USCA4 Appeal: 22-4384 Doc: 57 Filed: 01/29/2025 Pg: 1 of 13
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 22-4384
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
KEWAN MARQUIS SHADE,
Defendant – Appellant.
Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Martin K. Reidinger, Chief District Judge. (1:20-cr-00103-MR-WCM-1)
Argued: December 10, 2024 Decided: January 29, 2025
Before DIAZ, Chief Judge, AGEE, and RICHARDSON, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: James Walter Kilbourne, Jr., ALLEN STAHL & KILBOURNE, PLLC, Asheville, North Carolina, for Appellant. Mahogane Denea Reed, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Kenneth A. Polite, Jr., Assistant Attorney General, Lisa H. Miller, Deputy Assistant Attorney General, William A. Glaser, Appellate Section, Criminal Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Dena J. King, United States Attorney, Charlotte, North Carolina, Amy E. Ray, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee. USCA4 Appeal: 22-4384 Doc: 57 Filed: 01/29/2025 Pg: 2 of 13
Unpublished opinions are not binding precedent in this circuit.
2 USCA4 Appeal: 22-4384 Doc: 57 Filed: 01/29/2025 Pg: 3 of 13
PER CURIAM:
Kewan Shade pleaded guilty to possessing a firearm as a convicted felon and was
sentenced to 60 months’ imprisonment. He now appeals his sentence, arguing primarily
that the district court erred in calculating his Guidelines recommended range of
imprisonment. Because we think Shade’s arguments lack merit, we affirm his sentence.
I.
In 2014, Shade was convicted of five counts of assault with a deadly weapon with
intent to kill under N.C. Gen. Stat. § 14-32(c) and one count of assaulting a law
enforcement officer with a firearm. All told, he served almost three years in prison for his
violent behavior.
In 2020, Asheville Police discovered Shade was buying and selling guns through
social media. After an undercover operation in which a detective sold him three firearms,
law enforcement tried to apprehend him, but he fled. Shade ran two red lights and drove
on the wrong side of the road to avoid traffic before he was ultimately arrested. At that
time, police found four firearms in his possession: the three firearms from the earlier
undercover sale and another stolen pistol.
Soon thereafter, a grand jury in the Western District of North Carolina indicted
Shade on one count of possession of a firearm by a convicted felon in violation of 18 U.S.C.
§ 922(g)(1). He eventually pleaded guilty without a plea agreement.
In advance of Shade’s sentencing, the probation office put together a pre-sentence
investigation report (“PSR”) that recommended, inter alia, (1) assignment of a base offense
3 USCA4 Appeal: 22-4384 Doc: 57 Filed: 01/29/2025 Pg: 4 of 13
level of 20 under U.S.S.G. § 2K2.1(a)(4)(A), based on the determination that his prior
conviction for assault with a deadly weapon with intent to kill was a Guidelines “crime of
violence,” and (2) a two-point enhancement under U.S.S.G. § 3C1.2 for reckless
endangerment during his flight from arrest. Shade objected to both recommendations. The
probation office maintained its position, thus teeing the objections up for the district court
at the sentencing hearing. Before the hearing, Shade moved to file his entire sentencing
memorandum (and an exhibit attached thereto) under seal because he alleged it contained
sensitive medical information.
At the sentencing hearing, the district court first addressed Shade’s motion to seal.
It denied the motion without prejudice under United States v. Harris, 890 F.3d 480 (4th
Cir. 2018), “giving [him] a mulligan” to file another more targeted motion and keeping the
memorandum provisionally under seal pending disposition of a renewed motion. J.A. 212.
Shade filed the new motion to seal the same day he noted this appeal, and that motion
remains pending on the district court’s docket as of the date of this opinion.
The district court then took up Shade’s objections to his PSR and, after hearing
argument, overruled them. It adopted the PSR in full and calculated his Guidelines range
of imprisonment to be between 57 and 71 months before hearing argument on an
appropriate sentence. The Government argued for a 66-month sentence while Shade asked
for a below Guidelines sentence of 32 months. After considering his specific arguments
and the 18 U.S.C. § 3553(a) factors, the district court sentenced him to a 60-month term of
imprisonment.
4 USCA4 Appeal: 22-4384 Doc: 57 Filed: 01/29/2025 Pg: 5 of 13
Shade timely noted his appeal, and we have jurisdiction to review challenges to his
conviction and sentence under 18 U.S.C. § 3742 and 28 U.S.C. § 1291. 1
II.
Shade’s only live challenges on appeal relate to the procedural reasonableness of
his sentence, so we review those in turn. 2 For the reasons discussed, his arguments are
unpersuasive.
1 We may not, however, consider his challenge to the preliminary denial of his motion to seal his sentencing memorandum. That denial was without prejudice and Shade filed a renewed motion that remains undecided in the district court. The sealing issue is thus not final, so we do not have jurisdiction to review it. See 28 U.S.C. § 1291. And we certainly cannot issue an advisory opinion to guide the district court on how to fix a hypothetical error it may never make. To borrow the district court’s metaphor, a mulligan allows him to take another try at his tee shot; it does not permit us to place the ball on the green for him.
That said, we do not think the presence of the pending motion to seal on the district court’s docket extinguishes our jurisdiction over Shade’s otherwise final conviction and sentence. While we acknowledge that the presence of the collateral pending motion to seal means there is something left for the district court to do in a literal sense, the merits of his conviction and sentence are settled, so the judgment is ripe for review. See United States v. Lanham, 631 F.2d 356, 357 (4th Cir. 1980) (“[I]n a criminal case, final judgment means conviction and sentence.”); cf. Budinich v. Becton Dickinson & Co., 486 U.S. 196, 199 (1988) (“A question remaining to be decided after an order ending litigation on the merits does not prevent finality if its resolution will not alter the order or moot or revise decisions embodied in the order.”). 2 Shade also appealed his § 922(g)(1) conviction, arguing that the statute is facially unconstitutional in a post-Bruen world. As counsel recognized at argument, it is settled law in our circuit that § 922(g)(1) remains facially constitutional post-Bruen. United States v. Canada, 123 F.4th 159, 161 (4th Cir. 2024).
5 USCA4 Appeal: 22-4384 Doc: 57 Filed: 01/29/2025 Pg: 6 of 13
A.
According to Shade, the district court incorrectly calculated his Guidelines range of
imprisonment. He argues that (1) his prior conviction for assault with a deadly weapon
with intent to kill under N.C. Gen. Stat. § 14-32(c) was not categorically a “crime of
violence” under the Guidelines, and (2) his flight from arrest posed no substantial risk of
harm so as to warrant the two-point reckless endangerment bump. We disagree on both
fronts.
1.
Section 2K2.1(a)(4)(A) of the Guidelines provides for an enhanced base offense
level if “the defendant committed any part of the instant offense subsequent to sustaining
one felony conviction of . . . a crime of violence.” The applicable Guidelines’ definition of
a “crime of violence” includes a state law felony “that has an element the use, attempted
use, or threatened use of physical force against the person of another.” U.S.S.G.
§ 4B1.2(a)(1).
We review whether N.C. Gen. Stat. §14-32(c) fits that definition de novo. United
States v. Rice, 36 F.4th 578, 581 n.3 (4th Cir. 2022). Common sense suggests it does. 3 But
We are, of course, not the first to recognize the relative absurdity of the premise 3
of this question. See, e.g., United States v. Battle, 927 F.3d 160, 163 n.2 (4th Cir. 2019) (“Through the Alice in Wonderland path known as the ‘categorical approach,’ we must consider whether [Defendant’s] assault of a person with the intent to murder is a crime of violence.”); United States v. Rice, 36 F.4th 578, 579 (4th Cir. 2022) (“We are asked to decide if the North Carolina crime of assault inflicting physical injury by strangulation is a ‘crime of violence.’ Ask any person on the street and they would say of course. In fact, they would likely question our common sense for asking such an obvious question. But we must resolve this issue using the ‘categorical approach,’ not common sense.”); see also (Continued) 6 USCA4 Appeal: 22-4384 Doc: 57 Filed: 01/29/2025 Pg: 7 of 13
instead of common sense, we apply the categorical approach. Id. at 580. And under that
approach, “[a] predicate offense qualifies as a crime of violence if all of the conduct
criminalized by the statute—including the most innocent conduct—matches or is narrower
than the Guidelines’ definition of crime of violence.” United States v. Salmons, 873 F.3d
446, 448 (4th Cir. 2017) (internal quotations omitted). But “if the offense ‘can be
committed without satisfying the definition of crime of violence, then it is overbroad and
not a categorical match.’” United States v. Simmons, 917 F.3d 312, 316–17 (4th Cir. 2019)
(quoting Salmons, 873 F.3d at 448).
In sum, when the predicate crime’s “statutory elements necessarily require the use,
attempted use, or threatened use of physical force[,]” we have a categorical match. United
States v. Mack, 56 F.4th 303, 305 (4th Cir. 2022) (cleaned up). So, we start by looking at
what is required to secure a conviction under N.C. Gen. Stat. § 14-32(c): “(1) an assault;
(2) with a deadly weapon; (3) with the intent to kill.” State v. Stewart, 750 S.E.2d 875, 882
(N.C. Ct. App. 2013) (cleaned up).
In arguing that North Carolina assault with a deadly weapon with the intent to kill
is not a crime of violence, Shade takes aim at the first and third elements. In his mind, an
N.C. Gen. Stat. § 14-32(c) conviction can occur (i) without a communicated “threat of
force” and (ii) through a mens rea of mere negligence. We address his arguments in turn.
United States v. Fulks, 120 F.4th 146, 163 (4th Cir. 2024) (noting this kind of analysis sometimes “insist[s] that we wrap ourselves in a cocoon and take leave of . . . reality”).
7 USCA4 Appeal: 22-4384 Doc: 57 Filed: 01/29/2025 Pg: 8 of 13
As we understand his first position, Shade claims that because North Carolina
assault requires satisfying an objective inquiry, it can be accomplished without the actual
communication of a threat of physical force from the assailant to another person. And
because a crime of violence’s “threatened use of force” requires a communicated threat
from one person that is received by another under United States v. Taylor, 596 U.S. 845
(2022), no North Carolina criminal assault fits within the Guidelines’ crime of violence
definition. We are unconvinced by his novel argument. 4
Criminal assault in North Carolina is defined by common law. United States v.
Vinson, 805 F.3d 120, 123 (4th Cir. 2015) (citing State v. Roberts, 155 S.E.2d 303, 305
(N.C. 1967)). Three definitions have emerged, the most common of which we have dubbed
the “‘attempted battery’ formulation.” Simmons, 917 F.3d at 318–19; see Roberts, 155
S.E.2d at 305. That formulation—on which Shade relies—defines criminal assault “as ‘an
overt act or an attempt, or the unequivocal appearance of an attempt, with force and
violence, to do some immediate physical injury to the person of another, which show of
force or menace of violence must be sufficient to put a person of reasonable firmness in
4 We assume arguendo that Taylor’s interpretation of the Hobbs Act force clause’s use of “threatened use of physical force” extends to the Guidelines’ use of the same phrase in its own force clause. See 18 U.S.C. § 924(c)(3)(B); U.S.S.G. § 4B1.2(a)(1); but compare Mack, 56 F.4th at 305 n.1 (noting that cases interpreting what constitutes a violent felony under the ACCA’s force clause are precedential for evaluating what constitutes a Guidelines crime of violence because the clauses are identical), with United States v. Green, 996 F.3d 176, 181 (4th Cir. 2021) (explaining the same reciprocity does not always apply to comparing the Hobbs Act and Guidelines’ force clauses because the comparative force clauses are not identical).
8 USCA4 Appeal: 22-4384 Doc: 57 Filed: 01/29/2025 Pg: 9 of 13
fear of immediate bodily harm.’” State v. Dew, 864 S.E.2d 268, 273–74 (N.C. 2021)
(quoting Roberts, 155 S.E.2d at 305).
Shade takes the objective standard in that definition to mean that an assault can be
accomplished without the threat of force being communicated to someone else, so long as
a reasonable person would construe it as such. But that misunderstands the nature of the
relevant objective inquiry. It is the “show of force or menace of violence”—not whether
the threat of force is communicated in the first place—“which . . . must be sufficient to put
a person of reasonable firmness in fear of immediate bodily harm.” Roberts, 155 S.E.2d at
305. The objective inquiry comes in only when assessing whether the offer of physical
force is sufficient to carry an attendant reasonable fear of harm. See Dew, 864 S.E.2d at
274 (citing favorably to Black’s Law’s definition of assault, which provides that assault is
“[t]he threat or use of force on another that causes that person to have a reasonable
apprehension of imminent harmful or offensive contact” (alteration in original) (emphasis
added)). In other words, the objective inquiry presupposes the existence of a communicated
threat between the assailant and another person. The premise of Shade’s argument is
therefore faulty.
The North Carolina cases he cites do not suggest that a prosecutable assault occurs
when a person makes a threat of force about which no person actually knows so long as an
amorphous reasonable person would know. State v. Musselwhite asked whether an assault
had occurred when the assailant tried to stab another person, but there was no evidence that
the would-be victim “was put in fear of the consequence of the attack.” 297 S.E.2d 181,
184 (N.C. Ct. App. 1982). The Court of Appeals held no such evidence was required
9 USCA4 Appeal: 22-4384 Doc: 57 Filed: 01/29/2025 Pg: 10 of 13
because a reasonable person would fear bodily harm if an assailant swung a knife at them.
See id. (“All that is necessary to sustain a conviction for assault is evidence of an overt act
showing an intentional offer by force and violence to do injury to another sufficient to put
a person of reasonable firmness in apprehension of immediate bodily harm.”). Similarly,
State v. Starr considered whether a person who shot at a door while firemen were trying to
break it down (and after they succeeded in doing so and stood in the doorway) could be
convicted of assault over the defendant’s argument that the firemen did not “kn[o]w of and
otherwise dr[a]w fear and apprehension from [his] blind shots into the door.” 703 S.E.2d
876, 880 (N.C. Ct. App. 2011). The facts showed the firemen knew at one point or another
that the defendant had a gun and was firing at them. Id. at 878. And because the defendant’s
intentional shooting at the people at his door “was sufficient to put a person of reasonable
firmness in apprehension of immediate bodily harm,” the facts supported an assault
conviction. Id. at 880 (internal quotations omitted). Contrary to Shade’s reading, neither
case instructs that an individual can be convicted for assault under North Carolina law
where the threat of harm was not communicated to another person.
Because we do not understand North Carolina to criminalize an uncommunicated
threat of bodily harm as assault, we are unpersuaded by Shade’s first argument. A North
Carolina conviction for assault, and therefore N.C. Gen. Stat. § 32-14(c), necessarily
requires, at minimum, a “threat of force.”
Next, Shade conceded his second challenge—the mens rea issue—at oral argument.
See Oral Arg. 9:25–40. His concession was appropriate in light of our recent case law, as
we have previously construed North Carolina’s addition of the “with the intent to kill”
10 USCA4 Appeal: 22-4384 Doc: 57 Filed: 01/29/2025 Pg: 11 of 13
element to assault crimes in analogous statutes to mean they cannot be achieved through
negligence. E.g., United States v. Townsend, 886 F.3d 441, 445 (4th Cir. 2018) (“[W]e
conclude that [assault with a deadly weapon with the intent to kill and inflict serious injury]
is categorically a violent felony under the force clause of the ACCA because [its] intent to
kill element . . . requires proof of a specific intent to kill.”); United States v. Vereen, 703
F. App’x 171, 173–74 (4th Cir. 2017) (rejecting the same mens rea argument Shade
advances here, albeit on plain error review, in holding N.C. Gen. Stat. § 14-32(c) is a
Guidelines crime of violence); see also United States v. Battle, 927 F.3d 160, 165 (4th Cir.
2019) (holding Maryland’s equivalent crime of assault with intent to murder “is a specific
intent crime and the only mens rea that would support the conviction is the specific intent
to bring about the death of the assault victim”). Because a N.C. Gen. Stat. § 14-32(c)
conviction requires proof of a specific intent to kill, Shade’s mens rea argument was
properly conceded.
This is one of those rare cases that the categorical approach aligns with common
sense, and we are satisfied that N.C. Gen. Stat. § 14-32(c) fits comfortably within the
Guidelines’ definition of a crime of violence.
2.
Shade next takes issue with the district court’s finding that the two-point
enhancement prescribed under U.S.S.G. § 3C1.2 applied to his sentence. That enhancement
is appropriate if the district court finds that “the defendant recklessly created a substantial
risk of death or serious bodily injury to another person in the course of fleeing from a law
enforcement officer.” U.S.S.G. § 3C1.2. To prevail on this challenge, Shade must convince
11 USCA4 Appeal: 22-4384 Doc: 57 Filed: 01/29/2025 Pg: 12 of 13
us the district court’s finding was clearly erroneous. United States v. Shivers, 56 F.4th 320,
324 (4th Cir. 2022). We will not disturb the district court’s “application of the § 3C1.2
enhancement . . . unless on the entire evidence, we are left with the definite and firm
conviction that a mistake has been committed.” Id. (cleaned up).
According to Shade, his evasion of arrest never posed a substantial risk to anyone.
In so arguing, he relies on our statement that “the fact of a vehicular flight, alone, does not
necessarily justify an application of § 3C1.2. Something more is required.” United States
v. Burnley, 988 F.3d 184, 191 (4th Cir. 2021). If the record reflected that Shade got in his
car and drove away as a law-abiding driver, he might have an argument. But we have no
issue determining that the record here shows the “something more” for which we searched
in Burnley. See id. He does not dispute that while fleeing police, he ran two red lights and
“passed stopped traffic by driving against the flow of traffic on the wrong side of the road.”
J.A. 75. When taking view of those facts, we conclude the district court did not clearly err
in finding that Shade’s flight presented a substantial risk of serious bodily injury to other
people.
****
At bottom, the record shows the district court thoroughly considered Shade’s
nonfrivolous arguments, walked through the relevant § 3553(a) factors, and explained why
the sentence given was tailored to the criminal defendant before it. 5 Shade’s sentence was
5 To the extent Shade argues that the district court’s treatment of some of his sentencing arguments—for downward departures based on his alleged diminished mental capacity and some abstract threat of duress—in considering an appropriate sentence (Continued) 12 USCA4 Appeal: 22-4384 Doc: 57 Filed: 01/29/2025 Pg: 13 of 13
procedurally reasonable. The district court did its job with aplomb, and we commend its
thoughtful analysis in crafting an appropriate sentence.
III.
For the reasons discussed, we will not disturb Shade’s sentence.
AFFIRMED
presents an independent ground for vacatur of his sentence, the transcript of his sentencing hearing compels us to disagree.