On appeal, Carthorne challenged his classification as a career offender, arguing it was plain error. The Fourth Circuit agreed (unanimously) that he was right, but also agreed (2-1) that the error wasn't "plain" and thus affirmed his sentence. In 2010, the court held that a conviction under the general Virginia assault and battery statute does not constitute a "crime of violence" for career offender purposes and it rejected the Government's argument that the involvement of an officer changed the result. It rejected the Government characterisation of such situations as "powder kegs" because the officer is armed and required to respond to the provocation. However, because other circuits had reached differing conclusions with similar statutes and there was no direct Fourth Circuit opinion on point, the court found the error wasn't plain and affirmed the sentence.
Judge Davis wrote an interesting opinion concurring and dissenting in parts. He agreed that Carthorne's prior was not a crime of violence, but disagreed about whether the error of finding otherwise was "plain." After evaluating prior Fourth Circuit cases on plain error, career offenders, and the 2010 case, he concluded that, even without a direct published holding on point from the Fourth. He also took the majority to task for taking the rare path of finding error and deeming it not plain, rather than assuming error and "plainness" and resolving the appeal on the issues of prejudice or whether this was the type of error of which the court should take notice. Of course, he also notes that "the government has not remotely suggested" that it could meet those challenges. He then winds up with a powerful conclusion:
For years now, all over the civilized world, judges, legal experts, social scientists, lawyers, and international human rights and social justice communities have been baffled by the 'prison-industrial complex' that the United States has come to maintain. If they want answers to the 'how' and the 'why' we are so devoted to incarcerating so many for so long, they need only examine this case. Here, a 26-year-old drug-addicted confessed drug dealer, abandoned by his family at a very young age and in and out of juvenile court starting at age 12, has more than fourteen years added to the top of his advisory sentencing guidelines range (387 months rather than 211 months), because, as a misguided and foolish teenager, he spit on a police officer. His potential sentence thus 'anchored' and 'framed' at the high end, between 17 and 32 years, Carthorne may or may not feel fortunate to have received 'only' 25 years (300 months) in prison. I do not believe he is 'fortunate' at all.Citation and footnote omitted