United States of America v. Corey Fleamon Townsend

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-6443
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
COREY FLEAMON TOWNSEND,
Defendant – Appellant.
Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. William L. Osteen, Jr., District Judge. (1:10-cr-00147-WO-1; 1:13-cv-
00048-WO-JEP)
Argued: December 5, 2017 Decided: March 30, 2018
Before NIEMEYER and DUNCAN, Circuit Judges, and SHEDD, Senior Circuit Judge.
Affirmed by published opinion. Senior Judge Shedd wrote the opinion in which Judge
Niemeyer and Judge Duncan joined.
ARGUED: Michael Allen McIntosh, SKADDEN, ARPS, SLATE, MEAGHER &
FLOM, LLP, Washington, D.C., for Appellant. Kyle David Pousson, OFFICE OF THE
UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee. ON
BRIEF: Sandra J. Hairston, Acting United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Greensboro, North Carolina, for Appellee.

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SHEDD, Senior Circuit Judge:
Corey Townsend filed a motion under 28 U.S.C. § 2255 challenging the
lawfulness of his sentence under the Armed Career Criminal Act (“ACCA”) in light of
Johnson v. United States, 135 S. Ct. 2551 (2015), which held that the residual clause of
the ACCA was unconstitutionally vague. The district court dismissed Townsend’s
motion. Because Townsend’s prior conviction for North Carolina assault with a deadly
weapon with intent to kill inflicting serious injury is categorically a violent felony under
the force clause of the ACCA, we affirm.
I.
In 2010, Townsend was indicted for possession of a firearm by a felon under 18
U.S.C. § 922(g)(1). The indictment also charged Townsend as an armed career criminal
under the ACCA, 18 U.S.C. § 924(e), alleging three prior instances of predicate felony
conduct: (1) a 1998 conviction for robbery with a firearm; (2) 1998 convictions for
assault with a deadly weapon with intent to kill inflicting serious injury (“AWDWIKISI”)
and assault with a deadly weapon inflicting serious injury (“AWDWISI”); and (3) 1989
convictions for breaking and entering, breaking and entering of a motor vehicle, larceny,
possession of burglary tools, and possession of stolen goods. Prior to trial, Townsend
pled guilty to the § 922(g)(1) charge.
Before sentencing, probation prepared a presentence investigation report (“PSR”)
recommending that Townsend receive an enhanced sentence under the ACCA because of
his three prior instances of felony conduct. Townsend challenged his classification as an
armed career criminal at sentencing, but he did not contest the representation in the PSR

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that he was convicted of AWDWIKISI or whether AWDWIKISI was categorically a
violent felony. Over Townsend’s objection, the district court found that Townsend
qualified for the enhanced sentence under the ACCA based on his three prior instances of
qualifying felony conduct and sentenced Townsend to 225 months of incarceration.
Townsend appealed both his conviction and sentence, and we affirmed. United States v.
Townsend, 453 F. App’x 425 (4th Cir. 2011).
In 2013, Townsend filed a § 2255 motion challenging his sentence and specifically
challenging the applicability of the ACCA. In 2015, the United States Supreme Court
issued its opinion in Johnson, and Townsend amended his § 2255 motion to add a
Johnson claim. The Government moved to dismiss and produced state court sentencing
sheets to show each of Townsend’s predicate felonies under the ACCA. After Townsend
amended his complaint, a magistrate judge issued a Report and Recommendation
(“R&R”) recommending dismissal of Townsend’s § 2255 petition but failing to
specifically address whether Townsend’s two North Carolina assault convictions
qualified as ACCA predicates. The district court adopted the R&R, declined to issue a
certificate of appealability, and dismissed the petition with prejudice. Townsend then
appealed, and this court granted a certificate of appealability on the issue of whether
Townsend’s prior felony convictions for North Carolina AWDWIKISI and AWDWISI
qualify as violent felonies under 18 U.S.C. § 924(e)(2)(B)(i).
II.
As a threshold matter, Townsend asserts for the first time in this appeal that he has
two convictions for AWDWISI rather than one for AWDWIKISI and one for AWDWISI.

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Townsend did not dispute the existence of his AWDWIKISI conviction in his underlying
criminal case, on direct appeal, or while his § 2255 motion proceeded in the district court.
Assuming without deciding that Townsend may challenge the factual basis of his
conviction for AWDWIKISI for the first time in this appeal, we hold the record clearly
shows that Townsend has one conviction for AWDWIKISI and one conviction for
AWDWISI rather than two convictions for AWDWISI.
The sentencing sheet at issue shows the two assault convictions and lists the same
statute number (“G.S. No.”)—14-32(b)—for both convictions.1 However, the sentencing
sheet also describes one conviction as “Assault with Deadly Weapon W/Int to Kill
Inflicting Serious Injury” and the other as “Assault W/Deadly Weapon Inflicting Serious
Injury” under “Offense Description,” lists felony classes (“C” and “E,” respectively) for
each offense, and shows a sentence of 110 to 141 months. (J.A. 101.)
Townsend argues the sentencing sheet is ambiguous because it lists the statute
criminalizing AWDWISI for both convictions and the alleged ambiguity must be
resolved under Shepard v. U.S., 544 U.S. 13, 26 (2005), by finding that Townsend has
two AWDWISI convictions. Townsend’s reliance on Shepard is misplaced. Shepard
establishes which documents we may review when applying the modified categorical
approach, but it does not limit courts in deciding whether a conviction actually exists. See
United States v. Washington, 629 F.3d 403, 412 (4th Cir. 2011) (“Shepard’s strictures do
1 N.C. Gen. Stat. § 14-32(a) criminalizes AWDWIKISI (a class C felony) while
N.C. Gen. Stat. § 14-32(b) proscribes AWDWISI (a class E felony).

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not fully apply when determining the bare offense to which [the defendant] pled guilty.”).
Moreover, while this appeal was pending, the government notified the court pursuant to
Federal Rule of Appellate Procedure 28(j) that a North Carolina state court amended the
sentencing sheet and corrected the statute of conviction for the offense described as
AWDWIKISI from 14-32(b) to 14-32(a), the statute that criminalizes AWDWIKISI. We
may take judicial notice of facts outside the record where the fact may not be reasonably
disputed and is “relevant and critical to the matter on appeal.” See Colonial Penn Ins. Co.
v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (citing Fed. R. Evid. 201) (also noting that
court records are the most common type of judicially noticed records); see also United
States v. McDonald, 617 F. App’x 255, 258 (4th Cir. 2015) (taking judicial notice of state
court judgments where the class of felony for a state conviction was disputed on appeal).
There is no basis to dispute the fact of Townsend’s AWDWIKISI conviction in light of
the amended sentencing sheet.2 Accordingly, we take judicial notice of the amended
sentencing sheet showing that Townsend has one conviction for AWDWIKISI and one
conviction for AWDWISI.3
2 We note that Townsend does not dispute the validity of the state court’s amended
sentencing sheet and that North Carolina courts have inherent power to correct clerical
errors. See State v. Jarman, 535 S.E.2d 875, 879 (N.C. Ct. App. 2000).
3 Even without taking judicial notice of the amended sentencing sheet, the record
reveals no basis to conclude that Townsend has two AWDWISI convictions. The Offense
Description listed AWDWIKISI as the felony, the sentencing sheet listed “C” under
felony class (the correct class of felony for AWDWIKISI), and the sentence imposed
could only be given for a conviction of one count of AWDWIKISI and one count of
AWDWISI under North Carolina’s sentencing scheme. See generally United States v.
Simmons, 649 F.3d 237, 240 (4th Cir. 2011) (discussing North Carolina’s criminal
(Continued)

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III.
We next address whether AWDWIKISI is a violent felony under the ACCA, a
question we review de novo. United States v. Doctor, 842 F.3d 306, 308 (4th Cir. 2016).
“In determining whether an offense is a [violent felony] under [the ACCA], we utilize the
categorical approach, which focuses solely on the elements of the offense, rather than on
the facts of the case.” United States v. McNeal, 818 F.3d 141, 152 (4th Cir. 2016).
A.
As relevant here, the ACCA provides for an enhanced mandatory minimum
sentence of 15 years if the convicted person has three previous convictions for violent
felonies. See 18 U.S.C. § 924(e)(1). A “violent felony” under the ACCA is “any crime
punishable by imprisonment for a term exceeding one year . . . that . . . has as an element
the use, attempted use, or threatened use of physical force against the person of another.”4
18 U.S.C. § 924(e)(2)(B)(i) (the “force clause”). To determine whether a state offense is a
violent felony, we examine the elements of the state offense as determined by the state’s
highest court and then decide whether those elements require the use, attempted use, or
threatened use of physical force. See United States v. Burns-Johnson, 864 F.3d 313, 316
(4th Cir. 2017). “Use” of force means to act with a mens rea more culpable than
sentencing scheme). The incorrect statute listed for AWDWIKISI on the original
sentencing sheet appears to be merely a scrivener’s error.
4 There is no dispute that Townsend’s North Carolina assault convictions must
qualify as “violent felonies” under the “force clause.”

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negligence or recklessness. See Leocal v. Ashcroft, 543 U.S. 1, 11 (2004); United States
v. Vinson, 805 F.3d 120, 125–26 (4th Cir. 2015) (applying Leocal to the similarly-worded
“use or attempted use of physical force” of 18 U.S.C. § 921(a)(33)(A)). We look to the
minimum conduct necessary to obtain a conviction under the statute and assure ourselves
that there is a “realistic probability . . . that a state would actually punish that conduct.”
Burns-Johnson, 864 F.3d at 316.
In this case, Townsend’s statute of conviction, N.C. Gen. Stat. § 14-32(a), states
that “[a]ny person who assaults another person with a deadly weapon with intent to kill
and inflicts serious injury shall be punished as a Class C felon.” The Supreme Court of
North Carolina has interpreted the statute to include the following elements: 1) an assault,
2) with a deadly weapon, 3) an intent to kill, and 4) inflicting a serious injury not
resulting in death. See State v. Grigsby, 526 S.E.2d 460, 462 (N.C. 2000). Accordingly, to
determine if AWDWIKISI has “use” of force as an element, we must decide whether
proving intent to kill requires proving a mens rea greater than negligence or recklessness.
B.
Applying this framework, we conclude that AWDWIKISI is categorically a
violent felony under the force clause of the ACCA because the intent to kill element of
AWDWIKISI requires proof of a specific intent to kill.5 Two cases in particular illustrate
that AWDWIKISI is a specific intent crime in North Carolina. In Grigsby, the Supreme
5 Because we hold that Townsend was convicted of AWDWIKISI and that
AWDWIKISI is categorically a violent felony under the ACCA, we do not reach the
question of whether AWDWISI is categorically a violent felony.

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Court of North Carolina reversed the Court of Appeals of North Carolina and held that
the evidence established the defendant’s intent to kill where the defendant attempted to
rob a convenience store, threatened to kill the store attendant, and eventually stabbed the
store attendant. See id. at 461–62. The defendant tied up the attendant and continued
threatening to kill the attendant even after the attendant obeyed the defendant’s
commands. Id. The attendant and the defendant, who carried an assault knife made with
finger holes for repeated stabbing, ultimately struggled over the defendant’s knife. Id at
461–63. During the struggle, the defendant stabbed the attendant, puncturing the
attendant’s lung, before fleeing the scene. Id. at 461–62. The Supreme Court of North
Carolina upheld an AWDWIKISI conviction because these facts showed that
“defendant’s intent was not only to rob or to injure, but to kill.” Id. at 463 (emphasis
added).
In contrast, the court held in State v. Irwin, 285 S.E.2d 345, 349 (N.C. Ct. App.
1982), that the state did not prove the defendant’s specific intent to kill as required for an
AWDWIKISI conviction. In Irwin, the court overturned an AWDWIKISI conviction
because there was no specific intent to kill where an inmate held a jail employee at knife-
point during an escape attempt. Id. at 349–50. The court held that the evidence did not
prove a specific intent to kill because the evidence showed only a conditional intent to
kill, or as the court stated, “a specific intent not to kill anyone if [the jail staff] complied
with defendant’s commands.” Id. (emphasis in original). These cases turned on whether
the evidence showed that the defendant intended to kill by his violent act, and both
required proving a specific intent to kill for an AWDWIKISI conviction.

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Further, evidence that AWDWIKISI requires a specific intent can be found in the
available affirmative defenses. North Carolina courts permit defendants to raise the
defenses of diminished capacity and voluntary intoxication to negate the intent to kill
element. See, e.g., State v. Daniel, 429 S.E.2d 724, 727–28 (N.C. 1993) (organic brain
impairment); State v. Robertson, 531 S.E.2d 490, 492 (N.C. Ct. App. 2000) (voluntary
intoxication “only a viable defense if the degree of intoxication is such that a defendant
could not form the specific intent required for the underlying offense”); State v. Williams,
447 S.E.2d 817, 821 (N.C. Ct. App. 1994) (diminished capacity). See also State v.
Carver, 564 S.E.2d 319 (N.C. Ct. App. 2002) (unpublished table opinion) (voluntary
intoxication); cf. State v. Page, 488 S.E.2d 225, 232 (N.C. 1997) (“diminished-capacity
defense is not available to negate the general intent required for a conviction of assault
with a deadly weapon on a government officer”). In Daniel, the Supreme Court of North
Carolina held that the trial court erred in excluding testimony about diminished mental
capacity because such testimony would have tended to negate evidence of specific intent
to kill, which the court described as “an essential element of [AWDWIKISI].” Daniel,
429 S.E.2d at 729. Similarly, the Court of Appeals of North Carolina reversed and
remanded for a new trial in Williams because “[t]he defense of diminished capacity
applies to the element of specific intent to kill” and the trial court there should have
instructed the jury to “consider the defendant’s mental condition in determining whether
he formed the specific intent to kill.” Williams, 447 S.E.2d at 821 (citing Daniel, 429
S.E.2d at 724).

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In response to this clear body of caselaw, Townsend argues that AWDWIKISI is
not categorically a violent felony under the force clause because the statute criminalizes
mere “culpable negligence,” a mens rea lower than required for a “use” of force under
Leocal. To support his position, Townsend relies on our decision in Vinson and one line
from State v. Jones, 538 S.E.2d 917, 923 (N.C. 2000), that “culpable or criminal
negligence may be used to satisfy the intent requisite for certain dangerous felonies, such
as manslaughter, assault with a deadly weapon with intent to kill and AWDWISI.”
Townsend argues that Vinson held assault may be proven with culpable negligence in
North Carolina and that Jones, which the Supreme Court of North Carolina decided after
the previously discussed specific-intent cases, held that intent to kill only requires
proving culpable negligence. Townsend therefore would have us conclude that
AWDWIKISI and specifically the intent to kill element of AWDWIKISI requires proving
only culpable negligence.6 We decline to adopt Townsend’s interpretation.
As an initial matter, Vinson does not aid Townsend. It held only that assault
requires intent but that intent may be inferred from culpable negligence; therefore, the
mens rea for assault did not categorically satisfy the mens rea for “use” under Leocal. See
6 Several courts have addressed a similar Jones argument and held that it did not
affect the mens rea required to prove intent to kill. See, e.g., United States v. Vereen, 703
F. App’x 171 (4th Cir. 2017) (holding that assault with a deadly weapon with intent to
kill (“AWDWIK”) was a crime of violence under the U.S. Sentencing Guidelines because
it had a specific intent to kill and rejecting a similar Jones argument); Goins v. United
States, No. 7:10-CR-107-FL-1, 2017 WL 455400, at *4–5 (E.D.N.C. Feb. 2, 2017)
(AWDWIKISI categorically a violent felony despite dicta in Jones). But cf. United States
v. Brown, 249 F. Supp. 3d 287, 298–99 (D.D.C. 2017) (North Carolina AWDWIK not a
violent felony under the force clause because of Jones).

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Vinson, 805 F.3d at 126 (citing Leocal v. Ashcroft, 543 U.S. 1 (2004)). But Vinson does
not hold, or even suggest, that AWDWIKISI, which has the additional element of a
specific intent to kill, can be satisfied by a showing of culpable negligence.
Townsend’s reliance on Jones is also misplaced. The Jones court did not decide
anything regarding the “intent to kill” element of AWDWIKISI. See Jones, 538 S.E.2d at
917. Instead, the Jones court addressed whether AWDWISI, which lacks any intent to kill
element, could be an underlying predicate felony for a first-degree felony-murder
conviction. See id. at 923. In answering that question, Jones did not hold that intent to kill
may be satisfied by proving only culpable negligence or recklessness but rather that
AWDWISI could not be a felony-murder predicate offense because an AWDWISI
conviction required proving only culpable negligence while a first-degree felony-murder
conviction required proof of intent. See id. at 923–24. Accordingly, the statement relied
upon by Townsend is dicta, and we will not rely upon it. See, e.g., New England Mut. Life
Ins. Co. v. Mitchell, 118 F.2d 414, 420 (4th Cir. 1941) (“To base a decision upon dicta, or
upon speculation as to what the local court might decide in the light of dicta, would be to
depart from our solemn duty in the premises and embark upon a vain and illusory
enterprise.”).
Further, Jones noted that felony-murder convictions required actual intent and that
AWDWIKISI had been found previously to be a predicate felony for felony murder. See
Jones, 538 S.E.2d at 925 (citing State v. Terry, 447 S.E.2d 720 (N.C. 1994)). Jones
discussed several crimes previously held to be predicate felonies for felony-murder
convictions, including AWDWIKISI, and stated “each of these crimes, whether

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individually typed as specific intent or general intent in nature, have required actual intent
on the part of the perpetrator.” Jones, 538 S.E.2d at 925. The court then stated that while
“culpable negligence can satisfy the intent requirement for certain aforementioned
crimes, it has not formed the basis of intent for a first-degree murder conviction.” Id.
These statements support the holding in Jones that AWDWISI could not be a predicate
felony for a first-degree felony-murder conviction but also contradict Townsend’s
argument here that the intent to kill element of AWDWIKISI may be proven with mere
culpable negligence.
Finally, there can be no dispute that, prior to Jones, proof of a specific intent to
kill was an essential element of an AWDWIKISI conviction. See, e.g., State v. Grigsby,
526 S.E.2d 460, 462 (N.C. 2000); State v. Daniel, 429 S.E.2d 724, 728–29 (N.C. 1993);
State v. Irwin, 285 S.E.2d 345, 349 (N.C. Ct. App. 1982). We will not read Jones to
change the mens rea required to prove a specific intent to kill for AWDWIKISI where the
Supreme Court of North Carolina did not see fit to even discuss the purported major
change in the law Townsend argues was worked by Jones. See generally United States v.
Washington, 629 F.3d 403, 409 (4th Cir. 2011) (“It would be strange for the Supreme
Court to change the law so profoundly yet so quietly, and we should not strain to find that
it has done so where there are more plausible interpretations of its handiwork.”)
Moreover, North Carolina courts addressing AWDWIKISI since Jones have not
recognized a change or lowered mens rea requirement as a result of Jones and have
continued to rely on pre-Jones cases. See, e.g., State v. Tirado, 599 S.E.2d 515, 534 (N.C.
2004) (stating that the difference between attempted first-degree murder and

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AWDWIKISI is that AWDWIKISI requires proof of a deadly weapon and an injury but
no premeditation while not mentioning Jones); State v. Pointer, 638 S.E.2d 909, 912
(N.C. Ct. App. 2007) (addressing whether “defendant had the specific intent to kill the
victims”); State v. Parker, 738 S.E.2d 453 (N.C. Ct. App. 2013) (unpublished table
opinion) (quoting Irwin, 285 S.E.2d at 349, and applying a specific intent requirement
without mentioning Jones); State v. Parham, 689 S.E.2d 244 (N.C. Ct. App. 2009)
(unpublished table opinion) (quoting Williams, 447 S.E.2d at 821, and applying a specific
intent requirement without mentioning Jones). Further, the North Carolina pattern jury
instructions for AWDWIKISI pre-Jones required a specific intent to kill, and those
instructions still do today after Jones. Compare N.C.P.I. Crim. 208.10 (1989 Ed.) with
N.C.P.I. Crim. 208.10 (2017 Ed.). Accordingly, Jones is not sufficient to establish that
intent to kill may be satisfied with proof of anything other than a specific intent to kill
and does not alter our conclusion that AWDWIKISI is categorically a violent felony
under the force clause of the ACCA.7
IV.
For the reasons stated, North Carolina AWDWIKISI is categorically a violent
felony under the ACCA. The decision of the district court is therefore,
AFFIRMED.
7 While the statement from Jones relied upon by Townsend is dicta, we would not
read it to support Townsend’s position in any event. See Jones, 538 S.E.2d at 923. Under
our reading of the law pre- and post-Jones, the statement is best understood as a comment
on the mens rea required to prove assault and not the mens rea required to prove intent to
kill.

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