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Home / Courts / 4th Circuit / Criminal Practice – Sentencing – Prior Convictions – Strangulation – Intent – Categorical Approach

Criminal Practice – Sentencing – Prior Convictions – Strangulation – Intent – Categorical Approach

Under North Carolina law, the intent element of assault may be proven by showing culpable negligence, which is insufficient to qualify an assault as a “crime of violence” under U.S. Sentencing Guidelines. However, North Carolina’s crime of assault by strangulation also requires proof of strangulation and infliction of physical injury. Since neither of these may be proven without a showing of intent, defendant’s North Carolina conviction of assault by strangulation qualifies as a crime of violence for federal sentencing purposes.

We affirm defendant’s 77-month sentence for possession of a firearm by a felon.

In defining strangulation, State v. Lanford, 736 S.E.2d 619 (N.C. App. 2013), discussed hanging, ligature and the manual assertion of pressure; all of these require intentional conduct.

Moreover, to a person of ordinary intelligence, strangulation cannot be committed without knowing or intending it.

Defendant cannot point to a single case where North Carolina obtained, or even sought, a conviction for assault by strangulation where the defendant did not knowingly, purposefully, or intentionally strangle their victim.

Finally, “infliction” requires intent.

From the plain meaning of “by strangulation” and “inflicting physical injury” to North Carolina reported decisions involving assault by strangulation to consideration of “realistic probabilities,” we see no indication North Carolina would prosecute a defendant for the crime of assault by strangulation except where the evidence showed that the alleged perpetrator had an intentional, knowing or purposeful state of mind. The act of strangling requires such an intent. It cannot be completed recklessly or negligently.

On at least one occasion, a prosecutor for the State of North Carolina has stated in open court that “[s]trangulation does not occur . . . by accident . . . [but] takes a deliberate act.” State v. Richardson, 402 S.E.2d 401 (N.C. 1991). We agree. Because assault by strangulation could only be accomplished if the state proves an intentional, knowing or purposeful intent, it satisfies the mens rea requirement for a crime of violence.



(King, J.) The strangulation offense at issue can be committed under North Carolina law with a mens rea of culpable negligence.

The North Carolina Supreme Court has explicitly ruled that the mens rea required for a North Carolina “assault” offense generally encompasses culpably negligent conduct. State v. Jones, 538 S.E.2d 917 (N.C. 2000). Assault by strangulation does not have any additional element that increases its mens rea requirement. For example, defendant cites State v. Dehne, No. 2011AP91-CR, 2012 WL 6012996, at *1 (Wis. Dec. 4, 2012) wherein strangulation occurred recklessly when a victim wearing a harness attached to an I-beam was pushed down a staircase.

As we have observed, there are “some scenario[s] in which a person could commit an assault by strangulation [under North Carolina law] without intentionally applying physical force.” United States v. McMillian, 652 F. App’x 186 (4th Cir. 2016) (unpublished).

More importantly, the realistic-probability test is satisfied because North Carolina courts have held that an assault can be committed with a mens rea that sweeps more broadly than what is required under the Guidelines force clause. That fact alone removes the strangulation offense from the scope of the force clause.

United States v. Rice (Lawyers Weekly No. 012-077-22, 24 pp.) (Marvin Quattlebaum, J.) (Robert King, J., dissenting) No. 19-4489. Appealed from USDC at Asheville, N.C. (Marvin Reidinger, J.) Megan Coyle Hoffman and Anthony Martinez for appellant; Anthony Joseph Enright, Andrew Murray and William Stetzer for appellee. 4th Cir.

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