PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 09-4298

TORRELL CHUVALA VANN,

Defendant-Appellant. 

Appeal from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

Terrence W. Boyle, District Judge.

(7:08-cr-00098-BO-1)

Argued: January 27, 2010

Decided: September 24, 2010

Before NIEMEYER, KING, and SHEDD, Circuit Judges.

Affirmed by published opinion. Judge Niemeyer wrote the

majority opinion, in which Judge Shedd joined. Judge King

wrote a dissenting opinion.

COUNSEL

ARGUED: Eric Joseph Brignac, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for

Appellant. Clay C. Wheeler, OFFICE OF THE UNITED

STATES ATTORNEY, Raleigh, North Carolina, for AppelRehearing en banc granted, January 6, 2011
lee. ON BRIEF: Thomas P. McNamara, Federal Public

Defender, G. Alan DuBois, Assistant Federal Public

Defender, OFFICE OF THE FEDERAL PUBLIC

DEFENDER, Raleigh, North Carolina, for Appellant. George

E. B. Holding, United States Attorney, Raleigh, North Carolina, for Appellee.

OPINION

NIEMEYER, Circuit Judge:

This appeal presents the question whether Torrell Vann’s

sentence for possessing a firearm, in violation of 18 U.S.C.

§ 922(g), was properly enhanced under the Armed Career

Criminal Act ("ACCA"), 18 U.S.C. § 924(e), based on three

previous convictions in North Carolina for taking indecent

liberties with a child, in violation of N.C. Gen. Stat. § 14-

202.1. To constitute a predicate offense under ACCA, a conviction must be either for a "serious drug offense" or for a "violent felony," as defined in § 924(e)(2)(B) and interpreted by

Begay v. United States, 553 U.S. 137 (2008). The district

court relied on the North Carolina convictions to enhance

Vann’s sentence, and Vann challenges this ruling on appeal.

Because North Carolina’s indecent liberties statute encompasses at least two separate crimes, we employ the modified

categorical approach articulated in Taylor v. United States,

495 U.S. 575 (1990), and Shepard v. United States, 544 U.S.

13 (2005), and conclude (1) that Vann’s three prior convictions were based on his taking indecent liberties with a child

by willfully committing a lewd or lascivious act upon the body

of a child under the age of 16 and (2) that, as so formulated,

his convictions were for violent felonies that serve as predicate offenses under ACCA. Accordingly, we affirm.

I

In the early morning hours of January 20, 2008, officers in

Lumberton, North Carolina, responded to a 911 call from an

2 UNITED STATES v. VANN
ex-girlfriend of Torrell Vann, complaining that Vann was

insisting that he be let inside her house. By the time officers

arrived, however, Vann had left. About an hour later, Vann

returned and entered the ex-girlfriend’s house through an

unlocked back door. When the ex-girlfriend asked him to

leave, Vann pulled out a pistol, put it to his head, and threatened to kill himself if she would not talk to him. Although

Vann put the weapon away when the ex-girlfriend became

upset and eventually left the residence, the ex-girlfriend again

called the police. A short time later, officers stopped Vann’s

vehicle, finding that his speech was slurred, his license had

been suspended, and he was in possession of a Bersa .380 pistol and ammunition.

Vann was charged with being a felon in possession of a

firearm, in violation of 18 U.S.C. § 922(g)(1), and the indictment included the allegation that Vann had three previous

convictions for "violent felonies," as defined in 18 U.S.C.

§ 924(e)(2)(B). Vann pleaded guilty to the charge pursuant to

a written plea agreement.

In the presentence report, the probation officer found that

Vann qualified as an armed career criminal under ACCA

based on his three previous North Carolina convictions for

taking indecent liberties with a child, in violation of N.C.

Gen. Stat. § 14-202.1. Taking into account the ACCA

enhancement, the probation officer calculated Vann’s sentencing range under the Sentencing Guidelines as 180 to 210

months’ imprisonment, with a mandatory minimum sentence

of 180 months’ imprisonment.

Vann objected to being classified as an armed career criminal, arguing that under Begay and United States v. Thornton,

554 F.3d 443 (4th Cir. 2009) (holding that Virginia’s carnal

knowledge offense is not a violent felony under ACCA), his

indecent liberties convictions were not for violent felonies for

purposes of ACCA. The government argued that the issue was

essentially controlled by United States v. Pierce, 278 F.3d 282

UNITED STATES v. VANN 3
(4th Cir. 2002) (holding that the offense of taking indecent

liberties with a child, in violation of N.C. Gen. Stat. § 14-

202.1, was a "crime of violence" for purposes of the careeroffender enhancement under U.S.S.G. §§ 4B1.1, 4B1.2(a)).

The district court overruled Vann’s objection, applied an

enhancement under ACCA, and sentenced Vann to 180

months’ imprisonment. This appeal followed.

II

A violation of 18 U.S.C. § 922(g) ordinarily carries a maximum sentence of 10 years’ imprisonment. 18 U.S.C.

§ 924(a)(2). But ACCA provides a sentencing enhancement

based on the defendant’s criminal history, providing that a

person who has "three previous convictions . . . for a violent

felony or a serious drug offense, or both, committed on occasions different from one another" must be sentenced to at least

15 years’ imprisonment. Id. § 924(e)(1). The Act defines a

"violent felony" as "any crime punishable by imprisonment

for a term exceeding one year" that:

(i) has as an element the use, attempted use, or

threatened use of physical force against the person of

another; or

(ii) is burglary, arson, or extortion, involves use of

explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to

another[.]

Id. § 924(e)(2)(B).

The government contends that Vann’s three prior convictions for taking indecent liberties with a child, in violation of

N.C. Gen. Stat. § 14-202.1, are convictions for violent felonies within the meaning of ACCA, relying on our decision in

Pierce, which held that a violation of the North Carolina inde4 UNITED STATES v. VANN
cent liberties statute categorically constitutes a "crime of violence," as that term is defined in the context of the Sentencing

Guidelines’ career-offender enhancement. See Pierce, 278

F.3d at 284. In Pierce, we found that the offense prohibited

by the North Carolina statute involved conduct that, "‘by its

nature, present[s] a serious potential risk of physical injury to

another,’" id. at 286 (quoting U.S.S.G. § 4B1.2, cmt. n.1), and

also that the offense qualified as a "forcible sex offense"—

which the Sentencing Guidelines’ application notes explicitly

list as a "crime of violence," see U.S.S.G. § 4B1.2, cmt. n.1—

because "[t]he North Carolina courts have consistently held

that constructive force may be inferred in sexual abuse cases

involving children," 278 F.3d at 289. The government argues

that Pierce’s holding, even though made in the context of the

Sentencing Guidelines, nonetheless requires us to find that the

North Carolina crime "has as an element the use, attempted

use, or threatened use of physical force against the person of

another," making it a violent felony under ACCA. 18 U.S.C.

§ 924(e)(2)(B)(i). The government also maintains that the

offense qualifies as a violent felony because, as Pierce recognized, it "involves conduct that presents a serious potential

risk of physical injury to another," which is an alternative definition of a violent felony under ACCA. Id. § 924(e)(2)(B)(ii).

In contrast, Vann asserts that Pierce has been effectively

overruled by the Supreme Court’s holding in Begay that

§ 924(e)(2)(B)(ii) does not cover "every crime that presents a

serious potential risk of physical injury to another," but only

those "that are roughly similar, in kind as well as in degree of

risk posed, to the examples" included in the definition of "violent felony"—namely, burglary, arson, extortion, and crimes

involving the use of explosives. Begay, 553 U.S. at 142-43

(internal quotation marks omitted). Vann contends further that

holdings by North Carolina courts that a defendant need not

touch the victim or, indeed, even be in the actual presence of

the victim to violate the statute demonstrate that the taking

indecent liberties offense does not have "as an element the

use, attempted use, or threatened use of physical force against

UNITED STATES v. VANN 5
the person of another." 18 U.S.C. § 924(e)(2)(B)(i). Vann also

argues that we should be guided by Thornton, a post-Begay

decision, in which we held that Virginia’s carnal knowledge

offense—which makes it a crime to "carnally know[ ], without the use of force," a child who is between 13 and 15 years

old—is not a "violent felony" under ACCA. See Thornton,

554 F.3d at 444 (quoting Va. Code Ann. § 18.2-63).

The issue thus framed is whether a violation of North Carolina’s indecent liberties statute is a "violent felony," as

defined in § 924(e)(2)(B) and interpreted by Begay.

To make that determination, ACCA requires application of

a categorical approach by which the elements of the statute of

conviction, not the facts supporting conviction, are evaluated

to determine whether the crime qualifies as a predicate

offense under ACCA. See Taylor v. United States, 495 U.S.

575, 599-602 (1990); Chambers v. United States, 129 S. Ct.

687, 690 (2009) ("[ACCA’s] defining language, read naturally, uses ‘felony’ to refer to a crime as generally committed.

And by so construing the statute, one avoids the practical difficulty of trying to ascertain at sentencing . . . whether the

present defendant’s prior crime, as committed on a particular

occasion, did or did not involve violent behavior"). The

Supreme Court first announced this principle in Taylor, holding that "the only plausible interpretation of [ACCA] is that

. . . it generally requires the trial court to look only to the fact

of conviction and the statutory definition of the prior offense."

495 U.S. at 602. The Court qualified this general principle,

however, by adding that the categorical approach may be

modified to "permit the sentencing court to go beyond the

mere fact of conviction in a narrow range of cases where a

jury was actually required to find all the elements of [a qualifying offense]" in order to convict the defendant. Id.

The full scope of this "modified categorical approach" was

refined in Shepard v. United States, 544 U.S. 13 (2005),

where the Court applied Taylor to convictions based on guilty

6 UNITED STATES v. VANN
pleas. The Court held that the Taylor-approved modification

to a strict categorical approach for identifying convictions for

predicate offenses was not limited to convictions obtained

through a jury trial. Id. at 19. Rather, for cases tried without

a jury, a sentencing court may also consider the "bench-trial

judge’s formal rulings of law and findings of fact" and, for

pleaded cases, the court may examine "the statement of factual basis for the charge, Fed. Rule Crim. Proc. 11(a)(3),

shown by a transcript of plea colloquy or by written plea

agreement presented to the court, or by a record of comparable findings of fact adopted by the defendant upon entering

the plea." Id. at 20.

In two recent cases, the Supreme Court has further clarified

the ACCA analysis by addressing how to determine whether

the statute under which the defendant was convicted is subject

to the modified categorical approach. See Chambers, 129 S.

Ct. at 690-91; Johnson v. United States, 130 S. Ct. 1265, 1273

(2010). Emphasizing that the "categorical approach requires

courts to choose the right category," Chambers recognized

that the statute of conviction may proscribe different kinds of

behavior, which, if sufficiently distinct, may constitute different crimes for ACCA purposes. 129 S. Ct. at 690. In Chambers, for example, the defendant had been convicted of a

statute that prohibited 

(1) escape from a penal institution, (2) escape from

the custody of an employee of a penal institution, (3)

failing to report to a penal institution, (4) failing to

report for periodic imprisonment, (5) failing to return

from furlough, (6) failing to return from work and

day release, and (7) failing to abide by the terms of

home confinement.

Id. at 691 (citing Ill. Comp. Stat., ch. 720, § 5/31-6(a)). The

Court held that statutory phrases (1) and (2), which prohibited

escape from custody, constituted a category of behavior distinct from the behavior prohibited in statutory phrases (3)-(6),

UNITED STATES v. VANN 7
all of which prohibited the similar form of behavior of failing

to report or to return to custody. Id. It therefore treated statutory phrases (1) and (2) as a single category and phrases (3)-

(6) as a single category, concluding that the statute of conviction should be treated "for ACCA purposes as containing at

least two separate crimes, namely escape from custody on the

one hand, and a failure to report on the other." Id. It also

observed that "[t]he behavior that likely underlies a failure to

report would seem less likely to involve a risk of physical

harm than the less passive, more aggressive behavior underlying an escape from custody." Id. Because the state-court information showed that Chambers had pleaded guilty to the

generic crime of failing to report, the Court concluded that his

conviction was not for an offense that satisfied ACCA’s definition of "violent felony." Id. at 691-93.

Similarly, in Johnson, the Supreme Court evaluated a conviction under Florida’s simple battery statute, which allowed

conviction if the prosecution proved "that the defendant

‘[i]ntentionally cause[ed] bodily harm,’ that he ‘intentionally

str[uck]’ the victim, or that he merely ‘[a]ctually and intentionally touche[d]’ the victim." 130 S. Ct. at 1269 (quoting

Fla. Stat. § 784.03(1)(a)). Because no Shepard-approved

material showed which type of battery resulted in Johnson’s

conviction, the Court held the conviction could not count as

an ACCA predicate because "the least of these acts"—

"[a]ctually and intentionally touch[ing]" another—was not a

violent felony under ACCA. Id. at 1269. The Court made

clear, however, that if Shepard-approved material had shown

the defendant’s battery conviction was based on the separate

crime of "intentionally caus[ing] bodily harm," then the conviction would have qualified the defendant for a sentencing

enhancement under ACCA. The Court explained:

When the law under which the defendant has been

convicted contains statutory phrases that cover several different generic crimes . . . the "modified categorical approach" that we have approved permits a

8 UNITED STATES v. VANN
court to determine which statutory phrase was the

basis for the conviction by consulting the trial record

—including charging documents, plea agreements,

transcripts of plea colloquies, findings of fact and

conclusions of law from a bench trial, and jury

instructions and verdict forms.

Id. at 1273 (internal citation omitted); see also United States

v. Rivers, 595 F.3d 558, 564 (4th Cir. 2010) (holding that it

is appropriate to apply the modified categorical approach

when "different types of behavior satisfy an element of the

offense and the proscribed behaviors constitute at least two

separate crimes for ACCA purposes"). Thus, we must begin

by examining the statute of conviction to determine whether

it covers more than one generic crime to ensure that we are

using "the right category." Chambers, 129 S. Ct. at 690.

The North Carolina statute criminalizing the taking of indecent liberties with children does in fact contain phrases that

cover two different generic crimes. One requires physical acts

against the body of a child, and the other does not. The statute

provides that a defendant who is "16 years of age or more and

at least five years older than the child in question" is guilty of

taking indecent liberties with the child if 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) (emphasis added). As interpreted by North Carolina courts, clause (1) of the statute is

broader than clause (2), prohibiting a wide range of criminally

UNITED STATES v. VANN 9
inappropriate behavior, such as "photographing an unclothed

child in a sexually suggestive position, masturbating in front

of a child, . . . secretly videotaping a child who was undressing," or engaging a child in sexually explicit telephone conversations. State v. Every, 578 S.E.2d 642, 648 (N.C. Ct. App.

2003) (citations omitted). Although clauses (1) and (2) overlap, clause (2) identifies and proscribes a narrower crime—

committing lewd or lascivious acts upon or with the body of

a child—that is conceptually separate and distinct from the

crimes covered by clause (1) and requires a physical act upon

or with the body of the victim. The statute thus covers at least

two categories of crimes for ACCA purposes—(1) offenses

based on the willful commission or attempted commission of

a lewd or lascivious act upon or with the body of a child (i.e.,

violations of § 14-202.1(a)(2)) and (2) all other indecent liberties offenses (i.e., conduct that violates § 14-202.1(a)(1) but

not (a)(2)). Accordingly, we may employ the modified categorical approach in this case to determine (1) whether the

record reveals which generic crime was the basis for Vann’s

convictions and (2) if so, whether that generic crime is a "violent felony," as defined by ACCA. See Johnson, 130 S. Ct. at

1273; Chambers, 129 S. Ct. at 691; Rivers, 595 F.3d at 564-

65; see also United States v. Woods, 576 F.3d 400, 405 (7th

Cir. 2009) (noting that the modified categorical approach

"may be used only to determine which crime within a statute

the defendant committed, not how he committed that crime")

(emphasis in original).1

1

In concluding that the modified categorical approach is not appropriate,

the dissent determines that violating North Carolina’s indecent liberties

statute constitutes a single offense, even though it also concedes that the

statute provides "disjunctively two alternative means of proving one element of the offense." Post at 24 (quoting Jones, 616 S.E.2d at 20). This

describes precisely the circumstance that allows for application of the

modified categorical approach. In Johnson, the Supreme Court considered

a statute that punishes the offense of "simple battery," the elements of

which required either "actually and intentionally touch[ing] another person" or "intentionally caus[ing] bodily harm to another person," stated in

the disjunctive. The Court noted that the single offense of simple battery

10 UNITED STATES v. VANN
In applying the modified categorical approach, we are, of

course, limited to considering "conclusive records made or

used in adjudicating [a defendant’s] guilt," which, when the

defendant pleads guilty, include "the terms of the charging

document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis

for the plea was confirmed by the defendant, or to some comparable judicial record of this information." Shepard, 544

U.S. at 21, 26.

Here, the only material in the record before the district

court was the presentence report, which provided the following description of the offense underlying Vann’s first indecent

liberties conviction:

According to the indictment, on December 17, 1991,

Vann willfully did take and attempt to take immoral,

improper, and indecent liberties with a child . . . for

the purpose of arousing and gratifying sexual desire

and did commit a lewd and lascivious act upon the

body of said child.

J.A. 51 (emphasis added).2 The presentence report indicated

could be violated by satisfaction of either one of the two disjunctive elements. See Johnson, 130 S. Ct. at 1269-70. Recognizing that a violation

of one of the disjunctive elements would not be considered a violent felony, the Court held that it was appropriate to employ the modified categorical approach "to determine which statutory phrase was the basis for

the conviction." Id. at 1273. 

As in Johnson, the North Carolina statute for indecent liberties has two

alternative elements, one of which, as we hold below, constitutes a violent

felony. Accordingly, we are permitted to apply the modified categorical

approach to determine which was the basis for the convictions. In this

case, that determination is made on the basis of Vann’s guilty pleas during

which he pleaded guilty to both elements of the offense as charged,

including the one that constitutes a violent felony. 

2The dissent reasons that because the charging document charges Vann

with a violation of both disjunctive elements of the North Carolina indeUNITED STATES v. VANN 11
that Vann pleaded guilty to this charge. Although the paragraphs of the presentence report describing Vann’s two other

indecent liberties convictions arising from conduct in July

1998 and August 1998, which were also obtained through

guilty pleas, simply state that they were based on "court

records," the descriptions of these offenses were materially

identical to the first, again tracking the statutory language,

and were therefore also undoubtedly based on the charging

documents. While Vann’s counsel refused to concede at oral

argument that we could properly rely on the presentence

report’s descriptions of the charging documents, we have previously recognized that a presentence report, to which the

defendant did not object, may be consulted to the extent that

its information is derived from Shepard-approved sources.

See United States v. Thompson, 421 F.3d 278, 285 (4th Cir.

2005) ("The trial judge was entitled to rely upon the PSR

because it bears the earmarks of derivation from Shepardapproved sources such as the indictments and state-court

judgments from his prior convictions, and, moreover, Thompson never raised the slightest objection either to the propriety

of its source material or to its accuracy"). Moreover, at our

request, Vann’s counsel has now provided us with copies of

the charging documents and judgments for the three convictions,3

 materials that confirm that Vann pleaded guilty three

cent liberties statute, it does not necessarily charge a violation of the element constituting a violent felony. Post at 28-30. But that argument misses

the point in the context of this case because Vann pleaded guilty to a violation of both elements thus admitting that he "did commit and attempt to

commit a lewd and lascivious act upon the body of" a named child under

the age of 16. When a defendant makes admissions supporting the conviction for a violent felony, the admissions may be relied on in lieu of the

facts inherent in the statutory offense. See Shepard, 544 U.S. at 19 (noting

that "guilty pleas may establish ACCA predicate offenses"); id. at 25 (plurality opinion); United States v. Alston, __ F.3d __, 2010 WL 2635796, at

*6 (4th Cir. July 2, 2010). 

3Although Vann’s counsel requested an opportunity to submit supplemental briefs on the question of whether we can consider state charging

documents not made part of the record in the district court, we conclude

12 UNITED STATES v. VANN
times to charges of committing, at separate times, a lewd and

lascivious act upon the body of a child. The December 1991

charging document included a statement that Vann 

did commit and attempt to commit a lewd and lascivious act upon the body of the child named below.

At the time of this offense, the child named below

was under the age of 16 years and the defendant

named above was over 16 years of age and at least

five years older than the child. The name of the child

is [SLH].

The July 1998 charging document included a somewhat more

detailed statement that Vann

did commit and attempt to commit a lewd and lascivious act upon [ENL], a child 13 years of age, the

defendant being more than six years older than the

child and was not lawfully married to the victim

. . . .

The August 1998 charging document included a statement

similar to that included in the July 1998 charging document

and named the same victim.

The dissent notes that these statements in the charging documents were included in each case with another statement that

Vann took "immoral, improper, and indecent liberties with the

child named below for the purpose of arousing and gratifying

sexual desire," the alternative element that would also support

a violation of the North Carolina statute. Post at 29-30. It

that the issue has been resolved in our circuit. See Lolavar v. De Santibanes, 430 F.3d 221, 224 n.2 (4th Cir. 2005) (taking "judicial notice of the

records of a court of record"); Colonial Penn Ins. Co. v. Coil, 887 F.2d

1236, 1239 (4th Cir. 1989) (noting that courts of appeals may properly

take judicial notice of state court proceedings that were not part of the

record before the district court). 

UNITED STATES v. VANN 13
argues that a charging document charging two alternative elements conjunctively must be taken, absent a special verdict,

as a conviction on "the lesser of the disjunctive statutory

objects." Post at 29. It reasons therefore that Vann could not

be imputed with a conviction on the more serious, violent element charged in the charging document. See post at 28-30.

This argument, however, fails to appreciate the distinction

between a jury verdict on a charging document alleging in the

conjunctive two alternative elements and a guilty plea. In

returning a verdict, the jury can rely on either element to support its finding of guilt, and therefore the verdict cannot necessarily be found to rely on the more serious, violent element.

But the modified categorical approach also permits the nature

of the prior convictions to be determined by "the defendant’s

own admissions" in pleading guilty, and in that case, the

admissions determine the nature of the conviction. See Shepard, 544 U.S. at 25 (plurality opinion). In this case Vann

admitted that he committed lewd and lascivious acts upon the

bodies of two named children under the age of 16.

Relying on the violations of N.C. Gen. Stat. § 14-202.1

(a)(2) (prohibiting a lewd and lascivious act upon or with the

body of a child), as indicated by employing the modified categorical approach, we now turn to the question whether willfully committing a lewd or lascivious act upon the body of a

child is a "violent felony" within the meaning of 18 U.S.C.

§ 924(e)(2)(B).

It might be argued, although with some difficulty in light

of the Supreme Court’s recent decision in Johnson, that willfully committing a lewd or lascivious act upon the body of a

child is a violent felony under the first prong of

§ 924(e)(2)(B)’s definition of "violent felony," which requires

the offense to "ha[ve] as an element the use, attempted use,

or threatened use of physical force." 18 U.S.C.

§ 924(e)(2)(B)(i). Johnson held that the phrase "physical

force" in this clause "means violent force—that is, force capa14 UNITED STATES v. VANN
ble of causing physical pain or injury to another person."

Johnson, 130 S. Ct. at 1271. The nature of a sex act committed "upon the body of a child," while not necessarily producing immediate physical pain or injury, arguably causes serious

long-term injury to the psyche, which may ultimately manifest itself physically. Indeed, one can conceive of only a few

criminal acts that result in such serious and long-lasting

injury. Thus, a child, whom the law presumes unable to consent to such an act, is subjected to the "force" of the predator,

and the resulting long-term injury may satisfy Johnson’s violence requirement. Cf. United States v. Chacon, 533 F.3d 250,

257-58 (4th Cir. 2008) (holding that a sex offense perpetrated

in the absence of consent, but which does not have as an element the use, attempted use, or threatened use of physical

force, nonetheless constitutes a "crime of violence" under the

Sentencing Guidelines by qualifying as a "forcible sex

offense"); Pierce, 278 F.3d at 289-90 (same).

But the more readily applicable prong of § 924(e)(2)(B)’s

definition of "violent felony" is the second prong, which qualifies a previous conviction when the offense of conviction "involves conduct that presents a serious potential risk of

physical injury to another." 18 U.S.C. § 924(e)(2)(B)(ii). To

fulfill this requirement, the crime must be "roughly similar, in

kind as well as in degree of risk posed," to the provision’s

example crimes—burglary, arson, extortion, and crimes

involving the use of explosives—all of which "typically

involve purposeful, violent, and aggressive conduct." Begay,

553 U.S. at 143-45 (internal quotation marks omitted).

After Begay, the Second Circuit in United States v. Daye,

571 F.3d 225 (2d Cir. 2009), addressed whether a defendant’s

three prior convictions under a Vermont statute prohibiting

sexual assault of a child qualified him for a sentencing

enhancement under ACCA. The Vermont statute made it a

crime for any person to engage in a sexual act with a person

under the age of 16, with an exception for consensual acts

between married persons. Applying Begay, the Second Circuit

UNITED STATES v. VANN 15
held that a violation of the Vermont statute was categorically

a violent felony under § 924(e)(2)(B)(ii). It found "that a sexual act inflicted upon a child by an adult ordinarily creates a

serious potential risk of physical harm to the child," reasoning

that "the nature of the conduct and the child’s relative physical weakness give rise to a substantial likelihood that the adult

may employ force to coerce the child’s accession." Id. at 232.

The court also found that the Vermont offense was sufficiently similar in kind to § 924(e)(2)(B)(ii)’s example crimes

to satisfy Begay. The court acknowledged that the offense

imposed strict liability with regard to the age of the victim but

nonetheless concluded that it typically involved purposeful

conduct because the crime, by its terms, "involves deliberate

and affirmative conduct—namely, an intentional sexual act

with a person who is, in fact, under the age of consent." Id.

at 234. Finally, the court concluded that a typical violation of

the Vermont statute was sufficiently violent and aggressive to

satisfy Begay:

[C]rimes involving sexual contact between adults

and children create a substantial likelihood of forceful, violent, and aggressive behavior on the part of

the perpetrator because a child has essentially no

ability to deter an adult from using such force to

coerce the child into a sexual act. Such likely use of

force not only creates a risk of injury to the victim,

but also establishes that the perpetrator will commonly act in a purposeful, violent, and aggressive

manner. At a minimum, we have no doubt that a typical instance of this crime will involve conduct that

is at least as intentionally aggressive and violent as

a typical instance of burglary.

Id. But see United States v. McDonald, 592 F.3d 808, 814 (7th

Cir. 2010) (holding that the felony of having sexual contact

or intercourse with a person under the age of 16 is not a crime

of violence for purposes of the Sentencing Guidelines after

reasoning that the offense is a strict-liability crime because

16 UNITED STATES v. VANN
"no mens rea is required with respect to the age of the victim"); United States v. Christensen, 559 F.3d 1092, 1095 (9th

Cir. 2009) (holding that a conviction for statutory rape—

involving sexual intercourse with a child between the ages of

14 and 16 when the perpetrator is at least 48 months older—

is not categorically a violent felony under ACCA because "it

does not necessarily involve either ‘violent’ or ‘aggressive’

conduct").

Inasmuch as Daye focuses on crimes that "typically involve

purposeful, violent, and aggressive conduct," see 571 F.3d at

234 (alteration omitted) (quoting Begay, 553 U.S. at 144-45)

—an analysis not employed by the courts in McDonald and

Christensen—we find Daye more persuasive. Its analysis

faithfully applies the Supreme Court’s decisions in Begay and

James v. United States, 550 U.S. 192 (2007).

In James, the Supreme Court held that a violation of Florida’s attempted burglary statute was a violent felony under

§ 924(e)(2)(B)(ii). In reaching its holding, the Court stressed

that the categorical approach does not "requir[e] that every

conceivable factual offense covered by a statute must necessarily present a serious potential risk of injury before the

offense can be deemed a violent felony." Id. at 208. Indeed,

the Court observed, the crimes specifically listed in

§ 924(e)(2)(B)(ii), which "provide a baseline against which to

measure the degree of risk that a nonenumerated offense must

‘otherwise’ present," could not even meet that standard. Id. It

noted that one could imagine a burglary in the form of "a

break-in of an unoccupied structure located far off the beaten

path and away from any potential intervenors" or "an extortion scheme where an anonymous blackmailer threatens to

release embarrassing personal information about the victim

unless he is mailed regular payments," neither of which would

pose "a realistic risk of confrontation or injury to anyone." Id.

at 207-08. The Court thus concluded that "the proper inquiry

is whether the conduct encompassed by the elements of the

offense, in the ordinary case, presents a serious potential risk

UNITED STATES v. VANN 17
of injury to another." Id. at 208 (emphasis added). This is also

what Begay concluded.

In Begay, the Court, while holding that a violation of New

Mexico’s statute prohibiting driving under the influence of

alcohol did not constitute a violent felony, explained that a

qualifying offense must be "roughly similar[ ] in kind" to the

example crimes listed in § 924(e)(2)(B)(ii), all of which "typically involve purposeful, violent, and aggressive conduct."

553 U.S. at 143-45 (emphasis added) (internal quotation

marks omitted). That the example crimes are typically marked

by such conduct is significant, the Court stressed, because that

kind of behavior "makes [it] more likely that an offender, later

possessing a gun, will use that gun deliberately to harm a victim." Id. at 145.

Critically, just as James does not require "that every conceivable factual offense covered by a statute . . . necessarily

present a serious potential risk of injury before the offense can

be deemed a violent felony," 550 U.S. at 208, Begay does not

require that all conduct that represents a violation of the statute be purposeful, violent, and aggressive for the crime to

qualify as a violent felony. Indeed, it is self-evident that the

example crimes themselves may be committed in ways that

are not purposeful, violent, and aggressive. What matters is

that the offense, in a manner "roughly similar" to arson, burglary, extortion, and the unlawful use of explosives, "typically

involves purposeful, violent, and aggressive conduct," so that

a conviction for that offense tends to "show an increased likelihood that the offender is the kind of person who might deliberately point [a] gun and pull the trigger." Begay, 553 U.S. at

143-46 (emphasis added) (internal quotation marks omitted).

Applying these principles to the relevant provision here, we

are satisfied that the North Carolina offense of taking indecent

liberties with a child by willfully committing a lewd or lascivious act upon or with the body of the child, in violation of N.C.

Gen. Stat. § 14-202.1(a)(2), is "a violent felony" under

18 UNITED STATES v. VANN
§ 924(e)(2)(B)(ii). First, as we recognized in Pierce, conduct

that violates this provision will, in the ordinary case, present

a potential risk of physical injury to the child that is at least

as serious as the risk facing a victim of arson or burglary. See

Pierce, 278 F.3d at 290 ("[C]hild abuse by an adult . . . present[s] a serious potential risk of physical injury to the child,

a danger that is quite similar in character to the potential

injury to persons involved in arson or burglary, both of which

are specifically recognized as crimes of violence"). Moreover,

the offense is "roughly similar, in kind," to arson, burglary,

extortion, and the unlawful use of explosives in a way that the

crime of driving under the influence at issue in Begay was

not, and we readily conclude that the typical instance of a

defendant willfully committing a lewd or lascivious act upon

or with the body of a child who is under the age of 16 and at

least 5 years younger than the defendant involves purposeful,

violent, and aggressive conduct. Indeed, review of North Carolina decisions applying the statute reveals that a large number of violations involve the use of horrific force. See, e.g.,

State v. Rhodes, 361 S.E.2d 578, 579 (N.C. 1987) (defendant

had sexual intercourse with a 10-year-old girl and threatened

to kill her, her mother, and her brother if she told anyone what

he had done); State v. Ridgeway, 648 S.E.2d 886, 889-90

(N.C. Ct. App. 2007) (defendant bit, raped, sodomized, and

murdered a 14-year-old girl); State v. Jones, 393 S.E.2d 585

(N.C. Ct. App. 1990) (defendant repeatedly had sexual intercourse with his step-daughter, threatened to kill her, and

choked her). This is no surprise since, given the age differential and the resulting power disparity between the defendant

and the child, the offense will naturally tend to involve coercive conduct that can readily escalate to physical violence.

Accordingly, we conclude that willfully committing a lewd or

lascivious act upon the body of a child, in violation of N.C.

Gen. Stat. § 14-202.1(a)(2), satisfies Begay’s standard and

qualifies as a "violent felony" under § 924(e)(2)(B)(ii).

Vann relies heavily on our holding in Thornton to argue

otherwise. In that decision, we held that Virginia’s carnal

UNITED STATES v. VANN 19
knowledge offense, which makes it a crime to "carnally

know[ ], without the use of force, a child thirteen years of age

or older but under fifteen years of age," Va. Code Ann.

§ 18.2-63 (emphasis added), does not qualify as a violent felony under ACCA, as interpreted by Begay. Thornton, 554

F.3d at 444. Although Virginia’s carnal knowledge offense

overlaps to some extent with North Carolina’s indecent liberties offense, important and material differences exist that distinguish Thornton. Most notably, the Virginia offense is, by

its own terms, committed "without the use of force," while the

North Carolina crime is not so limited. Indeed, as we have

noted, the North Carolina crime tends to involve coercive

conduct that can readily escalate to physical violence. Additionally, the Virginia statute only covers sexual contact with

young teens who are 13 and 14 years old, while the North

Carolina statute protects all children, including society’s

youngest. The North Carolina statute also requires that the

defendant be at least 16 years old and at least 5 years older

than the child, while the Virginia statute only takes the defendant’s age into account to lessen the punishment if he is a

minor and the child in fact consented. See Va. Code Ann.

§ 18.2-63(B). The result of these differences is that a typical

violation of the North Carolina statute is much more likely to

be marked by violent and aggressive conduct than an ordinary

violation of the Virginia statute considered in Thornton, and

therefore it qualifies as a violent felony under ACCA, even

though Virginia’s carnal knowledge offense does not.

For the reasons given, we affirm the judgment of the district court. 

AFFIRMED

KING, Circuit Judge, dissenting:

With great respect for my fine colleagues of the majority,

I strongly disagree with their decision in this case. I write separately in dissent for several reasons. First, the majority errs

20 UNITED STATES v. VANN
in deciding that North Carolina General Statute § 14-202.1

(the "Indecent Liberties Statute," or the "Statute") delineates

two distinct crimes, thereby justifying its application of the

"modified categorical approach" to the ACCA issue. Second,

the majority errs in ruling that Vann "necessarily" violated the

second prong — subsection (a)(2) — of the Indecent Liberties

Statute. And third, the majority errs in classifying subsection

(a)(2) as a "violent felony" under the ACCA, which it accomplishes by ignoring applicable precedent and misconstruing

the Statute.

I.

In assessing whether a prior conviction qualifies as an

ACCA predicate offense, the federal courts are normally

obliged to employ the "categorical approach," looking only to

the existence of a conviction and the statutory definition of

the earlier offense. See Taylor v. United States, 495 U.S. 575,

602 (1990). The focus in a proper ACCA analysis is on

whether the statutory elements justify classifying the earlier

offense as an ACCA predicate crime, and not on the factual

underpinnings of the particular conviction. See James v.

United States, 550 U.S. 192, 202 (2007).1 In some instances,

the statute of conviction may include separate generic crimes

— for example, failure to report as well as escape, or burglary

of a residence as well as burglary of a vehicle. See Chambers

v. United States, 129 S. Ct. 687, 690-91 (2009). In this "narrow range of cases," a court is entitled to "go beyond the mere

fact of conviction" to determine which portion of the statute

— that is, which crime — "necessarily" underlies the conviction. Taylor, 495 U.S. at 602; see United States v. Rivers, 595

F.3d 558, 562 (4th Cir. 2010); United States v. Woods, 576

1

In utilizing the categorical approach, as the Supreme Court has

explained, a court must look to the "generic crime, say, the crime of fraud

or theft in general," rather than "the specific acts in which an offender

engaged on a specific occasion." Nijhawan v. Holder, 129 S. Ct. 2294,

2298 (2009). 

UNITED STATES v. VANN 21
F.3d 400, 404 (7th Cir. 2009). This narrow exception to the

categorical approach is known as the "modified categorical

approach." See United States v. Harcum, 587 F.3d 219, 223

(4th Cir. 2009) (internal quotation marks omitted).

In concluding that a violation of the Indecent Liberties Statute constitutes a violent felony under the ACCA, the majority

theorizes that the Statute "does in fact contain phrases that

cover two different generic crimes" — "[o]ne requires physical acts against the body of a child, and the other does not."

Ante at 9.2 According to the majority, subsection (a)(1) is a

broad provision "prohibiting a wide range of criminally inappropriate behavior," including sexually explicit telephone

conversations, photographing unclothed children, and masturbating in a child’s presence. Id. at 9-10. By contrast, the

majority erroneously perceives subsection (a)(2) as "requir-

[ing] a physical act upon or with the body of the victim," and

thus detailing a crime that is "conceptually separate and distinct from the crimes covered by [subsection (a)(1)]." Id. at 10

(emphasis omitted). From this misperception of North Carolina law, the majority concludes that it "may employ the modified categorical approach" to determine, in the context of

Vann’s three contested convictions, whether he was convicted

of violating subsection (a)(2) and, if so, whether subsection

(a)(2) is a violent felony under the ACCA. Id.

2The Indecent Liberties Statute specifies that a person has taken indecent liberties with a child if that person is "16 years of age or more and

at least five years older than the child in question," and 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

["subsection (a)(1)"]; 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 ["subsection

(a)(2)"]. 

N.C. Gen. Stat. § 14-202.1(a). 

22 UNITED STATES v. VANN
The fundamental error in the majority’s analysis is that it

ignores North Carolina’s interpretation of the Indecent Liberties Statute. North Carolina’s conception of its own statute is

paramount, for in conducting a proper ACCA analysis we

must apply the Statute as it has been defined and interpreted

by the North Carolina courts. See Johnson v. United States,

130 S. Ct. 1265, 1269 (2010) (explaining that, in conducting

ACCA analysis, "[w]e are . . . bound by the [state] Supreme

Court’s interpretation of state law, including its determination

of the elements of [the pertinent statute]"); James, 550 U.S.

at 202 (beginning ACCA analysis "by examining what constitutes attempted burglary under Florida law"); United States v.

Bethea, 603 F.3d 254, 257 (4th Cir. 2010) (explaining that, in

determining if modified categorical approach is appropriate,

"we look to how [the] elements are defined by statute and by

the state’s supreme court"). To be sure, one of the basic tenets

of our federal system is that a federal court is not empowered

"to place a construction on a state statute different from the

one rendered by the highest court of the State." Johnson v.

Fankell, 520 U.S. 911, 916 (1997). As Justice Stevens

explained therein, for the unanimous Court, "[t]his proposition [is] fundamental to our system of federalism." Id. 

It is vitally significant that, in enacting the Indecent Liberties Statute, North Carolina chose not to "distinguish between

the types of indecent liberties," State v. Jones, 393 S.E.2d

585, 589 (N.C. Ct. App. 1990), and instead made "[t]he crime

of indecent liberties . . . a single offense," State v. Hartness,

391 S.E.2d 177, 180 (N.C. 1990); see also State v. Jones, 616

S.E.2d 15, 20 (N.C. Ct. App. 2005) (rejecting proposition that

"[s]ubsections (a)(1) and (a)(2) are separate criminal offenses

with different elements" (emphasis omitted)). Indeed,

although theoretically distinguishable, the Statute’s two subsections have been treated interchangeably by the North Carolina courts. See, e.g., State v. Strickland, 335 S.E.2d 74, 76

(N.C. Ct. App. 1985) (utilizing language of subsections (a)(1)

and (a)(2) in explaining that "[t]he liberty that defendant willfully took with the boys . . . in exposing his lewd and lasciviUNITED STATES v. VANN 23
ous activity to them and inviting their participation was

certainly indecent, immoral and improper"). In order to prove

an offense under the Statute, the State must establish five elements: 

(1) the defendant was at least 16 years of age; (2) he

was five years older than his victim; (3) he willfully

took or attempted to take an indecent liberty with the

victim; (4) the victim was under 16 years of age at

the time the alleged act or attempted act occurred;

and (5) the action by the defendant was for the purpose of arousing or gratifying sexual desire.

State v. Coleman, 684 S.E.2d 513, 519 (N.C. Ct. App. 2009)

(internal quotation marks omitted). According to North Carolina’s courts, the Statute provides "disjunctively two alternative means of proving one element of the offense of indecent

liberties." Jones, 616 S.E.2d at 20.3

More specifically, the Indecent Liberties Statute’s two subsections provide alternative conduits for establishing that the

activity was "for the purpose of arousing or gratifying sexual

desire," with such a purpose being "assumed" in the context

of lewd and lascivious acts. See State v. Wilson, 361 S.E.2d

105, 108 (N.C. Ct. App. 1987) (internal quotation marks omit3The majority maintains that, because a violation of the Indecent Liberties Statute provides "disjunctively two alternative means of proving one

element of the offense," Jones 616 S.E.2d at 20, application of the modified categorical approach is somehow appropriate. See ante at 10-11 n.1.

To support its unwarranted conclusion, the majority relies on the Supreme

Court’s recent decision in Johnson v. United States, 130 S. Ct. 1265

(2010), but ignores the fact that Johnson reiterated the Court’s precedent

that the modified categorical approach is applicable only in those situations where a statute contains two or more different generic crimes. See

Johnson, 130 S. Ct. at 1273. Because the Supreme Court of North Carolina has already concluded that the "crime of indecent liberties is a single

offense," see Hartness, 391 S.E.2d at 180 (emphasis added) — rather than

two separate generic crimes — the modified categorical approach simply

is not applicable to violations of the Statute. 

24 UNITED STATES v. VANN
ted). As either theory can establish culpability, the North Carolina courts have recognized that the same behavior can be

prosecuted under either subsection, see, e.g., State v. Banks,

370 S.E.2d 398, 407 (N.C. 1988) (prosecuting "acts of kissing" under subsections (a)(1) and (a)(2)), and, in assessing the

ambit of one of the Statute’s subsections, those state courts

have frequently relied on decisions that involve the companion subsection, see, e.g., State v. Every, 578 S.E.2d 642, 647-

48 (N.C. Ct. App. 2003) (relying, in appeal under subsection

(a)(1), on prior decision involving subsection (a)(2)). Significantly, the very criminal acts that the majority now suggests

are prohibited only by subsection (a)(1) — "photographing an

unclothed child in a sexually suggestive position [and] masturbating in front of a child," ante at 10 (internal quotation

marks omitted) — have actually been prosecuted and punished under subsection (a)(2). See State v. Hammett, 642

S.E.2d 454, 459 (N.C. Ct. App. 2007) (prosecuting masturbation in another’s presence under subsection (a)(2)); State v.

Turman, 278 S.E.2d 574, 575 (N.C. Ct. App. 1981) (same;

subsection (a)(1)); State v. McClees, 424 S.E.2d 687 (N.C. Ct.

App. 1993) (prosecuting videotaping of disrobing teenager

under subsection (a)(1)); State v. Kistle, 297 S.E.2d 626 (N.C.

Ct. App. 1982) (prosecuting photographing of unclothed child

under subsection (a)(2)). Moreover, contrary to the majority’s

interpretation of subsection (a)(2) as requiring a "physical

act[ ]," ante at 10 — presumably some act of touching — the

North Carolina courts have ruled that neither subsection (a)(1)

nor subsection (a)(2) requires a touching. See Hammett, 642

S.E.2d at 459 (rejecting contention "that, in order to be convicted under [subsection (a)(2)], the accused must physically

touch the victim"); Every, 578 S.E.2d at 648 (recognizing that

subjection (a)(1) does not require touching). 

Put most simply, the Indecent Liberties Statute proscribes

only one generic crime: the taking of indecent liberties with

a child. See Jones, 616 S.E.2d at 20 (explaining that "‘[t]he

crime of indecent liberties is a single offense’" and rejecting

UNITED STATES v. VANN 25
proposition that subsections have different elements).4

 Therefore, in analyzing the Statute, we should, as my friend Judge

Niemeyer explained in an earlier decision, simply apply the

"categorical approach, which takes into account only the definition of the offense and the fact of conviction." United States

v. Pierce, 278 F.3d 282, 286 (4th Cir. 2002) (analyzing Statute for career offender purposes). And under that approach —

as the majority implicitly acknowledges — a violation of the

Statute does not constitute a "violent felony" under the ACCA

because it is not similar in kind or in degree of risk to the

ACCA enumerated crimes of arson, burglary, extortion, and

offenses involving explosives. See ante at 10 (recognizing

breadth of Statute); see also Every, 578 S.E.2d at 647 (concluding that "the utterance of ‘mere words’" constitutes indecent liberty).

II.

The majority has compounded its initial error — determining that the Indecent Liberties Statute proscribes two distinct

crimes — by finding that Vann, in each of his three underlying convictions, "necessarily" contravened subsection (a)(2)

of the Statute. It is far from clear, however, that Vann pleaded

guilty to violating subsection (a)(2), which the majority presents as the more egregious of what it deems to be the Statute’s

two alternative offenses.

A.

The Supreme Court has specified the restricted parameters

of the inquiry into whether a conviction qualifies as an ACCA

4

In its opinion, the majority erroneously maintains that this dissenter has

somehow "determine[d] that violating North Carolina’s indecent liberties

statute constitutes a single offense." Ante at 10-11 n.1. To the contrary, it

is the Supreme Court of North Carolina, rather than this lone dissenter,

that made such a determination, by explicitly recognizing twenty years

ago that "[t]he crime of indecent liberties is a single offense." State v.

Hartness, 391 S.E.2d 177, 180 (N.C. 1990). 

26 UNITED STATES v. VANN
violent felony. In 1990, in Taylor v. United States, the

Supreme Court explained the limited circumstances where a

court may "go beyond the mere fact of conviction" in assessing ACCA applicability, namely the "narrow range of cases

where a jury was actually required to find all the elements of

[a] generic [qualifying offense]." 495 U.S. 575, 602 (1990).

As the Court explained (by way of example), "in a State

whose burglary statutes include entry of an automobile as

well as a building, if the indictment or information and jury

instructions show that the defendant was charged only with a

burglary of a building, and that the jury necessarily had to

find an entry of a building to convict," the earlier conviction

would qualify as an ACCA predicate offense. Id.

Fifteen years later, in Shepard v. United States, the Court

extended the Taylor rationale to convictions obtained by way

of guilty pleas. See 544 U.S. 13 (2005). In so doing, the Court

"adhere[d] to the demanding requirement that any sentence

under the ACCA rest on a showing that a prior conviction

‘necessarily’ involved (and a prior plea necessarily admitted)

facts equating to [a predicate offense]," id. at 24, recognizing

that constitutional concerns "counsel[ed] [the Court] to limit

the scope of judicial factfinding on the disputed generic character of a prior plea," id. at 25-26. Accordingly, the Shepard

Court restricted the ACCA inquiry to whether an earlier guilty

plea "necessarily admitted elements of the generic offense,"

as demonstrated by the terms of the plea agreement, the terms

of the charging document, the transcript of the plea colloquy

in which the defendant confirmed the factual basis for the

plea, or "some comparable judicial record of this information." Id. at 26. The Shepard Court elaborated upon this rationale as follows: when the statute requires no finding of a

generic qualifying crime, "the only certainty of a generic finding" when the charging document does not narrow the charge

to generic limits, is in the jury instructions, bench-trial findings and rulings, or, in the context of a guilty plea, "the defendant’s own admissions or accepted findings of fact confirming

the factual basis for a valid plea." Id. at 25. 

UNITED STATES v. VANN 27
The Shepard decision thus establishes the parameters of the

ACCA-related inquiry in a pleaded case. Importantly, though,

it also demonstrates the degree of certainty that is required for

a prior conviction to qualify under this "restricted look." 544

U.S. at 23. The charging documents at issue in Shepard

recited the pertinent burglary statute, which encompassed burglaries of buildings as well as vehicles, and listed the residential address where the offense occurred. See Shepard, 544

U.S. at 31-32 (O’Connor, J., dissenting). The Shepard Court,

however, observed that "the record is silent on the generic element [namely, whether it was burglary of a building], there

being no plea agreement or recorded colloquy in which Shepard admitted the generic fact." 544 U.S. at 25. Because of the

failure to satisfy this generic requirement, Shepard’s earlier

burglary convictions were not ACCA predicate offenses.

B.

By contrast, the majority today determines that Vann "necessarily" pleaded guilty to violating subsection (a)(2) of the

Statute — a determination predicated on the descriptions of

his prior convictions in the presentence report (the "PSR"),

which were either made "[a]ccording to the indictment" or

derived from "court records," and by the use of the word

"and" in delineating the charges in those descriptions and the

charging documents. See ante at 11-12 (internal quotation

marks and emphasis omitted). Such reliance is entirely undermined, however, by the legal principles generally applicable

to charging documents (such as indictments). 

First, it is established that a charging document must allege

conjunctively the disjunctive components of an underlying

statute. See State v. Armstead, 562 S.E.2d 450, 452 (N.C. Ct.

App. 2002) ("Where a statute sets forth disjunctively several

means or ways by which the offense may be committed, a

warrant thereunder correctly charges them conjunctively."

(internal quotation marks omitted)); see also United States v.

Rhynes, 206 F.3d 349, 384 (4th Cir. 1999) ("Where a statute

28 UNITED STATES v. VANN
is worded in the disjunctive, federal pleading requires the

Government to charge in the conjunctive.").5 As a result, that

Vann’s earlier charging documents apparently use the conjunctive term "and," rather than the disjunctive "or," does not

mean that Vann "necessarily" pleaded guilty to subsection

(a)(2). It is also established that when a defendant is convicted

under a conjunctively charged indictment, in the absence of

a special verdict identifying the factual bases for conviction,

a sentence cannot be imposed that exceeds the statutory maximum for the "least-punished" component, that is, the lesser of

the disjunctive statutory objects. See Rhynes, 206 F.3d at 379-

81.6

Moreover, this case presents a much weaker basis than in

Shepard for determining the nature of Vann’s prior offenses.

The charging documents merely recite the language of the

5

Indeed, a disjunctive charge in an indictment contravenes an accused’s

constitutional rights. See, e.g., The Confiscation Cases, 87 U.S. 92, 104

(1874) (explaining that disjunctive charge is "wholly insufficient" and

lacks "necessary certainty," as it fails to provide "definite notice of the

offence charged" and does not protect against "subsequent prosecution for

one of the several offences"). 

6According to the majority, the dissent "fails to appreciate the distinction between a jury verdict on a charging document alleging in the conjunctive two alternative elements and a guilty plea." Ante at 14. The

majority draws this distinction on the basis of its theory that, when a

defendant pleads guilty, he necessarily admits all allegations charged conjunctively. Notably, the majority identifies no authority that supports such

a theory, which it has apparently created from whole cloth. Indeed, there

is support for the opposite conclusion. See e.g., Malta-Espinoza v. Gonzales, 478 F.3d 1080, 1082 n.3 (9th Cir. 2007) ("[A] plea of guilty admits

only the elements of the charge necessary for a conviction."); Omari v.

Gonzales, 419 F.3d 303, 308 n.10 (5th Cir. 2005) ("Indictments often

allege conjunctively elements that are disjunctive in the corresponding

statute, and this does not require either that the government prove all of

the statutorily disjunctive elements or that a defendant admit to all of them

when pleading guilty."). Furthermore, the majority’s theory is incompatible with our Rhynes precedent and its underlying principles, as enunciated

in Edwards v. United States, 523 U.S. 511 (1998), and United States v.

Quicksey, 525 F.2d 337 (4th Cir. 1975). See Rhynes, 206 F.3d at 379-81.

UNITED STATES v. VANN 29
Statute, provide the dates of the alleged offenses and identities

of Vann and the minor, and aver that the age requirements

were satisfied. Each charging document alleges a violation of

the Statute, without specifying either subsection thereof. And,

consistent with North Carolina law, each properly alleges the

indecent liberties offense in conjunctive fashion. Similarly,

each judgment simply specifies the file number, identifies the

offense as "Indecent Liberties with Minor Child" or "Indecent

Liberties with Child," denotes the pertinent statute only as

"14-202.1," and recognizes that no written findings were

made. From this weak reed, the majority somehow finds that

Vann necessarily violated subsection (a)(2) of the Statute. 

C.

In view of the foregoing, the majority’s "finding" that each

of Vann’s three contested convictions violated subsection

(a)(2) of the Statute is erroneous in multiple respects. Most

basically, it contravenes the settled principle that appellate

courts do not make factual findings. See Robinson v. Wix Filtration Corp., 599 F.3d 403, 418-19 (4th Cir. 2010) (King, J.,

dissenting); see also Columbus-Am. Discovery Grp. v. Atl.

Mut. Ins. Co., 56 F.3d 556, 575-76 (4th Cir. 1995) ("It is a

basic tenet of our legal system that, although appellate courts

often review facts found by a judge or jury . . . , they do not

make such findings in the first instance."). Further, it is at best

disingenuous to "conclude that the issue" "of whether we can

consider state charging documents not made part of the record

in the district court" "has been resolved in our circuit." Ante

at 12-13 n.3. It is one thing for a federal court to look at a

state court docket in assessing jurisdiction over a removed

case, or to note a subsequent arson conviction in determining

the propriety of rescinding a fire insurance settlement offer.

See id. (citing Lolavar v. de Santibanes, 430 F.3d 221 (4th

Cir. 2005); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236 (4th

Cir. 1989)). It is materially different to rest a sentencing decision — affirming the transformation of a ten-year maximum

into a fifteen-year minimum — on the basis of evidence never

30 UNITED STATES v. VANN
presented to the district court, particularly when such evidence was not requested until after oral argument.7

Moreover, it bears emphasis that the basis of the majority’s

conclusion that Vann’s convictions "necessarily" rest on subsection (a)(2) is that the charging documents simply recite the

language of the Indecent Liberties Statute. Recently, however,

we ruled that a conviction under a so-called Alford plea —

where the defendant does not confirm the factual basis for the

plea, see North Carolina v. Alford, 400 U.S. 25 (1970) —

does not qualify as an ACCA predicate offense when the statutory definition contains both qualifying and non-qualifying

predicate crimes and no other Shepard-approved documents

establish the offense on which the defendant was convicted.

United States v. Alston, 611 F.3d 219, 227-28 (4th Cir. 2010).

As Judge Niemeyer properly recognized in Alston, "Shepard

prevents sentencing courts from assessing whether a prior

conviction counts as an ACCA predicate conviction by relying on facts neither inherent in the conviction nor admitted by

the defendant." Id. at 226. Indeed, our opinion emphasized

that the Alford plea "did not necessarily rest on facts establishing [Alston’s] second-degree assault offense as a type of

assault that qualifies as a violent felony" and that, in accepting

his plea, the trial court was not required to find such facts;

therefore, "we [could not] say that the facts indicating the violent nature of the second-degree assault charge to which Alston tendered his plea are inherent in the fact of his

conviction." Id. at 227 (alteration and internal quotation

marks omitted). Accordingly, we concluded that 

7

Indeed, the district court had no opportunity to consider the state charging documents, nor did the parties have the opportunity to object to their

validity or argue their implications. Thus, to the extent the propriety of

treating Vann’s convictions as qualifying ACCA violent felonies depends

on the charging documents, the district court should consider those materials in the first instance. See, e.g., United States v. Alston, 611 F.3d 219,

225 (4th Cir. 2010) (recognizing that "sentencing court" conducts ACCA

analysis). 

UNITED STATES v. VANN 31
the State’s proffer of the factual basis for Alston’s

Alford plea, although necessary for the state court’s

acceptance of the plea, cannot now establish, with

the requisite certainty, that the conviction for

second-degree assault that followed Alston’s plea

was a conviction for a violent felony under ACCA.

Id. at 228.

Under the Alston precedent, it is inappropriate for the

majority to find that Vann "necessarily" pleaded guilty to the

subsection of the Statute (subsection (a)(2)) that it deems a

violent felony under the ACCA. See United States v. Bethea,

603 F.3d 254, 259 n.7 (4th Cir. 2010) ("Because the indictment specifies that Bethea escaped while waiting to appear in

court, we recognize that the most plausible explanation for his

specific conduct is that he fled custody, rather than that he

simply failed to report. Under Shepard, however, we are

charged with considering whether Bethea’s conduct was ‘necessarily’ violent, not whether his conduct was plausibly or

even likely so."). Indeed, to borrow the Taylor analogy utilized in Alston, if Vann had gone to trial in the underlying

cases, any resulting conviction could only be used as an

ACCA predicate offense if the jury had returned a special verdict (or answered an interrogatory) specifically convicting

him of violating subsection (a)(2) of the Statute. See Alston,

611 F.3d at 228. Put simply, this situation is a far cry from the

Taylor hypothetical, where the indictment specifically

charged burglary of a dwelling. See 495 U.S. at 602. Instead,

the majority sees fit to engage in the very behavior the categorical approach is intended to avert: inappropriate judicial

factfinding on appeal. See id. at 601 (explaining that categorical approach avoids difficulty associated with pleaded cases

in which "there often is no record of the underlying facts");

see also Nijhawan v. Holder, 129 S. Ct. 2294, 2299 (2009)

(explaining that categorical approach "avoids the practical difficulty of trying to ascertain in a later proceeding, perhaps

from a paper record containing only a citation (say, by num32 UNITED STATES v. VANN
ber) to a statute and a guilty plea, whether the offender’s prior

crime did or did not involve, say, violence" (alteration, omission, and internal quotation marks omitted)).

III.

If the modified categorical approach could appropriately be

used here, and if the PSR and charging documents indeed

established that Vann was "necessarily" convicted of violating

subsection (a)(2), his underlying convictions would yet fail to

qualify as ACCA predicate offenses. Succinctly put, in concluding that a violation of subsection (a)(2) typically involves

purposeful, violent, and aggressive conduct, the majority misconstrues the Statute and ignores applicable precedent.

The ACCA was enacted to target "the special danger created when a particular type of offender — a violent criminal

or drug trafficker — possesses a gun." Begay v. United States,

553 U.S. 137, 146 (2008). As a result, the ACCA focuses on

purposeful, violent, and aggressive crimes that are "potentially more dangerous when firearms are involved" — the

type of crimes that are "characteristic of the armed career

criminal, the eponym of the statute." Id. at 145 (internal quotation marks omitted). As the Supreme Court has emphasized,

the ACCA targets criminal conduct related to "violent criminal use of firearms," and not every crime that "can be said to

present a serious potential risk of physical injury." Id. at 147

(internal quotation marks omitted); see also id. at 142

(emphasizing that ACCA "covers only similar crimes [to

arson, burglary, offenses involving explosives, and extortion],

rather than every crime that ‘presents a serious potential risk

of physical injury to another’" (quoting 18 U.S.C.

§ 924(e)(2)(B)(ii))). Accordingly, to qualify as an ACCA

predicate offense under the "residual provision" of

§ 924(e)(2)(B)(ii) — the clause at issue here — the predicate

offense must be "‘roughly similar, in kind as well as in degree

of risk posed,’ to the enumerated offenses." United States v.

UNITED STATES v. VANN 33
White, 571 F.3d 365, 369 (4th Cir. 2009) (quoting Begay, 553

U.S. at 143)).

A.

An appropriate assessment of the Indecent Liberties Statute

and its treatment by the North Carolina courts demonstrates

that a violation thereof is neither similar in kind nor similar

in degree of risk to the crimes enumerated in the ACCA. To

obtain a conviction under the Statute as initially enacted, prosecutors were obliged to prove the occurrence of an unnatural

sexual act, such as incest or a crime against nature. State v.

Banks, 370 S.E.2d 398, 407 (N.C. 1988). In 1975, the North

Carolina legislature revised the Statute, removing the requirement of an unnatural sexual act. See id. The resulting Statute

"encompass[es] more types of deviant behavior" than North

Carolina’s other sex-related statutes, in order to provide children "broader protection than available under [those] statutes." State v. Etheridge, 352 S.E.2d 673, 682 (N.C. 1987).

Accordingly, a variety of actions, performed at a variety of

distances from a minor, are now prohibited by the Statute.

See, e.g., State v. McClees, 424 S.E.2d 687, 689-90 (N.C. Ct.

App. 1993) (collecting cases and concluding that secretly videotaping disrobing teenager violates Statute). The scope of the

Statute and the "breadth of conduct" it proscribes reflect

North Carolina’s concern for the potential "psychological

damage" indecent liberties can cause. State v. Every, 578

S.E.2d 642, 648 (N.C. Ct. App. 2003). 

As with such North Carolina statutes as "Opposite sexes

occupying same bedroom at hotel for immoral purposes;

falsely registering as husband and wife," N.C. Gen. Stat. § 14-

186, the Indecent Liberties Statute is classified as an offense

against public morality and decency. See N.C. Gen. Stat. Ch.

14, Subch. VII ("Offenses against Public Morality and

Decency"); cf. id., Subch. III ("Offenses against the Person").

Thus, "[i]ndecent liberties are defined as such liberties as the

common sense of society would regard as indecent and

34 UNITED STATES v. VANN
improper." McClees, 424 S.E.2d at 690 (internal quotation

marks omitted). Moreover, as used in the Statute, "lewd" and

"lascivious" are defined "according to their plain meaning in

ordinary usage." State v. Hammett, 642 S.E.2d 454, 458 (N.C.

Ct. App. 2007). The North Carolina courts define the terms

"lewd" as "inciting to sensual desire or imagination" and "lascivious" as "tending to arouse sexual desire." State v. Wilson,

361 S.E.2d 105, 108 (N.C. Ct. App. 1987) (internal quotation

marks omitted). Furthermore, the North Carolina courts have

emphasized that one can take "indecent liberties with children" without being in the actual presence of the minor. See

McClees, 424 S.E.2d at 689-90 (explaining implications of

"with" in Statute). The breadth of the Statute has, not surprisingly, engendered numerous challenges on the grounds that it

is unconstitutionally vague. See, e.g., State v. Elam, 273

S.E.2d 661, 664-65 (N.C. 1981) (rejecting vagueness challenge); State v. Hicks, 339 S.E.2d 806, 808 (N.C. Ct. App.

1986) (citing cases upholding Statute’s constitutionality);

State v. Turman, 278 S.E.2d 574, 575 (N.C. Ct. App. 1981)

(rejecting vagueness and other constitutional challenges). 

In assessing the Indecent Liberties Statute under the

ACCA, reference to its companion statute, N.C. Gen. Stat.

§ 14-202.2 (entitled "Indecent liberties between children"), is

helpful. The companion statute, which proscribes indecent

liberties between those aged sixteen and younger who are at

least three years apart in age, is almost identical to the Statute.

Nevertheless, a conviction obtained under § 14-202.2 — a

misdemeanor — could not constitute an ACCA predicate

offense because juvenile offenses only qualify if they involve

the use of a firearm, knife, or destructive device. See 18

U.S.C. § 924(e)(2)(B). Given that the same behavior is proscribed by both statutes, the following hypothetical reveals

the illogic of treating the Indecent Liberties Statute as a "violent felony" under the ACCA. Two children, one initially

aged fifteen and the other eleven, engage in sexting (texting

of sexually suggestive pictures) both before and after the

elder’s sixteenth birthday. Cf. State v. Kistle, 297 S.E.2d 626

UNITED STATES v. VANN 35
(N.C. Ct. App. 1982) (taking sexually suggestive photograph

constitutes subsection (a)(2) indecent liberty). The sexting

incidents occurring prior to the elder’s sixteenth birthday cannot form the basis for an ACCA predicate offense, but such

incidents on or subsequent to the child’s birthday, under the

majority’s logic, are so violent, aggressive, and purposeful —

so connected to the behavior of an armed career criminal —

that they would be ACCA predicate offenses. 

B.

Of course, the conclusion spelled out above is entirely

illogical; it is also directly contrary to the Supreme Court’s

warning that the ACCA does not cover every offense with a

potential risk of injury. As we have explained, for purposes of

an ACCA analysis, "[a] roughly similar degree of risk means

that the prior crime, like the enumerated offenses, creates an

immediate, serious, and foreseeable physical risk that arises

concurrently with the commission of the crime itself." White,

571 F.3d at 370 (alterations and internal quotation marks

omitted). Moreover, "[i]n order to be deemed similar in kind,

the [offense] must categorically involve conduct that is purposeful, violent, and aggressive — the common characteristics of the [ACCA] enumerated offenses." Id. (internal

quotation marks omitted). The majority, however, has failed

to analyze the Statute against these essential criteria. 

Just recently, in United States v. Thornton, we concluded

that a conviction under Virginia’s statutory rape statute failed

to qualify as an ACCA "violent felony." 554 F.3d 443 (4th

Cir. 2009). In so ruling, we explained that "the risks of physical injury associated with adult-minor sexual activity" are

insufficient to justify a defendant’s "classification as an armed

career criminal," and we rejected the proposition that the possibility of constructive force made the statutory rape offense

similar to the ACCA enumerated crimes. Id. at 447-48.8 In

8The Indecent Liberties Statute does not involve only adult-child behavior, nor does it implicate the parent-child relationship — a context in

36 UNITED STATES v. VANN
conducting our analysis, we were attentive to the Virginia

Criminal Code, recognizing that its "structure shows that the

Virginia General Assembly considers forcible and nonforcible

sexual offenses to present different risks that are punishable

in different ways." Id. at 448. Explaining that the ACCA

"enumerated crimes create immediate, serious, and foreseeable physical risks that arise concurrently with the commission of the crimes themselves," and acknowledging that

"nonforcible adult-minor sexual activity can present grave

physical risks to minors," we recognized that "such risks are

not sufficiently similar, in kind as well as in degree of risk

posed to the examples of burglary, arson, extortion, and

crimes involving explosives." Id. at 449 (internal quotation

marks omitted). Indeed, Judge Duncan emphasized that such

a statutory rape conviction "is not associated with a likelihood

of future violent, aggressive, and purposeful armed career

criminal behavior and cannot constitute a violent felony under

the ACCA." Id. (internal quotation marks omitted). 

Faithful application of our Thornton precedent illustrates

the error of treating a North Carolina indecent liberties conviction as a violent felony. First, much of the justification for

the majority’s position is the potential for psychological harm

associated with indecent liberties. See also United States v.

Pierce, 278 F.3d 282 (4th Cir. 2002). Psychological harm,

however, is insufficient under the ACCA: the predicate

offense must "create immediate, serious, and foreseeable

physical risks that arise concurrently with the commission of

which North Carolina permits an inference of constructive force. See

Etheridge, 352 S.E.2d at 681 (inferring lack of consent, in context of

second-degree sexual offense by father, from parent-child relationship);

State v. Hardy, 409 S.E.2d 96, 99 (N.C. Ct. App. 1991) (same; seconddegree rape by stepfather); cf. United States v. Pierce, 278 F.3d 282, 290

(4th Cir. 2002). Instead, the Statute proscribes behavior between teenagers

(e.g., individuals aged nineteen and fourteen) as well as between teenagers

and preteens (e.g., those aged sixteen and eleven) and between young

adults and teenagers (e.g., people aged twenty and fifteen). 

UNITED STATES v. VANN 37
the crime[ ]" itself. Thornton, 554 F.3d at 449; cf. Pierce, 278

F.3d at 291 (explaining that sexual touching "may not cause

injury" and thus the "violence . . . was not necessarily the

touching"). Second, even a cursory examination of North Carolina’s criminal code reveals the enormity of the distinction

between indecent liberties and sexual offenses, let alone forcible sexual offenses. North Carolina devotes a subchapter in

its criminal code to "Offenses against the Person," and has a

specific article therein devoted to "Rape and Other Sex

Offenses." See N.C. Gen. Stat. Ch. 14, Subch. III, art. 7A.

Within this article, North Carolina further differentiates

between sex offenses committed by force, see id. § 14-27.3,

second-degree rape (encompassing "vaginal intercourse . . .

[b]y force and against the will of the other person"), and those

committed without force, see id. § 14-27.7, intercourse and

sexual offenses with certain victims (providing "[c]onsent is

not a defense to a charge under this section"), and § 14-27.7A,

statutory rape (prohibiting intercourse except when parties are

married). By contrast, the Indecent Liberties Statute is codified in the subchapter devoted to "Offenses against Public

Morality and Decency," immediately after the crime of "Secretly peeping into room occupied by another person," id.

§ 14-202. See id., Subch. VII. It thus strains the bounds of

credulity to classify indecent liberties as a violent felony

when statutory rape, classified as an "Offense[ ] against the

Person" and as a more serious felony than indecent liberties,

fails to so qualify. See id. § 14-27.7A; see generally Thornton,

554 F.3d. 443. That the same behavior could form the basis

of a conviction under both statutes further illustrates the error

of treating indecent liberties as a violent felony. See State v.

Baker, 426 S.E.2d 73, 76 (N.C. 1993) (explaining that sexual

penetration can constitute indecent liberty, rape, and/or sexual

offense).

C.

As I have emphasized, in conducting an ACCA analysis we

are obliged — pursuant to settled principles of federalism —

38 UNITED STATES v. VANN
to consider whether the elements of a crime, as defined by

state law, are such that it qualifies as an ACCA predicate

offense. See Johnson v. United States, 130 S. Ct. 1265, 1269

(2010); James v. United States, 550 U.S. 192, 202 (2007).

Subsection (a)(2) proscribes "lewd" and "lascivious" acts, that

is, behavior "inciting to sensual desire or imagination" or

"tending to arouse sexual desire." Wilson, 361 S.E.2d at 108

(internal quotation marks omitted). The majority, however,

fundamentally misconstrues subsection (a)(2), which properly

provides that an individual (at least sixteen years of age and

five years older than the minor) commits an indecent liberty

if he "[w]illfully 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)(2) (emphasis added).

More specifically, the majority’s assessment that subsection

(a)(2) "requires [a] physical[ ] act against the body of a child,"

ante at 9, demonstrates a failure to fully appreciate the Indecent Liberties Statute’s "or with" language. In so doing, the

majority fundamentally alters the character of the statutory

prohibition because, under North Carolina law, both actual

and constructive presence are denoted by use of the statutory

term "with." See, e.g., McClees, 424 S.E.2d at 689-90

(explaining that "with" encompasses both actual and constructive presence); Turman, 278 S.E.2d at 575 ("The word ‘with’

is not limited to mean only a physical touching."). 

North Carolina has specifically rejected the assertion that a

violation of (a)(2) requires the touching of a child, let alone

"any sexual contact with the child’s body." Kistle, 297 S.E.2d

at 628; see Hammett, 642 S.E.2d at 459 (rejecting contention

"that, in order to be convicted under [N.C. Gen. Stat.] § 14-

202.1(a)(2), the accused must physically touch the victim").

Instead, the Indecent Liberties Statute encompasses a broader

range of conduct than North Carolina’s sexual acts statutes,

including those that specifically target "sexual contact with a

child’s body," such as "Rape of a child; adult offender," N.C.

Gen. Stat. § 14-27.2A, "Sexual offense with a child; adult

UNITED STATES v. VANN 39
offender," id. § 14-27.4A, and "Statutory rape or sexual

offense of a person who is 13, 14, or 15 years old," id. § 14-

27.7A. Accordingly, "masturbating in the presence of" a

minor "falls under the rubric of an activity covered by [N.C.

Gen. Stat.] § 14-202.1(a)(2)." Hammett, 642 S.E.2d at 459.

Further examples of subsection (a)(2) offenses include

"french kissing," whether merely attempted or actually consummated. See Banks, 370 S.E.2d at 407 (actual); Hammett,

642 S.E.2d at 458-59 (attempted). Indeed, simply photographing an unclothed child violates subsection (a)(2). See Kistle,

297 S.E.2d at 628 (rejecting contention that "the taking of a

photograph of a child does not constitute the commission of

a lewd and lascivious act upon or with the body, or a part or

member thereof"). Because a violation of subsection (a)(2)

clearly does not "create immediate, serious, and foreseeable

physical risks that arise concurrently with the commission of

the crime[ ]" itself, it cannot constitute an ACCA predicate.

Thornton, 554 F.3d at 449.9

D.

In my view, it is nonsensical to assert that a violation of the

Indecent Liberties Statute — which mandates neither sexual

acts nor the touching of a minor — is more violent than statu9

In this regard, the majority errs in comparing the Statute to Vermont’s

sexual assault of a child statute, which specifically requires sexual relations. See United States v. Daye, 571 F.3d 225 (2d Cir. 2009); see also

United States v. McDonald, 592 F.3d 808, 815 (7th Cir. 2010) (explaining

that Daye relied "largely on pre-Begay circuit precedents" and failed to

"explain [its] generalization about the prevalence of the use of force in sex

offenses"). A better guide for our analysis is United States v. Dennis,

where the Tenth Circuit determined that Wyoming’s indecent liberties

statute does not qualify as a crime of violence, recognizing that it is not

similar in degree of risk to the enumerated crimes because of the breadth

of conduct it proscribes. See 551 F.3d 986, 989-90 (10th Cir. 2008); see

also McDonald, 592 F.3d at 815 (concluding that Wisconsin’s seconddegree sexual assault statute is not a crime of violence because its

"breadth" "makes it difficult to conclude that the offense is typically ‘violent and aggressive’"). 

40 UNITED STATES v. VANN
tory rape, which specifically requires sexual acts with a

minor. See ante at 19-20 (seeking to distinguish Virginia’s

carnal knowledge statute and concluding that "a typical violation of the North Carolina statute is much more likely to be

marked by violent and aggressive conduct than an ordinary

violation of the Virginia statute considered in Thornton"). It

is also notable that the majority opinion is lacking in supporting authorities. See, e.g., id. at 19 (claiming, without support

or elaboration, that indecent liberties offense is roughly similar in kind to enumerated offenses "in a way that the crime of

driving under the influence at issue in Begay was not"); id. at

19 (speculating, absent authority, that "given the age differential and the resulting power disparity between the defendant

and the child, the [indecent liberties] offense will naturally

tend to involve coercive conduct that can readily escalate to

physical violence"). Moreover, the majority’s resort to specific North Carolina cases in support of its contention that "a

large number of [subsection (a)(2)] violations involve the use

of horrific force," is unavailing. See id. at 19. It is the bedrock

principle of the categorical approach that only the elements of

the offense — rather than the factual circumstances of a specific violation — can be considered. See Nijhawan v. Holder,

129 S. Ct. 2294, 2299 (2009) (explaining categorical

approach, as distinct from circumstance-specific approach).

One solid reason for the ban on considering the factual circumstances of a particular offense is that, "if a guilty plea to

a lesser, [nonqualifying] offense was the result of a plea bargain, it would seem unfair to impose a sentence enhancement

as if the defendant had pleaded guilty to [a qualifying

offense]." Taylor v. United States, 495 U.S. 575, 601-02

(1990). It is likewise unfair to apply sentence enhancements

simply because more heinous crimes often satisfy the elements of an earlier crime on which a defendant was convicted. See Baker, 426 S.E.2d at 76.

Thus, in assessing whether a violation of the Indecent Liberties Statute "typically" involves violent, aggressive, and

purposeful conduct, we must examine the Statute itself, which

UNITED STATES v. VANN 41
is best exemplified by state court decisions involving only

indecent liberties convictions — as opposed to those involving rape, murder, and incest, upon which the majority relies.

Compounding the problematic nature of the majority opinion

is that the "horrific" decisions upon which the majority relies

involve violations of subsection (a)(1), rather than subsection

(a)(2). See ante at 19; cf. State v. Rhodes, 361 S.E.2d 578, 580

(N.C. 1987) (examining subsection (a)(1)); State v. Ridgeway,

648 S.E.2d 886, 895 (N.C. Ct. App. 2007) (examining

whether "purpose of arousing or gratifying sexual desire,"

specified in subsection (a)(1), had been established); State v.

Jones, 393 S.E.2d 585, 589-90 (N.C. Ct. App. 1990) (discussing jury instruction on "immoral, improper or indecent liberty"). 

To paraphrase Thornton, the Indecent Liberties Statute,

including subsection (a)(2), is not "sufficiently similar to the

enumerated crimes" of arson, burglary, extortion, and

offenses involving explosives "in kind or in degree of risk to

constitute a violent felony." 554 F.3d at 449. Put simply,

although a violation of subsection (a)(2) is reprehensible, it is

not the violent, aggressive, and purposeful behavior associated with violent use of firearms and armed career criminals.

Therefore, it does not constitute an ACCA predicate offense.

IV.

Pursuant to the foregoing, I would rule that a violation of

the Indecent Liberties Statute is not categorically a "violent

felony" under the ACCA, and that the district court thus erred

in treating Vann’s contested convictions as ACCA predicate

offenses. As a result, I would vacate the judgment and remand

for resentencing.

I respectfully dissent.

42 UNITED STATES v. VANN