AWDWIKISI Remains a “Crime of Violence” After Borden; Fourth Circuit Affirms Sentence Via Assumed-Error Harmlessness

1. Introduction

In United States v. Malcolm Moore (4th Cir. Mar. 2, 2026) (unpublished), the Fourth Circuit affirmed a 57-month sentence for felon in possession of a firearm under 18 U.S.C. § 922(g)(1). The key sentencing dispute turned on whether Moore’s prior North Carolina conviction for assault with a deadly weapon with intent to kill inflicting serious injury (AWDWIKISI), N.C. Gen. Stat. § 14-32(a), qualifies as a “crime of violence” under the Sentencing Guidelines—triggering a higher base offense level under USSG § 2K2.1(a)(4)(A).

Moore also challenged: (i) a four-level enhancement for possessing the firearm “in connection with another felony offense” under USSG § 2K2.1(b)(6)(B), and (ii) an upward criminal history departure under USSG § 4A1.3, p.s.. The Fourth Circuit ultimately declined to decide those latter issues on the merits, affirming instead under the circuit’s assumed error harmlessness inquiry.

Although unpublished and “not binding precedent,” the decision is instructive for two recurring federal sentencing themes: (1) the continued force of United States v. Townsend on AWDWIKISI after Borden v. United States, and (2) the practical power of harmless-error review where a district court announces an alternative variant sentence grounded in 18 U.S.C. § 3553(a).

2. Summary of the Opinion

  • The Fourth Circuit held the district court correctly treated North Carolina AWDWIKISI as a crime of violence for Guidelines purposes, relying on United States v. Townsend.
  • As to the disputed enhancement under USSG § 2K2.1(b)(6)(B) and the upward departure under USSG § 4A1.3, p.s., the court assumed arguendo there might have been error but held any such error harmless because: (1) the district court stated it would impose the same 57-month sentence as an upward variance even without them, and (2) the sentence would be substantively reasonable even under the lower assumed Guidelines range.
  • The judgment was therefore affirmed.

3. Analysis

3.1. Precedents Cited

A. Crime-of-violence framework and the categorical approach

  • United States v. Rice, 36 F.4th 578 (4th Cir. 2022): Cited for two propositions: (1) de novo review of whether a conviction qualifies as a crime of violence, and (2) the mens rea requirement—i.e., a crime of violence requires a culpability level “more culpable than recklessness and negligence.” This framing matters because Moore invoked Borden to argue that certain state assault offenses can be committed with an insufficient mens rea.
  • United States v. Ortiz-Orellana, 90 F.4th 689 (4th Cir. 2024), cert. denied, 145 S. Ct. 1890 (2025): Cited for use of the categorical approach, the method that evaluates the statutory elements of the prior offense rather than the defendant’s real-world conduct.
  • United States v. Roof, 10 F.4th 314 (4th Cir. 2021): Quoted for the force-clause question under the categorical approach—whether the “most innocent conduct” criminalized still requires “use, attempted use, or threatened use of force” sufficient for the force clause.

B. AWDWIKISI specifically: Townsend, state-law elements, and post-Borden stability

  • United States v. Townsend, 886 F.3d 441 (4th Cir. 2018): The pivotal precedent. Townsend held that North Carolina AWDWIKISI is categorically a violent felony under the ACCA’s force clause because the offense’s “intent to kill” element requires specific intent to kill. Moore asked the panel to revisit Townsend, arguing Borden v. United States, 593 U.S. 420 (2021), undermined it. The panel rejected that contention: Borden does not “directly contradict” Townsend.
  • State v. Grigsby, 526 S.E.2d 460 (N.C. 2000): Used (via Townsend) to confirm the elements of AWDWIKISI as interpreted by the Supreme Court of North Carolina: (1) assault, (2) with a deadly weapon, (3) intent to kill, and (4) inflicting serious injury not resulting in death. By anchoring the analysis in authoritative state-court element definitions, the Fourth Circuit reinforces the categorical approach’s core premise.
  • Borden v. United States, 593 U.S. 420 (2021): Invoked by Moore to argue that offenses allowing conviction with recklessness cannot satisfy the force clause. The panel’s key move is to treat AWDWIKISI as categorically requiring a higher mens rea—intent to kill—thus avoiding Borden’s recklessness bar.
  • Taylor v. Grubbs, 930 F.3d 611 (4th Cir. 2019): Cited for the circuit-law rule that intervening Supreme Court authority must “directly contradict[]” prior circuit precedent to overrule it. This doctrinal constraint is what prevents a panel from “revisiting” Townsend absent a clear Supreme Court conflict.
  • United States v. King, 673 F.3d 274 (4th Cir. 2012): Cited for the proposition that ACCA “violent felony” precedents and Guidelines “crime of violence” precedents are used interchangeably in the Fourth Circuit, making Townsend (an ACCA case) controlling in the Guidelines context.

C. Assumed-error harmlessness in Guidelines disputes

  • United States v. Gomez-Jimenez, 750 F.3d 370 (4th Cir. 2014): The court relies on this to “proceed directly to an assumed error harmlessness inquiry” rather than resolving the contested Guidelines applications. It also supplies the template for what satisfies prong one: an explicit statement that the same sentence would apply even under a different Guidelines calculation.
  • United States v. McDonald, 850 F.3d 640 (4th Cir. 2017): Cited for the permissibility of assuming error and moving straight to whether the assumed error affected the sentence.
  • United States v. Mills, 917 F.3d 324 (4th Cir. 2019): Provides the two-part harmlessness test: (1) same result even if Guidelines issue decided the other way, and (2) sentence substantively reasonable even under the lower (defendant-favorable) range.
  • United States v. Gomez, 690 F.3d 194 (4th Cir. 2012): Cited for the “confidence” standard in harmlessness—affirmance is appropriate if the court is confident both prongs are met.

D. Substantive reasonableness review of variances

  • United States v. Smith, 134 F.4th 248 (4th Cir. 2025): Cited for abuse-of-discretion review of all sentences and the deference afforded to district courts.
  • United States v. Davis, 130 F.4th 114 (4th Cir. 2025): Cited for the “totality of the circumstances” inquiry tied to § 3553(a).
  • United States v. Dominguez, 128 F.4th 226 (4th Cir. 2025): Cited for evaluating both (i) the decision to vary and (ii) the extent of divergence, and for the requirement of “due deference” when § 3553(a) factors justify the variance.

3.2. Legal Reasoning

A. AWDWIKISI as a crime of violence: Townsend controls, Borden does not dislodge it

The court’s crime-of-violence analysis is straightforward and strongly precedential in structure: it identifies the governing method (categorical approach), identifies the state-law elements (via State v. Grigsby and United States v. Townsend), and then applies circuit stare decisis rules (Taylor v. Grubbs) to reject Moore’s invitation to revisit Townsend based on Borden.

The key substantive bridge is mens rea. Borden excludes offenses that can be committed with recklessness from the force clause. But AWDWIKISI’s “intent to kill” element, as Townsend held, requires specific intent. That mental state is categorically more culpable than recklessness, aligning with the mens rea threshold emphasized in United States v. Rice. Accordingly, the panel concludes that AWDWIKISI remains a qualifying predicate, and the base offense-level enhancement under USSG § 2K2.1(a)(4)(A) stands.

B. Declining to decide other Guidelines disputes: assumed-error harmlessness

For the remaining contested issues—application of USSG § 2K2.1(b)(6)(B) and the USSG § 4A1.3, p.s. upward departure—the court opts for efficiency. Rather than resolving whether either determination was correct, it asks whether the sentence would remain valid even if Moore were right.

Prong one (same sentence anyway) was satisfied because the district court explicitly stated it would impose 57 months as an upward variance even if the enhancement/departure were mistaken. The Fourth Circuit treats that explicit alternative rationale as dispositive under United States v. Gomez-Jimenez.

Prong two (substantive reasonableness under the lower range) was satisfied because—even assuming the lower range of 27 to 33 months—the district court gave a sufficiently individualized § 3553(a) explanation: it credited mitigation (difficult childhood, letters, employment potential) but emphasized aggravation (extensive violent history involving firearms and a “consistent pattern of discharging firearms at others”). Under the deferential review described in United States v. Smith, United States v. Davis, and United States v. Dominguez, the panel concluded the extent of the variance was justified.

3.3. Impact

  • Stability of AWDWIKISI as a predicate offense: Even though unpublished, the decision reinforces that, in the Fourth Circuit, Townsend continues to control the classification of North Carolina AWDWIKISI under the force clause, and that Borden-based challenges will fail absent a direct contradiction.
  • Expanded practical role of alternative variant sentences: The opinion illustrates how a district court’s clear statement that it would impose the same sentence as a variance can insulate a sentence from appellate reversal even if some Guidelines issues are genuinely contestable. In practice, this encourages litigants to focus not only on technical Guidelines arguments but also on developing (or challenging) the § 3553(a) record.
  • Appellate economy and reduced merits review: Continued reliance on assumed-error harmlessness may reduce the number of appellate rulings that clarify contested Guidelines enhancements, leaving some doctrinal questions underdeveloped while still affirming outcomes.

4. Complex Concepts Simplified

Categorical approach
A method that looks only to the legal elements of the prior conviction (the minimum conduct the statute covers), not the defendant’s actual conduct in the prior case.
Force clause
A definition that requires an offense to have, as an element, the “use, attempted use, or threatened use” of physical force. If a statute can be violated without such force, it may not qualify.
Mens rea
The required mental state. Under the force clause, offenses that can be committed with mere recklessness may not qualify after Borden. AWDWIKISI, however, requires “intent to kill,” a specific intent.
Crime of violence (Guidelines) vs. violent felony (ACCA)
Different legal schemes, but the Fourth Circuit often treats force-clause analysis as interchangeable between them (cited here via United States v. King).
Upward departure vs. upward variance
A departure is an adjustment authorized by the Guidelines framework (e.g., USSG § 4A1.3 for underrepresented criminal history). A variance is a non-Guidelines adjustment based on the statutory sentencing factors in 18 U.S.C. § 3553(a).
Assumed error harmlessness inquiry
An appellate shortcut: the court assumes (without deciding) that a Guidelines error occurred, and then affirms if (1) the district court would impose the same sentence anyway, and (2) the sentence would still be reasonable under the lower range.

5. Conclusion

United States v. Malcolm Moore reaffirms (consistent with United States v. Townsend) that North Carolina AWDWIKISI qualifies as a crime of violence because its “intent to kill” element supplies a mens rea more culpable than recklessness, leaving Borden v. United States no work to do. The decision further demonstrates the Fourth Circuit’s willingness to affirm sentences without resolving contested Guidelines issues when the district court announces an alternative § 3553(a)-based variance and the resulting sentence is substantively reasonable under the assumed lower range.