It has taken me some extra time to post about the Fourth Circuit’s en banc decision earlier this week in United States v. Vann because it has taken me a long time to get through the 100 pages of opinions. The issue in the case is whether a certain individual’s three convictions under North Carolina’s indecent liberties statute qualify as convictions for a “violent felony” under 18 U.S.C. § 924(e)(2), thereby triggering a mandatory minimum sentence under the federal Armed Career Criminal Act (“ACCA”). The short answer, for this defendant, is no. But whether any convictions for violating the indecent liberties statute can qualify as a “violent felony” in some other case remains unclear. (The write-ups by Jonathan Byrne at Fourth Circuit Blog and Matt Kaiser at his law firm’s blog provide a helpful overview of the opinions and issues.)
The simplest way of understanding the en banc decision, at one level, is in relation to the vacated panel opinion. Judge Niemeyer authored that split decision, which Judge Shedd joined. Judge King dissented. The panel opinion had affirmed the application of the ACCA 15-year mandatory minimum.
The en banc court consisted of twelve judges: Chief Judge Traxler, and Judges Wilkinson, Niemeyer, Motz, King, Gregory, Shedd, Agee, Davis, Keenan, Wynn, and Diaz. (Judge Duncan did not participate and Judge Floyd was not yet on the court.) By a 10-2 vote, the en banc court voted to vacate the sentence. The only two judges supporting the panel opinion are the two judges who joined it initially (Judges Niemeyer and Shedd). But the other 10 judges on the en banc court split 5-4-1 on their reasoning.
To understand the split in the opinions, one must understand the difference between two approaches to determining whether a particular state conviction constitutes a “violent felony” under the “residual clause” in the federal ACCA sentence enhancer. The categorical approach provides a categorical “yes” or “no” answer to the question whether conviction for a particular state-law offense constitutes a “violent felony.” Courts look solely to the existence of the conviction for an offense and the elements of the offense. The modified categorical approach applies for offenses that encompass distinct categories of behavior, at least one of which is a violent felony. When a court uses the modified categorical approach, it can rely on a limited set of court documents (known as Shepard documents for the Supreme Court decision that shapes the category of approved documents) to determine whether the offense of conviction is a “violent felony.” (Not only is this description abstract, it also oversimplifies. But it will have to do for present purposes. Read the relevant cases for more detail if you like.)
To understand the split in the en banc court opinions, one must also understand North Carolina’s indecent liberties statute. The relevant statutory language provides as follows:
(a) A person is guilty of taking indecent liberties with children if, being 16 years of age or more and at least five years older than the child in question, he either:
(1) Willfully takes or attempts to take any immoral, improper, or indecent liberties with any child of either sex under the age of 16 years for the purpose of arousing or gratifying sexual desire; or
(2) Willfully commits or attempts to commit any lewd or lascivious act upon or with the body or any part or member of the body of any child of either sex under the age of 16 years.
N.C. Gen. Stat. § 14-202.1(a).
The various opinions in the en banc decision in Vann disagree about whether this statute sets forth two different offenses (in subsection (a)(1) and subsection (a)(2)) and whether a conviction for violating this statute should be analyzed under the categorical approach or the modified categorical approach.
The controlling opinion is a per curiam opinion joined by nine judges (Chief Judge Traxler, and Judges Motz, King, Gregory, Agee, Davis, Keenan, Wynn, and Diaz). That opinion proceeds on the basis of two assumptions: (1) that the “modified categorical approach” applies, and (2) that a violation of subsection (a)(2) is a “violent felony.” With these assumptions in place, the per curiam opinion holds that the Shepard-approved charging documents do not establish that Vann necessarily pleaded guilty to a violation of subsection (a)(2). The per curiam opinion rejects Judge Niemeyer’s theory that “because Vann’s indecent liberties convictions arose from guilty pleas to conjunctively drawn indictments tracking the language of both (a)(1) and (a)(2), Vann necessarily pleaded guilty to violating both of those subsections.”
Because the per curiam opinion rests on two assumptions, the precedential value of the per curiam opinion is unclear. In particular, the various opinions joust over whether the decision establishes that the modified categorical approach applies to convictions under North Carolina’s indecent liberties statute.
Judge Keenan authored an opinion, joined by Chief Judge Traxler and Judges Agee, Wynn, and Diaz, contending for application of the modified categorical approach. As a five-judge opinion, this opinion is not sufficient on its own to establish the modified categorical approach.
Judge Wilkinson wrote a solo opinion also endorsing application of the modified categorical approach. Combined with Judge Keenan’s opinion, this now supplies six votes for the modified categorical approach–one vote short of a majority of the participating judges.
Judge Niemeyer’s opinion, joined by Judge Shedd, also asserts that the modified categorical approach applies. This opinion is styled as “concurring in part and dissenting in part.” Judge Niemeyer writes:
I concur in those portions of the judgment holding that the modified categorical approach may be used in this case and concluding that a violation of N.C. Gen. Stat. § 14-202.1(a)(2) constitutes a violent felony under ACC, and I dissent from the judgment insofar as it holds that the Shepard-approved documents in this case do not justify a determination that Vann pleaded guilty to violations of subsection (a)(2) of the statute.
If Judge Niemeyer’s opinion about the application of the modified categorical approach can be aggregated with the opinions expressed in Judge Keenan’s opinion and Judge Wilkinson’s opinion, then an en banc majority has established the modified categorical approach as applicable to convictions under North Carolina’s indecent liberties statute. Judge Niemeyer’s opinion argues that the votes can be combined in this way (see footnote 1 of his opinion).
The remaining four judges for this en banc sitting would hold that the categorical approach applies. Judge King’s opinion, joined by Judges Motz, Gregory, and Davis, argues for this approach. Judge King further argues that the combination of various opinions suggested by Judge Niemeyer is impermissible. This explanation is worth quoting in full, for it captures the essence of the dispute over vote aggregation:
My good friend Judge Niemeyer denominates his opinion as “concurring in part and dissenting in part,” but it is rather amorphous what that nomenclature means. Judge Niemeyer is certainly dissenting from the en banc judgment vacating Vann’s sentence and remanding for resentencing, however, and he does not concur in either the per curiam opinion of the en banc majority or any of the Court’s several other opinions. The judgment of the Court to vacate and remand is unitary, and may not be parsed as Judge Niemeyer suggests, post at 67-68 & nn. 1-2, though various judges supporting the judgment may express through separate opinions different reasons for so doing, and may even agree with judges opposed to the judgment as to constituent propositions or conclusions short of the ultimate issue. See Fed. R. App. P. 36 (specifying that clerk enters “judgment” upon receiving court’s conceptually distinct “opinion” or instructions); Fed. R. App. P. 41(a) (defining court’s mandate as comprised of, inter alia, “a certified copy of the judgment [and] a copy of the court’s opinion, if any”). Thus, although Judge Niemeyer might accurately predict, post at 68 n.2, that a majority of this Court, in a hypothetical future case, would somehow conclude a properly proved violation of subsection (a)(2) to be an ACCA violent felony, there is certainly no majority consensus emanating from our decision today as to why that may be so.
It will be interesting to see what future panels do with this dispute.
Given the way that the per curiam en banc majority decided the case, I am inclined to the view that the opinions establish nothing binding about how to approach this analysis in the future. If that is right, this en banc decision has accomplished precisely the opposite of what en banc review is intended to accomplish. True, the decision may have unseated the panel opinion’s modified categorical approach (which would otherwise have remained as law of the circuit), but the way that it has done so indicates that the Fourth Circuit is likely to revert to that approach going forward.