UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 02-4192

WILLIAM TUCKER JEFFCOAT,

Defendant-Appellant. 

Appeal from the United States District Court

for the Western District of North Carolina, at Asheville.

Lacy H. Thornburg, District Judge.

(CR-01-7)

Argued: February 28, 2003

Decided: April 17, 2003

Before WILLIAMS, GREGORY, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion. 

COUNSEL

ARGUED: Eric Jason Foster, LAW OFFICE OF RICK FOSTER,

Asheville, North Carolina, for Appellant. Richard Lee Edwards,

Assistant United States Attorney, Asheville, North Carolina, for

Appellee. ON BRIEF: Robert J. Conrad, Jr., United States Attorney,

Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

William Tucker Jeffcoat appeals his sentence for the interstate

transportation of a stolen firearm, motor vehicle, and credit card. The

district court, after determining that Jeffcoat’s two prior convictions

under S.C. Code Ann. § 16-15-140 (Law. Co-op. 1995) were crimes

of violence for the purposes of the United States Sentencing Guidelines § 2K2.1(a)(2) (2000), sentenced Jeffcoat to 105 months imprisonment. The issue on appeal is whether the district court properly

considered Jeffcoat’s prior convictions as crimes of violence under

the sentencing guidelines. Because we find that our precedent dictates

that Jeffcoat’s prior crimes be considered "crimes of violence" for

sentencing guidelines purposes, we affirm Jeffcoat’s sentence. 

I.

Jeffcoat pleaded guilty to interstate transportation of a stolen firearm, in violation of 18 U.S.C.A. § 922(i) (West 2000); interstate

transportation of a stolen motor vehicle, in violation of 18 U.S.C.A.

§ 2312 (West 2000); interstate transportation of a stolen credit card,

in violation of 18 U.S.C.A. § 1644(b) (West 2000); and possession of

a stolen motor vehicle, in violation of 18 U.S.C.A. § 13 (West 2000).

At Jeffcoat’s sentencing hearing, the district court concluded that Jeffcoat’s two prior South Carolina felony convictions for violations of

S.C. Code Ann. § 16-15-140, which prohibits committing, or attempting to commit, a lewd act upon a child under fourteen,1

 were "crimes

of violence" under the sentencing guidelines, which provides that the

base offense level for the unlawful interstate transportation of a stolen

1This section has since been amended making it illegal to commit such

an act upon a child under the age of sixteen. See State v. Brock, 516

S.E.2d 212, 214 n.2 (S.C. Ct. App. 1999) (citing S.C. Code Ann. § 16-

15-140 (Law. Co-op. 1998)). 

2 UNITED STATES v. JEFFCOAT
firearm is 24 "if the defendant had at least two prior felony convictions of either a crime of violence or a controlled substance offense."

U.S.S.G. § 2K2.1(a)(2) (2000). The district court then sentenced Jeffcoat to 105 months imprisonment. Jeffcoat now appeals the district

court’s characterization of his prior convictions as "crimes of violence." 

II.

In this case we must resolve the issue of whether a violation of S.C.

Code Ann. § 16-15-140 is a "crime of violence" for purposes of

U.S.S.G. § 2K2.1(a)(2). Whether a state offense is a "crime of violence" under the sentencing guidelines is a question of law that we

review de novo. United States v. Pierce, 278 F.3d 282, 286 (4th Cir.

2002). 

A "crime of violence," for purposes of U.S.S.G. § 2K2.1(a)(2), is

defined in U.S.S.G. § 4B1.2(a). See U.S.S.G. § 2K2.1 cmt. n.5. Section 4B1.2(a) defines the term "crime of violence" as follows: 

[A]ny 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.

U.S.S.G. § 4B1.2(a). The commentary to § 4B1.2(a) further describes

the term:

"Crime of violence" includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery,

arson, extortion, extortionate extension of credit, and burglary of a dwelling. Other offenses are included as "crimes

of violence" if (A) that offense has as an element the use,

attempted use, or threatened use of physical force against

UNITED STATES v. JEFFCOAT 3
the person of another, or (B) the conduct set forth (i.e.,

expressly charged) in the count of which the defendant was

convicted . . ., by its nature, presented a serious potential

risk of physical injury to another. 

U.S.S.G. § 4B1.2 cmt. n.1. 

While "the question of whether an offense is a crime of violence

is a question of federal law, because the federal law includes the possibility that a predicate offense may be a prior violation of state law,

in considering such an offense, we look to state law to determine its

nature and whether its violation is a crime of violence under federal

law." Pierce, 278 F.3d at 286 (internal citation omitted). To make the

determination, we apply the "categorical approach:" We analyze

"only the definition of the offense," to determine "the nature of the

offense" for federal purposes. Id. at 286. That is, we look to state law

only to determine what the elements of the offense are, the ways in

which the crime may be committed, and the dangers that may arise

from the commission of the offense. We then consider those factors

in determining whether the offense meets the federal definition of a

"crime of violence." Id. at 287 ("[W]e look to state law to understand

whether a conviction under state law amounts to a crime of violence

as defined by federal law." (emphasis added)).2

2

Jeffcoat argues that South Carolina’s characterization of the offense

should control how we characterize it for sentencing guidelines purposes,

and that he was erroneously sentenced because South Carolina explicitly

considers violations of § 16-15-140 to be nonviolent offenses. See S.C.

Code Ann. § 16-1-60 (Law. Co-op. 2000) (listing violent crimes under

South Carolina law, without mentioning § 16-15-140, and providing that

"only those offenses specifically enumerated in this section are considered violent offenses"); see also S.C. Code Ann. § 16-1-70 (Law. Co-op.

2000) ("For purposes of South Carolina law a nonviolent crime is all

offenses not enumerated in § 16-1-60."). The label placed upon the crime

by South Carolina, however, is not relevant. See Taylor v. United States,

495 U.S. 575, 590 (1990) (noting that elements of state offenses are

determinative regardless of technical definitions and labels under state

law); United States v. Raynor, 939 F.2d 191, 195 (4th Cir. 1991) (holding that a state’s characterization of an offense as a "felony" or a "misdemeanor" is irrelevant to whether the offense meets the federal definition

4 UNITED STATES v. JEFFCOAT
The South Carolina statute at issue, § 16-15-140, provides: 

It is unlawful for a person over the age of fourteen years to

wilfully and lewdly commit or attempt a lewd or lascivious

act upon or with the body, or its parts, of a child under the

age of fourteen years, with the intent of arousing, appealing

to, or gratifying the lust or passions or sexual desires of the

person or of the child. 

Thus, § 16-15-140 requires touching or a threat of physical contact

"with the intent of appealing to the lust or passions" of the perpetrator. State v. Norton, 332 S.E.2d 531, 533 (S.C. 1985). The Supreme

Court of South Carolina’s interpretation of § 16-15-140 as describing

child molestation, see State v. Hardee, 308 S.E.2d 521, 524 (S.C.

1983) ("The disjunctive phrases in [§ 16-15-140] are merely descriptive of the offensive act, child molesting."), demonstrates that the statute was intended to protect children, "the most vulnerable members

of our society," Pierce, 278 F.3d at 288, from physical injury. Moreover, all South Carolina case law interpreting § 16-15-140 involves

sexual touching or physical contact. See Norton, 332 S.E.2d at 532

(committing a lewd act upon a minor); Hardee, 308 S.E.2d at 525

(touching minor’s private parts); State v. McFarlane, 306 S.E.2d 611,

612 (S.C. 1983) (fondling ten-year-old girl); State v. Brock, 516

S.E.2d 212, 213 (S.C. Ct. App. 1999) (touching nine-year-old girl’s

private parts); State v. Sprouse, 478 S.E.2d 871, 873 (S.C. Ct. App.

1996) (committing lewd act upon eight-year-old daughter); South

Carolina Dep’t of Social Services v. Forrester, 320 S.E.2d 39 (S.C.

Ct. App. 1984) (sexually molesting twelve-year-old and eight-yearold nieces). 

of those terms); see also United States v. Sacko, 247 F.3d 21, 25 (1st Cir.

2001) (noting that "because a state’s classification of a crime generally

reflects different policy considerations than the federal classification, it

is simply not relevant to the determination of whether a crime is a ‘violent felony’" under federal law); United States v. Baskin, 886 F.2d 383,

389 (D.C. Cir. 1989) (holding that a state offense is a crime of violence

if it meets the sentencing guidelines’ definition regardless of how the

state may characterize the crime for its own purposes). 

UNITED STATES v. JEFFCOAT 5
In Pierce, we addressed whether sex offenses involving minors

under North Carolina’s indecent liberties statute, N.C. Gen. Stat.

§ 14-202.1 (2000),3 are "crimes of violence." The defendant in Pierce

was convicted of bank robbery and sentenced as a career offender

under U.S.S.G. § 4B1.1 on the ground that he had two prior felony

convictions for crimes of violence, as defined in U.S.S.G. § 4B1.2.

One of these convictions was for violating North Carolina’s indecent

liberties statute. Pierce, 278 F.3d at 284. Pierce argued on appeal that

because the statutory language defining the offense did not require

physical force or touching, his conviction was not a "crime of violence" for sentencing guidelines purposes. Analyzing this claim, we

first noted that North Carolina’s indecent liberties statute was enacted

to protect children from "sexual abuse, a particularly pernicious form

of personal injury," and requires neither physical force nor touching.

Id. at 287. We further noted, however, that the sentencing guidelines

provide a broad definition of "crimes of violence," including not only

crimes that actually cause physical injury but also those that by their

nature, "could cause physical injury." Id. (citation omitted). The North

Carolina indecent liberties offense, like arson, burglary of a dwelling,

attempted breaking and entering of a dwelling, escape from custody,

and attempted escape (none of which requires physical harm or a

touching), involves "conduct that inherently presents a risk of physical injury." Id. at 289. Like those crimes, we held, a violation of the

North Carolina indecent liberties statute is categorically a crime of

violence. Id. at 289.4

3Section 14-202.1(a) (2000) states: 

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. 

4Alternatively, we held that a violation of the indecent liberties statute

is a crime of violence because the statute also protects against a "forcible

sex offense," which is specifically listed as a crime of violence under

U.S.S.G. § 4B1.2 cmt. n.1. Pierce, 278 F.3d at 289 (noting that the North

Carolina courts have consistently held that constructive force may be

inferred in sexual abuse cases involving children). 

6 UNITED STATES v. JEFFCOAT
Section 16-15-140 is nearly identical to the North Carolina indecent liberties statute at issue in Pierce. Like the North Carolina statute, the statute at issue here protects against conduct that presents a

"serious potential risk of physical injury" — sexual abuse of minors.

See Pierce, 278 F.3d at 288 (noting that "the statute is written in

broad terms as part of its specific design to protect against the heightened risk of injury that comes when impressionable children are the

victims"). Further, whereas the statute at issue in Pierce was applied

to situations in which there was no touching or threat of physical contact, the South Carolina statute has only been applied in cases in

which there was physical contact. The proposition that the crimes at

issue here are "crimes of violence" is thus even stronger than it was

in Pierce. Accordingly, we conclude that our decision in Pierce controls the outcome of this case. Because a violation of § 16-15-140

"presents a serious risk of physical injury to another," it constitutes

a "crime of violence" for sentencing guidelines purposes.5

III.

For the foregoing reasons, we affirm Jeffcoat’s sentence. 

AFFIRMED

5

Jeffcoat asserts that, unlike the North Carolina courts’ construction of

the state’s indecent liberties statute, the South Carolina courts do not

have a history of applying the doctrine of "constructive force" to offenses

under § 16-15-140, and thus his violation of § 16-15-140 is not a "crime

of violence" because it is not a "forcible sex offense." Because either

aspect of the definition of a "crime of violence" satisfies the sentencing

guidelines, and because we previously determined that Jeffcoat’s conviction under § 16-15-140 involves a serious risk of injury to another, we

need not address Jeffcoat’s contention that a violation of § 16-15-140 is

not a forcible sex offense. 

UNITED STATES v. JEFFCOAT 7