Full opinion text
Vacated and remanded by published opinion. A PER CURIAM opinion, in which Chief Judge TRAXLER and Judges MOTZ, KING, GREGORY, AGEE, DAVIS, KEENAN, WYNN, and DIAZ joined, was issued on behalf of the en banc majority. Judge KING wrote a concurring opinion, in which Judges MOTZ, GREGORY, and DAVIS joined. Judge AGEE wrote an opinion concurring in the judgment, concurring in the en banc majority opinion, and concurring in the opinion of Judge KEENAN. Judge DAVIS wrote a concurring opinion. Judge KEENAN wrote a concurring opinion, in which Chief Judge TRAXLER and Judges AGEE, WYNN, and DIAZ joined. Judge Wilkinson wrote an opinion concurring in the judgment. Judge NIEMEYER wrote an opinion concurring in part and dissenting in part, in which Judge SHEDD joined. OPINION PER CURIAM, for the en banc majority: On January 20, 2008, following a domestic altercation, Torrell Vann was arrested in possession of a handgun. In November of that year, the grand jury returned a single-count superseding indictment charging Vann with violating 18 U.S.C. §§ 922(g)(1) and 924. The indictment also alleged that Vann had at least three previous convictions for ACCA violent felonies, rendering him eligible for the sentencing enhancement provided for in § 924(e)(1). On December 15, 2008, Vann pleaded guilty to the offense charged, and his sentencing proceedings were scheduled for the following March. A § 922(g) offense typically carries a statutory maximum sentence of ten years in prison. See § 924(a)(2). If the accused has three or more previous convictions for ACCA violent felonies, however, he is subject to an enhanced minimum sentence of fifteen years with a maximum of life imprisonment. See § 924(e)(1). Vann’s presentence investigation report (the “PSR”) reflected that he had three previous convictions for violating North Carolina General Statute section 14-202.1 (the “Indecent Liberties Statute” or “Statute”) that, according to the probation officer, constituted ACCA violent felony convictions and subjected Vann to the sentencing enhancement. The text of the Indecent Liberties Statute provides, in pertinent part, as follows: (a) A person is guilty of taking indecent liberties with children if, being 16 years of age or more and at least five years older than the child in question, he either: (1) Willfully takes or attempts to take any immoral, improper, or indecent liberties with any child of either sex under the age of 16 years for the purpose of arousing or gratifying sexual desire [“subsection (a)(1)”]; or (2) Willfully commits or attempts to commit any lewd or lascivious act upon or with the body or any part or member of the body of any child of either sex under the age of 16 years [“subsection (a)(2)”]. N.C. Gen.Stat. § 14-202.1(a). The Statute plainly prohibits a wide range of objectionable acts and was designed to “encompass more types of deviant behavior, giving children broader protection than available under other statutes proscribing sexual acts.” State v. Etheridge, 319 N.C. 34, 352 S.E.2d 673, 682 (1987). Vann objected to the district court’s application of the enhancement, asserting that recent Supreme Court and Fourth Circuit decisions undermined the PSR’s contention that his previous convictions were for ACCA violent felonies. See Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008) (declining to designate New Mexico felony driving under influence (“DUI”) offense as ACCA violent felony); United States v. Thornton, 554 F.3d 443 (4th Cir.2009) (same; Virginia statutory rape offense). The government, relying primarily on United States v. Pierce, 278 F.3d 282 (4th Cir.2002), responded that the PSR had correctly counted each of Vann’s three previous indecent liberties offenses as ACCA violent felonies. In Pierce, decided six years prior to Begay, we ruled that a conviction under the Indecent Liberties Statute is a “crime of violence” as contemplated by the career offender enhancement of the Sentencing Guidelines. See 278 F.3d at 284. In so ruling, we reasoned that the conduct underlying such a conviction “creates a serious potential risk of physical injury.” Id. The district court rejected Vann’s characterization of his three previous indecent liberties convictions, concluding that they were for ACCA violent felonies and that he was thus subject to § 924(e)(l)’s sentencing enhancement. As a result, on March 17, 2009, the court sentenced Vann to the statutory minimum of fifteen years in prison. Vann filed a timely notice of appeal, and we have appellate jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. A divided panel of this Court affirmed Vann’s sentence, employing the “modified categorical approach” first announced in Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), for the purpose of analyzing prior offenses to determine whether they constitute ACCA violent felonies. See United States v. Vann, 620 F.3d 431 (4th Cir.2010). Upon granting Vann’s petition for rehearing en banc, we vacated the panel opinion. I. A. If we assume that we may resort to the modified categorical approach employed by the panel majority, and also assume that doing so would lead to the ineluctable conclusion that a subsection (a)(2) offense is a violent felony for ACCA purposes, the government nonetheless cannot prove that Vann was convicted of violating subsection (a)(2). Judge Niemeyer’s separate opinion, concurring in part and dissenting in part (“the dissent”), contends that because Vann’s indecent liberties convictions arose from guilty pleas to conjunctively drawn indictments tracking the language of both (a)(1) and (a)(2), Vann necessarily pleaded guilty to violating both of those subsections. That position is untenable, however, as demonstrated by the legal principles generally applicable to charging documents. First, it is settled that a charging document must allege conjunctively the disjunctive components of an underlying statute. See State v. Armstead, 149 N.C.App. 652, 562 S.E.2d 450, 452 (2002) (“Where a statute sets forth disjunctively several means or ways by which the offense may be committed, a warrant thereunder correctly charges them conjunctively.” (internal quotation marks omitted)); see also United States v. Rhynes, 206 F.3d 349, 384 (4th Cir.1999) (“Where a statute is worded in the disjunctive, federal pleading requires the Government to charge in the conjunctive.”). That Vann’s predicate charging documents properly use the conjunctive term “and,” rather than the disjunctive “or,” does not mean that Vann “necessarily” pleaded guilty to subsection (a)(2). Similarly, in trials by jury, it has been established that a defendant convicted under a conjunctively charged indictment cannot be sentenced — in the absence of a special verdict identifying the factual bases for conviction — to a term of imprisonment exceeding the statutory maximum for the “least-punished” of the disjunctive statutory conduct. See Rhynes, 206 F.3d at 379-81. Presented with a single charging document alleging alternative types of conduct in the conjunctive, the dissent effectively distinguishes a conviction like the one in Rhynes, obtained as the result of a jury verdict, from one like Vann’s, which was entered on a guilty plea. The dissent draws this critical distinction on the basis of its theory that, when a defendant pleads guilty, he necessarily admits all allegations charged conjunctively. See post at 818-19. The opposite conclusion, however, is the better-reasoned view. See Omari v. Gonzales, 419 F.3d 303, 308 n. 10 (5th Cir.2005) (“Indictments often allege conjunctively elements that are disjunctive in the corresponding statute, and this does not require either that the government prove all of the statutorily disjunctive elements or that a defendant admit to all of them when pleading guilty.”); see also Malta-Espinoza v. Gonzales, 478 F.3d 1080, 1082 n. 3 (9th Cir.2007) (“[A] plea of guilty admits only the elements of the charge necessary for a conviction.”); Valansi v. Ashcroft, 278 F.3d 203, 214-17 (3d Cir.2002) (rejecting assertion that defendant’s guilty plea to indictment charging embezzlement with “intent to injure and defraud” admitted both states of mind where intent to do either was sufficient to sustain conviction). Furthermore, the dissent’s theory is incompatible with our Rhynes precedent and its underlying principles, as enunciated in Edwards v. United States, 523 U.S. 511, 118 S.Ct. 1475, 140 L.Ed.2d 703 (1998), and United States v. Quicksey, 525 F.2d 337 (4th Cir.1975). See Rhynes, 206 F.3d at 379-81. The dissent’s reliance on United States v. Gosselin World Wide Moving, N.V., 411 F.3d 502 (4th Cir.2005), post at 818-19, is misplaced, as that decision stands only for the proposition that a guilty plea admits “all the elements of a formal criminal charge.” Id. at 515. The “formal criminal charge,” as explained in Rhynes, is nothing more than the least serious of the disjunctive statutory conduct, not the entirety of the conduct alleged in the conjunctive. B. The materials in this case present a much flimsier foundation than that in Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), for determining the nature of the prior offenses. The charging documents against Vann relied on by the dissent, see post at 817-18, merely recite the language of the Indecent Liberties Statute, provide the dates of the alleged offenses and identities of Vann and the minor, and aver that the age requirements were satisfied. Each charging document alleges a violation of the Statute, without specifying either subsection thereof. And, consistent with North Carolina law, each properly alleges the indecent liberties offense in conjunctive fashion. Similarly, each judgment simply specifies the file number, identifies the offense as “Indecent Liberties with Minor Child” or “Indecent Liberties with Child,” denotes the pertinent statute only as “14-202.1,” and recognizes that no written findings were made. We disagree with the dissent that on this evidence we can conclude that Vann necessarily violated subsection (a)(2) of the Statute. The dissent’s view that each of Vann’s three contested convictions violated subsection (a)(2) of the Statute is erroneous in multiple respects. First, it relies on evidence never presented to the district court. It is one thing for a federal court to look at a state court docket in asserting jurisdiction over a removed case, or to note a subsequent arson conviction in determining the propriety of rescinding a fire insurance settlement offer. See post at 818 (citing Lolavar v. de Santibañes, 430 F.3d 221 (4th Cir.2005); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236 (4th Cir.1989)). It is materially different to rest a sentencing decision — transforming a ten-year maximum into a fifteen-year minimum — on the basis of evidence never presented to the district court, particularly when such evidence was not requested until after oral argument. Moreover, it bears emphasis that the basis of the dissent’s view that Vann’s convictions “necessarily” rest on subsection (a)(2) is that the charging documents simply recite the language of the Indecent Liberties Statute. Recently, however, we ruled that a conviction under a so-called Alford plea — where the defendant does not confirm the factual basis for the plea, see North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) — does not qualify as an ACCA predicate offense when the statutory definition contains both qualifying and non-qualifying predicate crimes and no other Shepard-approved documents establish the offense on which the defendant was convicted. United States v. Alston, 611 F.3d 219, 227-28 (4th Cir.2010). As Judge Niemeyer properly recognized in Alston, “Shepard prevents sentencing courts from assessing whether a prior conviction counts as an ACCA predicate conviction by relying on facts neither inherent in the conviction nor admitted by the defendant.” Id. at 226. Under the Alston precedent, it is inconsistent for the dissent to find that Vann “necessarily” pleaded guilty to the subsection of the Statute (subsection (a)(2)) that the dissent and Judge Keenan’s concurrence deem a violent felony under the ACCA. Indeed, to borrow from Alston its analogy derived from Shepard and from Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), if Vann had gone to trial in the underlying cases, any resulting conviction could only be used as an ACCA predicate conviction if the jury had returned a special verdict (or answered an interrogatory) specifically finding him guilty of violating subsection (a)(2) of the Statute. See Alston, 611 F.3d at 228. Instead, the dissent would have us engage in the very behavior the categorical approach is intended to avert: inappropriate judicial factfinding on appeal. See Taylor, 495 U.S. at 601, 110 S.Ct. 2143 (explaining that categorical approach avoids difficulty associated with pleaded cases in which “there often is no record of the underlying facts”). When we consider Vann’s charging documents in their proper legal context, we cannot determine that he was convicted of violating subsection (a)(2) of the Statute. Consequently, Vann’s indecent liberties offenses are not ACCA violent felonies. II. Pursuant to the foregoing, we vacate the sentence imposed by the district court and remand for such other and further proceedings as may be appropriate. VACATED AND REMANDED . This per curiam opinion is adopted and joined by nine members of the en banc Court: Chief Judge Traxler and Judges Motz, King, Gregory, Agee, Davis, Keenan, Wynn, and Diaz. . The ACCA’s definition of a "violent felony" is nearly identical to and materially indistinguishable from the definition of a "crime of violence” under the career offender enhancement of the Sentencing Guidelines. Compare § 924(e)(2)(B), with USSG § 4B 1.2(a). We routinely rely on decisions interpreting either of those enhancement provisions in ascertaining whether a prior conviction is a crime of violence under the Guidelines or a violent felony under the ACCA. See United States v. Jenkins, 631 F.3d 680, 683 (4th Cir.2011); United States v. Rivers, 595 F.3d 558, 560 n. 1 (4th Cir.2010). . If the district court had not ruled that Vann’s indecent liberties convictions were for violent felonies, the ACCA’s sentencing enhancement would have been inapplicable. Vann would have then faced an advisory Guidelines range of 77 to 96 months, with a ten-year statutory maximum. . Indeed, a disjunctive charge in an indictment contravenes an accused's constitutional rights. See, e.g., The Confiscation Cases, 87 U.S. 92, 104, 20 Wall. 92, 22 L.Ed. 320 (1874) (explaining that a disjunctive charge is "wholly insufficient” and lacks "necessary certainty,” as it fails to provide "definite notice of the offence charged” and does not protect against "subsequent prosecution for one of the several offences”). . The court in Valansi acknowledged by footnote the "common practice” of government prosecutors to "plead in the conjunctive, but instruct in the disjunctive.” 278 F.3d at 216 n. 10 (quoting Dep’t of Justice Criminal Resource Manual § 227). According to the Third Circuit, the purpose of indicting in the conjunctive is to "avoid uncertainty only; just as the Government may obtain a conviction if only one of the several allegations linked in the conjunctive in the indictment is proven, so may a defendant plead guilty to only one of the allegations required to prove an element of her crime.” Id. (citation and internal quotation marks omitted). Viewed in its proper context, this footnote stands only for the proposition that, with respect to convictions based on jury verdicts and those obtained by guilty pleas, the legal effect is the same. The latter clause, quoted in isolation by the dissent, post at 818-19, in no way supports its assertion that guilty pleas are broader in scope. Nor does the Vdlansi court's use of the word "may” connote any duty on the part of a defendant to specify the precise basis for his conviction, else suffer the consequences. Attempting to bolster its position, the dissent also relies on United States v. Still, 102 F.3d 118, 124-25 (5th Cir.1996). See post at 819-20. However, the Fifth Circuit’s observation in that case that "[wjhen Still pleaded guilty to count three [charging that he used and carried a firearm in violation of 18 U.S.C. § 924(c)(1), which prohibits such use or carrying], he admitted both to using and to carrying a firearm during and in relation to a drug trafficking crime,” is in some tension with the court’s subsequent decision in Omari. We are satisfied that Omari, which involved the application of the modified categorical approach to the Immigration and Nationality Act’s "aggravated felony” exception to appellate jurisdiction of removal decisions, is the more apposite Fifth Circuit authority in this instance. . The state charging documents were not part of the district court record, but were obtained from the parties following the panel argument in this appeal. As such, the district court had no opportunity to consider the charging documents, nor did the parties have the opportunity to litigate their validity or gauge their implications. Thus, to the extent the propriety of treating Vann’s convictions as qualifying ACCA violent felonies depends on the charging documents, the district court should consider those materials in the first instance. See, e.g., United States v. Alston, 611 F.3d 219, 225 (4th Cir.2010) (recognizing that "sentencing court” conducts ACCA analysis); Sykes, 131 S.Ct. at 2286 (Scalia, J., dissenting) ("Supreme Court briefs are an inappropriate place to develop the key facts in a case. We normally give parties more robust protection, leaving important factual questions to district courts and juries aided by expert witnesses and the procedural protections of discovery.” (citation omitted)).
KING, Circuit Judge, concurring: Although the en banc majority utilizes the modified categorical approach to analyze whether a prior conviction for violating North Carolina General Statute section 14-202.1 (the “Indecent Liberties Statute” or “Statute”) qualifies as an ACCA “violent felony,” I am convinced that we are required by precedent to evaluate Vann’s convictions under the Statute by sole resort to the categorical approach. Either approach produces the same result in Vann’s case, but tomorrow is another day. I fear that our Court’s stamp of approval on future ACCA enhancements predicated on the inappropriate invocation of the modified categorical approach will contravene Supreme Court precedent and the interests of justice. I. Whether an offense constitutes a “violent felony” under the ACCA is a question of law that we review de novo. See United States v. White, 571 F.3d 365, 367 (4th Cir.2009). Nevertheless, as a federal court evaluating a state offense, we are “bound by the [state supreme court’s] interpretation of state law, including its determination of the elements of’ the offense. Johnson v. United States, - U.S. -, 130 S.Ct. 1265, 1269, 176 L.Ed.2d 1 (2010). Where the state’s highest court has not decided an issue of state law, the federal courts defer to state intermediate appellate court decisions, unless we are convinced that the state supreme court would rule to the contrary. See Assicurazioni Generali, S.p.A. v. Neil, 160 F.3d 997, 1002 (4th Cir.1998) (citing West v. AT & T Co., 311 U.S. 223, 237, 61 S.Ct. 179, 85 L.Ed. 139 (1940)). Deference to the intermediate appellate court makes especially good sense in jurisdictions like North Carolina, where the decisions of the Court of Appeals of North Carolina are binding on all state courts save its highest, and panel opinions bind subsequent panels. See State v. Jones, 358 N.C. 473, 598 S.E.2d 125, 133 (2004) (“Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.” (internal quotation marks omitted)). II. The ACCA’s provision for an enhanced sentence — a statutory range of fifteen years to life — is applicable when a defendant has “three previous convictions ... for a violent felony or a serious drug offense.” 18 U.S.C. § 924(e)(1). The ACCA defines a “violent felony” as an offense punishable by imprisonment for a term exceeding one year that (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. § 924(e)(2)(B). The issue in this appeal is whether Vann’s previous convictions for violating the Indecent Liberties Statute constitute violent felony convictions under the “residual clause” of § 924(e)(2)(B)(ii)— that is, whether his indecent liberties offenses “otherwise involve[d] conduct that presents a serious potential risk of physical injury to another.” A. 1. In assessing whether a previous offense properly constitutes an ACCA violent felony, the federal courts typically employ the “categorical approach,” under which we consider the fact of conviction and the elements of the offense, but not the particular underlying acts. See James v. United States, 550 U.S. 192, 202, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007); Taylor v. United States, 495 U.S. 575, 599-602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). If “the elements of the offense are of the type that would justify its inclusion within the residual provision, without inquiry into the specific conduct of [the] particular offender,” the previous offense is a violent felony for sentencing purposes. James, 550 U.S. at 202, 127 S.Ct. 1586 (emphasis omitted). In limited circumstances, however, the courts may take account of more than the fact of conviction and the bare elements of the previous offense, resorting to the “modified' categorical approach.” See United States v. Harcum, 587 F.3d 219, 223 (4th Cir.2009). Use of the modified categorical approach is only appropriate when the statute of conviction encompasses multiple distinct categories of behavior, and at least one of those categories constitutes an ACCA violent felony. See Johnson v. United States, — U.S. -, 130 S.Ct. 1265, 1273, 176 L.Ed.2d 1 (2010). The modified categorical approach permits a sentencing court, in conducting its ACCA analysis, to determine which category of behavior underlies the conviction. See id. To illustrate, a statute might criminalize both the burglary of a building and the burglary of a motor vehicle. See, e.g., Mass. Gen. Laws, ch. 266, § 16. Inasmuch as the burglary of a vehicle is not a violent felony under the ACCA, the categorical approach would preclude a sentencing court from counting any conviction under that statute toward an ACCA enhanced sentence. See Shepard v. United States, 544 U.S. 13, 16-17, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). The modified categorical approach, however, authorizes the court to divide the prohibited conduct into two categories: burglary of a building (an ACCA violent felony) and burglary of a vehicle (not an ACCA violent felony). See id. In applying the modified categorical approach, a sentencing court is entitled to consult certain court records, such as charging documents, plea agreements, transcripts of plea colloquies, judicial findings of fact and conclusions of law, jury instructions, and verdict forms. See Shepard, 544 U.S. at 26, 125 S.Ct. 1254. These “Shepard-approved documents” may identify which category of behavior underlies a defendant’s previous conviction, enabling the sentencing court to determine whether that offense constitutes an ACCA violent felony — e.g., burglary of a building. See id. The modified categorical approach thus serves to augment the record on which a sentencing court may rely, allowing the court to “choose the right category” of offending behavior with respect to a previous conviction under a broad statute. Chambers v. United States, 555 U.S. 122, 129 S.Ct. 687, 690, 172 L.Ed.2d 484 (2009). Like the categorical approach, however, the modified categorical approach does not authorize a sentencing court to use Shep ard-approved documents to consider the particular acts underlying the previous conviction. See id. Thus, regardless of which analytical approach applies, a conclusion that a previous offense constitutes an ACCA violent felony must derive solely from the category of behavior regulated. See id. 2. Notably, Vann’s previous indecent liberties offenses do not have any element of force, are neither burglary, arson, nor extortion, and did not involve explosives. Those offenses, therefore, can only constitute ACCA violent felonies if they fall within the ambit of the residual clause. The task of properly analyzing that question is more difficult than it might first appear; ascertaining the breadth of the residual clause has been a challenging endeavor for the federal courts. In Begay v. United States, 553 U.S. 137, 142, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), the Supreme Court explained that not every felony offense involving a risk of injury to a third party must be considered a violent felony under the ACCA. To fall within the residual clause, the previous offense must be “roughly similar, in kind as well as in degree of risk posed,” to the ACCA-enumerated crimes of burglary, arson, extortion, and offenses involving explosives. Id. at 143, 128 S.Ct. 1581. The Court elaborated that the enumerated offenses “typically involve purposeful, violent, and aggressive conduct,” and such conduct makes it “more likely that an offender, later possessing a gun, will use that gun deliberately to harm a victim.” Id. at 145, 128 S.Ct. 1581 (internal quotation marks omitted). In order to qualify as an ACCA violent felony, the previous offense must be one that is “characteristic of the armed career criminal,” tending to “show an increased likelihood that the offender is the kind of person who might deliberately point the gun and pull the trigger.” Id. at 145-46, 128 S.Ct. 1581 (internal quotation marks omitted). Applying those principles, the Begay Court ruled that a felony DUI under New Mexico law, which the Court considered to be similar to a strict liability crime, is not “associated with a likelihood of future violent, aggressive, and purposeful ‘armed career criminal’ behavior.” Id. at 148, 128 S.Ct. 1581. The New Mexico felony DUI was thus determined by the Court to be outside the scope of the residual clause. See id. After the Begay decision, our Court had occasion to evaluate whether a violation of Virginia’s statutory rape law — which makes it a criminal offense for a person to “ ‘carnally know[ ], without the use of force, a child’” between the ages of thirteen and fifteen — constitutes a violent felony under the residual clause. United States v. Thornton, 554 F.3d 443, 444 (4th Cir.2009) (alteration in original) (quoting Va.Code Ann. § 18.2-63). In Thornton, the government maintained that all violations of the Virginia statute were, similar to the enumerated offenses of § 924(e)(2)(B)(ii), necessarily purposeful, creating a serious risk of confrontation and bodily injury (including pregnancy and sexually transmitted diseases). See id. at 447. We rejected the government’s position in Thornton, however, reasoning that Virginia’s definition of carnal knowledge did “not support an inference that any or all instances of the offense are violent and aggressive.” See 554 F.3d at 449. In so ruling, we recognized that nonforcible adult-minor sexual activity does not create risks that are “roughly similar, in kind as well as in degree of risk posed, to the examples of burglary, arson, extortion, and crimes involving explosives.” Id. at 446 (internal quotation marks omitted). Notably, we explained that “[t]he enumerated crimes create immediate, serious, and foreseeable physical risks that arise concurrently with the commission of the crimes themselves.” Id. at 449. On the other hand, the risks associated with statutory rape “are not immediate or violent in nature and do not inherently support an inference that an offender will later commit a violent crime.” Id. Although we did not “minimize the risks associated with adult-minor sexual activity,” we concluded in Thornton that “a conviction under Virginia’s carnal knowledge offense is not ‘associated with a likelihood of future violent, aggressive, and purposeful “armed career criminal” behavior’ and cannot constitute a violent felony under the ACCA.” Id. (quoting Begay, 553 U.S. at 148, 128 S.Ct. 1581). Earlier this year, in Sykes v. United States, the Supreme Court revisited the breadth of the residual clause, concluding that the Indiana offense of knowingly fleeing from a law enforcement officer in a motor vehicle constitutes an ACCA violent felony. See — U.S. -, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011). The Court recognized that, based on the elements of that offense, fleeing from the police in a vehicle is a deliberate act that presents risks of third-party physical injury similar to the enumerated crimes of arson and burglary. See id. at 2273-74. More particularly, both arson and vehicular flight involve an “intentional release of a destructive force dangerous to others.” Id. at 2273. Likewise, the risks posed by vehicular flight are similar to those presented by a burglary, in that both offenses “can end in confrontation leading to violence.” Id. The Supreme Court thus rejected Sykes’s contention that his vehicular flight offense did not entail the type of conduct necessary to bring it within the ACCA’s residual clause. See Sykes, 131 S.Ct. at 2275. As the Court explained, the analysis should focus on the level of risk associated with the previous offense of conviction, notwithstanding the “purposeful, violent, and aggressive” conduct stressed by the Begay Court in the context of a strict liability offense. See Sykes, 131 S.Ct. at 2275. Significantly, the Sykes decision reiterated that the ACCA limits the residual clause to crimes “typically committed by those whom one normally labels ‘armed career criminals,’ ” that is, crimes that “show an increased likelihood that the offender is the kind of person who might deliberately point the gun and pull the trigger.” Id. (quoting Begay, 553 U.S. at 146, 128 S.Ct. 1581). Thus, although Sykes may be said to distance the Court from its earlier emphasis on purposeful, violent, and aggressive conduct, the essential hallmarks of Begay were reaffirmed. B. Vann maintains that we are obliged to employ the categorical approach in our analysis, the inevitable consequence of which is that his previous indecent liberties offenses cannot be considered ACCA violent felonies. The government entreats to the contrary, insisting that we should invoke the modified categorical approach, which, it posits, establishes that Vann’s previous convictions are for ACCA violent felonies. The government alternatively asserts that, regardless of the approach used, we are bound to affirm the sentence imposed by the district court. 1. Importantly, a violation of the Statute does not require physical contact. See, e.g., State v. Hammett, 182 N.C.App. 316, 642 S.E.2d 454, 459 (2007). Additionally, the physical proximity of the offender to the victim is not determinative; convictions have been obtained in situations where the offender has been merely constructively present, i.e., by making inappropriate telephone calls or secretly videotaping a minor during a change of clothing. See State v. Every, 157 N.C.App. 200, 578 S.E.2d 642 (2003) (telephone conversations); State v. McClees, 108 N.C.App. 648, 424 S.E.2d 687 (1993) (clandestine videotaping). Because a violation of the Indecent Liberties Statute does not require either touching or physical proximity, and does not necessarily implicate any awareness on the part of the minor victim, the risks associated with its proscribed conduct are fundamentally different than those associated with the offenses enumerated in 18 U.S.C. § 924(e)(2)(B)(ii). A violation of the Statute does not categorically involve a release of a destructive force capable of causing physical injury to another, as would an arson or offense involving explosives. Nor does a violation of the Statute necessarily show a disregard for the safety of others, as does vehicular flight from the police. See Sykes, 131 S.Ct. at 2273-74. Similarly, the risks posed by a violation of the Statute are unlike those posed by a burglary, as there exists no categorical likelihood that a violation would “end in [a] confrontation leading to violence.” Id. at 2273. Moreover, although an accused must knowingly commit the acts underlying an indecent liberties conviction in North Carolina, a good faith “mistake of age is not a defense to the offense of taking indecent liberties with a minor.” Cinema I Video, Inc. v. Thornburg, 83 N.C.App. 544, 351 S.E.2d 305, 320 (1986). A violation of the Indecent Liberties Statute therefore resonates in strict liability, reminiscent of the Begay DUI offense, which is not an ACCA violent felony. See 553 U.S. at 148, 128 S.Ct. 1581. Unlike the offenses of vehicular flight and those enumerated in § 924(e) (2) (B) (ii) — each of which “create immediate, serious, and foreseeable physical risks that arise concurrently with the commission of the crimes themselves,” Thornton, 554 F.3d at 446 — a violation of the Indecent Liberties Statute is not the type of offense ‘“typically committed by those whom one normally labels armed career criminals,’ ” Sykes, 131 S.Ct. at 2275 (quoting Begay, 553 U.S. at 146, 128 S.Ct. 1581 (internal quotation marks omitted)). At bottom, a violation of the Statute, although a serious offense, is unlikely to “ ‘show an increased likelihood that the offender is the kind of person who might deliberately point [a] gun and pull the trigger.’ ” Id. (quoting Begay, 553 U.S. at 146, 128 S.Ct. 1581). As a result, such a violation is categorically not a -violent felony under the ACCA. 2. Having concluded that Vann’s indecent liberties convictions are categorically not violent felonies within the meaning of the ACCA, I would reject the government’s invitation to reach a different result through application of the modified categorical approach. The categorical approach, when it applies — as it does here— is mandatory and dispositive. See United States v. Rivers, 595 F.3d 558, 564 (4th Cir.2010) (instructing that, where “the statute only contains one category of crime ... a court may not vary from the categorical approach”). Importantly, there is no precedent for the proposition that the categorical approach is a tool of convenience that can be discarded when the other methodology might advance the government’s interest. On the face of the Indecent Liberties Statute, it may appear that its subsection (a)(1) (taking any indecent liberty with a child for the purpose of arousing or gratifying sexual desire) and its subsection (a)(2) (committing any lewd or lascivious act upon or with the body of a child) could regulate sufficiently distinct behaviors to justify our use of the modified categorical approach. If we were writing on a blank slate, I might conclude that a violation of subsection (a)(1) is a less serious offense that does not require physical contact with the minor victim, while a violation of subsection (a)(2) is a more serious offense that requires some form of physical contact — a lewd or lascivious act upon the body of a child. The North Carolina courts, however, have declined to so interpret the Statute. And time-tested principles of federalism bar us from construing it otherwise. See Johnson v. Fankell, 520 U.S. 911, 916, 117 S.Ct. 1800, 138 L.Ed.2d 108 (1997) (explaining that no “federal tribunal has any authority to place a construction on a state statute different from the one rendered by the highest court of the State”). As Justice Stevens explained for the unanimous Court in Johnson, the foregoing “proposition is fundamental to our system of federalism.” Id. The courts of North Carolina have ruled time and again that, in enacting the Statute, the state legislature chose not to “distinguish between the types of indecent liberties,” State v. Jones, 99 N.C.App. 412, 393 S.E.2d 585, 589 (1990), and instead made “[t]he crime of indecent liberties ... a single offense,” State v. Hartness, 326 N.C. 561, 391 S.E.2d 177, 180 (1990); see also State v. Jones, 172 N.C.App. 308, 616 S.E.2d 15, 20 (2005) (rejecting proposition that “[sjubsections (a)(1) and (a)(2) are separate criminal offenses with different elements” (emphasis omitted)). In order to prove an offense under the Statute, the State must establish five elements: (1) the defendant was at least 16 years of age; (2) he was five years older than his victim; (3) he willfully took or attempted to take an indecent liberty with the victim; (4) the victim was under 16 years of age at the time the alleged act or attempted act occurred; and (5) the action by the defendant was for the purpose of arousing or gratifying sexual desire. State v. Coleman, 200 N.C.App. 696, 684 S.E.2d 513, 519 (2009) (internal quotation marks omitted). In prosecutions under subsection (a)(2) involving a lewd or lascivious act, “[h]owever, it may be logically assumed that acts described as ‘lewd’ and ‘lascivious’ are committed ‘for the purpose of arousing or gratifying sexual desire.’ ” State v. Wilson, 87 N.C.App. 399, 361 S.E.2d 105, 108 (1987). Nonetheless, neither subsection of the Statute requires as proof of an essential element any kind of touching — sexual or otherwise. See Hammett, 642 S.E.2d at 459 (rejecting contention “that, in order to be convicted under [subsection (a)(2) ], the accused must actually touch the victim”); Every, 578 S.E.2d at 648 (recognizing that subsection (a)(1) does not require touching). Although theoretically distinguishable, the Indecent Liberties Statute’s two subsections have been treated interchangeably by the North Carolina courts, and those courts have consistently recognized that the same behavior can be prosecuted under either subsection. See, e.g., State v. Banks, 322 N.C. 753, 370 S.E.2d 398, 407 (1988) (prosecuting “acts of kissing” under subsection (a)(1) and subsection (a)(2)). Indeed, persons engaging in the same objectionable behavior, not involving physical contact, are sometimes prosecuted under subsection (a)(1), but otherwise under subsection (a)(2). See Hammett, 642 S.E.2d at 459 (prosecuting masturbation in another’s presence under subsection (a)(2)); State v. Turman, 52 N.C.App. 376, 278 S.E.2d 574, 575 (1981) (same; subsection (a)(1)); State v. McClees, 108 N.C.App. 648, 424 S.E.2d 687 (1993) (prosecuting videotaping of disrobing teenager under subsection (a)(1)); State v. Kistle, 59 N.C.App. 724, 297 S.E.2d 626 (1982) (prosecuting photographing of unclothed child under subsection (a)(2)). Deference to the North Carolina courts in this instance is consistent with the approach followed by the Supreme Court in similar cases. In James, the Court considered whether attempted burglary under Florida law categorically qualified as an ACCA violent felony. The Court began by noting that “[o]n its face, Florida’s attempt statute requires only that defendant take ‘any act toward the commission’ of burglary.” 550 U.S. at 202, 127 S.Ct. 1586. The Court, however, then consulted the interpretation of the attempt statute by Florida courts, which “considerably narrowed” its application by requiring that the “act” be “directed toward the entry of a structure.” Id. The Court conducted a similar analysis regarding the scope of “curtilage” under the burglary law. See id. at 212-13, 127 S.Ct. 1586 (“We must again turn to state law in order to answer this question.”); see also Johnson, 130 S.Ct. at 1269-70 (relying on the state courts’ construction of the required degree of “touching” under the state battery law). The Supreme Court has therefore rejected an approach that simply considers the statutory text and instead has grounded its analysis on the state courts’ construction of the statute. Thus, “the particular act performed is immaterial,” and the accused’s “purpose for committing such act is the gravamen of this offense.” Hartness, 391 S.E.2d at 180. Because, under North Carolina law, the Indecent Liberties Statute’s two subsections are interchangeable and do not have different elements, the Statute regulates only one category of behavior. Cf. Rivers, 595 F.3d at 564 (declining to apply modified categorical approach to South Carolina blue light statute because “[t]here is no varied behavior underlying the elements of a blue light offense”). A violation of the Statute, therefore, does not fall in that “narrow range of cases” where the court is entitled to “go beyond the mere fact of conviction” in making a violent felony determination. See Taylor, 495 U.S. at 602, 110 S.Ct. 2148. III. A. My good dissenting friends, as well as several of my colleagues in the en banc majority, disagree that we are bound by North Carolina precedent to conclude that subsections (a)(1) and (a)(2) of the Indecent Liberties Statute regulate the same category of behavior, thereby foreclosing resort to the modified categorical approach. Indeed, whether a violation of subsection (a)(2) constitutes a violent felony under the ACCA is quintessentially a federal question. The ultimate federal question of whether the ACCA applies, however, can only be answered through the resolution of component inquiries, one of which is the number of offenses encapsulated in a single state statute. If the state courts have provided the answer to that subordinate question, we are obliged to accept it. See Johnson v. United States, — U.S. -, 130 S.Ct. 1265, 1269, 176 L.Ed.2d 1 (2010) (citing Johnson v. Fankell, 520 U.S. 911, 916, 117 S.Ct. 1800, 138 L.Ed.2d 108 (1997)). In this case, the answer to the subordinate question of the number of offenses set forth in the Indecent Liberties Statute has been provided by the Supreme Court of North Carolina in State v. Hartness, 326 N.C. 561, 391 S.E.2d 177, 180 (1990), and the State’s intermediate appellate courts, see State v. Jones, 99 N.C.App. 412, 393 5.E.2d 585, 589 (1990); see also State v. Jones, 172 N.C.App. 308, 616 S.E.2d 15, 20 (2005). That answer is “one.” Because the answer is not “two or more,” the modified categorical approach cannot apply to Vann’s situation. Had the court in Hartness ventured beyond a pure construction of state law to address the broader federal question of whether a violation of the Statute implicates the ACCA, its decision would be of little moment here and the dissent would have a point. See Johnson v. United States, 130 S.Ct. at 1269 (rejecting contention that federal courts are bound by state court interpretation of terms found in federal statute). But the Hartness court did not stray outside its domain, and there is, therefore, no point to be had. The dissent’s reluctance to accept the Indecent Liberties Statute as interpreted by the North Carolina courts flouts well-settled principles of federalism. Our system of dual government unequivocally designates the state courts as the arbiters of state law, and it demands that federal courts not usurp that function. See Johnson v. Fankell, 520 U.S. at 916, 117 S.Ct. 1800 (underscoring that no “federal tribunal has any authority to place a construction on a state statute different from the one rendered by the highest court of the State”). B. Even accommodating the position that the two subsections of the Indecent Liberties Statute are separate offenses, however, Vann prevails under the modified categorical approach. The offense of sexual assault contained within the Model Penal Code is not, as the dissent supposes, a stand-in for subsection (a)(2). See post at 814-15. Although portions of the text describing the Code’s sexual assault offense bear some superficial similarity to subsection (a)(2), North Carolina precedent demonstrates that the essential elements of the two provisions are materially dissimilar. Most pertinently, a sexual assault under the Code has as an element “sexual contact with another,” defined as “any touching of the sexual or other intimate parts of the person for the purpose of arousing or gratifying sexual desire.” Model Penal Code § 213.4. A violation of the Statute via subsection (a)(2), on the other hand, requires no touching or physical contact at all. See State v. Hammett, 182 N.C.App. 316, 642 S.E.2d 454, 459 (2007) (masturbating in presence of minor violates subsection (a)(2)); State v. Kistle, 59 N.C.App. 724, 297 S.E.2d 626, 628 (1982) (photographing nude minor violates subsection (a)(2)). All the sound and fury summoned forth by the dissent, spewing statistics documenting the injury rate for sexual assault victims, hence signifies nothing. The dissent frankly admits that the study it cites “included conduct that may have a higher incidence of physical harm, like rape,” post at 823, illustrating one problem of using statistics to pinpoint “the ordinary case— i.e., the most common form” of an offense for the purpose of determining its potential risk of physical injury to another. Sykes v. United States, — U.S. -, 131 S.Ct. 2267, 2291 n. 4,180 L.Ed.2d 60 (2011) (Kagan, J., dissenting). Even the Sykes majority acknowledged that “statistics are not dispositive,” but are merely useful in an appropriate context to inform a court’s “commonsense conclusion” regarding an offense’s character as an ACCA violent felony. Id. at 2274. Here, common sense dictates the conclusion that significant differences exist between the risk of physical injury occasioned in the ordinary case by violations of subsection (a)(2) and the risk typically presented by the intentional vehicular flight offense at issue in Sykes. Committing a lewd or lascivious act upon the body of a minor does not “def[y] a law enforcement command” and “entail[ ] intentional release of a destructive force dangerous to others.” 131 S.Ct. at 2273. Unlike vehicular flight, immediate police confrontation is not the “expected result” of a subsection (a)(2) violation, inevitably “placing] property and persons at serious risk of injury.” Id. at 2274. According to the Sykes Court, a “[rjisk of violence” inheres in the offense of vehicular flight. Id. I discern no similar risk inherent in ordinary violations of subsection (a)(2), notwithstanding the worst-case scenarios paraded by the dissent, post at 823-24, the most sinister aspects of which entail empty threats of physical violence. The mention in Sykes of the risk of violence, apart from the risk of physical injury, is hardly surprising in light of the Court’s ultimate task of deciding whether vehicular flight should be deemed a “violent felony.” The dissent chides me for daring to determine whether a putative violent felony “involve[s] ... purposeful, violent, and aggressive conduct,” post at 808, but I think the prescribed commonsense approach counsels just that sort of inquiry. The residual clause speaks simply of the “risk of physical injury,” without specifying the injury’s kind or degree, but the Sykes Court’s recitation of the risk of violenee as a factor in its calculus indicates that we should consider, at least at the margins, what makes a particular felony “violent.” There is, after all, a principled difference between a hangnail and a homicide. In that vein, and without understating the despicability of the conduct underlying violations of the Indecent Liberties Statute or the conduct’s propensity to inflict psychic harm upon its target, I cannot help but pay heed to the commonsense notion that vehicular flight is far more likely to end violently in death or debilitating physical injury. Moreover, dissimilar to the discrete perpetrator/victim dynamic invariably associated with a violation of subsection (a)(2), the sphere of effect with attendant risk of injury emanating from vehicular flight extends far beyond whoever occupies the passenger seat to envelop the driver, the police, and innocent bystanders. See Sykes, 131 S.Ct. at 2274 (citing Justice Thomas’s concurring opinion to emphasize that violations of the Indiana statute “are effected with a vehicle that can be used in a way to cause serious potential risk of physical injury to another,” and expressing concern that “chase-related crashes kill more than 100 nonsuspects every year” (emphasis added)). Engaging in this sort of intentional conduct evidencing a flagrant “lack of concern for the safety of property and persons of pedestrians and other drivers,” id. at 2273, distinguishes the vehicular flight defendant from the drunk driver in Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), and we may conclude that the former is more likely to be “the kind of person who might deliberately point the gun and pull the trigger.” Sykes, 131 S.Ct. at 2275 (quoting Begay, 553 U.S. at 145-46, 128 S.Ct. 1581 (internal quotation marks omitted)). IV. All that said, I concur in the judgment of the Court, as reflected in the per curiam opinion in that regard. I disagree with several of my colleagues of the en banc majority, however, in that I believe that the categorical approach resolves this appeal and that the modified categorical approach should therefore not be reached. I am pleased and honored to confirm that Judge Motz, Judge Gregory, and Judge Davis join in this opinion. . The result of today’s en banc decision, as expressed in the Court's judgment, is ten votes (Chief Judge Traxler and Judges Wilkinson, Motz, King, Gregory, Agee, Davis, Keenan, Wynn, and Diaz) to vacate Vann’s ACCAenhanced sentence and remand for resentencing on the ground that his convictions under the Indecent Liberties Statute do not constitute ACCA violent felonies, against two votes (Judges Niemeyer and Shedd) to affirm Vann’s sentence. . Before the panel in this appeal, the government maintained that, in light of the essential age disparity between a child victim and an adult perpetrator under the Indecent Liberties Statute, a violation thereof implies constructive force. Thus, the government contended, such a violation is necessarily an ACCA violent felony, because it has "as an element, the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i). In its en banc brief, however, the government abandoned that position, the argument having been foreclosed by the Supreme Court’s recent decision in Johnson. See 130 S.Ct. 1265. There, the Court explained that, in order to constitute a violent felony under § 924(e)(2)(B)(i), the predicate offense must have violent physical force as an element; slight touching, "intellectual force or emotional force,” is insufficient. See id. at 1270. . The Supreme Court issued its Sykes decision in June 2011, subsequent to our en banc argument. We thereafter obtained supplemental briefing on the potential effect of Sykes on this appeal. . Interestingly, the Indecent Liberties Statute is not codified with such crimes as rape— including statutory rape, see N.C. Gen.Stat. § 14-27.7A — at Subchapter III (“Offenses Against the Person”). Instead, the Statute is in Subchapter VII ("Offenses Against Public Morality and Decency”), alongside offenses like incest, see id. § 14-178; bigamy, see id. § 14-183; indecent exposure, see id. § 14-190.9; displaying material harmful to minors, see id. § 14-190.14; and secretly peeping into a room occupied by another person, see id. § 14-202. . My good friend Judge Niemeyer denominates his opinion as "concurring in part and dissenting in part,” but it is rather amorphous what that nomenclature means. Judge Niemeyer is certainly dissenting from the en banc judgment vacating Vann’s sentence and remanding for resentencing, however, and he does not concur in either the per curiam opinion of the en banc majority or any of the Court's several other opinions. The judgment of the Court to vacate and remand is unitary, and may not be parsed as Judge Niemeyer suggests, post at 808-09 & nn. 1-2, though various judges supporting the judgment may express through separate opinions different reasons for so doing, and may even agree with judges opposed to the judgment as to constituent propositions or conclusions short of the ultimate issue. See Fed. R.App. P. 36 (specifying that clerk enters "judgment” upon receiving court’s conceptually distinct "opinion" or instructions); Fed. R.App. P. 41(a) (defining court’s mandate as comprised of, inter alia, "a certified copy of the judgment [and] a copy of the court’s opinion, if any”). Thus, although Judge Niemeyer might accurately predict, post at 809 n. 2, that a majority of this Court, in a hypothetical future case, would somehow conclude a properly proved violation of subsection (a)(2) to be an ACCA violent felony, there is certainly no majority consensus emanating from our decision today as to why that may be so. . The non-precedential decision of the Court of Appeals of North Carolina in State v. Moss, No. COA07-607, 2008 WL 435095 (N.C.Ct. App. Feb. 19, 2008) (unpublished), trumpeted by the dissent, post at 816-17, is in no way contrary to the consistent body of authoritative North Carolina case law. The court in Moss vacated the defendant’s conviction under the Indecent Liberties Statute because a so-called "fatal variance” at trial amounted to plain error. The variance occurred because the indictment charged the defendant solely under subsection (a)(1), but the jury was instructed to convict only if it found the specific conduct underlying subsection (a)(2). See id. at *2. The court’s decision was not premised, as the dissent would have it, upon the two subsections describing different offenses, but upon the deprivation of fundamental due process rights "on a theory not supported by the indictment.” Id. at *3 (emphasis added). . Notwithstanding my friend Judge Niemeyer’s characterization of my opinion, post at 808, my view of this appeal is unabashedly uncomplicated. The categorical approach resolves the sentencing issue in Vann's favor. and we are not entitled to reach and address the modified categorical approach. Assuming the modified categorical approach applies, however, Vann prevails in any event. . Writing separately in Sykes, Justice Thomas observed that ”[t]he fact that Sykes can imagine a nonrisky way to violate [the Indiana statute] does not disprove that intentional vehicular flight is dangerous in the ordinary case.” Sykes, 131 S.Ct. at 2281 (Thomas, J., concurring in the judgment) (citation and internal quotation marks omitted). Surely the converse proposition is also true: that the dissent can illustrate risky ways to violate subsection (a)(2) does not establish that such violations are dangerous in their most common form. . I admire and appreciate the characteristically well-crafted separate opinion of my good friend Judge Wilkinson, concurring in the judgment, but I take especial issue with one aspect of it. Employing the categorical approach in this case would not, as the separate opinion prognosticates, “have the unintended effect of visiting serious harms on children.” Post at 806. This opinion simply results, as do the various separate opinions, from conscientious efforts to apply the applicable law to the relevant facts. Indeed, our Court possesses no power or authority to do otherwise. The concern of my good friend should therefore not be directed at his court colleagues, but to the governmental bodies that created the controlling legal principles. That said, I am pleased that my friend agrees with the result that our Court has reached in this case.
AGEE, Circuit Judge, concurring in the judgment, concurring in the en banc majority opinion, and concurring in the opinion of Judge KEENAN: “Only Congress can rescue the federal courts from the mire into which ACCA’s draftsmanship and Taylor’s ‘categorical approach’ have pushed us,” Justice Alito presciently observed in Chambers v. United States, 555 U.S. 122, 132, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009) (Alito, J., concurring). As the multiple opinions in this case reflect, no matter how diligently and painstakingly my colleagues and I labor over the mystery of the ACCA “residual clause,” a black hole of confusion and uncertainty stymies our best efforts. Onee application of the ACCA enhancement departs from the clarity in § 924(e) (2) (B) (ii) — “burglary, arson, or extortion, involves the use of explosives”— and seeks to ascertain prior criminal convictions that “otherwise involve[] conduct that presents a serious potential risk of physical injury to another,” we enter a judicial morass that defies systemic solution. Id. The dockets of our court and all federal courts are now clogged with these cases. Unless Congress acts to provide clarity to its intent for this statute, the problem will only continue. All of my colleagues who have written in this case have made a good faith effort to bring some sense of order and direction to a congressional expression, however well intentioned, that was poorly drafted and seemingly defies the best efforts of us all to apply the “residual clause” within the intendment of Congress. While the dilemma we face in our task of adjudication is difficult enough, it pales in comparison to what is at stake for the parties: be it the defendant or the general public as represented by the Government. The doubling (or more) of a sentence to the ACCA minimum mandatory sentence of 15 years imprisonment should be of grave concern when that decision is based on statutory language that a member of the Supreme Court has concluded “does not give a person of ordinary intelligence fair notice of its reach ...” and “is too vague to yield an intelligible principle.” Sykes v. United States, 564 U.S. -, 131 S.Ct. 2267, 2287, 180 L.Ed.2d 60 (2011) (Scalia, J., dissenting). As Justice Alito concluded in Chambers: [a]t this point, the only tenable, long-term solution is for Congress to formulate a specific list of expressly defined crimes that are deemed to be worthy of ACCA’s sentencing enhancement. That is the approach that Congress took in 1984, when it applied ACCA to two enumerated and expressly defined felonies. And that approach is the only way to right ACCA’s ship. 555 U.S. at 134, 129 S.Ct. 687 (Alito, J., concurring). Should Congress fail to act to timely rewrite this statute in a comprehensible and practical way, it will have only itself to blame should a majority of the Supreme Court come to find Justice Scalia’s conclusion the only constitutionally valid course. The same concern applies with equal force to the indistinguishable application of similar enhancements under United States Sentencing Guidelines § 4B1.2.
DAVIS, Circuit Judge, concurring: I am pleased to join Judge King’s fine opinion in full. He demonstrates that without doubt the correct approach in this case (and to the North Carolina indecent liberties statute generally) is the categorical approach and not the modified categorical approach. I write separately to offer the following additional observations. I. I admire the thoughtful efforts of my authoring colleagues to rationalize the challenging legal standards confronting us. As I understand the opinions that contend the modified categorical approach applies in this case, three distinct constructs seem to be put forward: (1) the presumed legislative intent underlying the ACCA (Op. of Wilkinson, J.); (2) the supposed existence of a “categorically violent” subsection within the overall “nongeneric” indecent liberties statute (Op. of Keenan, J.); and (3) the assertion that the indecent liberties statute contains two “substantive” “generic” indecent liberties offenses, the “more violent” of whi