Argued: December 13, 2018
from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., District Judge. (3:14-cr-00017-RJC-13)
Randolph Marshall Lee, Charlotte, North Carolina, for
Anthony Joseph Enright, OFFICE OF THE UNITED STATES ATTORNEY,
Charlotte, North Carolina, for Appellee.
Andrew Murray, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
GREGORY, Chief Judge, DUNCAN, and DIAZ, Circuit Judges.
GREGORY, CHIEF JUDGE.
Tomonta Simmons had his supervised release revoked and was
sentenced to 36 months' imprisonment after the district
court determined that he committed the North Carolina offense
of assault with a deadly weapon on a government official
("AWDWOGO") and four other violations of his
release. Simmons's revocation sentence was predicated on
the district court's determination that AWDWOGO is a
"crime of violence" under the 2016 Sentencing
Guidelines and, thus, a Grade A supervised release violation.
Because we conclude that AWDWOGO is categorically not a
"crime of violence," we find that the district
court erred in classifying Simmons's supervised release
violations as a Grade A violation. This error anchored
Simmons's revocation sentence to an improperly calculated
Guidelines range. Therefore, we vacate his revocation
sentence and remand for resentencing.
high-speed car chase on February 12, 2017 by North Carolina
State Highway Patrol Trooper Gary Altman, during which
Trooper Altman's police vehicle was sideswiped, Tomonta
Simmons and another male were arrested. At the time, Simmons
was on supervised release after having served a term of
federal imprisonment for conspiracy to commit bank fraud. One
of the conditions of his supervised release was that he
"not commit another federal, state, or local
the February 12 incident, the United States Probation Office
petitioned the United States District Court for the Western
District of North Carolina for revocation of Simmons's
supervised release. According to the Probation Office,
Simmons had committed various supervised release violations.
The most serious violation was the crime of AWDWOGO, N.C.
Gen. Stat. § 14-34.2, which, Probation argued, Simmons
committed while fleeing from Trooper Altman.
revocation hearing, Simmons argued that he had been a
passenger, not the driver of the car involved in the alleged
assault. The district court heard testimony from Trooper
Altman and from Simmons's mother and godmother. The court
determined that Simmons was in fact driving the vehicle that
sideswiped Trooper Altman's vehicle and that the
Government had proven each of the alleged supervised release
relevance to this appeal, the district court found that
Simmons had committed a Grade A supervised release violation
when he committed North Carolina AWDWOGO. See
U.S.S.G. § 7B1.1(a) (classifying supervised release
violations into Grades A, B, and C). The district court
revoked Simmons's supervised release. See
U.S.S.G. § 7B1.3(a)(1) ("Upon a finding of a Grade
A or B violation, the court shall revoke probation or
supervised release."). With Simmons's criminal
history category of V, the applicable Guidelines range for
Simmons's revocation sentence was 30 to 36 months.
See U.S.S.G. § 7B1.4(a)(1); U.S.S.G. §
7B1.4(b)(1); 18 U.S.C. §§ 1344, 1349, 3559(a)(2),
3583(e)(3). The district court sentenced Simmons to the top
of that range: 36 months' imprisonment.
counsel initially filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), asserting that he was
unable to present a meritorious argument on appeal because
none of the evidence submitted during the revocation hearing
contradicted Trooper Altman's testimony that Simmons was
driving the vehicle at the time of the police
chase. Fulfilling our obligation under
Anders, we reviewed the record and identified one
nonfrivolous issue on appeal: whether the North Carolina
offense of AWDWOGO is a "crime of violence" under
the 2016 Sentencing Guidelines such that it constituted a
Grade A violation of Simmons's supervised release.
for Simmons and the Government submitted supplemental
briefing on this narrow issue. We now conclude that North
Carolina AWDWOGO does not meet the definition of a
"crime of violence" for purposes of U.S.S.G. §
we review de novo the issue of whether a predicate offense
constitutes a "crime of violence" under the
Sentencing Guidelines. United States v. Carthorne,
726 F.3d 503, 509 (4th Cir. 2013); United States v.
Jenkins, 631 F.3d 680, 682 (4th Cir. 2011). However,
when, as here, a defendant fails to object below to the
district court's determination that his predicate offense
is a "crime of violence," we review the question
for plain error. Carthorne, 726 F.3d at 509. We will
find plain error "if the settled law of the Supreme
Court or ...