UNITED STATES of America, Plaintiff-Appellee, v. Elbert Benjamin BELL, Defendant-Appellant, 704 F. App'x 297

Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Elbert Benjamin Bell appeals his sentence imposed by the district court after his guilty plea to possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1) (2012). Bell argues that the district court erred in determining that North Carolina second-degree murder is a crime of violence under U.S. Sentencing Guidelines Manual § 2K2.1(a)(4)(A) (2015), as that term is defined in USSG § 4B1.2(a). We affirm.

When a person is sentenced for unlawfully possessing a firearm, the base offense level is 20 if “the defendant committed any párt of the instant offense subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense.” USSG § 2K2.1(a)(4)(A).

At the time the district court sentenced Bell, the Guidelines defined “crime of violence” as: any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that— (1) has as an element the use, attempted use, or threatened use of physical force against, the person of another, or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. USSG § 4B1.2(a).

Because Bell objected to the district court’s conclusion that his conviction qualified as a crime of violence, we review the classification de novo. United States v. Carthorne, 726 F.3d 503, 509 (4th Cir. 2013). We use the categorical approach to determine whether a prior state conviction constitutes a crime of violence under § 4B1.2. United States v. Mack, 855 F.3d 581, 585-86 (4th Cir. 2017). “Under the categorical approach, the sentencing court must look only to the statutory

definitions of the prior offenses and may not look to the particular facts underlying those convictions.” United States v. Flores-Granados, 783 F.3d 487, 491 (4th Cir. 2015) (alteration and internal quotation marks omitted). North Carolina second-degree murder is “the unlawful killing of a human being with malice but without premeditation and deliberation.” State v.

Thibodeaux, 352 N.C. 570, 532 S.E.2d 797, 806 (2000) (internal quotation marks omitted). “[Ujnlawfully killing another human being requires the use of force capable of causing physical pain or injury to another person.” In re Irby, 858 F.3d 231, 235 (4th Cir. 2017) (internal quotation marks omitted). “[F]orce,” as used in the force clause, means “force capable of causing physical pain or injury to another person.” Id. at 236 (internal quotation marks omitted).

Because North Carolina second-degree murder requires the unlawful killing of a human being, we conclude that it qualifies as a crime of violence under § 4B1.2(a). Accordingly, we affirm the district court’s judgment. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process.

AFFIRMED The district court sentenced Bell in June 2016. • The Sentencing Commission subsequently amended § 4B1.2(a)(2), effective August 1, 2016, to remove the residual clause from the “crime of violence” definition and to include murder and voluntary manslaughter, among other offenses, in the text of the Sentencing Guidelines rather than in the commentary. See Beckles v. United States, — U.S. -, 137 S.Ct. 886, 897, 197 L.Ed.2d 145 (2017) (Ginsburg, J., concurring in the judgment) ("Harmonious with federal law and the text of § 4B1.2(a), that commentary was authoritative.” (internal quotation marks omitted)).