UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 16-4403

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ELBERT BENJAMIN BELL,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at 

Charlotte. Max O. Cogburn, Jr., District Judge. (3:15-cr-00294-MOC-DSC-1)

Submitted: October 31, 2017 Decided: November 29, 2017

Before MOTZ and FLOYD, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Ross Hall Richardson, Interim Defender, Joshua B. Carpenter, FEDERAL PUBLIC 

DEFENDER FOR THE WESTERN OF NORTH CAROLINA, Asheville, North Carolina, 

for Appellant. Jill Westmoreland Rose, United States Attorney, Amy E. Ray, Assistant 

United States Attorney, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Elbert Benjamin Bell appeals his sentence imposed by the district court after his 

guilty plea to possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1) 

(2012). Bell argues that the district court erred in determining that North Carolina seconddegree murder is a crime of violence under U.S. Sentencing Guidelines Manual

§ 2K2.1(a)(4)(A) (2015), as that term is defined in USSG § 4B1.2(a).* We affirm.

When a person is sentenced for unlawfully possessing a firearm, the base offense 

level is 20 if “the defendant committed any part of the instant offense subsequent to 

sustaining one felony conviction of either a crime of violence or a controlled substance 

offense.” USSG § 2K2.1(a)(4)(A). At the time the district court sentenced Bell, the 

Guidelines defined “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.

 * The district court sentenced Bell in June 2016. The Sentencing Commission 

subsequently amended § 4B1.2(a)(2), effective August 1, 2016, to remove the residual 

clause from the “crime of violence” definition and to include murder and voluntary 

manslaughter, among other offenses, in the text of the Sentencing Guidelines rather than 

in the commentary. See Beckles v. United States, 137 S. Ct. 886, 897 (2017) (Ginsburg, J., 

concurring in the judgment) (“Harmonious with federal law and the text of § 4B1.2(a), that 

commentary was authoritative.” (internal quotation marks omitted)).
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USSG § 4B1.2(a). Because Bell objected to the district court’s conclusion that his 

conviction qualified as a crime of violence, we review the classification de novo. United 

States v. Carthorne, 726 F.3d 503, 509 (4th Cir. 2013). We use the categorical approach

to determine whether a prior state conviction constitutes a crime of violence under § 4B1.2.

United States v. Mack, 855 F.3d 581, 585-86 (4th Cir. 2017). “Under the categorical 

approach, the sentencing court must look only to the statutory definitions of the prior 

offenses and may not look to the particular facts underlying those convictions.” United 

States v. Flores-Granados, 783 F.3d 487, 491 (4th Cir. 2015) (alteration and internal 

quotation marks omitted).

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) (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.” In re Irby, 858 F.3d 231, 235 (4th Cir. 2017) (internal quotation marks omitted). 

“[F]orce,” as used in the force clause, means “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 qualifies as a crime of violence under § 4B1.2(a).

Accordingly, we affirm the district court’s judgment. We dispense with oral 

argument because the facts and legal contentions are adequately presented in the materials 

before this court and argument would not aid the decisional process.

AFFIRMED