United States v. Goode: Forfeiture of Appeal-Waiver Enforcement After Merits Litigation; North Carolina Second-Degree Murder as an ACCA Violent Felony

Introduction

In United States v. Aaron Albert Goode (4th Cir. June 5, 2026), the Fourth Circuit addressed two recurring issues in federal criminal appeals arising from guilty pleas: (1) when the Government forfeits reliance on an appellate-waiver provision by choosing to litigate the merits first, and (2) whether a prior conviction for North Carolina second-degree murder categorically qualifies as a “violent felony” under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e).

Goode pleaded guilty in the Eastern District of North Carolina to drug-trafficking offenses and felon-in-possession under 18 U.S.C. § 922(g)(1), and his written plea agreement included a broad waiver of appellate rights. At sentencing, the presentence report treated Goode as an armed career criminal based on three prior North Carolina convictions: two robberies with a dangerous weapon (treated as ACCA predicates) and second-degree murder. The district court adopted the report after Goode withdrew objections and imposed 360 months’ imprisonment (concurrent terms).

On appeal, the case narrowed to whether the ACCA enhancement was lawful—specifically, whether second-degree murder in North Carolina qualifies under the ACCA’s elements clause. Meanwhile, the Government initially briefed the merits (seeking summary affirmance) and only later attempted to invoke the appeal waiver to dismiss the ACCA issue.

Summary of the Opinion

  • Waiver enforcement forfeited: The Fourth Circuit held the Government forfeited its right to rely on Goode’s appeal waiver because it first chose to litigate the merits of the ACCA issue. The court denied the Government’s motion for leave to file an out-of-time motion to dismiss.
  • ACCA predicate affirmed on the merits: Applying the categorical approach, the court held North Carolina second-degree murder (as defined at the time of Goode’s 2001 conviction) is categorically a “violent felony” under 18 U.S.C. § 924(e)(2)(B)(i).
  • Disposition: The court denied the Government’s summary-affirmance motion as moot and affirmed the district court’s judgment.

Analysis

Precedents Cited

1. Appeal-waiver enforcement and forfeiture

  • United States v. Soloff, 993 F.3d 240 (4th Cir. 2021) (quoting United States v. McGrath, 981 F.3d 248 (4th Cir. 2020)): These cases supplied the baseline rule that valid appellate waivers are enforceable when invoked by the Government and the appealed issue falls within the waiver’s scope.
  • United States v. Poindexter, 492 F.3d 263 (4th Cir. 2007) (quoting United States v. Ringling, 988 F.2d 504 (4th Cir. 1993)): Poindexter framed appeal waivers as grounded in “contractual principles” and, critically, articulated the Government’s three post-briefing options: raise the waiver and seek dismissal, claim breach, or decline the waiver and brief the merits. Goode uses Poindexter as the controlling roadmap for “election” and “tactics.”
  • United States v. Jones, 667 F.3d 477 (4th Cir. 2012): The court reiterated it will not enforce an appeal waiver sua sponte; the Government must timely invoke it.
  • Garza v. Idaho, 586 U.S. 232 (2019): Cited for the broader proposition that even waived claims can proceed if the prosecution “forfeits or waives the waiver.”
  • United States v. Hairston, 754 F.3d 258 (4th Cir. 2014): Provided the key consequence rule: once the Government chooses to address the merits instead of raising the waiver, it is “foreclosed from changing tactics” later.
  • United States v. Metzger, 3 F.3d 756 (4th Cir. 1993): Offered an example of forfeiture in practice—where the Government effectively litigates the merits (including agreeing on the applicable standard of review) without pressing the waiver.

2. Intervening-law excuse for forfeiture

  • United States v. Lubkin, 122 F.4th 522 (4th Cir. 2024), cert. denied, 145 S. Ct. 1910 (2025): The Government argued Lubkin was an intervening development warranting excusing forfeiture. Goode treated Lubkin as clarifying the limits of the “illegal sentence” exception (from Marin), but concluded it did not create “strong precedent” that previously foreclosed the Government from timely asserting the waiver.
  • Holland v. Big River Mins. Corp., 181 F.3d 597 (4th Cir. 1999) (quoting Curtis Pub. Co. v. Butts, 388 U.S. 130 (1967)): Provided the governing standard for excusing waiver/forfeiture based on intervening law: there must have been “strong precedent” before the change, such that failing to raise the issue earlier was not unreasonable and did not prejudice the opponent. The Fourth Circuit found that standard unmet here.
  • Edd Potter Coal Co., Inc. v. Dir., Off. of Workers' Comp. Programs, 39 F.4th 202 (4th Cir. 2022); United States v. Chittenden, 896 F.3d 633 (4th Cir. 2018): These cases illustrated circumstances where intervening-law reasoning can excuse forfeiture (e.g., changes in controlling law that made an argument newly available). They served as contrasts: the Government’s argument was available all along.

3. Scope of appeal waivers and “illegal sentence” exception

  • United States v. Marin, 961 F.2d 493 (4th Cir. 1992): Marin recognized a narrow class of claims that survive appeal waivers, including challenges to sentences “imposed in excess of the maximum penalty provided by statute.”
  • United States v. Thorsbury, 670 F.3d 532 (4th Cir. 2012); United States v. Blick, 408 F.3d 162 (4th Cir. 2005): These cases reinforced that Marin’s exception is limited and tied to sentences beyond the court’s statutory authority.
  • United States v. Cornette, 932 F.3d 204 (4th Cir. 2019): Applied Marin in the post-Johnson v. United States, 576 U.S. 591 (2015), and Welch v. United States, 578 U.S. 120 (2016), landscape to permit challenges where the ACCA residual clause rendered sentences unconstitutional. Goode distinguished this line: Goode’s challenge was not to an unconstitutional provision, but to the categorical classification of a predicate under a valid clause.

4. ACCA categorical analysis: force and mens rea

  • United States v. Nelson, 37 F.4th 962 (4th Cir. 2022): Set the standard of review (plain error) because Goode did not press the objection in the district court.
  • United States v. Olano, 507 U.S. 725 (1993); United States v. Green, 996 F.3d 176 (4th Cir. 2021): Provided the structure and discretionary nature of plain-error correction. The court, however, stopped at the first prong because it found no error.
  • United States v. Allred, 942 F.3d 641 (4th Cir. 2019); United States v. Hamilton, 95 F.4th 171 (4th Cir. 2024); United States v. Mack, 56 F.4th 303 (4th Cir. 2022); United States v. Shell, 789 F.3d 335 (4th Cir. 2015); United States v. Jones, 914 F.3d 893 (4th Cir. 2019): These cases supplied the categorical-approach framework: look to elements, not facts; identify the “minimum conduct” and ask whether it necessarily entails the elements-clause force; and require a “realistic probability” that the state applies the statute to non-qualifying conduct.
  • United States v. Johnson, 559 U.S. 133 (2010): Defined “physical force” as “violent force” capable of causing pain or injury.
  • United States v. Castleman, 572 U.S. 157 (2014): Confirmed that “use of force” can be indirect (e.g., poison), supporting the court’s conclusion that causing death through distribution of lethal drugs can still involve “use” of force.
  • Delligatti v. United States, 604 U.S. 423 (2025): Confirmed force can be “used” through deliberate omissions, reinforcing a broad understanding of “use” beyond direct blows.
  • Borden v. United States, 593 U.S. 420 (2021): Held the ACCA elements clause excludes mere recklessness; it covers purposeful and knowing acts. Notably, Borden reserved whether “depraved heart” or “extreme recklessness” qualifies.
  • United States v. Manley, 52 F.4th 143 (4th Cir. 2022): Answered Borden’s reserved question in this circuit, holding crimes involving “extreme recklessness” can satisfy the elements clause. Goode relied heavily on Manley to conclude North Carolina malice—defined as willful, wanton, depraved disregard with knowledge of likely death or injury—meets the required mens rea.
  • In re Irby, 858 F.3d 231 (4th Cir. 2017): Provided the court’s “common sense” observation that it is hard to imagine conduct that causes death without physical force against the body. Goode used Irby to support the “force” side of the elements clause.
  • United States v. Winston, 850 F.3d 677 (4th Cir. 2017): Reinforced that federal courts are bound by state-court interpretations of state offenses when applying the categorical approach.

5. North Carolina authorities defining second-degree murder and malice

  • State v. Coble, 527 S.E.2d 45 (N.C. 2000): Provided the canonical elements of North Carolina second-degree murder, including the malice requirement.
  • State v. Davis, 290 S.E.2d 574 (N.C. 1982): Critical to rejecting Goode’s “drug distribution = no malice” argument. Davis held the legislature did not create a second-degree murder offense “arising solely” from distribution resulting in death without intent and “malice aforethought.”
  • State v. Rich, 527 S.E.2d 299 (N.C. 1991): Defined malice in terms of recklessness/wantonness reflecting depravity and disregard for life, and differentiated “murder-level” recklessness from “manslaughter-level” recklessness. Goode relied on Rich’s emphasis that the actor proceeds with knowledge that injury or death would likely result.
  • United States v. Fleming, 739 F.2d 945 (4th Cir. 1984): Used by the North Carolina Supreme Court (as quoted in Rich) for the distinction between degrees of recklessness; it bolstered the conclusion that the malice concept reflects heightened culpability.
  • State v. Liner, 391 S.E.2d 820 (N.C. Ct. App. 1990); State v. Parlee, 703 S.E.2d 866 (N.C. Ct. App. 2011): These cases served as “next best indicia” of state law on drug-distribution deaths; each involved facts showing the defendant’s awareness of the drug’s dangerousness, supporting the court’s conclusion that convictions in this category still rest on extreme recklessness akin to knowledge—not mere negligence or ordinary recklessness.

Legal Reasoning

1. The new procedural emphasis: election to litigate the merits forfeits waiver enforcement

The court’s procedural holding is both practical and consequential: when the Government receives a merits brief in a non-Anders appeal, it must promptly choose its lane. Under Poindexter and Hairston, choosing to argue the merits without invoking the waiver constitutes an election that bars a later pivot back to waiver enforcement.

The Fourth Circuit treated the Government’s initial motion for summary affirmance as a merits-litigation choice because: (i) it did not move to dismiss the ACCA claim based on the waiver, (ii) it affirmatively accepted the defendant’s plain-error framing, and (iii) it argued the claim failed under the substantial-rights prong. That posture triggered Metzger-style forfeiture: by litigating the merits, the Government failed to “vindicate” the waiver interest in time.

Importantly, the court refused to excuse forfeiture via an “intervening law” theory based on United States v. Lubkin. In the court’s view, Lubkin did not render a previously unavailable argument available; it merely demonstrated the Government had misread the likely success of invoking the waiver earlier. The opinion thus draws a sharp line between (a) legal unavailability due to controlling adverse precedent and (b) strategic reluctance due to perceived risk of losing.

2. The substantive holding: North Carolina second-degree murder satisfies the ACCA elements clause

On the merits, the court applied the categorical approach and assessed two components of the ACCA’s elements clause: (1) whether the offense necessarily involves “physical force,” and (2) whether it requires a qualifying mens rea after Borden.

Force. Goode’s principal “means” argument—that a drug-distribution death involves only a sale followed by the victim’s voluntary ingestion—failed because the Supreme Court recognizes indirect force as “use of force” (Castleman), and the Fourth Circuit’s precedent treats killing as inherently involving force against the body (In re Irby). Thus, the court rejected any categorical distinction between direct violence and causation through substances.

Mens rea. The harder question was whether North Carolina second-degree murder could be committed with mere recklessness, which would be excluded by Borden. The court answered by drilling into state law: second-degree murder requires “malice” (State v. Coble), and North Carolina did not dispense with malice when it added drug-distribution deaths to the statute’s coverage (State v. Davis). Further, North Carolina malice includes conduct so reckless or wanton as to show depravity and disregard for life (State v. Rich), and it requires intent to act in a reckless manner reflecting knowledge that injury or death would likely result.

That description mapped onto the Fourth Circuit’s post-Borden solution in United States v. Manley: “extreme recklessness” (depraved-heart malice) can satisfy the elements clause because it “comes close” to knowledge (“practically certain”). To reinforce that drug-distribution cases did not weaken culpability, the court cited State v. Liner and State v. Parlee, where extreme recklessness was tied to defendants’ awareness of the drug’s inherent dangerousness.

Putting these strands together, the court held North Carolina second-degree murder necessarily requires (a) killing (therefore involving physical force, even if indirectly) and (b) malice amounting to extreme recklessness akin to knowledge. It therefore “categorically qualifies” as an ACCA violent felony under § 924(e)(2)(B)(i).

Impact

1. Appellate practice: a tighter discipline on Government timing

The opinion strengthens an enforcement norm: the Government cannot “test the waters” on the merits and, if dissatisfied, retreat to the appeal waiver later. In practice, Goode incentivizes early, explicit waiver invocation—especially in cases where a defendant raises both waived and potentially non-waived issues. It also signals that “intervening law” will not easily rescue late waiver assertions unless earlier binding precedent truly made the waiver argument unavailable.

2. ACCA litigation: second-degree murder (including depraved-heart variants) as elements-clause predicates

Substantively, Goode consolidates the Fourth Circuit’s post-Borden trajectory: depraved-heart/extreme-recklessness murder qualifies under the elements clause. For ACCA and analogous “crime of violence” regimes, the decision will likely:

  • reduce litigation space for categorical challenges to murder predicates premised on indirect causation (poison/drugs/omissions), given Castleman and Delligatti;
  • channel disputes into state-law mens rea elements, requiring defendants to show a realistic probability that the state applies the statute to conduct lacking malice/extreme recklessness;
  • encourage reliance on state-court formulations that link malice to knowledge of likely death/injury, aligning such offenses with Manley.

For North Carolina specifically, the court’s reading of State v. Davis forecloses arguments that the drug-distribution language in N.C. Gen. Stat. § 14-17 (2001) creates a strict-liability or ordinary-recklessness path to second-degree murder.

Complex Concepts Simplified

  • Appeal waiver: A plea-agreement term where a defendant gives up the right to appeal certain issues. The Government must timely invoke it; courts generally will not enforce it on their own.
  • Forfeiture (of the waiver defense): Even if a waiver exists, the Government can lose the benefit of it by not asserting it in time—especially if it instead argues the merits first.
  • ACCA “elements clause”: The ACCA covers prior felonies that have, as an element, the “use, attempted use, or threatened use of physical force against the person of another.”
  • Categorical approach: The court compares the statutory elements of the prior offense (as defined by state courts) to the federal definition. It does not look at what the defendant actually did.
  • Indirect force: “Use of force” includes causing bodily harm through indirect means (like poison or lethal drugs), not only through direct physical strikes.
  • Mens rea (mental state): The level of intent required. After Borden v. United States, crimes that can be committed with mere recklessness usually do not qualify under the elements clause; but the Fourth Circuit treats “extreme recklessness”/malice as sufficiently close to knowledge.
  • Malice (depraved heart): A heightened culpability concept in murder law—conduct so wanton and life-endangering, undertaken with awareness of the likely fatal consequences, that the law treats it as murder rather than manslaughter.

Conclusion

United States v. Goode delivers two key takeaways. Procedurally, it reinforces that the Government must timely invoke an appellate waiver and forfeits that defense if it elects to litigate the merits first; perceived uncertainty about success does not make the waiver argument “unavailable,” even in light of later clarifying precedent such as United States v. Lubkin. Substantively, it holds that North Carolina second-degree murder—requiring malice amounting to extreme recklessness with knowledge that death or serious injury is likely—categorically qualifies as an ACCA “violent felony” under the elements clause, even when the death results from drug distribution. The decision is likely to shape both waiver-enforcement practice in the Fourth Circuit and future ACCA categorical litigation involving homicide offenses defined by malice or depraved-heart recklessness.