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

Posted by Josh Valentine | Dec 14, 2017

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

You could say Josh has a God-given ability for sustaining long-term relationships. He and his wife first met in elementary school and went to Gardner Webb University (GWU) together, where they tied for number 1 in their class. Then, they both started law school on the same day of their graduation and got married during their first semester. He has also known his law partner Blake Caulder since Kindergarten. Theirs is the perfect partnership. “He’s the brake; I am the accelerator,” Josh says. Both Josh and his wife attended an innovative program at Charlotte Law School that allowed them to complete law school in two years instead of the typical three. His wife graduated and passed the North Carolina bar at age 20, becoming one of the youngest attorneys in the state. He readily admits she’s smarter than him. Of course, Josh went on to pass the North Carolina State Bar himself and later the South Carolina State Bar. While in school, he was Associate Editor of the Law Review and received accolades like Phi Delta Phi International Legal Honor Society membership, Order of the Crown, Pro Bono Honors, CALI Awards (highest grade). In his career as a lawyer, he has been admitted to the United States Federal Court for the Western District of North Carolina, is a member of the American Association of Premier DUI Attorneys, and completed training for DWI Detection & Standardized Field Sobriety Testing. Josh has also been named to the Top 40 Under 40 for Criminal Defense by The National Trial Lawyers, the Business North Carolina 2019 Legal Elite for Criminal Defense, and the 10 Best Attorneys for Client Satisfaction by the American Institute of Criminal Law Attorneys three years in a row (2016, 2017, and 2018). Community involvement has been important to Josh all his life. In high school, he participated in building a Holocaust museum that has become internationally regarded. He and his wife are actively engaged in animal rescue, which currently means seven cats and two kittens. He served in prison ministry and assisted with fundraiser banquets there, and he provides pro bono and reduced fee legal services to those in need. As if all of that weren’t enough, Josh also mentors high risk youth and helps with his church’s youth group. He participates in other community volunteer projects involving construction, remodeling, drywall, painting, and landscaping. He’s an active student of the Bible and has traveled to Israel, Brazil, and Europe for mission work. No one can say Josh isn’t a well-rounded individual. In his spare time, he likes to play softball, basketball, and tennis, and he can play the piano and trombone. Sometimes on weekends, believe it or not, he enjoys pouring and finishing concrete with friends who own a concrete and grading business. In his law practice, Josh has made it a point to develop positive relationships with officers, clerks, and district attorneys, which has proven invaluable in delivering positive results for his clients. It’s important to him to both listen to his clients and fight for them. Law enforcement officers have important responsibilities to keep our communities safe and uphold the law, but one of the responsibilities of attorneys is to make sure officers do their job correctly. Josh considers it his job to hold them accountable for their actions. Josh is a person of deep faith. He knows that the established order of our universe and strength of America’s Judeo-Christian influenced court system is built on God’s word. His passion to serve each client with innovation, excellence and integrity is a byproduct of his faith. When asked why he became a lawyer, Josh says, “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 who 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.” 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