PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-6285

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

CARLOS EMANUEL KINARD,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Graham C. Mullen, Senior District Judge. (3:93−cr−00215−GCM−6; 3:21−cv−00161−GCM)

Argued: October 25, 2023 Decided: February 20, 2024

Before RUSHING and HEYTENS, Circuit Judges, and KEENAN, Senior Circuit Judge.

Affirmed by published per curiam opinion. Senior Judge Keenan wrote a separate concurring opinion, in which Judge Heytens joined.

ARGUED: Eric Joseph Brignac, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Anthony J. Enright, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. ON BRIEF: G. Alan DuBois, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Dena J. King, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. USCA4 Appeal: 22-6285 Doc: 47 Filed: 02/20/2024 Pg: 2 of 18

PER CURIAM:

The issue in this appeal is whether assault with a dangerous weapon under 18 U.S.C.

§ 1959(a)(3), in violation of the North Carolina statutory crime of assault with a deadly

weapon, N.C. Gen Stat. § 14-33(c)(1), requires a mens rea sufficiently culpable to qualify

as a “crime of violence” under 18 U.S.C. § 924(c). Based on our recent decision in United

States v. Thomas, 87 F.4th 267 (4th Cir. 2023), we hold that this offense is a “crime of

violence” and we affirm the district court’s judgment.

I.

In 1994, a jury convicted Carlos Emanuel Kinard on twelve counts related to a drug

and racketeering conspiracy. Count 33 charged Kinard with use of a firearm during and in

relation to a “crime of violence” under § 924(c) (the § 924(c) conviction). The predicate

offense for the § 924(c) conviction arose under the violent crimes in aid of racketeering

statute (VICAR), for VICAR assault with a dangerous weapon, 18 U.S.C. § 1959(a)(3) (the

predicate VICAR assault offense). The predicate VICAR assault offense, in turn,

incorporated the North Carolina statutory crime of assault with a deadly weapon (the North

Carolina assault offense), N.C. Gen Stat. § 14-33(c)(1). 1 The district court imposed a 20-

1 At the time Kinard was prosecuted for this offense, the relevant statutory subsection was N.C. Gen. Stat. § 14-33(b)(1). See N.C. Laws 1991, ch. 525, § 1 (effective Oct. 1, 1991). For simplicity, we refer in this opinion to the materially identical current version of this provision. See N.C. Gen. Stat. § 14-33(c)(1).

2 USCA4 Appeal: 22-6285 Doc: 47 Filed: 02/20/2024 Pg: 3 of 18

year consecutive sentence for the § 924(c) conviction, 2 and we affirmed Kinard’s judgment

of conviction on direct appeal. United States v. Padgett, 78 F.3d 580 (4th Cir. 1996)

(Table).

In 2016, Kinard moved to vacate his sentence under § 2255, contending that the

§ 924(c) conviction was invalid because the predicate VICAR assault offense was not a

“crime of violence” after Johnson v. United States, 135 S. Ct. 2551 (2015) (holding that

“the residual clause”