                             PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 14-4546


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

EDGAR PARRAL-DOMINGUEZ, a/k/a Hector Sandoval-Lopez, a/k/a
Edgar Dominguez-Arellanez,

                Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern.  Louise W. Flanagan,
District Judge. (4:13-cr-00080-FL-1)


Argued:   May 13, 2015                    Decided:   July 23, 2015


Before TRAXLER, Chief Judge, and WILKINSON and FLOYD, Circuit
Judges.


Vacated and remanded by published opinion. Judge Floyd wrote the
opinion, in which Chief Judge Traxler joined.    Judge Wilkinson
wrote a dissenting opinion.


ARGUED: Eric Joseph Brignac, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Raleigh, North Carolina, for Appellant. Kristine L. Fritz, OFFICE
OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee. ON BRIEF: Thomas P. McNamara, Federal Public Defender,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina,
for Appellant. Thomas G. Walker, United States Attorney, Jennifer
P. May-Parker, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
FLOYD, Circuit Judge:

      Each year, thousands of immigrants are deported for illegally

entering the country.     But before leaving, many face a prolonged

pit stop in federal prison.         The 16-level sentencing enhancement

under U.S.S.G. § 2L1.2 may extend their stay even longer for those

previously deported for committing a “crime of violence.”

      This case concerns whether a Mexican citizen, Edgar Parral–

Dominguez, was properly subject to that enhancement and sentenced

to over five years’ imprisonment.           After Dominguez pleaded guilty

to illegally reentering the country, the district court applied

the   enhancement   because,       in   its   view,   Dominguez’s    previous

conviction in North Carolina for discharging a firearm into an

occupied   building     is     a    requisite     “crime    of      violence.”

Specifically, the district court ruled that Dominguez’s offense

necessarily involved the use, attempted use, or threatened use of

force against a person.      In fact, under North Carolina law, there

need be only the use of force against property to sustain a

conviction.   Because the court’s decision was in error and should

not be construed as harmless, we vacate Dominguez’s sentence and

remand for further proceedings.




                                        2
                                           I.

       In        2000,   Appellant–Defendant            Edgar     Parral–Dominguez 1

(Dominguez) left Mexico with his father and entered the United

States.      At the time, Dominguez was 14 years old.                  Although his

father eventually returned to Mexico, Dominguez remained.

       On New Year’s Day 2006, a firearm was discharged toward a

woman’s residence in Winston–Salem, North Carolina.                       Over a year

later,      North     Carolina    law     enforcement     arrested        and   charged

Dominguez for the incident. 2             Specifically, Dominguez was charged

with       and    eventually      convicted       for   an      aggravated      felony,

discharging a firearm into a building under N.C.G.S.A. § 14-34.1

(“the State Offense”).

       During his post-arrest processing, state authorities found

that Dominguez was unlawfully present in the country.                      Thus, after

he   pleaded        guilty   to   the     State    Offense,      agents    from   U.S.

Immigration and Customs Enforcement (ICE) detained him and in

August 2007 deported him to Mexico.                     Within months, however,

Dominguez        returned    to   North   Carolina,      eventually       settling   in

Wilmington.




       1
       Dominguez’s actual name is Edgar “Dominguez–Parral,” not
“Parral–Dominguez.”    J.A. 23.    Nevertheless, the underlying
indictment identifies him as Parral–Dominguez. For consistency’s
sake, we do the same.
     2 Although Dominguez maintained at this case’s underlying

sentencing that another man he was with actually fired the gun,
this nuance, even if true, is immaterial to this appeal.
                                            3
     Three    years   after     his   deportation,     local    county   law

enforcement arrested Dominguez with more than an ounce of cocaine.

He was ultimately convicted in state court for the single offense

of trafficking cocaine, but as part of his post-arrest processing,

state authorities discovered that Dominguez had been deported and

was unlawfully present in the country.             ICE officials met with

Dominguez in December 2010 and August 2011, confirming his status

as an illegal alien.

     In December 2013, a federal grand jury sitting in the Eastern

District of North Carolina indicted Dominguez under 8 U.S.C.

§§ 1326(a) and (b)(2) for illegally reentering the United States

after being convicted of an aggravated felony.         ICE officials took

custody of Dominguez the same month, and he pleaded guilty to the

charged offense on March 11, 2014, without the benefit of a plea

agreement.

     Before   Dominguez’s     sentencing,   U.S.    Probation   prepared   a

presentence investigation report (PSR). The parties do not dispute

that the PSR correctly stated all the facts contained therein;

that Dominguez has a Category IV criminal history; that his base

offense level is eight; and that he earned a three-point reduction

for acceptance of responsibility.           Dominguez lodged a single

objection to the PSR, which is now at the center of this appeal.

     The   PSR   proposed   a   16-level    enhancement   to    Dominguez’s

offense level for his having been previously convicted of a “crime

                                      4
of violence” under U.S.S.G. § 2L1.2(b)(1)(A)(ii).                   Applying this

enhancement, the PSR calculated that Dominguez’s total offense

level was 21--resulting in a Guidelines range of 57 to 71 months’

imprisonment.

      Dominguez argued that, as a matter of law, the State Offense

did   not    constitute   the    requisite        crime     of   violence     under

§ 2L1.2(b)(1)(A)(ii).     He did, however, concede that he merited an

8-level enhancement under § 2L1.2(b)(1)(C) because his previous

conviction was an aggravated felony. Thus, according to Dominguez,

his total offense level should be 13.             Under Dominguez’s proposed

treatment,    his   Guidelines    range        would   be   24   to   30    months’

imprisonment.

      After the Government and Probation filed written responses to

Dominguez’s    objection,   the    district       court     heard     argument   at

Dominguez’s    sentencing   hearing       on    July   8,   2014.       The   court

overruled Dominguez’s objection because the occupant of a building

“will surely feel threatened by the physical force that [has]

intruded” from a defendant who shoots at the building.                     J.A. 75

(quoting United States v. Cortez-Arias, 403 F.3d 1111, 1116 (9th

Cir. 2005), abrogated by Fernandez–Ruiz v. Gonzales, 466 F.3d 1121,

1132 (9th Cir. 2006) (en banc)).          Thus, the court imposed the 16-

level enhancement, producing an advisory Guidelines range of 57 to

71 months’ imprisonment.



                                      5
      The district court then heard argument on how to fashion a

proper sentence.         Although Dominguez’s counsel believed that a

sentence in the Guidelines range would be greater than necessary,

J.A. 76, the Government “submit[ted] that a guideline sentence

would be appropriate” and twice asked the court to “consider

somewhere around the mid range to the high end of the guideline

range.”     J.A. 81.     In turn, the court sentenced Dominguez in the

middle of the Guidelines range: 65 months’ imprisonment.                      In

announcing       the   sentence,   the   court    posited   that   65   months’

imprisonment is the “only” sentence “that sends the message that

the defendant will be punished for his actions and his conduct,

that he must respect the law, that his dangerousness must be

mitigated, and he cannot come back into this country.”                J.A. 84.

      The day after sentencing, the district court memorialized its

decision in a nine-page memorandum opinion.            After noting the lack

of binding precedent, the court relied heavily on the holding of

an unpublished Fourth Circuit decision to conclude that the State

Offense is a crime of violence.              United States v. Wilkerson, 492

F. App’x 447, 449 (4th Cir. 2012) (per curiam).                       The court

reiterated its line of reasoning from the sentencing hearing that

the   act   of    shooting   would   inherently      threaten   any     building

inhabitants.




                                         6
     Dominguez timely appealed, claiming his sentence is three

years longer than what a properly calculated Guidelines range would

suggest is appropriate.



                                     II.

     This appeal centers on one major issue: Does the state offense

of discharging a firearm into an occupied building under N.C.G.S.A.

§ 14-34.1(a) constitute a crime of violence for federal sentencing

purposes under U.S.S.G. § 2L1.2?           We review this issue de novo.

United States v. Henriquez, 757 F.3d 144, 147 (4th Cir. 2014).

Even if we hold that the North Carolina offense is not a crime of

violence, and thus that the district court committed procedural

error,   we   may   still   affirm        Dominguez’s   65-month   term   of

imprisonment if we find that the error did not affect his sentence.

United States v. Gomez–Jimenez, 750 F.3d 370, 382 (4th Cir. 2014).

As discussed below, we find that the State Offense is not a crime

of violence, and that the district court’s conclusion to the

contrary was not harmless.

                                     A.

                                     1.

     First, we assess whether the State Offense is a crime of

violence under § 2L1.2.     To answer this question, we apply the so-

called “categorical approach” set forth in Taylor v. United States,

495 U.S. 575 (1990), and recently clarified in Descamps v. United

                                      7
States, 133 S. Ct. 2276 (2013). 3 “Under that approach, we consider

only the elements of the statute of conviction rather than the

defendant’s   conduct     underlying         the   offense.”      Omargharib    v.

Holder, 775 F.3d 192, 196 (4th Cir. 2014).               If the State Offense

has the same elements as for a “crime of violence” as defined in

§ 2L1.2, then Dominguez’s prior conviction is a predicate offense

under that section.       Id.    But if the State Offense “sweeps more

broadly” by criminalizing more conduct than is captured under

§ 2L1.2(b)(1)(A)(ii), then the State Offense is not a qualifying

offense.   Id. (quoting Descamps, 133 S. Ct. at 2283).                In essence,

we must compare the contours of a “crime of violence” under § 2L1.2

with the breadth of conduct proscribed by N.C.G.S.A. § 14-34.1(a).

     We    begin   with   §     2L1.2,   which      states     that   a   16-level

enhancement applies if “the defendant previously was deported . . .

after . . . a conviction for a felony that is . . . a crime of

violence.”    U.S.S.G. § 2L1.2(b)(1)(A)(ii).             The text of § 2L1.2

does not expressly define the phrase “crime of violence.”                  But the

application   note   clarifies      that      the   phrase     contemplates    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.”       Id. § 2L1.2(b)(1) cmt. n.1(B)(iii).             This


     3 In arguing their respective positions below and on appeal,
the parties have relied on the categorical approach. See J.A. 96
n.2 (district court noting that “neither party suggested that use
of the modified categorical approach is appropriate”).
                                         8
so-called “use-of-force clause” serves as the sole basis with which

the Government argues that the State Offense is a crime of violence

under § 2L1.2.   United States v. Perez–Perez, 737 F.3d 950, 952

n.4 (4th Cir. 2013).

     Significant to this appeal, we must recognize the limited

applicability of the use-of-force clause in § 2L1.2.    First, and

most importantly, by its plain language the use-of-force clause

does not encompass acts involving the use of force against property

(rather than persons).   United States v. Jaimes–Jaimes, 406 F.3d

845, 849 (7th Cir. 2005).   And second, unlike other sections of

the Guidelines, 4 the use-of-force clause does not include “acts

that merely pose a risk of harm to another person.”   Id.; see also

United States v. Calderon–Pena, 383 F.3d 254, 261 (5th Cir. 2004)

(en banc) (per curiam) (“Creating a risk of injury, even when done

knowingly or intentionally, is clearly not the same as using or

attempting to use physical force against the person of another.”).




     4 For example, in determining whether a defendant is a “career
offender” under U.S.S.G. § 4B1.1(a) or an “armed career criminal”
under § 4B1.4(c)(2), the phrase “crime of violence” captures not
only a federal or state felony that “has as an element the use,
attempted use, or threatened use of physical force against the
person of another,” but also a crime that “presents a serious
potential risk of physical injury to another.”             U.S.S.G.
§ 4B1.2(a)(2) (incorporated by § 4B1.1 cmt. n.1 and § 4B1.4(c)(2)).
We also note that the Supreme Court’s decision in Johnson v. United
States, No. 13-7120, 2015 WL 2473450 (June 26, 2015), concerned
the similar risk-of-injury language in 18 U.S.C. § 924(e)(2)(B)
and does not affect our decision in this case.
                                9
     With an understanding of what a crime of violence under

§ 2L1.2 is--and what it is not--we turn to the State Offense and

its elements.   The State Offense makes it a felony for a person to

“willfully or wantonly discharge[] or attempt[] to discharge any

firearm . . . into any building, structure, vehicle, [or other

specified physical structure] while it is occupied.”     N.C.G.S.A.

§ 14-34.1(a).   Although not listed as an element in the statute,

the Supreme Court of North Carolina has read a knowledge element

into the offense: “the defendant must have had ‘reasonable grounds

to believe that the building might be occupied by one or more

persons.’”   State v. Everette, 361 N.C. 646, 650 (2007) (quoting

State v. James, 342 N.C. 589, 596 (1996)).   Thus, the State Offense

has been reformulated to prohibit a person from “intentionally,

without legal justification or excuse, discharg[ing] a firearm

into [a]n occupied building [A] with knowledge that the building

is then occupied by one or more persons or [B] when he has

reasonable grounds to believe that the building might be occupied

by one or more persons.”      State v. Williams, 284 N.C. 67, 73

(1973), abrogated on other grounds by State v. Weaver, 306 N.C.

629, 635 (1982).   We are bound by this interpretation in assessing

whether the State Offense falls within the ambit of § 2L1.2’s use-

of-force clause.    See United States v. Aparicio-Soria, 740 F.3d

152, 154 (4th Cir. 2014) (en banc) (“To the extent that the

statutory definition of the prior offense has been interpreted by

                                 10
the state’s highest court, that interpretation constrains our

analysis of the elements of state law.”).

     Under any reading of N.C.G.S.A. § 14-34.1(a) and the caselaw

interpreting the statute, it is clear that the State Offense does

not require that an offender use, attempt to use, or threaten to

use force against another person.             The crime is complete when a

person (1) intentionally (2) discharges a firearm (3) toward an

occupied building (4) when the shooter knows or has reasonable

grounds to believe that the building might be occupied.              Williams,

284 N.C. at 73.         Even if peripherally relevant, proving that an

occupant is targeted or threatened is unnecessary to satisfying

the State Offense’s elements.            See State v. Canady, 191 N.C. App.

680, 689 (2008) (holding that a person is guilty of the State

Offense for merely damaging a building’s exterior, with no bullet

penetration so as to actually threaten any occupant); State v.

Messick, 88 N.C. App. 428, 437 (1988) (“An assault on a person is

not an essential element of discharging a firearm into an occupied

vehicle.”); cf. Calderon–Pena, 383 F.3d at 260 (reasoning that a

child-endangerment offense is not a crime of violence, because the

offense    does   not    require   any    bodily   contact   or   awareness   of

danger).    Therefore, the State Offense cannot be construed as a

crime of violence under § 2L1.2’s use-of-force clause.                 Indeed,




                                         11
this holding coincides with how our sister circuits treat similar

discharge-of-firearm offenses under § 2L1.2. 5

       The Government’s cited authority to the contrary has either

been       abrogated, 6    involves    the    broader    risk-of-physical-injury

clause in § 4B1.2(a)(2), 7 or is distinguishable on the facts. 8

Moreover,        the      Government    wrongly      emphasizes     considerations

extraneous to our analysis under the categorical approach.                       For

example,       North      Carolina     courts     have   noted    that   the   state

legislature’s primary objective in enacting the State Offense was

to “protect[] . . . the occupant(s) of the building.”                    Canady, 191


       5
       See United States v. Narvaez–Gomez, 489 F.3d 970, 976-77
(9th Cir. 2007) (ruling that discharging a firearm at an occupied
dwelling under California law is categorically not a crime of
violence under § 2L1.2, because it may be committed with “purely
reckless conduct” toward another person); Jaimes–Jaimes, 406 F.3d
at 850-51 (holding that discharging a firearm into a vehicle or
building under Wisconsin law is not a crime of violence under
§ 2L1.2, because the offense contains no element consistent with
the use-of-force clause and does not even require that an occupant
actually be present); United States v. Alfaro, 408 F.3d 204, 209
(5th Cir. 2005) (finding that shooting into an occupied dwelling
under Virginia law is not a crime of violence under § 2L1.2,
because a defendant could commit the crime “merely by shooting a
gun at a building that happens to be occupied without actually
shooting, attempting to shoot, or threatening to shoot another
person”).
     6 United States v. Cortez-Arias, 403 F.3d 1111, 1115-16 (9th

Cir. 2005), abrogated by Fernandez–Ruiz v. Gonzales, 466 F.3d 1121
(9th Cir. 2006) (en banc).
     7 United States v. Rice, 520 F.3d 811, 821 (7th Cir. 2008).
     8 See, e.g., United States v. Rivera–Valenzuela, 492 F. App’x

685, 687 (7th Cir. 2012) (citing United States v. Curtis, 645 F.3d
937, 941-42 (7th Cir. 2011)) (analyzing the Illinois offense of
discharging a firearm in the direction of a vehicle or person,
which involves a smaller target and a different knowledge
requirement than for the State Offense).
                                             12
N.C. App. at 687 (quoting Williams, 284 N.C. at 72).                     And in

codifying     the    State   Offense,        the   state   legislature    placed

N.C.G.S.A. § 14-34.1(a) in a subchapter titled, “Offenses Against

the Person.”        Indeed, as the Government opened at oral argument,

“common sense tells us that this North Carolina statute exists to

protect people; this is not about property.”               Yet nowhere does the

Government cite authority that would permit us to set aside the

Supreme Court’s directive to “look only to” the elements of a prior

offense, Descamps, 133 S. Ct. at 2283 (quoting Taylor, 495 U.S. at

600),   and   instead    defer   to   legislative      intent,    an   offense’s

placement in a statutory code, and “common sense.”               Indeed, these

considerations would serve only as distractions from the discrete,

narrow assessment of a crime’s underlying elements, as mandated by

the Supreme Court in Taylor and Descamps.

     For these reasons, the district court committed procedural

error by concluding that Dominguez’s offense under N.C.G.S.A. § 14-

34.1(a) is a crime of violence under § 2L1.2.



                                        2.

     Rather than apply the correct analysis as mandated by the

Supreme Court in Descamps, the dissent resists, harkening back to

a time in which its approach had not been overwhelmingly rejected

in this Circuit.        See generally United States v. Aparicio-Soria,

740 F.3d 152 (4th Cir. 2014) (en banc).            Certainly what the dissent

                                        13
lacks in fidelity to precedent, it makes up in color.       Despite the

dissent’s want to the contrary, the North Carolina legislature’s

so-called “central concern” in criminalizing the conduct at issue

is a red herring.

     The    dissent   ignores    relevant   precedent,   misreads   this

opinion, and exaggerates the opinion’s “practical implications” in

several respects, too numerous to merit individual responses. Most

notably, though, nowhere do we say, expressly or implicitly, that

“shooting into an occupied building does not involve any deployment

of force whatsoever against the person or people inside.”       Indeed,

in many cases, it does.         But that does not excuse us from the

categorical approach’s key focus on elements, Descamps, 133 S. Ct.

at 2283, and simply comparing the contours of a crime of violence

under § 2L1.2 with the breadth of conduct proscribed by N.C.G.S.A.

§ 14-34.1(a).

     The dissent also claims that the State Offense’s knowledge

requirement supports the dissent’s proposed result, as it posits

that “the perpetrator must know or have reasonable grounds to

believe he is firing in the direction of another person.”       This is

false.     In actuality, the shooter may be guilty by merely having

reasonable grounds to believe that the targeted building might be

occupied, Williams, 284 N.C. at 73, and without any specific intent

to do, attempt, or threaten harm to any occupants therein.           In

other words, a person may be guilty of the State Offense without

                                    14
intentionally or knowingly shooting into an occupied building, so

long as he or she recklessly ran the risk that the building was

occupied.     Additionally, in many cases, a shooter, an occupant,

and a bullet’s trajectory might indeed fall on one line.         But in

a given case, a bullet might miss an occupant widely--perhaps

intentionally--yet the shooter has still committed a crime.             No

binding North Carolina authority requires the government to prove

that a defendant shot toward an occupant, and in concluding to the

contrary, the dissent implicitly fantasizes that a home has become

not only one’s castle, Silverman v. United States, 365 U.S. 505,

511 n.4 (1961), but legally merged with anyone therein.

     Finally, the dissent claims that this decision “stands in

conflict with” a line of decisions in the Seventh Circuit.       Again,

this is false.    Assuming for the sake of argument that the Seventh

Circuit’s precedent was correctly decided, that line of authority

explicitly distinguishes crimes that involve the same knowledge

requirement that exists for the North Carolina offense at issue:

if an offense requires a defendant to realize only “that there

might be a person present,” versus requiring that a defendant “know

or   should   reasonably   know   that   another   person”   occupied    a

structure, then the use-of-force clause does not apply.          United

States v. Curtis, 645 F.3d 937, 941-42 (7th Cir. 2011)) (emphases

in original) (quoting United States v. Rice, 520 F.3d 811, 821

(7th Cir. 2008)); see also Jaimes–Jaimes, 406 F.3d at 849-50.

                                   15
Conveniently, the dissent ignores this distinction.            Thus, this

opinion is consistent with Seventh Circuit precedent.



                                    B.

     Having     found   a    Guidelines   error,   we     assess   it    for

harmlessness.    Gomez–Jimenez, 750 F.3d at 382.        A Guidelines error

is harmless if we believe “(1) ‘the district court would have

reached the same result even if it had decided the guidelines issue

the other way,’ and (2) ‘the sentence would be [substantively]

reasonable even if the guidelines issue had been decided in the

defendant’s favor.’”        Id.   (quoting United States v. Savillon–

Matute, 636 F.3d 119, 123 (4th Cir. 2011)).         At dispute here is

only whether the district court would have reached the same 65-

month sentence had it correctly found that the State Offense is

not a crime of violence under § 2L1.2.

     In many cases, a judge is unequivocal about what effect any

Guidelines miscalculation would have on the ultimate sentence.              A

judge may say, for example, that in imposing a sentence:

          I do believe that I have properly calculated
          the advisory guideline range.    If, however,
          for some reason someone [on appeal] were to
          determine that I did not, I announce an
          alternative variant sentence . . . .

Id. at 383 (quoting the judge at a sentencing hearing).                 These

words make it “abundantly clear” that a judge would have imposed



                                    16
the same sentence, regardless of any procedural error.      Id. at

382-83.   But such words do not exist here.

     The Government and dissent emphasize that the court noted

during sentencing that 65 months’ imprisonment is the “only”

sentence that would sufficiently deter Dominguez from committing

more crimes and reentering the country.   But we decline to afford

this potentially stray phrasing so much weight as to deprive a man

of an errorless sentencing.   To give full credit to the judge’s

statement would require us to downplay the effort exhausted by the

parties and the court in calculating a Guidelines range and to

denigrate the tangible effect that the Guidelines range likely had

in this case. 9




     9 See, e.g., United States v. Lewis, 606 F.3d 193, 200 (4th
Cir. 2010) (noting that the Guidelines range should be “the
starting point and the initial benchmark” (quoting Gall v. United
States, 552 U.S. 38, 49 (2007))); United States v. Turner, 548
F.3d 1094, 1099 (D.C. Cir. 2008) (“Practically speaking,
applicable Sentencing Guidelines provide a starting point or
‘anchor’ for judges and are likely to influence the sentences
judges impose.”); Hon. Mark W. Bennett, Confronting Cognitive
“Anchoring Effect” and “Blind Spot” Biases in Federal Sentencing:
A Modest Solution for Reforming a Fundamental Flaw, 104 J. Crim.
L. & Criminology 489, 492 (2014) (“[I]t is critically important
for sentencing judges, probation officers who prepare presentence
reports, and practicing lawyers to understand the potential robust
and powerful anchoring effect of advisory Guidelines and the effect
of the ‘bias blind spot’ in determining just sentences.”); Hon.
Jed S. Rakoff, Why the Federal Sentencing Guidelines Should be
Scrapped, 26 Fed. Sent’g Rep. 6, 2013 WL 8171733, at *8 (Oct. 1,
2013) (“[T]he very first thing a judge is still required to do at
sentencing is to calculate the Guidelines range, and that creates
a kind of psychological presumption from which most judges are
hesitant to deviate too far.”).
                                17
     It is not clear that Dominguez’s sentencing was unaffected by

the court’s error.            The court took a substantial amount of time--

before, during, and after sentencing--to consider and to rule on

Dominguez’s objection to the § 2L1.2 sentencing enhancement.                      And

then after winning below on the issue, the Government twice asked

the court to impose a sentence “somewhere around the mid range to

the high end of the guideline range” as “appropriate.”                       J.A. 81.

Perhaps unsurprisingly, the district court did just that, meting

out a sentence square in the middle of the wrongly calculated

Guidelines range.

     Yet, the Government and the dissent would have us believe

that these facts had no effect on Dominguez’s sentencing; that

regardless     of       the    calculated        Guidelines    range,   65    months’

imprisonment       is    the    “only”    sentence     he   would   have     received.

Without    more     certainty      that    the     longer     sentence--potentially

taking more than three years of a man’s life--was wholly unaffected

by the court’s error, this is a belief that we cannot embrace.

Thus, we find that the district court’s error was not harmless,

and Dominguez’s sentence is hereby vacated.

                                          III.

     For     the    aforementioned          reasons,     we    vacate   Dominguez’s

sentence and remand the case for further proceedings.


                                                              VACATED AND REMANDED



                                            18
WILKINSON, Circuit Judge, dissenting:

     The majority contends that a central concern of the North

Carolina statute at issue here is the protection of property.

Wrong! The statute explicitly requires that the attacked property

be occupied. Who does the majority think occupies the property?

Pigs and chickens? No, the statute self-evidently has in mind

actual people, a.k.a. human beings. The discharge of a firearm

into such a property, which the shooter knows or believes to be

occupied, plainly involves “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). That is all the United States Sentencing

Guidelines require.

     As the district court here recognized, this should be a

straightforward case. North Carolina criminalizes the discharge of

a weapon into occupied property when the shooter knows or believes

someone is inside. N.C. Gen. Stat. § 14-34.1(a). This law protects

innocent bystanders, targets of gun violence, and other would-be

victims.   It    helps   keep     people   secure   inside   their   homes,

businesses,     vehicles,   and   other    structures.   Nevertheless,   the

majority fails to recognize this brazen and dangerous act as a

“crime of violence” under the relevant provision of the Guidelines.

§ 2L1.2(b)(1)(A)(ii) & cmt. n.1(B)(iii). In the majority’s view,

shooting into an occupied building does not involve any deployment



                                      19
of force whatsoever against the person or people inside. * I cannot

endorse so strained a reading of the North Carolina law and federal

Guidelines. Firing a bullet into a building that happens, by sheer

luck, to miss an occupant is an unmistakably violent act.

                                I.

     Congress did, after all, seek to punish more sternly the most

violent behaviors. In many instances, the impetus is recidivist

conduct by career offenders. See U.S.S.G. § 4B1.2. In this case,

it is unlawfully reentering the United States after deportation

for committing a crime of violence. See id. § 2L1.2. The meaning

of “crime of violence” under this Guidelines provision is carefully

cabined, see id. § 2L1.2 cmt. n.1(B)(iii), as most enhancements of

this nature are. For, notwithstanding their slight variations in

wording, sentencing enhancements for crimes of violence have much

in common. The statutory and Guidelines provisions utilizing these

enhancements all require at least one predicate conviction. The

enhancements do not apply to arrest records. They do not apply to

misdemeanors. They do not even apply to all felonies. They do

reach, as here, convictions for serious felonies involving active

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


     * The majority protests that “nowhere do we say, expressly or
implicitly, that ‘shooting into an occupied building does not
involve any deployment of force whatsoever against the person or
people inside.’” Maj. Op. 14. But of course the majority says
exactly that, for if it believed force was unleashed against the
occupant, § 2L1.2 would apply, and the sentence would be affirmed.
                                20
physical pain or injury to another person.” Johnson v. United

States, 559 U.S. 133, 140 (2010).

       To fail to heed the purpose of these enhancements is to

degrade the basic implements of societal self-defense. Congress,

the Sentencing Commission, and the public at large have a more

than   valid   interest   in   ensuring   that   individuals   who   have

repeatedly committed crimes of violence, or who have returned

illegally to this country after expulsion for committing a crime

of violence, are adequately punished. See Taylor v. United States,

495 U.S. 575, 581-90 (1990) (detailing Congress’s focus in violent-

crime sentencing enhancements on “those who commit a large number

of fairly serious crimes as their means of livelihood, and who,

because they possess weapons, present at least a potential threat

of harm to persons”); H.R. Rep. No. 98-1073, at 1 (1984) (observing

that “a large percentage of [violent] crimes are committed by a

very small percentage of repeat offenders”); see also Leocal v.

Ashcroft, 543 U.S. 1, 11 (2004).

       Somehow the majority fails to grasp the highly destructive

behavior that this crime represents, or to appreciate society’s

desire to do something about it. The Supreme Court has said that

our inquiry should be a “realistic” one, Gonzales v. Duenas-

Alvarez, 549 U.S. 183, 193 (2007), meaning that we must depart our

tranquil universe in order to best ascertain congressional intent.



                                   21
     I thus do not shy in the slightest from pointing out the

practical implications of the majority’s holding. The seriousness

of this crime -- and the immediate danger it creates for people

nearby   --    should    be    beyond   question.     For   instance,    although

nationwide statistics are scarce, one study documented 317 actual

victims who were killed or injured by stray bullets during a

yearlong      period    in     2008-2009.    Garen    J.    Wintemute    et   al.,

Epidemiology and Clinical Aspects of Stray Bullet Shootings in the

United States, 73 J. Trauma & Acute Care Surgery 215, 218 (2012).

Overwhelmingly, the victims had no inkling of the events leading

to the gunfire, and more than two-thirds of the victims were

indoors when they were struck. Id. at 219. Reports about these

tragedies are as commonplace as they are distressing. See Suzanne

Daley & Michael Freitag, Wrong Place at the Wrong Time: Stray

Bullets Kill More Bystanders, N.Y. Times, Jan. 14, 1990; When a

Bullet Misses Its Target, It Can Still Kill, NPR: All Things

Considered, June 1, 2014. Stray-bullet shootings, most of them

into buildings, spawn a pervasive anxiety that afflicts entire

communities. See Philip J. Cook & Jens Ludwig, The Costs of Gun

Violence Against Children, 12 Future Child. 87, 89, 91 (2002). For

these    bullets   do    not    politely     stop    for   bystander    adults   or

defenseless children.

        Firing into dwelling places also has an odious historical

pedigree, as Klansmen regularly shot into homes to frighten and

                                        22
forewarn African Americans therein. See Paul D. Escott, Many

Excellent People: Power and Privilege in North Carolina 1850-1900,

at   152-53    (1985).   No    one    believes       this   noxious       tactic   of

intimidation and control has somehow magically ceased today. In

many neighborhoods tormented by gang violence, moreover, gang

members shoot into occupied buildings to cow rival gangs or assert

authority     over   turf.    See    Leonard    S.    Rubinowitz      &    James   E.

Rosenbaum, Crossing the Class and Color Lines: From Public Housing

to   White    Suburbia   86-87      (2000).    Many    gang-related        homicides

involve firearms and public places. See Ctrs. for Disease Control

& Prevention, Gang Homicides -- Five U.S. Cities, 2003-2008, 61

Morbidity & Mortality Wkly. Rep. 46, 46 (2012). The ensuing danger

to bystanders, even those in the seeming safety of a building or

vehicle, is self-evident.

      We may not live in neighborhoods where the sound of gunfire

is a nightly occurrence, but we should still understand the plight

of those who hide under beds or in bathtubs to avoid being hit.

See Cook & Ludwig, supra, at 91 (“One single mother living in

Chicago’s public housing reported, ‘At night you had to put your

mattress on the floor because bullets would be coming through the

windows. It was like Vietnam.’ In other urban neighborhoods,

children are taught by their parents to hide under beds or in

bathtubs at the sound of gunfire.” (footnote omitted)). Children

whose homes are no sanctuary are left to grow up in fear.

                                        23
     Our     fellow   citizens        who     do     live      in      disadvantaged

neighborhoods     understand    the    mortal      dangers       and   intimidating

powers of stray bullets -- or bullets purposefully aimed at them.

If a bullet strikes their home while they are inside, occupants

would certainly be forgiven for thinking that someone tried to use

deadly force against them. See U.S.S.G. § 2L1.2 cmt. n.1(B)(iii).

If we were inside, we would alert soon enough to the violent nature

of this act.

                                       II.

                                       A.

     The prior felony conviction at issue here is an exceptionally

well-qualified    candidate     for    an    advanced     “crime       of    violence”

degree. Let’s take the federal aspect of the issue first. The

Guidelines     provisions     for   immigration         offenses       call    for     a

sentencing     enhancement     “[i]f    the        defendant        previously       was

deported,    or    unlawfully       remained       in    the        United     States,

after . . . a conviction for a felony that is . . . a crime of

violence.”     U.S.S.G.   §    2L1.2(b)(1)(A)(ii).          In      the     Guidelines

commentary, the Sentencing Commission listed a dozen offenses that

meet the criteria for a “crime of violence.” Id. § 2L1.2 cmt.

n.1(B)(iii). Recognizing the diverse nature of criminal activity

and criminal codes across the United States, the Commission also

delineated a broad category of offenses that equally qualify as

crimes of violence: “any other offense under federal, state, or

                                       24
local law that has as an element the use, attempted use, or

threatened use of physical force against the person of another.”

Id. Parral-Dominguez’s predicate crime falls squarely in that

category.

       The North Carolina statute under which Parral-Dominguez was

previously convicted makes it a felony to “willfully or wantonly

discharge[] or attempt[] to discharge any firearm or barreled

weapon . . . into any building, structure, vehicle, aircraft,

watercraft, or other conveyance, device, equipment, erection, or

enclosure while it is occupied.” N.C. Gen. Stat. § 14-34.1(a)

(emphasis added). Our charge is to discern the likely practical

applications         of   this    statute,    not   to    concoct    hypothetical

scenarios. 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   definition      of   ‘crime    of

violence’” (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193

(2007))).      The    majority     is   strikingly       reticent   about   actual

nonviolent applications of this statute. And no wonder. On its

face, this law concerns the senseless firing of a weapon toward

human beings located inside a structure such as a building or a

vehicle.




                                         25
                                             B.

       The    majority     fares      even        worse    under    “the    categorical

approach’s key focus on elements,” Maj. Op. at 14-15, here those

of    N.C.   Gen.    Stat.      §   14-34.1(a).       North    Carolina      precedents

reinforce what a facial examination of the statute makes clear. A

person violates this statute “‘if he intentionally, without legal

justification or excuse, discharges a firearm into an occupied

building with knowledge that the building is then occupied by one

or more persons or when he has reasonable grounds to believe that

the building might be occupied by one or more persons.’” State v.

James, 466 S.E.2d 710, 715 (N.C. 1996) (quoting State v. Williams,

199    S.E.2d      409,   412    (1973)).     This        knowledge    requirement   is

significant: the perpetrator must know or have reasonable grounds

to believe he is firing in the direction of another person.

       The majority asserts that “there need be only the use of force

against property to sustain a conviction” under this statute. Maj.

Op. at 2. But this law guards people, not property. The “purpose”

that impelled the North Carolina General Assembly was “to protect

occupants of the building, vehicle or other property described in

the statute.” State v. Mancuso, 364 S.E.2d 359, 362 (N.C. 1988);

see also State v. Blizzard, 184 S.E.2d 851, 855, 856 (N.C. 1971);

State v. Jones, 409 S.E.2d 322, 326-27 (N.C. Ct. App. 1991).

Indeed,      the   statute      itself   covers       not    only     any   conventional

“firearm” but also any “barreled weapon capable of discharging

                                             26
shot, bullets, pellets, or other missiles at a muzzle velocity of

at least 600 feet per second.” N.C. Gen. Stat. § 14-34.1(a). The

common feature of all those weapons is obvious: they share a

“propensity to penetrate a structure and injure occupants.” State

v. Small, 689 S.E.2d 444, 451 (N.C. Ct. App. 2009). Contrary to

the majority’s suggestion, see Maj. Op. at 13, the statute’s

fundamental concern for people rather than property is evident at

first glance. The majority would have us believe it was a broken

window, not a dead or wounded person, that drove the North Carolina

legislature. That cannot be. If the paramount concern here were

property, there would have been no need for the statute to require

that the building be occupied.

     Equally, we should understand what this crime is not. The

North Carolina statute does not cover the discharge of a firearm

into an unoccupied building. It does not cover discharges into

buildings that only contain valuable items. It does not shield

buildings housing only livestock. Rather, it guards structures

with people inside. See James, 466 S.E.2d 710, 715; see also

Mancuso, 364 S.E.2d at 362 (“We cannot believe that the Legislature

intended that a person should escape liability for this crime by

sticking     his   weapon   inside    the    occupied   property   before

shooting.”); State v. Wall, 286 S.E.2d 68, 73-74 (1982) (“It is an

inherently    incredible    proposition     that   defendant   could   have

intentionally fired a shot ‘at’ the fleeing [vehicle] without

                                     27
intending     that   the    bullet       go    ‘into’   the   vehicle.”).    These

distinctions are not “distractions.” Maj. Op. at 13. The North

Carolina courts have emphasized time and again the presence of

occupants who might have been struck by a bullet. See, e.g., State

v. Everette, 652 S.E.2d 241, 243-45 (N.C. 2007); State v. Canady,

664 S.E.2d 380, 385 (N.C. Ct. App. 2008); State v. Fletcher, 481

S.E.2d 418, 423 (N.C. Ct. App. 1997).

     Ordinarily, the North Carolina courts have explained, someone

convicted of this crime was aiming at one of two possible targets:

(1) a property occupied by another person, or (2) a person who

evaded the bullet, which then ended up in an occupied property.

State v. Byrd, 510 S.E.2d 410, 412 (N.C. Ct. App. 1999); Canady,

664 S.E.2d at 383-84; see State v. Wheeler, 365 S.E.2d 609, 610-

11 (N.C. 1988) (finding that firing at an occupied vehicle provided

evidence that the defendant had meant to shoot into that occupied

vehicle); Fletcher, 481 S.E.2d at 423 (applying the doctrine of

transferred    intent      where   the    defendant     had   meant   to   shoot   a

particular person, but instead hit an occupied home). Those are

the two realistic scenarios envisioned by the North Carolina

courts. Duenas-Alvarez, 549 U.S. at 193. Under either scenario,

the defendant deliberately shot in the direction of another person.

Even if no one was actually struck, the defendant fired the bullet

toward a location where he knew or believed another person to be.



                                          28
     Parral-Dominguez and the majority make much of the point that

the North Carolina statute does not require that the bullet come

near the occupant or that the occupant be aware of the danger. See

Appellant’s Br. at 8, 14-16, 19, 21, 25 n.8, 27-28; Maj. Op. at

11-12,    15.   But   imposing   such    restrictions   would   simply   add

conditions to § 2L1.2 that are nowhere therein. That Guidelines

provision does not purport to demand that a bullet come within a

specified number of yards of a person, or that the person in turn

be aware of the shooter’s presence. In fact, many shooters do not

want their intended victims to have such awareness. In essence,

Parral-Dominguez edges too close to a requirement that the use,

attempted use, or threatened use of force against another person

somehow requires waiting around for that person to actually be

struck.

     Not to worry, says the majority: firing into an occupied

building creates no more than a “risk” that someone inside will be

hurt or killed. And, says the majority, creating a mere “risk” of

injury or death was a feature of the now-defunct residual clauses

of the ACCA and § 4B1.2, the career-offender provision of the

Guidelines, but it is not a feature of § 2L1.2, the illegal-reentry

provision at issue here. See Maj. Op. at 9-10. But this is an

insouciance that would leave only Alfred E. Neuman pleased. For

the majority has done nothing more than assume the awkward position

that every felony that creates a mere risk of serious human harm

                                        29
is thereby automatically excluded from the reach of § 2L1.2. But

§ 2L1.2 must be applied on its own terms. It defines a “crime of

violence” as having “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).   Firing     into   an   occupied

building, knowing it is occupied, involves the use, attempted use,

or threatened use of force against that very person, whether the

“risk” is realized or whether it is not. The discharge is a use.

It can be much more than an “attempt.” See Black’s Law Dictionary

152-53 (10th ed. 2014). It is at the very minimum a “threat.” See

id. at 1708-09. And the threat is not directed at the outer ether,

but against the person inside.

                                    C.

     Tellingly,    one   of   our   sister   circuits    has   steadfastly

recognized the violent character of this behavior. The majority’s

conclusion stands in conflict with that line of decisions. See

United States v. Womack, 732 F.3d 745, 748-49 (7th Cir. 2013);

United States v. Johnson, 680 F.3d 966, 983-84 (7th Cir. 2012);

United States v. Curtis, 645 F.3d 937, 940-43 (7th Cir. 2011);

United States v. Rice, 520 F.3d 811, 820-21 (7th Cir. 2008);

Quezada-Luna v. Gonzales, 439 F.3d 403, 406-07 (7th Cir. 2006). In

each of these decisions, the Seventh Circuit found that a violation

of the relevant Illinois statute involved the use of force against

another person. And like the North Carolina statute, the Illinois

                                    30
statute prohibits the discharge of a firearm at or into a building,

or in the direction of a vehicle, that the shooter “knows or

reasonably should know” is occupied. 720 Ill. Comp. Stat. § 5/24–

1.2(a)(1)-(2).

     The   Seventh   Circuit   has   emphasized        that   the   Guidelines’

coverage “is not limited to the use of force” only, but rather

“includes attempted and threatened uses” of force as well. Curtis,

645 F.3d at 941. Whether the defendant fires at an occupied

vehicle, see id., or an occupied building, see Womack, 732 F.3d at

749, the Seventh Circuit views this conduct as “unquestionably the

use, attempted use, or threatened use of ‘physical force against

the person of another,’” Curtis, 645 F.3d at 941 (emphasis added).

Although   the   majority   suggests      that   the   Seventh      Circuit   was

concerned with the “smaller target” of a vehicle, see Maj. Op. at

13 n.8, in fact that court has specified that “the analysis is the

same” for discharges into occupied buildings and occupied vehicles

alike, Womack, 732 F.3d at 749. I agree with the reasoning of those

cases.

     To repeat, Parral-Dominguez’s crime plainly amounts to “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). The

majority tries to make it appear as though the North Carolina

offense could be a recklessness crime, but the mens rea here is

ample. The whole emphasis of the North Carolina courts has been

                                     31
upon intentional action. See, e.g., Wheeler, 365 S.E.2d at 611.

And even if the majority had pointed to a conviction of someone

who only had “reasonable grounds to believe that the building might

be occupied by one or more persons,” it is hardly an absolution

that a person with such a belief did not cease and desist, but

commenced firing.

       Finally, and for good measure, the North Carolina statute is

even   located      in   the    subchapter      of   the   state’s    criminal    code

covering “Offenses Against the Person,” and within the article

demarcating various “Assaults.” N.C. Gen. Stat. ch. 14, subch.

III,   art.    8    (emphasis     added).      Where   else   could    it   be?   This

provision applies when an individual deliberately fires into a

building, a vehicle, or another property that he knows or believes

to be occupied by someone else. The shooter is unleashing the force

of a bullet “against” the person inside. True, the “‘use’” of force

“against” another “requires active employment,” not “negligent or

merely accidental conduct.” Leocal v. Ashcroft, 543 U.S. 1, 9

(2004).       But    the       majority     could      scarcely      maintain     that

intentionally       shooting      into    an    occupied   structure     involves    a

negligent or accidental discharge. On the contrary, this offense

involves “an intentional action (e.g., intentionally discharging

a firearm rather than pulling the trigger by mistake) performed

with the knowledge or reasonable grounds to believe the act would



                                           32
endanger the life or safety of others.” State v. McLean, 712 S.E.2d

271, 278 (N.C. Ct. App. 2011) (emphasis in original).

       So    much   for    the     “property”   offense       the   majority     has

fantasized.

                                        III.

       I do not believe the district court erred in any way in

imposing a sentencing enhancement here for the prior commission of

a crime of violence. But even if I could accept the majority’s

conclusion on that matter, any purported error here was harmless.

“[P]rocedural errors at sentencing . . . are routinely subject to

harmlessness review.” Puckett v. United States, 556 U.S. 129, 141

(2009). From the record before us, the harmlessness of any error

is quite clear.

       First, the district court took into account a broad range of

factors      in   determining     Parral-Dominguez’s      sentence.     Among    its

litany of considerations, the court noted: (1) he had continued to

engage in criminal activity well beyond his prior convictions at

the ages of sixteen, nineteen, and twenty-two; (2) at age twenty-

six,    in    the    events      that   precipitated    his     present   federal

indictment, he had been caught trafficking in cocaine; (3) he gave

an   alias    to    law   enforcement     officers;    (4)    he    incurred    four

disciplinary infractions while incarcerated; (5) there was little

indication that he had “grown up” or even now “underst[ood] the

consequences of his decisions”; (6) he was a documented member of

                                         33
the “La Rubia” street gang; (7) he had made no meaningful societal

contribution and instead had gone from a “punk criminal” at age

sixteen to a “drug dealer” at twenty-six; (8) over the years he

had demonstrated a disregard for the rights and safety of other

people and shown himself to be a “violent person”; (9) he had

illegally returned to this country after being told he could not

do so; and (10) his prior lenient treatment had done nothing to

discourage his recent life choices. J.A. 83-84; see 18 U.S.C.

§ 3553(a).

     The district court imposed a targeted sentence of sixty-five

months’ imprisonment, in the middle of the advisory Guidelines

range. The fact that the sentence fell in the middle of that range,

not at the bottom, indicates that the court did not find that range

in some way inappropriate. Indeed, the district court nowhere

stated that it imposed the sentence only because its hands were

tied, a not uncommon expression if a judge feels frustrated by a

directive to which she personally may take exception.

     Second, the district court knew the sentence it wished to

give and the sentence the crime deserved. A sentencing court need

“not specifically state that it would give the same sentence absent

the . . . enhancement.” United States v. Savillon-Matute, 636 F.3d

119, 124 (4th Cir. 2011). Though it was not necessary, the district

court did state that here. The court concluded emphatically at the

sentencing hearing: “I think it’s only a sentence of 65 months

                                34
that sends the message that the defendant will be punished for his

actions and his conduct, that he must respect the law, that his

dangerousness must be mitigated, and he cannot come back into this

country.” J.A. 84. This is not “stray phrasing,” as the majority

reckons. Maj. Op. at 17. As if to underscore the point, the court

paused       after   this    statement    and    immediately    asked     Parral-

Dominguez, “Do you understand that?” J.A. 84.

       The     district     court,   moreover,      expressly    rejected       the

defense’s proposed sentence of thirty-eight months’ imprisonment

as insufficient. That shorter sentence, the court explained, would

“not take into consideration his history and characteristics, nor

does it reflect enough on the need to promote respect for the law,

to discourage this type of conduct and to protect the public from

Edgar    Parral-Dominguez.”       J.A.   84.     Declarations   such    as     these

certainly constitute a “consistent indication” that the district

court “would have reached the same result even if it had decided

the guidelines issue the other way.” Savillon-Matute, 636 F.3d at

124;     see    also   id.    (noting     that     the   district      court    had

“‘absolutely’” thought the imposed sentence was appropriate). The

majority chides the district court for not expressly offering an

alternative sentence in the event of a Guidelines miscalculation.

Maj. Op. at 17. But we do not require such clairvoyance. It is

surely enough if, as the majority’s own authority indicates, the

court makes it “abundantly clear that it would have imposed the

                                         35
same sentence . . . regardless of the advice of the Guidelines.”

United States v. Gomez-Jimenez, 750 F.3d 370, 382 (4th Cir. 2014).

      Third, there was nothing unreasonable about this sentence.

Even if we “initially give [Parral-Dominguez] the benefit of the

doubt and assume” that a lower advisory Guidelines range should

have applied to him, an upward variance from that range still would

have been reasonable. Savillon-Matute, 636 F.3d at 124 (internal

quotation marks omitted). An appellate court “may not apply a

presumption    of     unreasonableness”         to   a    sentence    outside       the

Guidelines range. Gall v. United States, 552 U.S. 38, 51 (2007).

Instead, we accord “due deference” to the assessment formed by the

district court, which as an institutional matter has far greater

familiarity than we do with the case and the defendant. Id.; see

Savillon-Matute, 636 F.3d at 124. The district court here provided

a meticulous explanation for its individually tailored sentence.

Any decent respect for the role of district courts in matters of

sentencing would have let this sentence stand.

                                       IV.

      Our   society      has   been   tragically         punctuated    by    violent

outbursts that may only come with greater frequency in future

months and years. This should not cause appellate judges to lose

their heads. It should, however, induce some minimal respect for

the   intentions    of    Congress    as   to    the     most   violent     sorts    of

behaviors, a respect that is woefully AWOL in this case.

                                       36
     There is nothing inherent in the categorical approach to

sentencing that is inconsistent with the recognition of violent

criminality.    Indeed,    that      approach     is     essential      to   sound

sentencing. Among other things, it relieves district courts of the

huge burden of rummaging through the often murky particulars of

old predicate convictions. But the categorical approach was always

intended to express a neutral principle, or rather to strike a

balance between not burdening defendants convicted under statutes

with nonviolent applications on the one hand and not undercutting

Congress’s articulated desire to punish the most violent offenders

on the other. Too often, as here, that approach has become code

for invariable categorical holdings of non-violence, even in the

face of the Supreme Court’s admonitions. See Descamps v. United

States, 133 S. Ct. 2276, 2290 (2013) (noting that “every element

of every statute can be imaginatively transformed”); Gonzales v.

Duenas-Alvarez, 549 U.S. 183, 193 (2007) (requiring “more than the

application of legal imagination to a state statute’s language”).

     The categorical approach was never intended to have such a

one-sided sweep. On the contrary, as the Supreme Court observed in

delineating    the    categorical      approach,        there   is     simply   no

“indication that Congress ever abandoned its general approach, in

designating    predicate   offenses,       of   using    uniform,    categorical

definitions    to    capture   all   offenses     of     a   certain    level   of

seriousness that involve violence . . . , regardless of technical

                                      37
definitions and labels under state law.” Taylor v. United States,

495 U.S. 575, 590 (1990) (emphasis added). While punishment is

seldom more than a partial answer to any problem, Congress here

thought it a necessary part of the total mix. Yet the categorical

approach has become over time little more than a mere ruse for

removing serious qualifying felonies from the scope of a Guidelines

“crime of violence” sentencing enhancement. The North Carolina

statute is a prime example of one such felony. Firing into a

building known or believed to be occupied by another person, see

N.C.   Gen.   Stat.   §   14-34.1(a),    necessarily   involves   the   use,

attempted use, or threatened use (the discharge) of force (the

bullet) against that person (the occupant) inside, see U.S.S.G.

§ 2L1.2 cmt. n.1(B)(iii).

       Question: “Is shooting into a building known to be
       occupied a crime of violence?”

       Answer: “Of course. Why would you ask?”

       These crimes of violence represent profound defaults on the

obligations that we as people owe one another. How sad, really,

that courts contribute to the erosion of social structure and

disintegration of communal peace by declining to recognize these

crimes for what they are.

       I respectfully dissent.




                                    38
