PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-4211

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

AARON EUGENE SHELL,

Defendant - Appellant.

Appeal from the United States District Court for the Western 

District of North Carolina, at Statesville. Richard L. 

Voorhees, District Judge. (5:13-cr-00054-RLV-DSC-1)

Argued: March 25, 2015 Decided: June 12, 2015

Before WILKINSON and HARRIS, Circuit Judges, and DAVIS, Senior 

Circuit Judge.

Vacated and remanded by published opinion. Judge Harris wrote 

the majority opinion, in which Senior Judge Davis joined. Judge 

Wilkinson wrote a dissenting opinion.

ARGUED: Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH 

CAROLINA, INC., Asheville, North Carolina, for Appellant. 

William Michael Miller, OFFICE OF THE UNITED STATES ATTORNEY, 

Charlotte, North Carolina, for Appellee. ON BRIEF: Ross Hall 

Richardson, Acting Executive Director, FEDERAL DEFENDERS OF 

WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for 

Appellant. Anne M. Tompkins, United States Attorney, OFFICE OF 

THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for 

Appellee.
2

PAMELA HARRIS, Circuit Judge: 

Defendant-Appellant Aaron Eugene Shell (“Shell”) pleaded 

guilty to being a felon in possession of a firearm, in violation 

of 18 U.S.C. § 922(g) (2012). At sentencing, the district court 

applied an enhanced base offense level on the ground that 

Shell’s prior North Carolina conviction for second-degree rape 

constituted a crime of violence under the U.S. Sentencing 

Guidelines Manual (“U.S.S.G.” or the “Guidelines”) 

§ 2K2.1(a)(4)(A) (2014). The district court also applied a twolevel enhancement for obstruction of justice pursuant to

Guidelines § 3C1.2, concluding that Shell recklessly created a 

substantial risk of death or serious bodily injury to another 

person in the course of fleeing from a law enforcement officer. 

On appeal, Shell challenges the district court’s application of 

both enhancements. For the reasons that follow, we vacate 

Shell’s sentence and remand for resentencing.

 

I.

On December 27, 2012, Shell was driving southbound on 

Highway 321 in Caldwell County, North Carolina. North Carolina 

Trooper Christopher Hodges (“Hodges”), traveling northbound, saw 

Shell speeding and turned around to follow him. By the time 

Hodges was able to complete the turn, Shell had disappeared from 
3

sight. But in short order, Hodges discovered that Shell’s 

vehicle had veered off the road and down an embankment. 

As he fled the scene of the accident, Shell discarded a bag 

behind a tree. Officers searched the bag and found a loaded 

semiautomatic pistol. Several days later, Shell voluntarily 

submitted to a police interview and admitted that he was the 

driver of the vehicle and was in possession of the firearm. 

Shell was charged with one count of being a felon in 

possession of a firearm, in violation of 18 U.S.C. § 922(g), and 

pleaded guilty. The presentence report (“PSR”) recommended 

raising Shell’s base offense level from 14 to 20 under U.S.S.G. 

§ 2K2.1(a)(4)(A), on the ground that Shell committed the instant 

offense after a prior felony conviction for a “crime of 

violence” – here, a North Carolina conviction for second-degree 

rape. The PSR also recommended a two-level enhancement for

obstruction of justice, pursuant to U.S.S.G. § 3C1.2, because 

Shell's reckless driving in the course of fleeing from a law 

enforcement officer created a substantial risk of death or 

serious bodily injury to another person. Applying those 

provisions, the PSR calculated a Guidelines range of 57 to 71 

months’ imprisonment. 

Shell objected to both enhancements. At sentencing, the 

district court overruled Shell’s objections. As to reckless 

endangerment under § 3C1.2, the district court credited a 
4

witness who testified that Shell sped, skidded, and almost hit 

her vehicle, and thus concluded that Shell created a substantial 

risk of death in the course of fleeing from a law enforcement 

officer. The court also held that Shell’s prior second-degree 

rape conviction qualified as a “crime of violence” under 

§ 2K2.1. 

The district court adopted the PSR and sentenced Shell to 

57 months’ imprisonment and three years of supervised release. 

Shell appeals, challenging the district court’s application of 

both enhancements. 

 

II.

A.

Under the Guidelines, a defendant convicted of being a 

felon in possession of a firearm receives an enhanced base 

offense level of 20 if he or she has committed a prior “crime of 

violence,” as defined in Guidelines § 4B1.2. U.S.S.G. § 2K2.1 

cmt. n.1. Shell argues that the district court erred in 

characterizing his North Carolina conviction for second-degree 

rape as a crime of violence because the state statute does not 

require the use of physical force, and may instead be violated 

through constructive force or the absence of legally valid 

consent. We review de novo that question of law. United States 

v. Montes-Flores, 736 F.3d 357, 363 (4th Cir. 2013).
5

The parties agree that in considering whether Shell’s North 

Carolina conviction constitutes a crime of violence, we must 

apply what is called the “categorical approach,” which 

“focus[es] on the elements, rather than the facts,” of the prior 

offense. United States v. Carthorne, 726 F.3d 503, 511 (4th 

Cir. 2013) (quoting Descamps v. United States, 133 S. Ct. 2276, 

2285 (2013)). What matters for the categorical approach is how 

the law defines the offense generically, and not the particulars 

of how an individual might have committed the offense on a given 

occasion. Begay v. United States, 553 U.S. 137, 141 (2008); 

United States v. Seay, 553 F.3d 732, 737 (4th Cir. 2009).

The question we must decide, then, is whether the full 

range of conduct covered by North Carolina’s second-degree rape 

statute, “including the most innocent conduct,” would qualify as 

a crime of violence for purposes of the 

§ 4B1.2 enhancement. United States v. Diaz-Ibarra, 522 F.3d 

343, 348, 352 (4th Cir. 2008). If it is “evident from the 

statutory definition of the state crime that some violations of 

the statute are ‘crimes of violence’ and others are not,” then 

the state offense is deemed “categorically overbroad” and 

§ 4B1.2 does not apply. United States v. Rangel-Castaneda, 709 

F.3d 373, 376 (4th Cir. 2013) (quoting Diaz-Ibarra, 522 F.3d at 

348). Whether North Carolina second-degree rape categorically 

qualifies as a crime of violence under this approach is a 
6

question of first impression for our court, and for the reasons 

that follow, we agree with Shell that it does not.

B.

In comparing the elements of North Carolina second-degree 

rape to § 4B1.2’s definition of “crime of violence,” we begin 

with the North Carolina statute and the state precedent 

construing it. North Carolina’s second-degree rape statute 

consists of two separate offenses, providing that:

(a) A person is guilty of rape in the second degree if 

the person engages in vaginal intercourse with another 

person:

(1) By force and against the will of the other 

person; or

(2) Who is mentally disabled, mentally 

incapacitated, or physically helpless, and the 

person performing the act knows or should 

reasonably know the other person is mentally 

disabled, mentally incapacitated, or physically 

helpless.

N.C. Gen. Stat. § 14-27.3 (West 2004). Because the records of 

Shell’s conviction do not specify which subsection of the 

statute formed the basis for his conviction, the parties agree, 

that conviction may be treated as a crime of violence only if 

both subsections so qualify. 

The first subsection is applicable where “sexual 

intercourse is effectuated by force and against the victim’s 

will.” State v. Atkins, 666 S.E.2d 809, 812 (N.C. Ct. App. 

2008). Under North Carolina law, that force requirement may be 
7

satisfied either by “actual, physical force or by constructive 

force in the form of fear, fright, or coercion.” State v. 

Etheridge, 352 S.E.2d 673, 680 (N.C. 1987). Constructive force 

may be demonstrated by proof of compulsion or threats of force, 

and also will be inferred from certain relationships - such as a 

parent-child relationship – that are deemed inherently coercive. 

See id. at 680–82; State v. Morrison, 380 S.E.2d 608, 611–12 

(N.C. Ct. App. 1989). 

The second subsection, by contrast, does not require the 

state to prove either force or the absence of consent. Atkins, 

666 S.E.2d at 812. Instead, it applies to victims who are 

deemed by law incapable of validly consenting to intercourse or 

resisting sexual acts, State v. Williams, 698 S.E.2d 542, 544–

45 (N.C. Ct. App. 2010), and it is used by the state in cases 

where there is factual but legally insufficient consent, see

State v. Ramey, No. COA10–1197, 2011 WL 3276720, at *4–5 (N.C.

Ct. App. Aug. 2, 2011) (unpublished) (conviction for seconddegree rape of mentally disabled victim who initiated 

intercourse). In this sense, it is analogous to the age element 

of North Carolina’s statutory rape law: the fact of consent is 

not a defense where the victim is unable to give legally valid 

consent by virtue of age or by virtue of mental disability. See

Atkins, 666 S.E.2d at 812 (comparing second-degree and statutory 

rape and quoting legislative history: “In second degree rape, 
8

we are adding persons who are mentally defective, mentally 

incapacitated, or physically helpless. This is basically a 

statutory rape section . . . .”); see also State v. Banks, 766 

S.E.2d 334, 339 (N.C. 2014) (statutory and second-degree rape 

“separately punish the act of intercourse with a victim who, 

because of her age, is unable to consent to the act, and the act 

of intercourse with a victim who, because of a mental disability 

or mental incapacity, is unable to consent to the act”).1

C.

Our other point of comparison is the phrase “crime of 

violence,” as used in the Sentencing Guidelines.2

 As will become 

important in this case, different guideline provisions describe 

 1 To the extent our dissenting colleague suggests that lack 

of legally valid consent cannot alone sustain a conviction for 

North Carolina second-degree rape, as opposed to statutory rape, 

we must respectfully disagree. See Williams, 698 S.E.2d at 544-

45. Nor is the prospect of prosecution in cases of factual but 

legally insufficient consent so fanciful that we may overlook it 

under the categorical approach. See Ramey, 2011 WL 3276720, at 

*4-5. Indeed, at his sentencing hearing, Shell adduced 

testimony that his own conviction under the statute was for 

engaging in sexual intercourse with his stepsister by marriage 

when both were young and with factual consent. The particulars 

of Shell’s offense, of course, do not control the analysis under 

the categorical approach we apply. But they may help to 

illustrate the practical scope of the North Carolina statute at 

issue.

2 As is customary, we rely as well on cases construing the 

phrase “violent felony” under the Armed Career Criminal Act, 

“because the two terms have been defined in a manner that is 

substantively identical.” Montes-Flores, 736 F.3d at 363 

(internal quotation marks omitted).
9

“crime of violence” differently. But Shell’s sentence was 

enhanced for a prior crime of violence under U.S.S.G. § 2K2.1, 

which defines that term by reference to the career-offender 

guideline, U.S.S.G. § 4B1.2. U.S.S.G. § 2K2.1 cmt. n.1. 

Section 4B1.2, in turn, defines a crime of violence as:

(a) . . . 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.

U.S.S.G. § 4B1.2(a). The commentary elaborates, in relevant 

part:

“Crime of violence” includes murder, manslaughter, 

kidnapping, aggravated assault, forcible sex offenses, 

robbery, arson, extortion, extortionate extension of 

credit, and burglary of a dwelling. 

U.S.S.G. § 4B1.2 cmt. n.1 (emphasis added).

In its argument, the government skips past the text of 

§ 4B1.2 to focus on its commentary, and in particular the phrase 

“forcible sex offenses.” But it is the text, of course, that 

takes precedence, see Stinson v. United States, 508 U.S. 36, 43 

(1993) (where commentary is inconsistent with text, text 

controls), and so that is where we begin. And like two other 
10

circuit courts, as well as our own court in an unpublished 

opinion, we conclude that offenses that may be committed without 

physical force and predicated instead on the absence of legally 

valid consent – as under the North Carolina second-degree rape 

statute – are not categorically crimes of violence under either 

clause of § 4B1.2. See United States v. Wray, 776 F.3d 1182, 

1187–91 (10th Cir. 2015) (conviction for sexual assault with a 

10-year age difference not categorically a crime of violence 

under § 4B1.2); United States v. Wynn, 579 F.3d 567, 572–75 (6th 

Cir. 2009) (sexual battery based on coercive nature of 

relationship not categorically a crime of violence under 

§ 4B1.2); United States v. Leshen, 453 F. App’x 408, 412–16 (4th 

Cir. 2011) (unpublished) (third-degree rape and aggravated 

sexual assault based on age of victim not categorically crimes 

of violence under § 4B1.2).

We can dispense relatively quickly with the first clause of 

the career-offender guideline – the so-called “force clause” -

which covers crimes that have “as an element the use, attempted 

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

another.” U.S.S.G. § 4B1.2(a)(1). For these purposes, the 

Supreme Court held in Johnson v. United States, “physical force” 

means “violent force - that is, force capable of causing 

physical pain or injury to another person.” 559 U.S. 133, 140 

(2010); see also United States v. Aparicio-Soria, 740 F.3d 152, 
11

154–55 (4th Cir. 2014) (en banc) (applying Johnson). We think 

it clear that the second subsection of North Carolina’s seconddegree rape statute, which does not require the state to prove 

force at all and may instead be violated if there is legally 

insufficient consent, does not meet this “violent force” 

standard, and indeed, the government does not argue otherwise.3 

Nor do we believe that North Carolina’s second-degree rape 

offense qualifies as a crime of violence under § 4B1.2’s 

“residual clause” or “otherwise clause,” covering any crime that 

“is burglary of a dwelling, arson, or extortion, involves use of 

explosives, or otherwise involves conduct that presents a 

serious potential risk of physical injury to another.” U.S.S.G. 

§ 4B1.2(a)(2).4

 Sex offenses are not among the enumerated 

 3 As the dissent notes, the North Carolina Supreme Court has 

held that for purposes of the state’s own sentencing laws, 

felony rape necessarily is a crime of violence. See State v. 

Holden, 450 S.E.2d 878, 884 (N.C. 1994). But the meaning of 

“physical force” under § 4B1.2(a)(1) is a question of federal 

law, not state law, and in answering that question, we “are not 

bound by a state court’s interpretation of a similar – or even 

identical – state statute.” Johnson, 559 U.S. at 138. Instead, 

we follow Johnson and other Supreme Court and Fourth Circuit 

precedent that bears on the relevant federal provision before 

us.

4 The dissent chides us for giving too much attention to the 

“straw man of the ‘residual clause’” at the expense of § 4B1.2’s 

force clause. Post at 9. But this is an unusual case in that 

the government ignores both clauses equally, and that makes it 

hard for us to say which is the straw man. On the assumption 

that the government’s argument must be anchored at least 

implicitly in one of § 4B1.2’s textual clauses, and without 
12

crimes. And the final clause, the Supreme Court instructs, does 

not reach every crime that “otherwise . . . presents a serious 

potential risk of physical injury,” U.S.S.G. § 4B1.2(a)(2), but 

only those “that are roughly similar [] in kind” to the listed 

examples – involving conduct that is “purposeful, violent and 

aggressive” – as well as similar in the “degree of risk” of 

physical injury they pose. Begay, 553 U.S. at 142-45.5

 That 

standard, we have held already, is not met by sex offenses that 

do not require the use of physical force and may be predicated 

instead on the legal insufficiency of purported consent. See

United States v. Thornton, 554 F.3d 443, 446–49 (4th Cir. 2009) 

(conviction for statutory rape does not fall within residual 

clause); see also Leshen, 453 F. App’x at 413–14 (same).

That precedent governs here. Like the statutory rape 

offense considered in Thornton, the second subsection of North 

Carolina’s statute may be violated without the threat or use of 

physical force, and on the legal presumption that the victim is 

 

further guidance from the government as to which, we feel 

ourselves obliged to address both. 

5 Although the Supreme Court refined the Begay approach in 

Sykes v. United States, 131 S. Ct. 2267, 2275–76 (2011), we 

continue to require that an offense be similar to the listed 

examples both in kind and in degree of risk before it can 

qualify as a crime of violence under the residual clause. See

United States v. Martin, 753 F.3d 485, 490 (4th Cir. 2014). 
13

unable to consent. See Atkins, 666 S.E.2d at 812. That does 

not mean, of course, that the crime is not serious; but it does 

mean, we held in Thornton, that unlike the crimes enumerated in 

the career-offender guideline, it “does not support an inference 

that any or all instances of the offense are violent and 

aggressive.” 554 F.3d at 449; see also Leshen, 453 F. App’x at 

414; Wynn, 579 F.3d at 574. Similarly, we do not doubt that sex 

offenses committed without physical force and against vulnerable 

victims can present physical as well as psychological risks, in 

the form of sexually transmitted diseases or health concerns 

attendant to pregnancy. But we have concluded that those risks 

are not comparable to the physical risks generated by the crimes 

listed in § 4B1.2(a)(2), both because they are more attenuated 

and because they are not “violent in nature.” Thornton, 554 

F.3d at 449; see Leshen, 453 F. App’x at 414. 

At issue in Thornton (and Leshen, as well) was a statute 

criminalizing adult sexual contact with minors, whereas North 

Carolina’s statute criminalizes sexual intercourse with those 

who are mentally disabled or incapacitated. But nothing about 

that distinction renders the logic of Thornton any less 

applicable here. Like statutory rape laws, North Carolina’s 

second-degree rape statute does not require the state to prove 

force or the absence of consent in fact, Atkins, 666 S.E.2d at 

812, and there is at least a “realistic probability,” Diaz-
14

Ibarra, 522 F.3d at 348, that the statute would apply in 

situations in which a victim is presumed unable to give legally 

valid consent, Williams, 698 S.E.2d at 544–45; Ramey, 2011 WL 

3276720, at *4–5. Those are precisely the features that led us 

to conclude in Thornton that statutory rape is not a crime of 

violence under § 4B1.2. See 554 F.3d at 448 (“[A] victim’s lack 

of ability to give legal consent” does not make statutory rape 

“inherently violent and aggressive.”); see also Leshen, 453 F. 

App’x at 414. In applying § 4B1.2’s definition of crime of 

violence, we see no grounds for distinguishing between sexual 

intercourse with a victim whose consent is legally invalid 

because he or she is fourteen years old, and sexual intercourse 

with an adult victim whose consent is legally invalid because he 

or she has the mental capacity of a fourteen-year-old. Indeed, 

as noted above, North Carolina law itself draws precisely this 

parallel, treating the second subsection of its second-degree 

rape statute as analogous to its statutory rape law. See

Atkins, 666 S.E.2d at 812 (“This is basically a statutory rape 

section . . . .”); Banks, 766 S.E.2d at 339.6 Thornton controls 

 6 The dissent argues that offenses under the second-degree 

rape statute necessarily are “violent” in a way that statutory 

rape is not because the second subsection of that statute limits 

its reach to defendants who know – or do not know, but should –

that a victim is mentally disabled or otherwise falls within the 

protected category. We cannot agree. A defendant’s “guilty 

knowledge” that a victim is mentally disabled, post at 13 – or 
15

on this question, and we are bound to find that North Carolina’s 

second-degree rape statute is not categorically a crime of 

violence under § 4B1.2(a)(2)’s residual clause.7

 

his failure to discern mental disability when it is found that 

he should, see Williams, 698 S.E.2d at 546-47 (despite his own 

mental impairments, defendant “reasonably should have 

discovered” victim’s mental disability) – of course may bear on 

culpability, and, again, we do not doubt the gravity of offenses 

under North Carolina’s statute. But that is a distinct question 

from whether all such offenses are “inherently violent and 

aggressive,” Thornton, 554 F.3d at 448, and as we have held, sex 

offenses committed against victims who give factual (but legally 

invalid) consent are not “inherently violent” in that sense, id.

Moreover, because North Carolina second-degree rape, like 

statutory rape, presumes invalid any consent, it may be 

committed even when a defendant lacks the intent to override the 

will of a factually consenting victim, and is in that way akin 

to a strict liability, recklessness, or negligence offense. See

Sykes, 131 S. Ct. at 2275-76; Begay, 553 U.S. at 144-45; 

Thornton, 554 F.3d at 448.

7 Our conclusion here is limited to the second subsection of 

North Carolina’s statute. We should note, however, that even if 

the second subsection could be reconciled with the text of 

§ 4B1.2, there would remain the question of the first. And 

because that subsection may be violated through force that is 

constructive rather than physical, it, too, raises significant 

issues under § 4B1.2. After Johnson, 559 U.S. at 140 (“physical 

force” under § 4B1.2(a)(1) means “violent force”), we doubt that 

a statute requiring only constructive force in the form of an 

inherently coercive relationship, like the first subsection of 

the North Carolina law, can be brought within the force clause. 

See United States v. Vann, 660 F.3d 771, 779 n.2 (4th Cir. 2011) 

(en banc) (King, J., concurring). And there is room to question

whether an offense under the first subsection that is predicated 

on an inherently coercive relationship could fall within the 

residual clause, as sufficiently similar in kind and degree of 

risk of physical injury to § 4B1.2(a)(2)’s listed examples. See

Thornton, 554 F.3d at 448 (rejecting government argument that 

sex offense involves constructive force and therefore falls 

within residual clause); see also Leshen, 453 F. App’x at 415 
16

D.

We turn now to the government’s argument on appeal. The 

government does not contest, at least directly, our holding that 

a North Carolina second-degree rape conviction does not qualify 

categorically as a crime of violence under either clause of 

§ 4B1.2’s definition. Instead, the government rests its 

argument entirely on the commentary to § 4B1.2, which lists 

“forcible sex offense[]” as an example of a crime of violence. 

U.S.S.G. § 4B1.2 cmt. n.1. More specifically, the government 

contends that because sex offenses resting on legally 

insufficient consent constitute “forcible sex offenses” under a 

different section of the Guidelines – Guidelines § 2L1.2 – they 

must be crimes of violence under the commentary to § 4B1.2, as 

well. Two other circuit courts have rejected precisely that 

argument, see Wynn, 579 F.3d at 574–75 (Sixth Circuit); Wray, 

776 F.3d at 1187–88 (Tenth Circuit); see also Leshen, 453 F. 

App’x at 415–16 (Fourth Circuit, unpublished), and we join them 

now.

 

(constructive force “no longer satisfies either prong” of 

§ 4B1.2’s definition of crime of violence). But we need not 

resolve those issues today. As we have explained, North 

Carolina’s second-degree rape statute can qualify categorically 

as a crime of violence only if both its subsections are covered 

by § 4B1.2, and so our determination that the second subsection 

reaches offenses that fall outside the terms of § 4B1.2 is 

enough to dispose of this case.
17

Section 2L1.2 of the Guidelines enhances the base offense 

level for certain immigration violations where the defendant has 

committed a prior felony “crime of violence” or misdemeanor 

“crimes of violence.” U.S.S.G. § 2L1.2(b)(1)(A), (E). The text 

of § 2L1.2 does not define crime of violence and, unlike the 

provision under which Shell was sentenced, it does not 

incorporate by reference § 4B1.2’s two-clause definition of 

crime of violence. Instead, § 2L1.2 includes commentary listing 

“forcible sex offense[]” as an example of a crime of violence. 

Id. at cmt. n.1(B)(iii).

In United States v. Chacon, we applied § 2L1.2 to a 

subsection of a Maryland statute much like the second subsection 

of North Carolina’s statute, criminalizing intercourse with a 

person who is mentally defective, mentally incapacitated, or 

physically helpless. 533 F.3d 250, 255 (4th Cir. 2008). At 

the time, § 2L1.2’s commentary provided: 

“Crime of violence” means any of the following 

offenses under federal, state, or local law: murder, 

manslaughter, kidnapping, aggravated assault, forcible 

sex offenses, statutory rape, sexual abuse of a minor, 

robbery, arson, extortion, extortionate extension of 

credit, burglary of a dwelling, or any offense under 

federal, state, or local law that has as an element 

the use, attempted use, or threatened use of physical 

force against the person of another.

U.S.S.G. § 2L1.2 cmt. n.1(B)(iii) (2006) (emphases added). We 

held, first, that the Maryland offense did not have “as an 

element the use, attempted use, or threatened use of physical 
18

force,” and so did not fall within § 2L1.2’s “force clause.” 

Chacon, 533 F.3d at 255-56.8 We went on to find, however, that 

it nevertheless qualified as a “forcible sex offense[]” within 

the meaning of § 2L1.2. Id. at 256–58. In the absence of a 

textual definition, we relied on the “ordinary, contemporary” 

meaning of “forcible” and concluded that it reaches not only 

physical force but also compulsion effectuated through “power” 

or “pressure,” id. at 257, as when a rape is “accomplished by 

taking advantage” of someone who cannot give legal consent, id.

at 258. And extending “forcible sex offenses” to statutes that 

do not require physical force and instead presume the inability 

to consent, we held, is consistent with § 2L1.2’s commentary as 

a whole, which expressly enumerates the similar offenses of 

“statutory rape” and “sexual abuse of a minor.” See id.

It is Chacon’s “common meaning” analysis on which the

government relies most heavily here. The government argues that 

once we have established the common meaning of the phrase 

forcible sex offenses, that common meaning stays the same, 

traveling with the term wherever it appears in the Guidelines. 

 8 The dissent relies heavily on Chacon in arguing that North 

Carolina second-degree rape falls within § 4B1.2, and presumably 

its force clause. But if Chacon’s construction of the § 2L1.2 

commentary directly governed this case, as the dissent urges, 

then surely this part of Chacon’s holding would govern, as well, 

and eliminate § 4B1.2’s force clause as a textual basis for the 

dissent’s position.
19

Appellee’s Br. 25 (“It is difficult to imagine how . . . 

examining the common meaning of the phrase forcible sex offense 

[] would lead to a different result simply based on where the 

enumerated offense appears in the guidelines.”). We appreciate 

the logic of this position, but, as in Leshen, 453 F. App’x at 

414–16, we must disagree.

As the Supreme Court recently reminded us, when it comes to 

statutory construction, context matters. See Yates v. United 

States, 135 S. Ct. 1074, 1082 (2015) (“In law as in life, [] the

same words, placed in different contexts, sometimes mean 

different things.”). Section 4B1.2’s career-offender guideline, 

at issue here, and § 2L1.2’s immigration guideline, construed in 

Chacon, are different provisions, with significantly different 

texts and structures. Accordingly, while we of course do not 

question Chacon’s conclusion that offenses presuming the 

inability to consent qualify as forcible sex offenses under 

§ 2L1.2’s commentary, we reach a different result under § 4B1.2.

Both provisions, as the government says, list forcible sex 

offenses in their commentaries. But critically, while § 2L1.2 

defines crime of violence entirely through that commentary, 

§ 4B1.2 provides a separate two-part definition of crime of 

violence in its text, with the commentary serving only to 

amplify that definition, and any inconsistency between the two 

resolved in favor of the text, Stinson, 508 U.S. at 43. So in 
20

interpreting “forcible sex offenses” in § 4B1.2’s commentary, we 

do not write on a blank slate; instead, we have a carefully 

reticulated definition of crime of violence to which we must 

adhere. See Leshen, 453 F. App’x at 415 (under § 4B1.2, 

“‘[f]orcible sex offenses’ does not have freestanding 

definitional power,” but must instead be linked to a prong of

the textual definition of crime of violence); see also United 

States v. Benkahla, 530 F.3d 300, 312 (4th Cir. 2008) 

(recognizing courts’ “duty to harmonize Guidelines and 

commentary”). And as discussed above, that textual definition 

comes to us glossed by Supreme Court and Fourth Circuit 

precedent that precludes its application to offenses committed 

without “violent” force and predicated on the legal invalidity 

of consent. Chacon, on the other hand, interpreted “forcible 

sex offenses” as a freestanding phrase, without the constraints 

imposed by § 4B1.2’s text, and so had the leeway to canvas 

outside sources in search of ordinary meaning. 533 F.3d at 257 

(“When a word is not defined by statute, we normally construe it 

in accord with its ordinary or natural meaning.” (quoting Smith 

v. United States, 508 U.S. 223, 228 (1993))). Those are 

markedly different interpretive enterprises, driven by the 

different structures of the provisions, and it should be no 

surprise that we end up in different places.
21

Moreover, the full text of the two commentaries themselves 

strongly suggests a broader reading of the term “crime of 

violence” under the immigration guideline at issue in Chacon

than under the career-offender guideline before us today. As we 

explained in Chacon, the commentary to § 2L1.2 includes not only 

“forcible sex offenses” but also other offenses that do not 

require physical force, such as statutory rape and sexual abuse 

of a minor, in its list of enumerated crimes of violence. 533 

F.3d at 258 (citing U.S.S.G. § 2L1.2 cmt. n.1(B)(iii)). Section 

4B1.2’s commentary, on the other hand, does not list statutory 

rape or sexual abuse of a minor, but only offenses that plainly 

involve physical force, such as murder and aggravated assault. 

U.S.S.G. § 4B1.2 cmt. n.1. On its face, the commentary to the 

immigration guideline sweeps further and “expressly cover[s] 

more sex crimes” than the career-offender commentary. Wynn, 579 

F.3d at 575; see Leshen, 453 F. App’x at 415–16. Reading 

“forcible sex offenses” to include offenses committed without 

physical force and predicated on legally invalid consent makes 

sense under § 2L1.2’s commentary in a way it would not under 

§ 4B1.2’s commentary. 

Finally, we think it is clear that the Sentencing 

Commission intended this result. First, the Commission chose to 

include multiple and different definitions of “crime of 

violence” in the Guidelines. Had it wanted that term to have 
22

the same scope each time it appeared, then the obvious solution 

would have been to provide one uniform definition, applicable 

throughout. Instead, the Commission set out different “crime of 

violence” enhancements for different underlying crimes. The 

felon-in-possession guideline under which Shell was sentenced, 

§ 2K2.1, by cross-referencing § 4B1.2’s definition, provides for 

an enhancement if Shell is a “career offender” – the “kind of 

person who might deliberately point the gun and pull the 

trigger.” Begay, 553 U.S. at 146. If the Commission had wanted 

to enhance felon-in-possession sentences for a broader range of 

crimes of violence, including misdemeanor crimes, then it simply 

could have cross-referenced § 2L1.2, instead. See Wray, 776 

F.3d at 1188.

Second, in 2008 and after we decided Chacon, the Sentencing 

Commission amended the commentary to § 2L1.2’s immigration 

guideline, adding a parenthetical: “forcible sex offenses 

(including where consent to the conduct is not given or is not 

legally valid, such as where consent to the conduct is 

involuntary, incompetent, or coerced) . . . .” U.S.S.G. § 2L1.2 

cmt. n.1(B)(iii) (emphasis added). At the same time, the 

Commission left § 4B1.2 intact, explaining that its purpose was 

to “clarif[y] the scope of the term ‘forcible sex offense’ as 

that term is used in the definition of ‘crime of violence’ in 

§ 2L1.1.” U.S. Sentencing Guidelines Manual app. C, vol. III, 
23

amend. 722, at 302 (2011) (emphases added). “[T]he logical 

conclusion that we must draw is that the Sentencing Commission 

did not intend for ‘forcible sex offenses’ under § 4B1.2 to be 

defined the same way as ‘forcible sex offenses’ under § 2L1.2.” 

Wynn, 579 F.3d at 575; see Wray, 776 F.3d at 1188 (citing maxim 

of expressio unius est exclusio alterius and concluding that the 

express inclusion of invalid-consent offenses in § 2L1.2 

“suggests, at a minimum,” that those offenses are not covered by 

§ 4B1.2); Leshen, 453 F. App’x at 415–16 (relying on 

Commission’s decision to amend § 2L1.2 but not § 4B1.2).

Following the reasoning of the Sixth and Tenth Circuits, we 

hold that Shell’s prior conviction for North Carolina seconddegree rape is not categorically a crime of violence under 

§ 4B1.2. Our decision should not be understood to minimize in 

any way the seriousness of the offenses proscribed by the North 

Carolina statute or the importance of the state’s interest in 

protecting the most vulnerable of victims. But whether the full 

range of conduct covered by that state statute constitutes a 

crime of violence under § 4B1.2, as construed both by our court 

and the Supreme Court, is a different question, which we are 

obliged to answer in the negative. Because the district court 

erred in characterizing Shell’s prior conviction as a crime of 

violence and thereby enhancing Shell’s base offense level for 
24

illegally possessing a firearm, we vacate Shell’s sentence and 

remand for resentencing. 

III.

The district court also enhanced Shell’s sentence under 

Guidelines § 3C1.2, for “recklessly creat[ing] a substantial 

risk of death or serious bodily injury to another person in the 

course of fleeing from a law enforcement officer.” Shell 

concedes on appeal that he drove recklessly during the incident 

leading to his arrest, but argues that the enhancement does not 

apply because he was not aware that he was being pursued by a 

law enforcement officer. We evaluate that legal claim de novo 

and review relevant factual findings by the district court for 

clear error. United States v. Carter, 601 F.3d 252, 254 (4th 

Cir. 2010).

A.

Our court has not addressed whether the § 3C1.2 enhancement 

applies if the defendant was unaware that he was being pursued 

by an officer. But every circuit to consider the question has 

concluded that the enhancement is not warranted where an officer 

is following a defendant but the defendant does not know that 

the officer is in pursuit, and is driving recklessly for some 

other reason. See United States v. Martikainen, 640 F.3d 1191, 

1193–94 (11th Cir. 2011) (per curiam); United States v. Moore, 
25

242 F.3d 1080, 1082 (8th Cir. 2001); United States v. Hayes, 49 

F.3d 178, 183–84 (6th Cir. 1995). At argument, the government 

conceded that this is the correct reading of § 3C1.2. We agree, 

and now adopt that reading, joining our sister circuits in 

holding that the § 3C1.2 enhancement does not apply where a 

defendant was unaware that he was being pursued by a law 

enforcement officer.

This interpretation of § 3C1.2 comports with the Sentencing 

Commission’s reason for promulgating it. See U.S. Sentencing 

Guidelines Manual app. C, vol. I, amend. 347, at 196–99 (2008). 

The provision is a derivative of Guidelines § 3C1.1, the 

obstruction-of-justice enhancement, which targets defendants who 

engage in conduct to mislead authorities or otherwise interfere 

with the disposition of criminal charges. See id. at 196. The 

Commission found that “reckless endangerment during flight is 

sufficiently different from other forms” of obstruction of 

justice that it warranted a separate enhancement, and § 3C1.2 is 

expressly made applicable to resisting arrest. Id. at 199. 

Those origins make clear, we believe, that § 3C1.2 is intended 

to capture “behavior that could be viewed as an obstruction of 

justice,” and thus requires that a defendant be aware that he or 

she is fleeing from a law enforcement officer. Hayes, 49 F.3d 

at 183.
26

B.

At sentencing in this case, the parties contested both 

whether Shell recklessly created a risk of injury and – despite 

the absence of circuit precedent – whether Shell knew that he 

was being pursued by the police. As to reckless endangerment, 

the government relied principally on the testimony of Nicole 

Smith, who described “screeching tires” and a “black car coming 

sideways” that “missed [her] by about two inches.” J.A. 44-45. 

Shell sought to rebut that testimony primarily through the 

absence of skid marks on the road. 

The case as to Shell’s knowledge of police pursuit was 

complicated by the fact that Shell already was speeding at the 

time Hodges encountered him while traveling in the opposite 

direction, and that Shell was no longer within Hodges’s sight 

once Hodges activated his siren and turned around to follow 

Shell. Shell argued that he was unaware that Hodges had decided 

to pursue him, and pointed for support to witness testimony that 

Shell had expressed concern when a bystander to his accident 

called the police – concern that would have been beside the 

point, Shell argued, had he believed that the police already 

were in pursuit. The government, for its part, pointed to 

Shell’s flight from the scene of the accident and his admission 

that he had seen Hodges at some point, though it was unclear 

whether before or after Hodges activated his siren. According 
27

to the government, Shell’s concern about the call to the police 

after his accident could be explained by Shell’s belief that he 

had eluded Hodges successfully up until that point. 

In imposing the § 3C1.2 enhancement at sentencing, the 

district court made the following finding:

The court credits the testimony of Ms. Smith as to the

perception she had at the time of the approach of the 

black Mercedes to her car which she described as being 

sideways in the roadway and making substantial 

skidding noises and that it missed her car by 

approximately two inches. And that testimony is 

fortified by the fact that no – people don’t tend to 

forget that sort of thing. [An inconsistent detail in 

Smith’s testimony] is not critical to the analysis 

under U.S. Sentencing Guidelines 3C1.2. Defendant did 

create a substantial risk of death or serious bodily 

injury to her in the course of fleeing from a law 

enforcement officer.

J.A. 58–59. The final sentence, incorporating the ultimate 

finding, quotes the language of § 3C1.2, in determining that 

Shell “created a substantial risk of death or serious bodily 

injury,” and did so “in the course of fleeing from a law 

enforcement officer.” U.S.S.G. § 3C1.2. But because the 

district court did not have the benefit of the ruling we 

announce today, it had no occasion to make a separate finding 

that Shell was aware that he was being pursued by Hodges. And 

given the preceding context, which focuses exclusively on the 

separate question of whether Shell recklessly endangered Smith, 

we cannot be certain that the district court in fact did make 

such a finding. Accordingly, we remand on this issue, as well, 
28

so that the district court may apply our newly announced 

understanding of § 3C1.2 to this case and clarify whether Shell 

knew that he was being pursued by law enforcement.

IV.

For the foregoing reasons, we vacate the district court’s 

judgment and remand for resentencing consistent with this 

opinion.

VACATED AND REMANDED
29

WILKINSON, Circuit Judge, dissenting:

North Carolina’s second-degree rape statute punishes 

predatory acts committed against society’s most vulnerable 

individuals. To violate the contested portion of this statute, 

one must have taken advantage of a mentally or physically 

defenseless person to engage in sexual intercourse -- all the 

while knowing of the victim’s impaired condition. N.C. Gen. 

Stat. § 14-27.3(a)(2). This law protects people considered 

incapable of volitional acts from such callous conduct.

The majority, however, asks us to accept a disquieting 

proposition: that a defendant who “engages in vaginal 

intercourse with another person . . . [w]ho is mentally 

disabled, mentally incapacitated, or physically helpless,” with 

knowledge of that vulnerability, has somehow not committed a

forcible sex offense. Id. How can that be? A proper reading of 

the law confirms the common intuition about the nature of this 

crime. It inherently involves the kind of force that is 

emblematic of a “crime of violence” under the relevant provision 

of the United States Sentencing Guidelines. U.S.S.G. 

§ 4B1.2(a)(1) & cmt. n.1. Both this court and North Carolina’s 

courts have specifically recognized the forcible nature of these 

sorts of acts, and rightly so. I do not understand how the 

knowing, forcible sexual subjugation of helpless human beings 
30

fails to qualify as a crime of violence. With all respect for 

my friends in the majority, I dissent.1

I.

Under the Guidelines provisions for firearms offenses, a 

defendant who previously sustained a felony conviction for a 

“crime of violence” is subject to a heightened base offense 

level. U.S.S.G. § 2K2.1(a)(4)(A). A “crime of violence” may 

refer to any felony that “has as an element the use, attempted 

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

another.” Id. § 4B1.2(a)(1); see id. § 2K2.1 cmt. n.1 (crossreferencing the provision for career offenders). As the 

Guidelines commentary explains, the term “crime of violence” 

also covers a number of enumerated offenses, including “murder, 

manslaughter, kidnapping, aggravated assault, forcible sex 

offenses, robbery, arson, extortion, extortionate extension of 

credit, and burglary of a dwelling.” Id. § 4B1.2 cmt. n.1; see

id. § 2K2.1 cmt. n.1. This list of crimes by the Sentencing 

Commission is “authoritative.” Stinson v. United States, 508 

 1 I agree with the majority that Shell was required to know, 

for the purposes of an enhancement under U.S.S.G. § 3C1.2, that 

he was being pursued by a law enforcement officer. While I 

think the district court’s discussion has already incorporated 

the fact of such knowledge, I have no objection to remanding for 

a further finding on the point.
31

U.S. 36, 38 (1993). The term “crime of violence” thus expressly 

encompasses forcible sex offenses.

A.

Was Shell’s prior crime a forcible sex offense? We begin 

with the state statute under which he was convicted.2

 Our charge 

is to determine the range of actions that North Carolina would 

realistically classify as second-degree rape. This is a 

practical exercise, not a dreamy one about every conceivable 

scenario to which the statute might apply. See United States v. 

Diaz-Ibarra, 522 F.3d 343, 348 (4th Cir. 2008) (requiring “‘a 

realistic probability, not a theoretical possibility,’ that the 

state would apply its statute to conduct that falls outside the 

 2 Of course, the meaning of a federal provision, be it 

statutory or regulatory or Sentencing Guideline, is a federal 

question. See Johnson v. United States, 559 U.S. 133, 138

(2010). But the elements of a predicate state offense are 

obviously a question of state law, see id., and determining 

those elements is obviously a critical step here: our express 

charge is to compare the elements of the predicate state offense 

with the elements of the “generic” crime, see Descamps v. United 

States, 133 S. Ct. 2276, 2281 (2013). In fact, in construing 

this North Carolina statute, we are bound by the interpretations 

and decisions of the Supreme Court of North Carolina. See

Johnson, 559 U.S. at 138; United States v. Aparicio-Soria, 740 

F.3d 152, 154 (4th Cir. 2014) (en banc). No federal court “has 

any authority 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). 

Examining North Carolina’s case law is an essential part of the 

inquiry before us.
32

definition of ‘crime of violence’” (quoting Gonzales v. DuenasAlvarez, 549 U.S. 183, 193 (2007))).

North Carolina defines the felony of second-degree rape as 

follows:

(a) A person is guilty of rape in the second degree if 

the person engages in vaginal intercourse with another 

person:

(1) By force and against the will of the other 

person; or

(2) Who is mentally disabled, mentally 

incapacitated, or physically helpless, and the 

person performing the act knows or should 

reasonably know the other person is mentally 

disabled, mentally incapacitated, or physically 

helpless.

N.C. Gen. Stat. § 14-27.3(a)(1)-(2). Another state provision, 

in turn, defines each of the three mental or physical conditions 

identified in the second-degree rape statute: 

(1) “Mentally disabled” means (i) a victim who suffers 

from mental retardation, or (ii) a victim who suffers 

from a mental disorder, either of which temporarily or 

permanently renders the victim substantially incapable 

of appraising the nature of his or her conduct, or of 

resisting the act of vaginal intercourse or a sexual 

act, or of communicating unwillingness to submit to 

the act of vaginal intercourse or a sexual act.

(2) “Mentally incapacitated” means a victim who due to 

any act committed upon the victim is rendered 

substantially incapable of either appraising the 

nature of his or her conduct, or resisting the act of 

vaginal intercourse or a sexual act.

(3) “Physically helpless” means (i) a victim who is 

unconscious; or (ii) a victim who is physically unable 

to resist an act of vaginal intercourse or a sexual 

act or communicate unwillingness to submit to an act 

of vaginal intercourse or a sexual act.
33

Id. § 14-27.1(1)-(3). The import of these provisions is plain. 

The victims under this North Carolina law cannot comprehend the 

situation or resist the aggressor’s sexual advances. In one way 

or another, these persons are helpless.

North Carolina’s second-degree rape statute does not suffer 

from vagueness. It covers a specific and limited universe of 

conduct. And each disjunctive variant under the statute entails 

some form of force. The record of Shell’s conviction does not 

specify whether he was convicted under subsection (a)(1) or 

(a)(2). See J.A. 62, 119-20.

The majority could scarcely argue that subsection (a)(1) --

which criminalizes sex “[b]y force and against the will of the 

other person,” N.C. Gen. Stat. § 14-27.3(a)(1) -- falls short of 

a crime of violence. The forcible nature of this crime is selfevident. See U.S.S.G. § 4B1.2(a)(1) & cmt. n.1. Shell’s only 

possible refuge lies in subsection (a)(2) of the North Carolina 

statute. But raping a mentally disabled, mentally 

incapacitated, or physically helpless person is a forcible sex 

offense and a crime of violence -- so much so that only our 

esteemed profession could complicate the inquiry.

B.

In addressing the nature of this North Carolina predicate 

offense, I must first acknowledge the validity of the majority’s 
34

concerns. It is important not to let predicate crimes of 

violence metastasize. I agree with the majority that it is 

unfair to tag defendants with predicate crimes of violence when 

a state statute is in reality capable of many nonviolent 

applications. Notwithstanding this, I think the majority is 

quite wrong to expand the whole concept of nonforcible or 

nonviolent rape. Even apart from the cognitive jolt delivered 

by such terms, North Carolina’s statute is limited in all kinds 

of ways that the majority has failed both to acknowledge and to 

appreciate.

Second-degree rape in North Carolina involves the three 

basic elements of (1) “vaginal intercourse,” (2) “force,” and 

(3) “lack of consent.” State v. Smith, 626 S.E.2d 258, 261 

(N.C. 2006); see N.C. Gen. Stat. § 14-27.3(a)(1)-(2). The 

critical issue in the present case is force. The Supreme Court 

of North Carolina’s binding case law interpreting this state 

statute is exceptionally clear. See United States v. AparicioSoria, 740 F.3d 152, 154 (4th Cir. 2014) (en banc). The 

Guidelines require “forcible sex offenses.” Second-degree rape 

of any kind in North Carolina requires an element of force. 

Force may assume various legal labels in different cases --

actual, constructive, implied -- but, under any name, it is 

still exactly that: force.
35

The history of North Carolina’s laws against rape confirms 

that force is an indispensable element of the offense. North 

Carolina’s rape statutes “essentially codify the common law of 

rape.” State v. Moorman, 358 S.E.2d 502, 506 (N.C. 1987). The 

common law “implied in law the elements of force and lack of 

consent,” with the result that the crime of rape was “complete 

upon the mere showing of sexual intercourse with a person who is 

asleep, unconscious, or otherwise incapacitated.” Id. at 505. 

Under the modern second-degree rape statute, “it makes no 

difference whether the indictment alleges that the vaginal 

intercourse was by force and against the victim’s will,” as in 

§ 14-27.3(a)(1), “or whether it alleges merely the vaginal 

intercourse with an incapacitated victim,” as in § 14-

27.3(a)(2). Id. at 506 (emphasis added). In the instances 

covered by subsection (a)(2), “sexual intercourse with the 

victim is ipso facto rape because the force and lack of consent 

are implied in law.” Id. As a legal matter, the threshold force 

required for a conviction under either subsection is the same.

The Supreme Court of North Carolina has spoken with utmost 

clarity about the nature of crimes of rape in that state. In 

the context of North Carolina’s own sentencing laws, the state’s 

highest court has stated plainly, “[W]e reject the notion of any

felony which may properly be deemed ‘non-violent rape.’” State 

v. Holden, 450 S.E.2d 878, 884 (N.C. 1994) (emphasis added) 
36

(discussing N.C. Gen. Stat. § 15A-2000(e)(3)). In North 

Carolina, “rape is a felony which has as an element the use or 

threat of violence to the person.” Id. at 883. Indeed, even 

“the crime of attempted rape always involves at least a ‘threat 

of violence.’” Id. at 884.

North Carolina’s highest court has specifically rejected a 

claim very much like the one endorsed by today’s majority. In 

Holden, the defendant argued that his prior conviction for 

attempted second-degree rape did not necessarily constitute a 

crime of violence under North Carolina law, because the 

conviction could have involved sex with a person who was 

mentally disabled, mentally incapacitated, or physically 

helpless. N.C. Gen. Stat. § 14-27.3(a)(2). But the court 

firmly disagreed. Holden, 450 S.E.2d at 883-84.

The key to the Holden court’s ruling was the presence of 

force, and indeed violence, in any instance of rape. Whether 

the victim refuses to consent, as in subsection (a)(1), or 

whether the victim cannot consent because of a mental or 

physical impairment, as in subsection (a)(2), the analysis is 

the same. Id. at 884-85. Under North Carolina law, “the force

inherent to having sexual intercourse with a person who is 

deemed by law to be unable to consent is sufficient to amount to 

‘violence.’” Id. at 884 (emphasis added). In interpreting 

North Carolina’s second-degree rape statute, we could hardly ask 
37

for a clearer mandate from the state’s highest court. The 

majority’s novel felony of “non-violent rape” is an oxymoron not 

recognized in North Carolina law. Id.

This interpretation of North Carolina’s rape statutes is 

now firmly rooted in the state’s jurisprudence. The Court of 

Appeals of North Carolina has heeded the dictates of the state’s 

highest court. “The gravamen of the offense of second[-]degree 

rape,” the Court of Appeals recently reaffirmed, “is forcible 

sexual intercourse.” State v. Haddock, 664 S.E.2d 339, 344

(N.C. Ct. App. 2008). The stipulated conditions of mental 

disability, mental incapacity, and physical helplessness simply 

constitute “alternative means by which the force necessary to 

complete a rape may be shown.” Id. at 345; see, e.g., State v. 

Washington, 506 S.E.2d 283, 290 (N.C. Ct. App. 1998); State v. 

Martin, 485 S.E.2d 352, 354 (N.C. Ct. App. 1997) (Wynn, J.); 

State v. Aiken, 326 S.E.2d 919, 926 (N.C. Ct. App. 1985).

The majority too quickly dismisses the “force clause” of 

the career-offender Guidelines provision, § 4B1.2(a)(1), and too 

readily assails the straw man of the “residual clause,” 

§ 4B1.2(a)(2). See Maj. Op. at 10-16. The residual clause 

covers any felony that is a “burglary of a dwelling, arson, or 

extortion, involves use of explosives, or otherwise involves 

conduct that presents a serious potential risk of physical 

injury to another.” U.S.S.G. § 4B1.2(a)(2). The majority 
38

relies on United States v. Thornton, 554 F.3d 443 (4th Cir. 

2009). But the differences between that case and this are night 

and day. The Virginia law in Thornton criminalized “‘carnal 

knowledge’” of a minor “‘without the use of force,’” 554 F.3d at 

445 n.2 (emphasis added) -- quite unlike North Carolina’s 

forcible crime of second-degree rape. Because the force clause 

obviously did not apply, id. at 446, all that remained was the 

residual clause, which the court understandably deemed a poor 

fit, id. at 446-49. The majority’s discussion of Thornton and 

the residual clause is thus inapposite.

C.

The majority maintains that the rape of a mentally 

disabled, mentally incapacitated, or physically helpless person 

is analogous to statutory rape. The shared logic of those 

crimes, according to the majority, is that “the fact of consent 

is not a defense where the victim is unable to give legally 

valid consent by virtue of age or by virtue of mental 

disability.” Maj. Op. at 7. But the analogy is misguided. As 

a preliminary matter, North Carolina’s second-degree rape 

statute does not target statutory rape. See N.C. Gen. Stat. 

§ 14-27.3; J.A. 60-66. It makes no mention of the victim’s age. 

It is instead defined by the victim’s mental or physical 
39

defenselessness and an inability to fathom the basic situation 

or oppose the aggressor’s actions. 

I would not equate age and impairment. Some teenagers are 

mature and responsible; others are decidedly not. But all the 

victims under North Carolina’s second-degree rape statute are by 

definition required to be lacking in basic mental or physical 

capacity. Unlike with statutory rape, the extent of the 

victim’s disability must be individually established, sometimes 

with expert testimony. See State v. Hunt, 722 S.E.2d 484, 491-

92 (N.C. 2012). Such circumstances, based on a person’s 

particular mental or physical characteristics, differ markedly 

from legally insufficient consent based on age alone.

The differences do not stop there. Compulsion is not the 

operative factor in the crime of statutory rape. This court has 

already underscored that distinction in the Guidelines context 

as well. As we observed in an assessment of § 2L1.2, “it is 

clear that the Sentencing Commission purposely juxtaposed the 

neighboring terms ‘forcible sex offense[]’ and ‘statutory rape,’

with the former intended to connote rape or other qualifying 

conduct by compulsion and the latter intended to connote rape on 

account of the victim’s age.” United States v. RangelCastaneda, 709 F.3d 373, 380 (4th Cir. 2013) (emphasis added). 

Indeed, we specifically held that a Tennessee statutory rape 

conviction did not qualify as a forcible sex offense. Id.
40

Before today, at least, the distinction between forcible sex 

offenses and statutory rape was sharply defined.

Even the cases cited by the majority actually underscore 

the distinction between second-degree rape and statutory rape. 

See Maj. Op. at 7-8. The majority quotes a state senator who 

likened an underlying 1979 bill to “‘basically a statutory rape 

section.’” State v. Atkins, 666 S.E.2d 809, 812 (N.C. Ct. App. 

2008) (emphasis added). But the legislator goes on to note a 

key distinction: this law would apply “‘in cases where someone 

engages in a sex act with a person who is, in fact, incapable of 

resisting or communicating resistance’” -- against the 

perpetrator’s forcible actions. Id. Atkins itself provides a 

telling example: the victim was a severely arthritic eightythree-year-old woman who was deemed “physically helpless” based 

on her apparent inability “to actively oppose or resist her 

attacker.” Id. at 812-13; see also State v. Huss, 734 S.E.2d 

612, 615 (N.C. Ct. App. 2012) (noting that the “factors and 

attributes” examined in Atkins “were unique and personal to the 

victim”), aff’d by an equally divided court, 749 S.E.2d 279 

(N.C. 2013) (per curiam). The majority cites another case 

comparing second-degree rape and statutory rape. State v. 

Banks, 766 S.E.2d 334 (N.C. 2014). In fact, that was a double 

jeopardy case -- and the Supreme Court of North Carolina 

expressly found them to be separate and distinct offenses. Id.
41

at 339; see Blockburger v. United States, 284 U.S. 299, 304 

(1932).

Statutory rape is, finally, a crime of strict liability in 

North Carolina. State v. Anthony, 528 S.E.2d 321, 323-25 (N.C. 

2000). Laws against statutory rape traditionally lack a mens 

rea requirement. 2 Wayne R. LaFave, Substantive Criminal Law

§§ 5.5, 17.4 (2d ed. 2014). Unlike with statutory rape, this 

provision contains a strong mens rea requirement. To be 

convicted under subsection (a)(2), the perpetrator must have 

known, or reasonably should have known, that the victim was 

mentally disabled, mentally incapacitated, or physically 

helpless. N.C. Gen. Stat. § 14-27.3(a)(2). This knowledge 

forms part of the element of force that is present in virtually 

all crimes of rape under North Carolina law -- besides the 

strict liability offense of statutory rape.

The threshold act under subsection (a)(2) is sexual 

intercourse with a mentally or physically defenseless victim. 

This is a crime of forcible sexual compulsion. Lack of legally 

valid consent is but one feature of this offense. One wonders 

how it has come to be that a perpetrator who acted with guilty 

knowledge -- to take advantage of a profoundly vulnerable victim 

who is unable to resist -- could now escape sanction for the 
42

prior commission of what the Guidelines require: a “forcible” 

sex offense.3

D.

“Force” may involve the exertion of “[p]ower, violence, or 

pressure” against another person. Black’s Law Dictionary 717 

(9th ed. 2009). This conception of force is integral to the 

North Carolina statute. Yet the majority’s argument suggests that 

 3 In its effort to portray many of these crimes as not so 

very serious, the majority’s discussion of anecdotal evidence 

about Shell’s earlier conviction, see Maj. Op. at 8 n.1, 

impermissibly compromises the categorical approach. “Sentencing 

courts may ‘look only to the statutory definitions’ -- i.e., the 

elements -- of a defendant’s prior offenses, and not ‘to the 

particular facts underlying those convictions.’” Descamps v. 

United States, 133 S. Ct. 2276, 2283 (2013) (quoting Taylor v. 

United States, 495 U.S. 575, 600 (1990)). Despite its 

disclaimers, the majority nevertheless proceeds to sift through 

the scant and fragmentary indications in the record to try to 

ascertain highly questionable “facts” underlying Shell’s 

predicate offense. Its efforts illustrate why the categorical 

approach obliges courts to examine “elements, not facts.” Id.

The alternative is this sort of attempted factfinding from the 

remove of the appellate bench -- here, without the benefit of 

the state court’s or the sentencing court’s findings as to those 

“facts,” without adequate elucidation of the surrounding 

circumstances, and without any indicia of the transparently 

self-serving testimony’s reliability. What we do know is that 

Shell was convicted of North Carolina’s forcible crime of 

second-degree rape, which criminalizes vaginal intercourse with 

someone known to be mentally disabled, mentally incapacitated, 

or physically helpless. The categorical approach turns on those 

statutory elements. The majority, however, slides by that 

approach, notwithstanding the heartbreaking instances of seconddegree rape that lie in the weeds of predicate convictions 

through which federal courts in the course of Guidelines 

calculations such as this are not permitted to trek.
43

second-degree rape is somehow not “forcible” enough to be a 

forcible sex offense, or not “violent” enough to be a crime of 

violence.

For its own understanding of “force,” the majority relies 

on the Supreme Court’s pronouncements in Johnson v. United 

States, 559 U.S. 133 (2010). See Maj. Op. at 10-11. But 

Johnson is not like this case. Johnson involved a prior Florida 

conviction for battery. 559 U.S. at 136-37. With the common 

law crime of battery, the element of “force” was “satisfied by 

even the slightest offensive touching.” Id. at 139. For the 

Court, that threshold was too low when applied to a “violent 

felony.” Id. at 140; see also Aparicio-Soria, 740 F.3d at 154-

55. In modern parlance, the various definitions of “force” 

generally do not denote slight touching. Johnson, 559 U.S. at 

138-41. The degree of power or pressure indicated by the term 

“force” is not infinitely expansive. Context does matter. Id.

at 139-40. And de minimis contact is assuredly not the issue 

with the pertinent forms of second-degree rape punished under 

North Carolina law. Forcible intercourse is light-years removed 

from nominal battery.

The majority fails to grasp any of the multiple ways in 

which the North Carolina second-degree rape offense is 

circumscribed and limited. The forcible nature of this 

particular crime is unmistakable. The differences between this 
44

offense and statutory rape or nominal battery are clear. Nor 

does the majority appreciate the narrow range of mentally or 

physically defenseless persons to which this statute applies, on 

a personalized basis. The reality of what is happening to these 

victims quite eludes the majority’s view. The categorical 

approach applied by the majority rightly bars our inquiry into 

the particulars of any single predicate offense. It should not 

blind us to, in the words of Woody Guthrie, “a picture from 

life’s other side.”

II.

The problems with the majority’s approach do not end at the 

borders of North Carolina. Its decision is also inconsistent 

with precedents that, until now, seemed to speak with a clear 

and singular voice about the law governing this circuit. Our 

past pronouncements left no doubt about the inexorably forcible 

character of this brutal, unfeeling act.

A.

This court has already determined, in the context of a 

comparable Guidelines provision, that second-degree rape under a 

parallel state statute did constitute a forcible sex offense and 

thus qualified as a “crime of violence.” United States v. 

Chacon, 533 F.3d 250, 252 (4th Cir. 2008). The pertinent parts 
45

of the Maryland second-degree rape statute at issue in Chacon

were functionally identical to those in the North Carolina law 

here. The Maryland statute criminalized “vaginal intercourse” 

committed (1) “[b]y force or threat of force against the will and 

without the consent of the other person”; (2) with a victim who 

is “mentally defective, mentally incapacitated, or physically 

helpless,” when the perpetrator “knows or should reasonably 

know” of the condition; or (3) with a victim “under 14 years of 

age,” when the perpetrator is “at least four years older than 

the victim.” Md. Code Ann. art. 27, § 463(a)(1)-(3) (repealed 

2002) (current version at Md. Code Ann., Crim. Law § 3-

304(a)(1)-(3)). 

In Chacon, we recognized the fundamentally forcible nature 

of this crime. Examining the Guidelines provision for illegally 

reentering the United States, U.S.S.G. § 2L1.2, this court 

concluded that a violation of Maryland’s second-degree rape 

statute was categorically a forcible sex offense within the 

ambit of a “crime of violence,” Chacon, 533 F.3d at 252. The 

court’s reasoning was this: even without a requirement of the 

use of physical force, a crime under the Maryland statute was 

necessarily achieved through some form of compulsion. Id. at 

255-56.

Contrary to the majority’s suggestion, see Maj. Op. at 17-

23, this court’s analysis in Chacon applies with equal if not 
46

greater power in this case. As with the Guidelines provisions 

that applied to Shell, U.S.S.G. §§ 2K2.1, 4B1.2, the illegalreentry Guidelines provision at issue in Chacon provided for a 

sentencing enhancement if the defendant had previously sustained

a felony conviction for a “crime of violence,” id. § 2L1.2. In 

the definition of “crime of violence,” the commentary to the 

illegal-reentry provision likewise listed “forcible sex 

offenses.” Id. § 2L1.2 cmt. n.1(B)(iii). This court focused on 

the “ordinary, contemporary meaning” of the term “forcible sex 

offenses,” which is not defined in the Guidelines. Chacon, 533 

F.3d at 257; see Smith v. United States, 508 U.S. 223, 228 

(1993). Perusing dictionary definitions of “force” and 

“forcible,” the court gleaned a significant insight: “a 

‘forcible sex offense’ may be accomplished in the absence of 

physical force” per se. Chacon, 533 F.3d at 257 (emphasis 

added). Properly understood, “the use of force necessarily 

involves a degree of compulsion.” Id. And that compulsion “can 

be effected through ‘power’ or ‘pressure,’ which do not 

necessarily have physical components.” Id.

The Maryland statute in Chacon contained a provision 

virtually identical to the disputed North Carolina provision in 

this case. Both states’ second-degree rape laws criminalize 

sexual intercourse with a person who is mentally or physically 

defenseless, where the perpetrator knows or reasonably should 
47

know of the victim’s condition. See Md. Code Ann. art. 27,

§ 463(a)(2); N.C. Gen. Stat. § 14-27.3(a)(2). For these crimes, 

“any nonconsensual sexual contact is forcible because, if actual 

physical force is unnecessary, some degree of compulsion is 

nevertheless required to overcome an unwilling victim or take 

advantage of a helpless and incapacitated one.” Chacon, 533 

F.3d at 255-56. The only difference between this case and 

Chacon is that this statute comes from North Carolina, while the 

statute in Chacon came from Maryland. That point of distinction 

embodies no neutral principle.

B.

The majority makes much of a technical amendment to the 

illegal-reentry Guidelines provision that became effective 

shortly after we handed down Chacon. U.S.S.G. app. C, amend. 

722, at 301-03; see Maj. Op. at 22-23. That amendment made 

clear that “forcible sex offenses” do in fact include instances 

“where consent to the conduct is not given or is not legally 

valid, such as where consent to the conduct is involuntary, 

incompetent, or coerced.” Id. § 2L1.2 cmt. n.1(B)(iii). As 

this court later confirmed, the amendment “was intended simply 

to clarify that the requisite compulsion need not be physical in 

nature,” and the revised Guidelines language was fully in line 

with our prior holding in Chacon. United States v. Rangel-
48

Castaneda, 709 F.3d 373, 380 (4th Cir. 2013). The amendment did 

not alter the governing analysis. If anything, the language of 

the amendment specifically reinforces the interpretation that 

the term “forcible sex offenses” here does refer to crimes of 

compulsion.

In excluding North Carolina’s second-degree rape statute 

from the “crime of violence” definition under § 4B1.2, the 

majority can only grasp at the thin reed of negative 

implication. The trouble is that the positive indications 

undercut the majority’s conclusion.

Neither the modified illegal-reentry language in § 2L1.2 

nor the unmodified career-offender language in § 4B1.2 supports 

the majority’s proffered requirement of the use of physical 

force. The Sentencing Commission has not chosen to alter the 

language in the career-offender provision to impose such a 

requirement. See Chacon 533 F.3d at 257-58.

The Commission simply has not restricted the meaning of 

“forcible sex offenses” as the majority does today. Had it 

wanted to do so, the Commission could easily have added to 

§ 4B1.2 a phrase excluding from the definition of forcible sex 

offense cases where consent to the conduct was merely 

“involuntary, incompetent, or coerced.” See U.S.S.G. § 2L1.2 

cmt. n.1(B)(iii). Yet the Commission did no such thing.
49

The majority professes not to “question” Chacon’s 

interpretation of forcible sex offenses under § 2L1.2, even as 

it “reach[es] a different result under § 4B1.2.” Maj. Op. at 19. 

The Chacon court, however, would be surprised to learn its 

ruling was a ticket for one train only. It is not right to cast 

aside precedents on such a slim and precarious basis.

C.

The North Carolina statute requires the state to show 

force. See supra Section I.B. The majority suggests, however, 

that, even if the statute does require force, that would still 

be insufficient, because the text of § 4B1.2 and the 

accompanying Guidelines commentary are fatally inconsistent. 

The majority stresses that § 4B1.2 requires “physical force,” 

whereas the commentary omits the word “physical” and alludes 

only to “forcible sex offenses.” See Maj. Op. at 9-11. The 

majority’s conclusion of inconsistency not only is incorrect, 

but will spell trouble down the road in future Guidelines cases.

First, in finding an inconsistency, the majority 

misconstrues the Supreme Court’s mandate in Stinson v. United 

States, 508 U.S. 36 (1993). The commentary generally deserves

“‘controlling weight.’” Id. at 45 (quoting Bowles v. Seminole 

Rock & Sand Co., 325 U.S. 410, 414 (1945)). After all, the very 

same Sentencing Commission promulgates both the Guidelines text
50

and the accompanying commentary. Id. at 40-41. This is not an 

instance where an agency rule purports to interpret the work of 

a different instrumentality such as Congress. Id. at 44. On 

the contrary, the Commission is simply interpreting its own 

work. Id. at 44-45. Stipulations contained in the commentary 

need “not be compelled by the guideline text.” Id. at 47 

(emphasis added). The commentary may give specific form to a 

broad textual mandate -- that is precisely why the Commission 

provides both.

Second, there is no nettlesome conflict here between 

felonies involving “the use, attempted use, or threatened use of 

physical force,” U.S.S.G. § 4B1.2(a)(1), and felonies that 

qualify as “forcible sex offenses,” id. § 4B1.2 cmt. n.1. 

Whether the prosecution proves the defendant had sex by force 

and against the other person’s will, or whether the element of 

force is fastened to proof that the defendant had sex with a 

mentally or physically defenseless victim, these are simply 

alternative but equal pathways for demonstrating force. See

N.C. Gen. Stat. § 14-27.3(a)(1)-(2); supra Section I.B. 

Pointedly, the illegal-reentry provision specifically equates 

“forcible sex offenses” with “any other offense” involving 

“physical force.” U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). We should 

be loath to find the Commission at war with itself and, in so 

doing, to disregard the settled maxim that the provision of
51

specific instructions, a conventional function of Guidelines 

commentary, presumptively trumps more general statements. See

RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 132 S. Ct. 2065, 

2070-72 (2012).

And third, the instances in which this court has invalidated 

part of the commentary as inconsistent with the Guidelines text 

are quite rare. See Stinson, 508 U.S. at 38. On what basis is 

a federal court, in the role of haruspex, supposed to divine 

such a delicate inconsistency hidden among the Commission’s own 

pronouncements? Cf. City of Arlington v. FCC, 133 S. Ct. 1863, 

1871 (2013). Presumably, the rare occurrences of such purported 

“inconsistency” holdings still bespeak an understanding by our 

own and other courts that the Sentencing Commission, through its 

commentary, can and routinely does provide specific elucidation 

of the Guidelines’ more general textual provisions.

D.

Finally, the majority reads too much into the fact that 

certain other sex offenses appear in § 2L1.2 but not § 4B1.2. 

See Maj. Op. at 21. The illegal-reentry provision, § 2L1.2, 

lists not only “forcible sex offenses” but also “statutory rape” 

and “sexual abuse of a minor” as examples of crimes of violence. 

U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). The career-offender 

provision that applied to Shell, § 4B1.2, mentions “forcible sex 
52

offenses” but not the other two crimes. Id. § 4B1.2 cmt. n.1. 

But here, those differences are immaterial.

It is true that Chacon involved § 2L1.2 rather than 

§ 4B1.2. But the logic of the majority turns the old Latin 

maxim on its head: instead of applying expressio unius est 

exclusio alterius (i.e., “the expression of one thing is the

exclusion of the other”), the majority treats the exclusion of 

one term (“statutory rape”) as the expression of another term 

(“forcible sex offenses”) with new meaning. The proper 

inference, rather, is simply that the Sentencing Commission 

deliberately excluded the crime of statutory rape from § 4B1.2, 

see Barnhart v. Sigmon Coal Co., 534 U.S. 438, 452-53 (2002) -–

not that it was modifying the definition of “forcible sex 

offenses” sub silentio.

In fact, the balance of the available indications suggests 

that the Sentencing Commission wanted “forcible sex offenses” to 

retain the same meaning in §§ 2L1.2 and 4B1.2. The “‘normal 

rule of statutory construction’” is that “‘identical words used 

in different parts of the same act are intended to have the same 

meaning.’” Gustafson v. Alloyd Co., 513 U.S. 561, 570 (1995) 

(quoting Dep’t of Revenue v. ACF Indus., Inc., 510 U.S. 332, 342 

(1994)). Context matters, to be sure. But the interpretive 

context is not appreciably different here. On the contrary, 
53

“forcible sex offenses” is a distinct term with a consistent 

meaning across §§ 2L1.2 and 4B1.2.

I doubt that the majority would argue that the crimes of 

murder, manslaughter, kidnapping, aggravated assault, robbery, 

arson, extortion, extortionate extension of credit, or burglary 

of a dwelling -- all, like forcible sex offenses, enumerated in 

both Guidelines provisions -- would assume a substantively 

different meaning in the two provisions. This is precisely the 

point of the categorical approach mandated by the Supreme Court: 

we compare the elements of the particular predicate offense with 

“the elements of the ‘generic’ crime -- i.e., the offense as 

commonly understood.” Descamps v. United States, 133 S. Ct. 

2276, 2281 (2013). After today’s ruling, the rest of us are 

left to wonder how the generic definition of “forcible sex 

offenses” could have changed so swiftly and abruptly.

The term “forcible sex offenses” is not quite the chameleon 

the majority says it is. In fact, in advancing a view of 

Guidelines interpretation where identical terms assume different 

meanings at a blink, the majority has started us down the road 

of a confusing and contradictory Guidelines structure, thus

rendering an already difficult interpretive exercise more arcane 

and byzantine. In sum, the newly contradictory status of our 

precedents, the new receptivity to finding Guidelines text and 

commentary at odds, and the new willingness to imbue the same 
54

terms with shifting meanings will, whether taken singly or in 

combination, create crosscurrents and riptides in Guidelines 

jurisprudence. That does not bode well for those who need or 

aspire to understand them.

III.

I do understand that the circumstances surrounding sexual 

interactions are often hazy, a fact that makes the preservation 

of due process protections for accused persons a necessity in 

all settings. But here the majority has chosen essentially to 

absolve, through its construct of nonviolent rape, individuals 

accorded the full slate of protections in our criminal justice 

system. Doctrinal analysis is indispensable to judicial 

reasoning, but upon occasion it can lead, increment by 

increment, from sound beginnings toward untenable conclusions. 

So it is here: the real need to protect the unthinking 

expansion of “crimes of violence” has led to a race to restrict 

them. If such a restriction makes sense in many instances, it 

does not in the case at bar. The victims here cannot resist; 

they cannot consent. But they yet retain the capacity to feel 

the trauma and, yes, the violence that has been so visited upon 

their very beings. The majority nevertheless maintains that the 

rape of someone known to be mentally disabled, mentally 

incapacitated, or physically helpless is neither a forcible sex 
55

offense nor a crime of violence. The victims, were they even 

sentient, would beg to differ. They know not our precedents. 

They know not our doctrines. But somewhere in the recesses of 

consciousness they do know they have been wronged, and we now 

know that law has failed to duly recognize it.

I respectfully dissent.