United States of America v. Dennis Macauthor Rice

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-4489
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DENNIS MACAUTHOR RICE,
Defendant – Appellant.
Appeal from the United States District Court for the Western District of North Carolina, at
Asheville. Martin K. Reidinger, Chief District Judge. (1:19-cr-00015-MR-WCM-1)
Argued: March 9, 2022 Decided: June 9, 2022
Before WILKINSON, KING, and QUATTLEBAUM, Circuit Judges.
Affirmed by published opinion. Judge Quattlebaum wrote the opinion, in which Judge
Wilkinson joined. Judge King wrote a dissenting opinion.
ARGUED: Megan Coyle Hoffman, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Charlotte, North Carolina, for Appellant. Anthony Joseph Enright,
OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for
Appellee. ON BRIEF: Anthony Martinez, Federal Public Defender, FEDERAL
DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for
Appellant. R. Andrew Murray, United States Attorney, William T. Stetzer, Acting United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North
Carolina, for Appellee.

-- 1 of 24 --

2
QUATTLEBAUM, Circuit Judge:
We are asked to decide if the North Carolina crime of assault inflicting physical
injury by strangulation is a “crime of violence.” Ask any person on the street and they
would say of course. In fact, they would likely question our common sense for asking such
an obvious question. But we must resolve this issue using the “categorical approach,” not
common sense. Under that approach, we do not consider whether what Rice did was
violent. It was, by the way. Instead, we consider how an assault inflicting physical injury
by strangulation could have been committed in situations that have nothing to do with Rice.
While that inquiry can lead to confounding results, here the common-sense answer is also
the legally correct one. The North Carolina crime of assault inflicting physical injury by
strangulation is a crime of violence under the categorical approach. Thus, we affirm the
judgment of the district court.
I.
Dennis Macauthor Rice pled guilty to violating 18 U.S.C. § 922(g), which prohibits
a felon from possessing a firearm. Prior to sentencing, the Probation Office prepared a
Presentence Investigation Report (“PSR”). The PSR concluded that Rice’s previous North
Carolina conviction for felony assault inflicting physical injury by strangulation was a
crime of violence that enhanced Rice’s base offense level under the United States
Sentencing Guidelines. Rice’s prior conviction stemmed from an incident where he put
“his hand around [a woman’s] neck and squeez[ed].” J.A. 114.

-- 2 of 24 --

3
Rice objected to the enhancement, arguing that assault by strangulation is not a
crime of violence. Had Rice prevailed on his argument, his advisory guidelines range
would have been 51 to 63 months. But the district court disagreed with Rice and imposed
the enhancement, resulting in an advisory guidelines range of 77 to 96 months. The district
court sentenced Rice to 77 months’ imprisonment.
Rice timely appealed his sentence, and we have jurisdiction to review under 28
U.S.C. § 1291.
II.
A.
Section 2K2.1(a)(2) of the United States Sentencing Guidelines provides for an
enhancement of a defendant’s base offense level if he has two prior “felony convictions of
either a crime of violence or a controlled substance offense.”1 A crime of violence includes
“any offense under . . . state law, punishable by imprisonment for a term exceeding one
year, that . . . has as an element the use . . . of physical force against the person of another.”
USSG § 4B1.2(a)(1).2
To determine whether a predicate offense is a crime of violence, we use the
categorical approach. United States v. Simmons, 917 F.3d 312, 316 (4th Cir. 2019). An
1 Rice does not contest that a separate, prior conviction qualified as a controlled
substance offense for calculating his base offense level.
2 The comments following § 2K2.1 provide that “crime of violence” carries the same
meaning as it has in § 4B1.2(a)(1). USSG § 2K2.1 cmt. n.1.

-- 3 of 24 --

4
offense “qualifies as a crime of violence if all of the conduct criminalized by the statute—
‘including the most innocent conduct’—matches or is narrower than the Guidelines’
definition of ‘crime of violence.’” United States v. Salmons, 873 F.3d 446, 448 (4th Cir.
2017) (quoting United States v. Diaz–Ibarra, 522 F.3d 343, 348 (4th Cir. 2008)). But if the
statutory language defining the offense does not match and is not narrower, then “the
predicate offense . . . is overbroad and not a categorical match.” Id. Our inquiry into the
most innocent conduct, or “minimum conduct criminalized by the statute[,] is not an
invitation to apply ‘legal imagination’ to the state offense; there must be ‘a realistic
probability, not a theoretical possibility, that the State would apply its statute to conduct
that falls outside the generic definition of a crime.’” Moncrieffe v. Holder, 569 U.S. 184,
191 (2013).
One of the elements that a predicate crime must match is the mens rea element of a
crime of violence. Simmons, 917 F.3d at 320–21. A predicate offense must require proof
of a mens rea more culpable than recklessness and negligence to qualify as a crime of
violence. Borden v. United States, 141 S. Ct. 1817, 1824–25 (2021) (plurality opinion)
(reasoning that crimes committed with only a reckless state of mind are not crimes of
violence because “[t]he phrase ‘against another,’ when modifying the ‘use of force,’
demands that the perpetrator direct his action at, or target, another individual,” and
“[r]eckless conduct is not aimed in that prescribed manner”); id. at 1835 (Thomas, J.,
concurring) (reasoning that “a crime that can be committed through mere recklessness does
not have as an element the ‘use of physical force’ because that phrase has a well-understood
meaning applying only to intentional acts designed to cause harm” (citation omitted)); see

-- 4 of 24 --

5
also Leocal v. Ashcroft, 543 U.S. 1, 11 (2004) (holding that a crime requiring only a
negligent state of mind is not a crime of violence).
Rice argues that assault by strangulation is not a crime of violence because it can be
committed with a mens rea of culpable negligence.3 In making this argument, he relies on
State v. Jones, 538 S.E.2d 917 (N.C. 2000). There, the North Carolina Supreme Court held
that, with respect to North Carolina assault, “actual intent” may be implied from proof of
“culpable or criminal negligence.” Id. at 923. And likewise in United States v. Vinson, 805
F.3d 120 (4th Cir. 2015), citing Jones, we explained that “North Carolina case law
establishes that the defendant must act intentionally to be guilty of assault,” but in practice
that requisite intent can be established through proof of culpable negligence. 805 F.3d at
125–26. In other words, although North Carolina provides that the mens rea required is
intent, only culpable negligence is required.
If Rice’s prior offense was run of the mill “assault,” as criminalized under N.C. Gen.
Stat. 14-33(c), he would have a point. But it is not. Our question here is about assault by
strangulation. Therefore, neither Jones nor Vinson controls our inquiry.
What’s more, we have held that an additional element contained in a North Carolina
assault crime can satisfy the requisite mens rea required for a crime of violence. See United
States v. Townsend, 886 F.3d 441, 445–47 (4th Cir. 2018). In Townsend, we addressed
whether the North Carolina crime of assault with a deadly weapon with intent to kill
inflicting serious injury was a crime of violence. Id. at 444. We rejected the appellant’s
3 We review de novo whether a predicate offense is a “crime of violence” under the
Sentencing Guidelines. Simmons, 917 F.3d at 316.

-- 5 of 24 --

6
argument, which relied on Vinson, that all assaults in North Carolina required merely proof
of culpable negligence, because the specific assault in Townsend required proof of the
additional element of a specific intent to kill. Id. at 446–47. Townsend thus provides that
where a North Carolina assault offense contains an additional element satisfying the
requisite mens rea, that element may qualify the offense as a crime of violence.
B.
Besides the element of assault, the crime of assault by strangulation contains two
additional elements: (1) inflicting physical injury and (2) by strangulation. We must decide
if these additional elements require a purposeful, knowing or intentional state of mind. If
either does, then assault by strangulation is a crime of violence.
1.
To answer this question of what intent is required by the crime assault by
strangulation, we first examine whether North Carolina law expressly states that assault by
strangulation can be committed negligently or recklessly. See Johnson v. United States,
559 U.S. 133, 138 (2010) (providing that federal courts are bound by a state high court’s
interpretation of “state law, including its determination of the elements” of a crime). North
Carolina General Statute § 14-32.4(b),4 which criminalizes assault by strangulation, does
not specify a mens rea, nor has the North Carolina Supreme Court provided what state of
mind the crime requires. But the North Carolina Court of Appeals, in State v. Lanford, 736
4 “Unless the conduct is covered under some other provision of law providing
greater punishment, any person who assaults another person and inflicts physical injury by
strangulation is guilty of a Class H felony.” N.C. Gen. Stat. § 14-32.4(b).

-- 6 of 24 --

7
S.E.2d 619 (N.C. Ct. App. 2013), provides some guidance. There, the court reviewed a
defendant’s challenge that there was insufficient evidence to support his conviction for
assault by strangulation. Id. at 624. The defendant argued that the evidence presented only
showed that he had placed his hands on the victim’s head, neck, nose and mouth but had
not applied force to the victim’s trachea. Id. In rejecting the defendant’s challenge, the
court expounded upon the meaning of strangulation. It noted that it had previously
approved a jury instruction on strangulation, defining it “as a form of asphyxia
characterized by closure of the blood vessels and/or air passages of the neck as a result of
external pressure on the neck brought about by hanging, ligat[ure] or the manual assertion
of pressure.” Id. at 624 (quoting State v. Braxton, 643 S.E.2d 637, 642 (N.C. Ct. App.
2007)). Quoting Webster’s Ninth New Collegiate Dictionary, the court provided other
possible definitions of strangulation, including “the action or process of strangling or
strangulating,” “the state of being strangled or strangulated” and “excessive or pathological
constriction or compression of a bodily tube (as a blood vessel or a loop of intestine) that
interrupts its ability to act as a passage.” Id. (emphasis omitted). As for “strangle,” the court
noted that it meant “to choke to death by compressing the throat with something (as a hand
or rope)” and “to obstruct seriously or fatally the normal breathing of.” Id. at 624–25
(emphasis omitted).
Lanford suggests that strangulation requires intentional or purposeful conduct.
Hanging, ligature and the manual assertion of pressure—the forms of strangulation
specifically discussed—by their nature, require intentional conduct. See id. at 624. Take
“hanging.” Black’s Law Dictionary defines it as “[t]he act of carrying out an execution by

-- 7 of 24 --

8
suspending the person above the ground by a rope around the person’s neck.” Hanging,
Black’s Law Dictionary (8th ed. 2004). It is hard to imagine how someone could
unintentionally suspend another from the ground by a rope, looped around the person’s
neck. Or how about “ligature” or its verb form “ligate”? “Ligate” means “[t]o bind with a
ligature or bandage.” Ligate, The Compact Edition of the Oxford English Dictionary
(1971). “Ligature” is “[a]nything used in binding or tying” or “[t]he action of tying.”
Ligature, The Compact Edition of the Oxford English Dictionary (1971). Using an
instrument, or ligature, to tie or bind someone, such that they suffer asphyxiation, cannot
be accomplished by accident.5 Last, consider “manual strangulation.” For it, we need not
resort to a dictionary since North Carolina’s Supreme Court has provided that “[m]anual
strangulation, by its very nature, may require a continued murderous effort on the part of
the assailant for a period of up to four to five minutes.” State v. Artis, 384 S.E.2d 470, 493
(N.C. 1989), opinion vacated on other grounds, Artis v. North Carolina, 494 U.S. 1023
(1990). All three types of conduct the Lanford court considered as examples of
strangulation show, by their definitions, that they could not be accomplished absent an
intentional, knowing or purposeful state of mind. And while Lanford does not limit
5 While perhaps not commonly used in everyday parlance, the word “ligature” may
remind readers of a literary classic. In Jonathan Swift’s Gulliver’s Travels, Gulliver wakes
up to find that the Lilliputians have fastened his arms and legs to the ground. He “likewise
felt several slender ligatures across [his] body, from [his] arm-pits to [his] thighs.” Jonathan
Swift, Gulliver’s Travels 8 (Rand McNally ed., 1912) (1726). As the Lilliputians’ use of
ligatures was plainly intentional and purposeful, even Gulliver’s Travels supports our
conclusion.

-- 8 of 24 --

9
strangulation to hanging, ligature and manual strangulation, the other definitions of
strangulation it describes do not suggest one could strangle another without intent.
In sum, even if not expressly stated, North Carolina law suggests that assault by
strangulation requires intentional conduct.
2.
We next consider the meaning of strangulation “to a person of ordinary
intelligence.” See State v. Wiggins, 158 S.E.2d 37, 42 (N.C. 1967) (requiring North
Carolina statutes to be construed giving words their “ordinary meaning”); see also Antonin
Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 69 (2012). No
ordinary person would say that a person could strangle another without a purposeful,
knowing or intentional state of mind. Implicit in the act of strangulation is the
understanding that a perpetrator uses his or her hands, or a tool or other instrument, and

-- 9 of 24 --

10
wraps them around or applies pressure to a victim to obstruct their breathing. A person
cannot commit the act of strangling without knowing or intending it.6
6 An emerging tool of statutory construction, corpus linguistics, leads to the same
result. “Corpus linguistics is the study of language (linguistics) through systematic analysis
of data derived from large databases of naturally occurring language (corpora, the plural
of corpus, a body of language).” Thomas R. Lee & James C. Phillips, Data-Driven
Originalism, 167 U. Pa. L. Rev. 261, 289 (2019). While the name may sound complicated,
utilizing the tool is not. Put simply, corpus linguistics allows lawyers or judges to search
online databases that contain words and phrases within a specific population during a given
time period. The uses can then be reviewed one by one, in their context, to determine the
meaning of a word or phrase. And when the uses are reviewed as a whole, a broad picture
of how a word or phrase was customarily used and understood during a specific time period
can emerge. Although relatively new, corpus linguistics is gaining traction as an
interpretive tool. See e.g., Wilson v. Safelite Group, Inc., 930 F.3d 429, 439 (6th Cir. 2019)
(Thapar, J., concurring in part and in the judgment); State v. Rasabout, 356 P.3d 1258,
1279–82 (Utah 2015) (Lee, A.C.J., concurring in part and in the judgment). Hopefully, this
trend will continue.
Because this is a criminal statute, the way ordinary speakers of English would
understand the language of the law is particularly important. See McBoyle v. United States,
283 U.S. 25, 27 (1931) (“[I]t is reasonable that a fair warning should be given to the
world[,] in language that the common world will understand, of what the law intends to do
if a certain line is passed.”). For this reason, the Corpus of Contemporary American
English, which contains documents an ordinary speaker of English would interact with
regularly—magazine articles, newspapers, books, etc.—is an appropriate database to
search. A search of that database for the use of “strangulation” from 1990 to 2004, the year
North Carolina passed § 14-32.4(b), yielded 294 hits. A review of each of those hits
revealed that all uses of strangulation, in the context of a person strangling someone else,
where the strangler’s state of mind could be determined, involved intentional or purposeful
action. For example, one use described an investigation into a homicide, where the cause
of death was determined to be “[a]sphyxiation caused by manual strangulation,” where the
“[k]iller [was] on top, [and] used both hands.” In another example, a killer described his
“first barehanded strangulation” with nostalgia. To be fair, the uses of strangulation did not
explicitly state that the strangulation was intentional, purposeful or knowing. But a review
of the context surrounding use of the word makes clear that the strangulation was
intentional, knowing or purposeful, or at least that it was not reckless or negligent. A small
percentage of uses pertained to the risks of consumer products as opposed to an individual
doing the strangling. Importantly, however, there were no examples of an individual
strangling another person in a way that stated or implied the strangulation was negligent or
reckless. In addition, for completeness, searches of several variations of “strangulation”

-- 10 of 24 --

11
Decisions from North Carolina support our conclusion. Rice cannot point to a single
case where North Carolina obtained, or much less sought, a conviction for assault by
strangulation where the defendant did not knowingly, purposefully or intentionally strangle
their victim. If one could commit assault by strangulation in North Carolina with a reckless
or culpably negligent state of mind, it is odd that, in the nearly eighteen years since the
crime has been on the books, there has not been a single case involving the prosecution of
a defendant for acts suggesting a reckless or culpably negligent state of mind.
In contrast, there are many cases where a defendant was prosecuted for assault by
strangulation and the facts suggested a purposeful, knowing or intentional state of mind.
See, e.g., State v. Prince, 805 S.E.2d 304, 306 (N.C. Ct. App. 2017) (describing a defendant
“wrapp[ing] his arm around [a minor’s] neck and chok[ing] him, such that [he] was unable
to ‘really breathe’ and he was ‘gasping for air’”); State v. Lowery, 743 S.E.2d 696, 698
(N.C. Ct. App. 2013) (describing a defendant pushing a victim to the ground before getting
on top of her and “strangl[ing] her with his hands” such that she “couldn’t breathe for a
while”); State v. Williams, 689 S.E.2d 412, 415 (N.C. Ct. App. 2009) (describing a
defendant putting his foot on a victim’s neck and pressing down with his weight). In fact,
by our count there are at least nineteen of these cases that have proceeded to an appeal,
even though there are likely many more that were not appealed.
were conducted. Those searches produced the same results. Thus, corpus linguistics
supports the conclusion that the ordinary public meaning of strangulation at the time North
Carolina passed § 14-32.4(b) involved intentional conduct.

-- 11 of 24 --

12
Likewise, North Carolina’s pattern jury instructions regarding assault by
strangulation suggest intent is required. They provide:
For you to find the defendant guilty of this offense, the State must prove two
things beyond a reasonable doubt: First, that the defendant assaulted the
victim by intentionally (and without justification or excuse) strangling the
victim. And second, that the defendant inflicted physical injury upon the
victim.
N.C.P.I. Crim. 208.61 (emphasis omitted) (footnotes omitted). While these instructions are
not North Carolina law, and thus are not dispositive on our issue, they constitute additional
evidence that § 14-32.4(b) cannot be committed without intentional conduct. See United
States v. Allred, 942 F.3d 641, 650 (4th Cir. 2019).
Although our focus up to this point has been on the element “by strangulation,” the
other additional element—“inflicting physical injury”—confirms our conclusion that
assault by strangulation cannot be committed without an intentional, knowing or
purposeful state of mind. In a separate statute criminalizing child abuse, the North Carolina
Court of Appeals interpreted the word “inflict” as used in that statute: “The word ‘inflict’
means to lay on or impose . . . . Thus, to violate the statute, an intentional, rather than
accidental, act causing physical injury is required.” State v. Young, 312 S.E.2d 665, 668
(N.C. Ct. App. 1984) (citing 43 C.J.S. Inflict p. 707 (1978)), overruled by State v. Phillips,
399 S.E.2d 293, 303 (N.C. 1991) (recognizing that State v. Campbell, 340 S.E.2d 474
(1986) overruled Young’s conclusion that a defendant must have also intentionally caused
the injury, not just acted intentionally). The conclusion the Young court made—that
“inflict” requires an intentional state of mind—was left undisturbed by Campbell, and
rightfully so. Strangulation by itself requires an intentional, knowing or purposeful state of

-- 12 of 24 --

13
mind, and to add that strangulation was inflicted by someone leaves no doubt. Strangulation
is not the result of a negligent or reckless act, but it is imposed upon someone through
intentional, knowing or purposeful conduct.
3.
Rice makes several arguments against our conclusion. First, he argues the
categorical approach does not require reported cases involving prosecution of assault by
strangulation based on negligence or recklessness. Instead, he insists the proper inquiry is
what North Carolina could punish under the statute, not what it does punish. On that general
principle, he is correct. Indeed, our recent decision in United States v. Proctor, 28 F.4th
538 (4th Cir. 2022), makes that clear. Citing our decision in United States v. Aparicio-
Soria, 740 F.3d 152 (4th Cir. 2014) (en banc), Proctor held that a defendant’s inability to
cite a prosecuted case “is by no means dispositive.” 28 F.4th at 552.
But not dispositive does not mean irrelevant. No matter how you slice it, nineteen
to zip is strong evidence that the statute does not cover negligent or reckless conduct. See,
e.g., United States v. Covington, 880 F.3d 129, 135 (4th Cir. 2018) (“Here, [the defendant]
has not identified a single West Virginia case that interprets the offense of unlawful
wounding to apply to one who uses force that is not ‘capable of causing physical pain or
injury to another person.’”); United States v. Bell, 901 F.3d 455, 471 (4th Cir. 2018) (“But
most importantly, [the defendant] does not identify any actual defendant from a Maryland
case who has been prosecuted in such circumstances.” (emphasis in original)); United
States v. James, 718 F. App’x 201, 205–06 (4th Cir. 2018) (“Here, . . . the absence of
illustrative cases confirms our conclusion that Virginia law does not allow for unlawful

-- 13 of 24 --

14
wounding convictions based on the kind of omissions that [the defendant] imagines.”);
United States v. Salmons, 873 F.3d 446, 451 (4th Cir. 2017) (“[L]itigants must point to the
statutory text or to actual cases in order to demonstrate that a conviction for a seemingly
violent state crime could in fact be sustained for nonviolent conduct.”).
Second, Rice argues that even if there are no reported decisions of assault by
strangulation where the state brought charges for reckless or culpably negligent conduct,
there are fact patterns that could lead to such prosecutions. Thus, he claims prosecution for
violation of § 14-32.4(b) based on negligent or reckless conduct is a realistic possibility.
Rice provides the correct standard. As he notes, we must focus on the “realistic
probability,” not the “theoretic possibility” that a state would prosecute an individual for
such conduct. See Moncrieffe, 569 U.S. at 191. And we are not to resort to “legal
imagination” in determining whether there is a realistic probability that a state would
prosecute an individual for such conduct. See id. But he applies the standard incorrectly.
Rice’s proposed hypotheticals are the just the sort of “theoretical possibilities” that our
precedent forbids.
For example, Rice posits that a driver could run a red light and hit another car. If the
passenger in the other car suffered extensive bruising on their neck from the seatbelt or the
seatbelt wrapped around their neck making breathing difficult, then the driver could be
convicted of assault by strangulation. Rice argues that there would be an assault, stemming
from the driver’s culpable negligence, and it would have inflicted physical injury by
strangulation.

-- 14 of 24 --

15
We disagree. Rice seems to have borrowed the car wreck hypothetical from our
recent decision in Simmons. In Simmons, we noted that it was plausible that a defendant
could be prosecuted for assault with a deadly weapon on a government official if he were
culpably negligent in driving a car that struck a government official. 917 F.3d at 320. But
that hypothetical is realistic. Such circumstances could happen. In contrast, Rice’s
hypothetical, while theoretically possible, has a miniscule chance of ever occurring, and
there is an even lower chance of being prosecuted for such conduct. Therefore, Rice’s
hypothetical does not rescue his argument.
Rice’s other hypotheticals also fall flat. He describes the fact patterns of several
cases that he proposes could result in a prosecution for assault by strangulation under North
Carolina law. But none of those cases involve the statute at issue here. In fact, none of them
involve an assault-by-strangulation statute at all. They involve charges of vehicular
homicide, reckless aggravated assault, reckless driving, involuntary vehicular
manslaughter, leaving the scene of an accident and first-degree murder.7 Comparing those
cases to § 14-32.4(b) is like comparing apples and oranges.8
7 State v. Kennedy, 152 S.W.3d 16, 17–18 (Tenn. Crim. App. 2004); People v.
Jackson, No. 196484, 1998 WL 2016627, at *1 (Mich. Ct. App. Mar. 3, 1998); State v.
White, 457 S.E.2d 841, 845–46 (N.C. 1995).
8 The dissent cites even more cases which it claims provide “realistic examples of
strangulations that occur due to culpably negligent conduct.” Dissent at 23. But much like
Rice’s hypotheticals, none of these additional cases involve this statute or a similar statute.
Rather, one case involves a petition for adjudication of a wardship for a child, and the
remaining cases involve convictions for inflicting corporal injury on a cohabitant, first-
degree reckless homicide and first-degree murder.

-- 15 of 24 --

16
From the plain meaning of “by strangulation” and “inflicting physical injury” to
North Carolina reported decisions involving assault by strangulation to consideration of
“realistic probabilities,” we see no indication North Carolina would prosecute a defendant
for the crime of assault by strangulation except where the evidence showed that the alleged
perpetrator had an intentional, knowing or purposeful state of mind. The act of strangling
requires such an intent. It cannot be completed recklessly or negligently. On at least one
occasion, a prosecutor for the State of North Carolina has stated in open court that
“[s]trangulation does not occur . . . by accident . . . [but] takes a deliberate act.” State v.
Richardson, 402 S.E.2d 401, 405–06 (N.C. 1991). We agree. Because assault by
strangulation could only be accomplished if the state proves an intentional, knowing or
purposeful intent, it satisfies the mens rea requirement for a crime of violence.9
9 Although the dissent suggests we previously held otherwise in United States v.
McMillian, 652 F. App’x 186 (4th Cir. 2016), we disagree. Dissent at 23–24. In our
unpublished decision in McMillian, a criminal defendant appealed the revocation of his
term of supervised release following an arrest where he was charged with four North
Carolina state criminal offenses, including assault by strangulation. 652 F. App’x at 188.
We reviewed the argument that the court erred in classifying assault by strangulation as a
crime of violence for plain error. Id. at 191. As we often do under plain error review, we
merely assumed that one element of the test was met because the challenger clearly failed
under a different element. See United States v. Hare, 820 F.3d 93, 105 (4th Cir. 2016)
(“Assuming that the district court’s instructions were erroneous and the error was plain, we
find that the error did not affect Appellants’ substantial rights.”). Thus, in McMillian we
did not review whether assault by strangulation was a crime of violence, but “[i]n the
context of plain error review, we [were] content to assume” that assault by strangulation
was not a crime of violence because even assuming it was, such error was not plain. 652
F. App’x at 193.

-- 16 of 24 --

17
III.
The categorical approach can lead to inquiries that our fellow citizens would find
absurd. See United States v. Battle, 927 F.3d 160, 163 n.2 (4th Cir. 2019) (“Through the
Alice in Wonderland path known as the ‘categorical approach,’ we must consider whether
[the defendant]’s assault of a person with the intent to murder is a crime of violence.”); cf.
United States v. Scott, 990 F.3d 94, 126–27 (2d Cir. 2021) (Park, J., concurring) (collecting
cases that demonstrate the absurd questions the categorical approach requires courts to
consider). This is one of those. Even so, North Carolina’s crime of assault by strangulation
can only be committed with an intentional, knowing or purposeful state of mind. As such,
it satisfies the mens rea required to qualify as a crime of violence. Finding no error, the
district court’s judgment is
AFFIRMED.

-- 17 of 24 --

18
KING, Circuit Judge, dissenting:
The only issue before us in this appeal is whether Dennis Rice’s 2014 North
Carolina offense of assault inflicting “physical injury by strangulation” qualifies as a crime
of violence under the Sentencing Guidelines. See N.C. Gen. Stat. § 14-32.4(b) (the
“strangulation offense”); USSG § 4B1.2(a)(1) (the “force clause”). Rice’s offense was not
a crime of violence, however, because the strangulation offense can be committed under
North Carolina law with a mens rea of culpable negligence. Thus, it sweeps more broadly
than what is required under the force clause. I therefore write separately and dissent.
I.
A.
1.
In assessing whether the strangulation offense qualifies as a crime of violence under
the force clause, we must utilize the categorical approach. Pursuant thereto, an offense
“qualifies as a crime of violence if all of the conduct criminalized by the statute —
‘including the most innocent conduct’ — matches or is narrower than the Guidelines’
definition of ‘crime of violence.’” See United States v. Salmons, 873 F.3d 446, 448 (4th
Cir. 2017) (quoting United States v. Diaz-Ibarra, 522 F.3d 343, 348 (4th Cir. 2008)). That
is, if the offense “can be committed without satisfying the definition of ‘crime of violence,’
then it is overbroad and not a categorical match” under the force clause. Id. (citing Taylor
v. United States, 495 U.S. 575, 602 (1990)). And when scrutinizing the most innocent
conduct criminalized by a particular statute, we consider only conduct for which there is a

-- 18 of 24 --

19
“realistic probability, not a theoretical possibility,” the law would actually punish. See
Moncrieffe v. Holder, 569 U.S. 184, 191 (2013) (internal quotation marks omitted).
Additionally, the mens rea requirement of North Carolina’s strangulation offense
must match the mens rea required by the force clause. See United States v. Simmons, 917
F.3d 312, 320-21 (4th Cir. 2019). In that regard, it is important that the Supreme Court
recently ruled in Borden v. United States that a crime capable of commission with “a less
culpable mental state than purpose or knowledge” — such as “recklessness” — cannot
categorically qualify as a crime of violence under the force clause. See 141 S. Ct. 1817,
1821-22 (2021) (plurality opinion); id. at 1835 (Thomas, J., concurring) (agreeing that
recklessness is insufficient mens rea under force clause). Simply put, for an offense to
categorically qualify as a crime of violence post-Borden, the offense must require a mens
rea more culpable than recklessness.
2.
Against this backdrop, it is worth initially emphasizing that North Carolina has
enacted multiple felony assault statutes that criminalize different types of assault. See, e.g.,
N.C. Gen. Stat. § 14-31 (malicious assault in a secret manner); id. § 14-32(a) (assault with
a deadly weapon with intent to kill inflicting serious injury); id. § 14-32.4(b) (assault
inflicting physical injury by strangulation); id. § 14-34.2 (assault with a deadly weapon on
a government official). To be sure, some North Carolina assault offenses categorically
qualify as crimes of violence under the force clause. See, e.g., United States v. Townsend,
886 F.3d 441, 445 (4th Cir. 2018) (ruling that assault with a deadly weapon with intent to
kill inflicting serious injury is categorically a crime of violence). Other North Carolina

-- 19 of 24 --

20
assault offenses, however, decidedly do not qualify as crimes of violence under the force
clause. See, e.g., Simmons, 917 F.3d at 321 (ruling that assault with a deadly weapon on a
government official is not categorically a crime of violence).
Relevant here, the North Carolina strangulation offense underlying Rice’s 2014
conviction provides that “any person who assaults another person and inflicts physical
injury by strangulation is guilty of a Class H felony.” See N.C. Gen. Stat. § 14-32.4(b).
As explained by the Court of Appeals of North Carolina, the strangulation offense has three
elements, and is completed when a person “(1) assaults another person (2) and inflicts
physical injury (3) by strangulation.” See State v. Williams, 689 S.E.2d 412, 416 (N.C. Ct.
App. 2009).
Notably, the Supreme Court of North Carolina has explicitly ruled that the mens rea
required for a North Carolina “assault” offense generally encompasses culpably negligent
conduct. See State v. Jones, 538 S.E.2d 917, 923 (N.C. 2000). We recognized as much in
our 2016 decision in United States v. Vinson, observing that “North Carolina case law
establishes that [a] defendant must act intentionally to be guilty of assault,” but the requisite
intent can be “established through proof of culpable negligence.” See 805 F.3d 120, 125-
26 (4th Cir. 2015). And the North Carolina high court made clear in Jones that “culpable
negligence” is “such recklessness or carelessness . . . as imports a thoughtless disregard of
consequences or a heedless indifference to the safety and rights of others.” See 538 S.E.2d
at 923 (internal quotation marks omitted). That is, culpable negligence’s “focus on
thoughtless disregard” renders it “a lesser standard of culpability than recklessness, which

-- 20 of 24 --

21
requires at least a conscious disregard of the risk.” See Vinson, 805 F.3d at 126 (internal
quotation marks omitted).
B.
On appeal, Rice maintains that, because the mens rea requirement of “assault” —
as construed by North Carolina’s high court — encompasses culpably negligent conduct,
the strangulation offense fails to satisfy the Borden mandate and is therefore not a crime of
violence under the force clause. In the name of “common sense,” however, my good
friends in the panel majority have ruled otherwise: that the strangulation offense is a crime
of violence. See ante at 2.1 The majority has ruled that, even though a showing of culpable
negligence satisfies the mens rea requirement under the “(1) assaults another person”
element, the strangulation offense’s other elements — “(2) [infliction of] physical injury
(3) by strangulation” — bring it into the ambit of the force clause. See Williams, 689
S.E.2d at 416. Those other two elements, my friends conclude, heighten the mens rea
requirement of the strangulation offense to embrace only “an intentional, knowing or
purposeful state of mind.” See ante at 12-13. But my good colleagues are mistaken.
1.
Contrary to the majority, the strangulation offense does not have any additional
element that increases its mens rea requirement. And my conclusion in that regard is
1 The majority’s reliance on “common sense” supports their view that this case is a
“slam dunk” for the government. But the proper classification of prior convictions under
the force clause requires more than common sense. That is, “we may not simply rest our
decision on some concept of common sense. Instead, we are obliged to apply the
categorical approach, and in doing so we are guided by circuit precedent.” See Mena v.
Lynch, 820 F.3d 114, 119 (4th Cir. 2016).

-- 21 of 24 --

22
consistent with our precedent as to whether other North Carolina assault offenses
categorically qualify as crimes of violence under the force clause. In our Townsend
decision, we ruled that the North Carolina offense of assault with a deadly weapon with
the intent to kill inflicting serious injury satisfies the force clause, in that “the intent to kill
element . . . requires proof of a specific intent to kill.” See 886 F.3d at 445. As Townsend
recognized, some North Carolina assault statutes do have an “additional element” — such
as a specific intent to kill — that heightens the necessary mens rea. Id. at 447. In contrast,
our Simmons decision explained that a North Carolina assault with a deadly weapon on a
government official is not categorically a crime of violence under the force clause. See
917 F.3d at 321. That North Carolina assault offense, we recognized, “can be committed
with culpable negligence,” and no other elements of that offense increase the requisite
mens rea. Id.
This appeal is more analogous to Simmons. That is, the strangulation offense here
and the assault offense underlying Simmons do not have any separate, distinct elements
that mandate a heightened mens rea.2
2 Seeking to render this case analogous to Townsend, the majority relates that the
strangulation offense’s pattern jury instruction requires that the defendant “intentionally
. . . strangl[e] the victim.” See ante at 12. That instruction, they assert, “constitute[s]
additional evidence that [the strangulation offense] cannot be committed without
intentional conduct.” Id. But the majority fails to acknowledge that the same intent
formulation was in the North Carolina pattern jury instructions for the assault statutes at
issue in Vinson and Simmons. As we explained in Vinson, the pertinent instruction refers
to intent only in its first clause, which describes the nature of the assault rather than the
mens rea requirement. See 805 F.3d at 126. In these circumstances, the majority’s reliance
on the pattern jury instruction is misplaced.

-- 22 of 24 --

23
2.
I am also unpersuaded by the majority’s reliance on the “realistic-probability” test.
Chiding Rice for failing to identify a North Carolina case that shows how someone could
recklessly or negligently strangle another person, the majority contravenes our en banc
decision in United States v. Aparicio-Soria, 740 F.3d 152 (4th Cir. 2014). In that case, the
defendant was unable to identify any example of a Maryland state conviction for a resisting
arrest offense involving de minimis conduct. Id. at 157-58. Our en banc majority
nevertheless concluded that the subject offense was not categorically a crime of violence
under the force clause because state court precedent recognized that “non-violent offensive
physical contact” could satisfy it. Id. In that circumstance, as we recognized, the realistic-
probability test was satisfied. Id. at 158.
As a threshold matter, today’s majority disregards realistic examples of
strangulations that occur due to culpably negligent conduct. In fact, Rice has provided us
with several good examples. See In Interest of Carthen, 384 N.E.2d 723, 725 (Ill. App. Ct.
1978) (strangulation occurred “accidentally” when a mother “looped [a television cord]
around [her] child’s neck”); People v. Pegeron, No. A130485, 2012 WL 826949, at *1
(Cal. Ct. App. Mar. 13, 2012) (strangulation occurred “accidentally” when defendant
“looped [his arm] around [the victim’s] neck” while “roughhousing”); State v. Dehne, No.
2011AP981-CR, 2012 WL 6012996, at *1 (Wis. Dec. 4, 2012) (strangulation occurred
recklessly when a victim wearing a harness attached to an I-beam was pushed down a
staircase); see also State v. O’Carroll, 896 A.2d 1125, 1138 (N.J. Super. Ct. App. Div.
2006) (recognizing that strangulations occur accidentally). And notably, we have recently

-- 23 of 24 --

24
observed that there are “some scenario[s] in which a person could commit an assault by
strangulation [under North Carolina law] without intentionally applying physical force.”
See United States v. McMillian, 652 F. App’x 186, 193 (4th Cir. 2016) (unpublished).
More importantly, the majority ignores the ruling of Aparicio-Soria and the
conclusion that it compels: the realistic-probability test is satisfied because North Carolina
courts have held that an assault can be committed with a mens rea that sweeps more broadly
than what is required under the force clause. See 740 F.3d at 158. That fact alone removes
the strangulation offense from the scope of the force clause.
II.
My friends of the panel majority pronounce that it would be “absurd” for us to rule
that the strangulation offense does not categorically qualify as a crime of violence under
the force clause. See ante at 17. But as counterintuitive as that position may seem to my
good friends, North Carolina itself recognizes that the strangulation offense can be
committed by an act of culpable negligence. Thus, the strangulation offense sweeps more
broadly than the force clause.
I respectfully dissent.

-- 24 of 24 --