                                    UNPUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                     No. 18-4065


UNITED STATES OF AMERICA,

            Plaintiff - Appellee,

      v.

DAVONTE JAVAL SHEPARD,

            Defendant - Appellant.



Appeal from the United States District Court for the District of South Carolina, at
Florence. R. Bryan Harwell, District Judge. (4:17-cr-00157-RBH-1)


Argued: November 1, 2018                                Decided: November 19, 2018


Before WILKINSON, WYNN, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: William Fletcher Nettles, IV, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Florence, South Carolina, for Appellant. Thomas Ernest Booth, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF:
John P. Cronan, Acting Assistant Attorney General, Matthew S. Miner, Deputy Assistant
Attorney General, Appellate Section, Criminal Division, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C.; Beth Drake, United States Attorney,
Columbia, South Carolina, Alfred W. Bethea, Jr., Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Florence, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

       The instant case concerns whether attempted murder under South Carolina law is a

crime of violence under the United States Sentencing Guidelines § 4B1.2(a). The district

court held that it was, and we affirm.

                                             I.

       The facts in this case are undisputed. Bureau of Alcohol, Tobacco, Firearms and

Explosives officers arrested Davonte Shepard in early 2017 for discharging a firearm in a

dwelling. They found a gun in his room. Shepard had two previous South Carolina felony

convictions for attempted murder, and thus pleaded guilty to being a felon in possession

of a firearm under 18 U.S.C. § 922(g)(1). The Presentence Investigative Report (PSR)

applied U.S.S.G. § 2K2.1(a)(4)(A), which governs the unlawful possession of a firearm

by a person previously convicted of a crime of violence. The PSR determined Shepard’s

two prior South Carolina convictions were crimes of violence under U.S.S.G.

§ 4B1.2(a)(1) & (2), which substantially increased Shepard’s Guideline range. Shepard

objected to how the PSR classified his prior convictions, but the district court adopted the

reasoning in the PSR and overruled the objection. The district court then sentenced

Shepard to forty months in prison and three years of supervised release, which was within

his Guideline range. This appeal followed.

                                             II.

       On appeal, Shepard again presses his objection that his prior convictions were not

crimes of violence, but we disagree. Under the Guidelines, an offense punishable by more

than one year in prison can constitute a “crime of violence” in two ways. The first is often

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called the “Force Clause” or “Elements Clause”: “(1) [The offense] has as an element the

use, attempted use, or threatened use of physical force against the person of another ….”

U.S.S.G. § 4B1.2(a)(1). To be convicted of attempted murder in South Carolina, one

must “with intent to kill, attempt[] to kill another person with malice aforethought, either

expressed or implied ….” S.C. Code Ann. § 16-3-29. *

       We map state offenses onto the Guidelines definitions using the categorical

approach required by Supreme Court precedent, which instructs us to limit our view “to

the fact of conviction and the statutory definition of the prior offense.” Taylor v. United

States, 495 U.S. 575, 602 (1990). Under the categorical approach, a court examines the

least culpable conduct that would give rise to “a realistic probability, not a theoretical

possibility, that the State would apply its statute ….” Moncrieffe v. Holder, 569 U.S. 184,

191 (2013) (internal quotation marks omitted). Thus, with respect to the Force Clause, the

question boils down to whether the element of “with intent to kill, attempt[ing] to kill

another person with malice aforethought” constitutes the “attempted use … of physical

force against the person of another ….” The answer, unsurprisingly, is yes.

       Appellant argues that certain ways of committing attempted murder would apply

force only indirectly—for example, a defendant could attempt to poison someone—and

therefore would not be a “use” of force. However, the Supreme Court has rejected that

reasoning: “The ‘use of force’ … is the act of employing poison knowingly as a device to


       *
        The government has also argued that attempted murder satisfied § 4B1.2(a)(2),
the Enumerated Clause. In light of our conclusion below that the Force Clause was met,
we need not address this argument.

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cause physical harm. That the harm occurs indirectly, rather than directly (as with a kick

or punch), does not matter.” United States v. Castleman, 572 U.S. 157, 171 (2014).

       As appellant acknowledges, this case is not the first to apply Castleman. See

United States v. Burns-Johnson, 864 F.3d 313, 318 (4th Cir. 2017); United States v. Reid,

861 F.3d 523, 529 (4th Cir. 2017); In re Irby, 858 F.3d 231, 237-38 (4th Cir. 2017).

Appellant simply argues that these cases are wrong, and points instead to United States v.

Middleton, 883 F.3d 485 (4th Cir. 2018). The opening brief properly “concedes that … to

prevail in this appeal this court would have to conclude that Burns-Johnson et. al. were

wrongly decided … which would require an en banc opinion.” Appellant Br. at 19. This

concession is sufficient to affirm the judgment, but we also note that Middleton does not

support appellant’s position.

       Middleton held that South Carolina involuntary manslaughter was not a crime of

violence. 883 F.3d at 493. Middleton stands for the proposition that unintentionally

causing physical force to harm someone is not necessarily “a use of violent physical force

against the person of another.” Id. at 492; see also id. at 497 (Floyd and Harris, J.J.,

concurring). This case is quite different, since attempted murder requires acting “with

intent to kill,” S.C. Code Ann. § 16-3-29. As Castleman explains, “the knowing or

intentional application of force is a ‘use’ of force.” 572 U.S. at 170. Middleton is not to

the contrary.

       In view of multiple on-point precedents, we hold that attempted murder under

South Carolina law is a crime of violence under U.S.S.G. § 4B1.2(a)(1). The judgment is

                                                                             AFFIRMED.

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