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Can Conviction for a "Crime of Violence" in North Carolina Affect Subsequent Criminal Convictions?

Posted by Josh Valentine | Dec 14, 2017 | 0 Comments

A recent United States Court of Appeals decision highlights one of the potential consequences of a North Carolina criminal conviction: a significantly increased sentence for subsequent crimes.

United States v. Thompson

Shawntanna Lemarus Thompson pled guilty to a drug offense and being a felon in possession of a firearm. A federal North Carolina District Court increased Thompson's sentence for those crimes due to Thompson's prior North Carolina conviction for assault inflicting serious bodily injury, per the federal sentencing guidelines. These guidelines permit increased sentences for those who have previously been convicted of a "crime of violence."

Thompson appealed the sentencing decision, arguing that his previous conviction was not for a "crime of violence." In United States v. Thompson, the United States Court of Appeals for the Fourth Circuit heard Thompson's appeal.

The question before the Court was whether Thompson's earlier North Carolina conviction of assault inflicting serious bodily injury was actually a "crime of violence" under the then-vague federal sentencing guidelines.

What is a "Crime of Violence"?

When Thompson was convicted of the drug offense and firearm possession, § 4B1.2 of the federal sentencing guidelines defined a "crime of violence" as:

…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. (emphasis added)

The underlined portion of the guidelines is referred to as the "residual clause," and it was the source of much confusion and disagreement in various courts before the guidelines were revised.

The Two-Prong Test to Define a Crime of Violence

The 2015 sentencing guidelines' definition of "crime of violence" did not specifically include assault inflicting serious bodily injury, the crime Thompson was previously convicted of. If a crime isn't specifically enumerated (or listed) in the sentencing guidelines, a court uses a two-prong test to determine whether a particular crime meets the definition of "crime of violence."

The Court asks two questions:

  • Was the crime similar in kind to crimes of violence listed in the sentencing guidelines?
  • Did the crime carry the same degree of risk as the crimes of violence listed in the sentencing guidelines?

The Appeals Court found that the answer to both those questions was yes, in Thompson's case. Therefore, assault inflicting serious bodily injury was a "crime of violence," and Thompson's increased sentence was permissible under the federal sentencing guidelines.

Interestingly, the Appeals Court's analysis in United States v. Thompson focused on the residual clause in the federal sentencing guidelines. That clause has since been removed. However, because Thompson was convicted prior to the guidelines changing, the Appeals Court used the old version of the sentencing guidelines to analyze his case.

Current Federal Guidelines for "Crimes of Violence"

The revised federal sentencing guidelines now define a crime of violence as:

… 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 murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm… (emphasis added).

The list of violent crimes in the underlined portion above is now more detailed, and the vague residual clause that affected Thompson has been removed. The United States Sentencing Commission recommended these changes to the sentencing guidelines based on feedback from judges, probation officers, and litigants that the guidelines were vague and confusing.

So what does all of that mean for your sentence, if you already have a prior conviction? The short answer is: a previous conviction for a crime of violence--such as assault--in North Carolina can increase sentencing for subsequent convictions.

Even if the previous crime is not included in the now-more-detailed violent crime list, the courts can still apply the two-prong test to determine if a previous crime was a "crime of violence."

About the Author

Josh Valentine

All through my life, I have personally witnessed family members and very close friends endure divorce, child custody battles, bankruptcy, civil lawsuits and even fraudulent criminal accusations. I both saw and experienced the stress such events can place on an individual, and I realized that everyone, at some point in their life, needs hope, comfort, and encouragement. In each one of those situations, the person that was best situated to provide that vital support was their lawyer.  So that's why I became an attorney.  I understand what you are going through—and I'm here to help you.  Our office is focused on meeting your needs and guiding you through what may be the most difficult time of your life. Before attending law school, I worked for a law firm focused on record clearing services, including expungements, pardons, and motions for appropriate relief.  The vast experience and understanding of North Carolina's expungement laws that I have acquired has given me an advantage in defending criminal charges, because not only do I fight for the best possible outcome in your case, but I am also continually conscious of the long term effects that a criminal charge or conviction can have on a person's life.  As such, I will do whatever I can to insure that my clients will not end up with a criminal record.  I was born in New London, Connecticut, but spent the first few years of my life in Dallas, Texas, before moving to Rutherfordton, North Carolina in 2001.  Upon graduating from high school, I attended Gardner-Webb University in Boiling Springs, North Carolina, where I majored in Accounting.  Eager to finish school, I began law school at Charlotte School of Law the day of my graduation from GWU, and completed my law degree in two years (instead of the typical three). During law school, I studied hard and strived to acquire the most experience possible so that I would be practice ready upon graduation.  The opportunities I gained included prosecuting criminal defendants through an externship with the Burke County District Attorney's Office, defending criminal defendants through Charlotte School of Law's Criminal Justice Clinic, and interning with Farmer & Morris, PLLC. I am blessed with a beautiful wife, Gabrielle Valentine, who is an attorney at Farmer & Morris, PLLC, in Rutherfordton, North Carolina.  In my free time, I enjoy helping with the youth group in my church, playing basketball and softball in our local church leagues, serving in the prison ministry, and spending time with my family.  Education: Charlotte School of Law J.D., Magna Cum Laude Class Rank – 21 of 328 Associate Editor of Charlotte School of Law Law Review Certification and Concentration in Employment Law Phi Delta Phi International Legal Honor Society Order of the Crown Pro Bono Honors CALI Awards (Highest Grade)—Lawyering Process I and Contracts I Full Scholarship Gardner-Webb University B.S. in Accounting, Summa Cum Laude Distinguished Senior Student Award – Highest GPA Alpha Sigma Lambda National Honorary Society Bar Admissions: North Carolina State Bar

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