August 13, 2013 4th Circuit published opinion

United States v Carthorne

Carthorne pled guilty to drug and firearms charges. The district court ruled his Virginia assault and battery on a police officer conviction was a crime of violence and that Carthorne was a career criminal as a result. The panel, with one judge dissenting in part, affirmed. The whole panel applied plain error review and agreed that the Virginia assault and battery on a police officer statute is not categorically a crime of violence as it adopts the common law definition of battery namely any touching, however slight, violates the statute. Thus, there is no element requiring violence. Nor does the behavior create a substantial risk of violence because police officers can be relied upon to control their emotions not act like literal powder kegs and explode at the slightest provocation. The panel split on whether the error was “plain”. The majority held that the error was not plain as there was no binding United States Supreme Court or 4th Circuit precedent and the other circuits are split on the issue. The dissenting judge argued that the error was plain as it is an obvious error that should be corrected and the other circuits who reached the same conclusion as this panel (the statute is not a crime of violence) were far better reasoned and should have been followed here particularly as the error will require Carthorne to spend many years of unnecessary time in prison.

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