US v. Covington: In this appeal, the Fourth Circuit considered whether the West Virginia crime of unlawful wounding was a crime of violence under the guidelines. As the government did not argue in this case that the predicate offense was an enumerated offense, the Fourth Circuit considered whether it qualifies as a crime of violence under the force clause only.
Using the categorical approach, the Fourth Circuit found that the WV statute in question is divisible, in that it listed two separate crimes with different elements and punishments, i.e. unlawful wounding and malicious wounding. There was no question which part of the statute was at issue here, so the Court moved on to compare the offense of unlawful wounding with the requirements of the force clause.
Considering the elements of the force clause, the Fourth Circuit found that the elements of WV unlawful wounding categorically qualified as a crime of violence under the force clause. Further, Covington did not identify for the Court a WV case that interprets the offense of unlawful wounding to apply to an individual who uses force that is not “capable of causing physical pain or injury to another person,” whereas the government provided “scores” of cases that seemed to confirm that unlawful wounding in WV only criminalizes the degree of force required under Johnson.