                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 16-4740


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

DERRICK DESHAWN LEE, a/k/a Derrick Deshaune Lee,

                    Defendant - Appellant.



Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. William L. Osteen, Jr., Chief District Judge. (1:14-cr-00196-WO-1)


Submitted: August 30, 2017                                   Decided: September 7, 2017


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


Affirmed by unpublished per curiam opinion.


Louis C. Allen, Federal Public Defender, Kathleen A. Gleason, Assistant Federal Public
Defender, Greensboro, North Carolina, for Appellant. Sandra Hairston, Acting United
States Attorney, Kyle D. Pousson, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Derrick Deshawn Lee appeals the 96-month sentence imposed by the district court

on remand for resentencing on his conviction for possession of ammunition by a felon, in

violation of 18 U.S.C. § 922(g)(1) (2012). Lee argues that the district court erred in

concluding that his prior convictions for North Carolina second-degree murder and

attempted second-degree arson were crimes of violence and, therefore, that the district

court erred in applying a base offense level of 24 under U.S. Sentencing Guidelines

Manual § 2K2.1(a)(2) (2014). We affirm.

       Because Lee objected to the district court’s classification of his convictions as

crimes of violence, we review the classifications de novo. United States v. Carthorne,

726 F.3d 503, 509 (4th Cir. 2013). The Sentencing Guidelines applicable to Lee provide

that a crime of violence is:

       any offense under federal or state law, punishable by imprisonment for a
       term exceeding one year, that—(1) has as an element the use, attempted
       use, or threatened use of physical force against the person of another, or
       (2) is burglary of a dwelling, arson, or extortion, involves use of explosives,
       or otherwise involves conduct that presents a serious potential risk of
       physical injury to another.

USSG § 4B1.2(a). The definition of crime of violence includes “attempting to commit

such offenses.” USSG § 4B1.2(a)(2) & cmt. n.1. We use the categorical approach to

determine whether a prior state conviction constitutes a crime of violence under

§ 4B1.2(a). United States v. Mack, 855 F.3d 581, 585-86 (4th Cir. 2017). In applying the

categorical approach, we examine “the statutory definition of the state crime . . . to

determine whether the conduct criminalized by the statute, including the most innocent


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conduct, qualifies as a crime of violence.” United States v. Perez-Perez, 737 F.3d 950,

952 (4th Cir. 2013) (internal quotation marks omitted).

       First, North Carolina second-degree murder is “the unlawful killing of a human

being with malice but without premeditation and deliberation.” State v. Thibodeaux, 532

S.E.2d 797, 806 (N.C. 2000). “Force,” as used in § 4B1.2(a)(1) is “force capable of

causing physical pain or injury to another person.” In re Irby, 858 F.3d 231, 235 (4th Cir.

2017) (internal quotation marks omitted). “[U]nlawfully killing another human being

requires the use of force capable of causing physical pain or injury to another person.”

Id. at 236 (internal quotation marks omitted). Because North Carolina second-degree

murder requires the unlawful killing of a human being, we conclude that it is a crime of

violence under § 4B1.2(a).

       Next, Lee concedes that arson is an enumerated offense and that North Carolina

second-degree arson falls within the generic definition of arson. Lee argues, however,

that the Supreme Court’s holding in Johnson v. United States, 135 S. Ct. 2551 (2015),

invalidated the residual clause in § 4B1.2(a)(2), and, therefore, that attempted enumerated

crimes of violence are no longer necessarily crimes of violence. After Lee submitted his

appellate brief, the Supreme Court held that its reasoning in Johnson did not invalidate

the residual clause in § 4B1.2(a)(2). Beckles v. United States, 137 S. Ct. 886, 890, 895

(2017). We conclude that the Supreme Court’s holding in Beckles renders this argument

meritless.

       Accordingly, we affirm the district court’s amended criminal judgment.          We

dispense with oral argument because the facts and legal contentions are adequately

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presented in the materials before this court and argument would not aid the decisional

process.

                                                                          AFFIRMED




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