the modified categorical approach is inapplicable.

See Descamps, 133 S. Ct. at 2285; Cabrera-Umanzor, 728 F.3d at

352.

                                     III.

       Because   none   of   the   categories    of   assault    under     North

Carolina   law   have   elements    matching    the   elements   of   an   MCDV

under 18 U.S.C. § 921(a)(33)(A), we hereby affirm the district

court’s judgment dismissing the indictment against Vinson.



                                                                      AFFIRMED




                                      15
