North Carolina Assault Inflicting Serious Bodily Injury Crime of Violence Under Residual Clause

US v. Thompson: Thompson pleaded guilty to being a felon in possession of a firearm and drug possession with intent to distribute. In the PSR, his offense level was enhanced because he had a prior conviction for a "crime of violence" - North Carolina assault inflicting serious bodily injury ("AISBI"). He was sentenced to 120 months in prison. On appeal, Thompson argued that AISBI was not a crime of violence. The Fourth Circuit held the case in abeyance pending Beckles. Once that case was decided, it ordered additional briefing on whether AISBI was still a crime of violence under the residual clause of the crime of violence definition.

The Fourth Circuit ultimately concluded it was a crime of violence under the residual clause and affirmed Thompson's sentence. In doing so, the court was forced to determine what the Supreme Court's 2015 decision in Johnson meant for Guideline residual clause analysis going forward. The court concluded that Johnson did not overrule the Begay "similar in kind" test the court adopted before Johnson, but it did clarify that the analysis is to be based on "the ordinary case" in both the similar in kind and "degree or risk" assessments. Noting that under state law AISBI involves assaults that are "especially violent and result in the infliction of extremely serious injuries" and therefore had a degree of risk similar to the enumerated offenses in USSG 4B.2. The court rejected Thompson's argument that North Carolina's case law was so broad as to make it impossible to identify the "ordinary case" of AISBI, concluding that it requires actual intent and thus is similar in kind to the "purposeful, violent, and aggressive" offenses enumerated in the Guideline.