Opposition Brief — Lewis Carnell Jackson, Petitioner v. United States

No. 18-6979

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________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________

LEWIS CARNELL JACKSON, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

NOEL J. FRANCISCO

Solicitor General

Counsel of Record

BRIAN A. BENCZKOWSKI

Assistant Attorney General

ANDREW W. LAING

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

________________________________________________________________

________________________________________________________________

QUESTION PRESENTED

Whether the North Carolina offense of assault with a deadly

weapon with intent to kill, in violation of N.C. Gen. Stat. § 1432(c) (1993), is a violent felony under the Armed Career Criminal

Act of 1984, 18 U.S.C. 924(e).

(I)

IN THE SUPREME COURT OF THE UNITED STATES

_______________

No. 18-6979

LEWIS CARNELL JACKSON, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

OPINIONS BELOW

The order of the court of appeals (Pet. App. 1a-5a) is not

published in the Federal Reporter but is reprinted at 738 Fed.

Appx. 152.

The order of the district court (Pet. App. 6a-13a) is

not published in the Federal Supplement but is available at 2017

WL 455395.

JURISDICTION

The judgment of the court of appeals was entered on September

13, 2018.

The petition for a writ of certiorari was filed on

December 5, 2018.

28 U.S.C. 1254(1).

The jurisdiction of this Court is invoked under

2

STATEMENT

Following a jury trial in the United States District Court

for

the

Eastern

District

of

North

Carolina,

petitioner

was

convicted on one count of conspiracy to distribute marijuana and

to possess marijuana with the intent to distribute it, in violation

of 21 U.S.C. 841(a)(1) and 846; one count of aiding and abetting

possession of marijuana with the intent to distribute it, in

violation of 21 U.S.C. 841(a)(1) and 18 U.S.C. 2; one count of

possession of a firearm in furtherance of a drug trafficking

offense, in violation of 18 U.S.C. 924(c)(1)(A); and one count of

possession of a firearm by a felon, in violation of 18 U.S.C.

922(g)(1) and 924.

The

district

Pet. App. 6a; see Superseding Indictment 1-3.

court

sentenced

petitioner

to

360

months

of

imprisonment, to be followed by five years of supervised release.

Pet. App. 7a; Judgment 2-3.

Fed. Appx. 329.

The court of appeals affirmed.

423

In 2016, petitioner filed a motion to vacate his

sentence under 28 U.S.C. 2255.

Pet. App. 7a-8a.

The district

court denied petitioner’s motion but granted his request for a

certificate of appealability (COA).

appeals affirmed.

1.

Id. at 6a-13a.

The court of

Id. at 1a-5a.

In February 2007, Raleigh Police Department officers

arranged a controlled purchase of marijuana being transported by

petitioner and two others.

¶ 6.

Presentence Investigation Report (PSR)

A search of the vehicle that petitioner and his confederates

3

had driven revealed a substantial quantity of marijuana along with

assorted drug paraphernalia and more than $3000.

Ibid.

The

officers also found a loaded handgun in the area where petitioner

had been sitting, which petitioner admitted that he had possessed.

Ibid.

In March 2007, an officer with the Scotland County Sheriff’s

Department conducted a traffic stop of another car petitioner was

driving.

PSR ¶ 7.

A search of that car revealed a small quantity

of marijuana and a stolen handgun.

2.

Ibid.

A federal grand jury indicted petitioner on one count of

conspiracy to distribute marijuana and to possess marijuana with

the intent to distribute it, in violation of 21 U.S.C. 841(a)(1)

and 846; one count of aiding and abetting possession of marijuana

with the intent to distribute it, in violation of 21 U.S.C.

841(a)(1) and 18 U.S.C. 2; one count of possession of a firearm in

furtherance

of

a

drug

trafficking

offense,

in

violation

of

18 U.S.C. 924(c)(1)(A); and one count of possession of a firearm

by

a

felon,

in

violation

Superseding Indictment 1-3.

of

18

U.S.C.

922(g)(1)

and

924.

Petitioner proceeded to trial and was

convicted on all four counts.

Pet. App. 6a.

A conviction for possession of a firearm by a felon, in

violation of 18 U.S.C. 922(g), typically exposes the offender to

a statutory sentencing range of zero to ten years of imprisonment.

See 18 U.S.C. 924(a)(2).

If, however, the offender has three or

4

more

convictions

for

“violent

felon[ies]”

or

“serious

drug

offense[s]” that were “committed on occasions different from one

another,” then the Armed Career Criminal Act of 1984 (ACCA),

18 U.S.C. 924(e), specifies a statutory sentencing range of 15

years to life imprisonment.

18 U.S.C. 924(e)(1); see Custis v.

United States, 511 U.S. 485, 487 (1994).

The ACCA 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.

18 U.S.C. 924(e)(2)(B).

The first clause of that definition is

commonly referred to as the “elements clause,” and the portion

beginning with “ ‘otherwise’ ” is known as the “residual clause.”

Welch v. United States, 136 S. Ct. 1257, 1261 (2016).

The Probation Office determined that, based on petitioner’s

numerous prior North Carolina convictions, he was subject to the

ACCA’s 15-year statutory minimum sentence on the Section 922(g)(1)

count.

Pet. App. 7a.

The district court adopted the Probation

Office’s sentencing determination and imposed a total term of 360

months of imprisonment, to be followed by five years of supervised

release.

Ibid.; Judgment 2-3.

Petitioner appealed, and his

attorney filed a brief pursuant to Anders v. California, 386 U.S.

5

738 (1967), stating that no meritorious issues for appeal existed.

423 Fed. Appx. 329.

135

The court of appeals affirmed.

Ibid.

3.

In 2015, this Court held in Johnson v. United States,

S.

Ct.

2551,

that

unconstitutionally vague.

the

ACCA’s

Id. at 2557.

residual

clause

is

The Court subsequently

held that Johnson announced a “substantive” constitutional rule

that applies retroactively to cases on collateral review.

Welch,

136 S. Ct. at 1264-1265.

Shortly after Welch was decided, petitioner filed a motion to

vacate his sentence under 28 U.S.C. 2255.

contended,

among

resentenced

on

other

the

things,

theory

that

Pet. App. 7a.

that

he

was

entitled

one

of

his

ACCA

to

He

be

predicate

convictions, a conviction for the North Carolina offense of assault

with a deadly weapon with intent to kill, in violation of N.C.

Gen. Stat. § 14-32(c) (1993), qualified as a violent felony only

under the ACCA’s invalidated residual clause.

Pet. App. 10a-12a.

The district court denied petitioner’s Section 2255 motion.

Pet. App. 13a.

As relevant here, it determined that assault with

a deadly weapon with intent to kill qualifies as a violent felony

under the ACCA’s elements clause because it requires the “specific

intent to kill.”

Id. at 12a (citing State v. Parks, 228 S.E.2d

248, 252 (1976)). The court, however, granted petitioner’s request

for a COA.

Id. at 13a.

6

4.

The court of appeals affirmed in an unpublished per

curiam decision.

Pet. App. 1a-5a.

The court of appeals rejected petitioner’s argument that

assault with a deadly weapon with intent to kill “does not qualify

as an ACCA predicate violent felony because it may be accomplished

with mere culpable negligence.” Pet. App. 2a. The court explained

that, to the contrary, “North Carolina courts consistently have

observed that [assault with a deadly weapon with intent to kill]

‘has, as an element, specific intent to kill.’”

Id. at 4a (quoting

State v. Coble, 527 S.E.2d 45, 49 (N.C. 2000)).

The court further

explained that its recent decision in United States v. Townsend,

886 F.3d 441 (4th Cir. 2018), had found that to be the case with

respect to a closely related North Carolina offense, assault with

a deadly weapon with intent to kill inflicting serious injury.

Ibid. (citing Townsend, 886 F.3d at 446-448).

that

Townsend

had

squarely

rejected

the

The court observed

argument

that

North

Carolina “requires merely culpable negligence” when requiring the

intent to kill.

Ibid.

The court thus affirmed the denial of

Section 2255 relief.

ARGUMENT

Petitioner

contends

(Pet.

4-10)

that

his

conviction

for

assault with a deadly weapon with intent to kill, in violation of

N.C. Gen. Stat. § 14-32(c) (1993), does not qualify as a violent

felony under the ACCA, on the theory that such assault may be

7

committed with a mens rea of “culpable negligence” and thus does

not include as an element the “use, attempted use, or threatened

use of physical force against the person of another.”

924(e)(2)(B)(i).

18 U.S.C.

The court of appeals correctly rejected that

contention based on its construction of North Carolina law, and

its decision does not implicate the shallow circuit conflict that

exists

about

whether

assault

committed

with

a

mens

rea

of

recklessness can qualify under the ACCA’s elements clause. Further

review is not warranted.

1.

Petitioner contends (Pet. i) that his case raises the

question “[w]hether a criminal offense with a mens rea of ‘culpable

negligence’ qualifies” under the ACCA.

But, as the court of

appeals made clear, this case does not actually present that

question.

Instead, the court accepted that the “‘[u]se of force’

under the force clause of the ACCA ‘means to act with a mens rea

more culpable than negligence or recklessness.’”

Pet. App. 4a

(quoting United States v. Townsend, 886 F.3d 441, 445 (4th Cir.

2018)) (brackets in original).

The court then determined --

relying on a recent circuit decision assessing the elements of

North Carolina assault with a deadly weapon with intent to kill

inflicting serious injury, see Townsend, 886 F.3d at 445-448 -that assault with a deadly weapon with intent to kill includes as

an element the “specific intent to kill.”

Pet. App. 4a (quoting

State v. Coble, 527 S.E.2d 45, 49 (N.C. 2000)).

Indeed, the court

8

observed that Townsend had expressly rejected the argument that

the

intent

element

negligence.”

Ibid.

assault

a

with

could

be

satisfied

by

proof

of

“culpable

The court therefore correctly concluded that

deadly

weapon

with

intent

to

kill,

like

its

aggravated counterpart involving serious injury, is categorically

a violent felony under the ACCA.

Ibid.

Petitioner asserts (Pet. 9-10) that Townsend was wrongly

decided, relying a portion of a North Carolina Supreme Court

decision that Townsend characterized as dicta.

F.3d at 447.

See Townsend, 886

But this Court has a “settled and firm policy of

deferring to regional courts of appeals in matters that involve

the construction of state law,” and petitioner provides no reason

to

deviate

from

that

practice

in

this

case.

Bowen

v.

Massachusetts, 487 U.S. 879, 908 (1988); see, e.g., Elk Grove

Unified Sch. Dist. v. Newdow, 542 U.S. 1, 16 (2004).

And although

petitioner identifies (Pet. 6) a district court decision from the

District of Columbia that expressed a different view of the state

statute at issue, he does not identify any conflict among the

courts of appeals on the meaning of North Carolina law.

2.

Petitioner

invokes

(Pet.

4-6)

a

shallow

and

recent

conflict among the courts of appeals over whether reckless conduct

satisfies the ACCA’s elements clause in the wake of Voisine v.

United

States,

136

S.

Ct.

2272

(2016).

Although

petitioner

correctly notes that the First Circuit has recently departed from

9

the prevailing view that reckless conduct qualifies, that shallow

disagreement does not presently warrant this Court’s review for

the reasons the government explained in its brief in opposition to

the petition for a writ of certiorari in a case raising the same

issue.

Gov’t Br. in Opp. at 5-8, Haight v. United States, cert.

denied, No. 18-370 (Jan. 7, 2019). *

In

any

event,

resolution

of

the

disagreement

among

the

circuits concerning recklessness would not change the outcome of

petitioner’s case.

Petitioner has already benefitted from a

favorable view on the mens rea question, because the court of

appeals stated that his conviction could not qualify as a predicate

felony under the ACCA unless the state statute “requires proving

a mens rea greater than negligence or recklessness.”

4a.

Pet. App.

Whether or not the court of appeals would adhere to that view

in a case where it affected the outcome, cf. Townsend, 886 F.3d at

445 (expressing that view in similarly non-dispositive context),

even the more defendant-favorable view did not aid petitioner here,

because the court determined that the state statute at issue

requires specific intent.

Pet. App. 4a.

This case thus does not

implicate the circuit division that petitioner identifies.

We have served petitioner with a copy of the government’s

brief in opposition in Haight.

*

10

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

NOEL J. FRANCISCO

Acting Solicitor General

BRIAN A. BENCZKOWSKI

Assistant Attorney General

ANDREW W. LAING

Attorney

FEBRUARY 2019