Beruflich Dokumente
Kultur Dokumente
No. 12-4362
Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:11-cr-00771-RBH-1)
Argued:
Decided:
Amicus Counsel.
ON BRIEF: William N. Nettles, United States
Attorney, Columbia, South Carolina, A. Bradley Parham, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Florence, South Carolina; Lanny A. Breuer, Assistant Attorney
General, John D. Buretta, Deputy Assistant Attorney General,
Criminal
Division,
UNITED
STATES
DEPARTMENT
OF
JUSTICE,
Washington, D.C., for Appellee.
Laura K. D'Allaird, ARNOLD &
PORTER, LLP,
Washington,
D.C.,
for
Court-Assigned
Amicus
Counsel.
district
court
sentenced
Hemingway
to
fifteen
years
in
common
law
crime
of
assault
(ABHAN)
to
and
impose
battery
the
of
mandatory
high
and
aggravated
nature
minimum
sentence.
The government
felony,
but
contends
that
use
of
the
modified
We
I.
A.
Pursuant to the ACCA, a defendant convicted of violating 18
U.S.C. 922(g)(1), and who has three previous convictions for
a violent felony or a serious drug offense, is subject to a
mandatory
fifteen-year
924(e)(1).
minimum
sentence.
See
18
U.S.C.
924(e)(2)(B).
Subsection
(e)(2)(B)(i)
is
commonly
violent
that
force
is,
force
capable
States,
559
U.S.
133,
140
of
causing
See Johnson v.
(2010).
Subsection
That clause is
more
clause.
commonly
referred
to
as
the
residual
See
Accordingly, an ABHAN
residual
presents
clause,
serious
it
otherwise
potential
risk
involves
of
conduct
physical
that
injury
to
another.
B.
1.
As we have recognized, [i]n assessing whether an offense
constitutes an ACCA predicate offense, two types of analyses are
potentially applicable known as the categorical approach and
the modified categorical approach.
587 F.3d 219, 222 (4th Cir. 2009).
defendants
prior
conviction
counts
as
one
of
ACCAs
formal
elements-focused
categorical
approach
that
definitions
offenses,
and
not
convictions.
to
of
of
elements
the
particular
defendants
prior
underlying
those
facts
the
cases
modified
categorical
statutory
elements
sentencing
approach,
to
the
court
that
could
is,
look
charging
paper
utilize
the
beyond
the
and
jury
The
be
conviction
used
only
comprises
crime.
Id.
at
permitted
sentencing
when
the
definition
multiple,
2284.
As
courts,
alternative
explained
as
of
in
tool
for
the
offense
versions
Descamps,
of
of
the
Taylor
implementing
the
Id. 2
general
proposition,
to
determine
whether
previous
prior
offense,
and
do[es]
not
generally
consider
the
Sykes
It bears repeating
offense
conviction.
rather
than
the
conduct
underlying
the
2.
In
Descamps
June
of
this
decision,
year,
which
the
Supreme
constitutes
Court
a
rendered
vastly
its
important
of
the
categorical
categorical approach.
approach
and
the
modified
categorical
approach,
i.e.,
simply
to
help[]
which
conviction.
burglary
element
played
part
statute,
the
Court
in
the
defendants
Focusing on Californias
determined
that
the
modified
Id. at 2285.
Id. at 2293.
In
Gomez,
Judge
Floyd
carefully
explained
that
the
categorical
for
deciding
whether
Maryland
child
abuse
See
id.
at
203.
Applying
the
divisibility
categories
of
proscribed
conduct,
at
least
one
of
Id.
at 199.
Because Gomez and Descamps each involved statutory rather
than common law offenses, in that context those decisions are
distinguishable
Descamps
from
explicitly
the
situation
reserve[d]
we
the
face
today.
question
Indeed,
whether,
in
issue
of
whether
the
divisibility
analysis
applies
to
common law crime, because that appeal was concerned only with
the divisions within a statute, not a common law crime.
F.3d at 202.
690
II.
Having
identified
certain
of
the
applicable
legal
June
28,
2011,
grand
jury
returned
an
indictment
possessing
with
intent
to
distribute
cocaine
base
(or
pleaded
guilty
to
Count
Hemingways
recommending
that
his
only,
without
plea
presentence
sentence
One
be
report
(the
enhanced
under
PSR),
the
ACCA
aggravated
nature
(AHAN)
are
not
predicate
offenses
can
each
be
committed
negligently
and
without
violent
injury.
offenses
cannot
modified
constitute
categorical
ACCA
approach
violent
because
felonies
the
under
relevant
the
South
two-count
indictment
charging
Hemingway
with
was
lynching
returned
in
the
in
Horry
second
County
degree
and
11
rioting.
According
to
the
state
courts
sentencing
sheet
that
indictment
that
Hemingway
pleaded
guilty to the ABHAN offense, and that the plea proceedings were
also concluded on June 11, 2002.
The
PSR
rejected
Hemingways
contention
that
his
ABHAN
approach.
Relying
on
two
unpublished
opinions,
United States v. Wiley, 449 F. Appx 269 (4th Cir. Oct. 12,
2011), and United States v. Moultrie, 445 F. Appx 630 (4th Cir.
Sept. 6, 2011), plus our published decision in United States v.
Wright, 594 F.3d 259 (4th Cir. 2010), the PSR maintained that
ABHAN is categorically an ACCA violent felony.
26,
2012
Hemingways
sentencing
ABHAN
hearing,
conviction
was
the
for
government
an
ACCA
argued
violent
that
felony
12
felony. 5
categorical
approach
was
inapplicable
to
Hemingways
ABHAN
offense.
categorical
J.A.
43. 6
approach.
After
The
court
surveying
then
the
turned
to
applicable
the
South
ABHAN
is
not
categorically
violent
felony
under
the
Id. at 48.
ABHAN
nevertheless
is
clause.
Id. at 50.
violent
felony
under
the
residual
pursuant
Because
the
to
18
U.S.C.
government
has
3742(a)
altered
and
its
28
U.S.C.
position
on
13
III.
The issue we must resolve in this appeal is whether ABHAN
constitutes a violent felony under the ACCA.
Whether a prior
ABHAN
government
conviction
maintains,
was
for
an
however,
ACCA
that
violent
the
felony.
court
The
essentially
felony.
For
his
part,
Hemingway
agrees
with
the
14
violent
felony,
but
contends
that,
pursuant
to
Descamps
v.
United States, 133 S. Ct. 2273 (2013), and its progeny, the
modified
categorical
proceedings.
approach
has
no
role
to
play
in
these
the
Amicus
sentence
right
argues
from
that
legal
the
district
standpoint
court
got
maintaining
the
that
first
step
of
our
review
relates
to
whether
the
government
analyzed
now
maintains,
Hemingways
categorical
approach.
ABHAN
As
whether
the
conviction
explained
court
under
below,
should
the
Descamps
have
modified
and
its
In the post-
726 F.3d 503, 511 (4th Cir. 2013) (quoting Descamps, 133 S. Ct.
at 2285); see United States v. Cabrera-Umanzor, 728 F.3d 347,
350
(4th
Cir.
2013).
Meanwhile,
15
criminal
offense
is
divisible
only
elements,
when
and
statute
so
lists
multiple,
alternative
creates
several
effectively
different . . . crimes.
none
of
our
sister
circuits
have
applied
There is simply no
offenses
criminal
in
this
statutes,
context.
for
the
most
As
practical
part,
codify
matter,
existing
In multiple
the
common
essential
law,
elements.
leaving
See,
reviewing
e.g.,
courts
Carthorne,
to
fill
in
the
726
F.3d
at
512
in
this
statute
but
are
defined
by
common
law
in
Virginia); United States v. Alston, 611 F.3d 219, 222 (4th Cir.
2010) (observing that, under the Maryland Code, [a]ssault is
16
which
retain
their
judicially
determined
meanings
See,
e.g., United States v. Kirksey, 138 F.3d 120, 125 (4th Cir.
1998) (recognizing that, [b]ecause Maryland recognizes common
law crimes, no statute defines their elements.
case law fully articulates them).
Furthermore, it is well-
and
holding
arrest
is
that
Maryland
crime
of
common
violence
law
for
offense
of
purposes
of
See
Circuit
precedent
do
not,
by
their
terms,
apply
to
in
principle
that
it
should
17
be);
United
States
v.
Melton, 344 F.3d 1021, 1026 (9th Cir. 2003) (Where, as here,
the state crime is defined by specific and identifiable common
law elements, rather than by a specific statute, the common law
definition of a crime serves as a functional equivalent of a
statutory definition.).
Although
the
Descamps
Court
left
the
issue
unresolved,
the
the
bases
three
for
its
grounds
decision,
for
In
the
Court
carefully
establishing
[its]
elements-
history
of
the
ACCA,
explaining
that
its
statutory
term
(quoting
emphasized
Taylor,
the
495
U.S.
categorical
at
599).
approachs
The
Id. at
Court
Sixth
also
Amendment
predicate
penalty.
offense
Id. at 2288.
indisputably
increases
the
maximum
went
beyond
Finally,
the
inequities
merely
Court
cautioned
inherent
particularly
where
guilty plea.
Id.
identifying
in
the
prior
against
the
the
modified
underlying
conviction.
Id.
difficulties
and
categorical
conviction
approach,
results
from
law
crime
as
an
ACCA
In addition, designating a
predicate
offense
presents
the
conviction
was
statutory
offense.
Finally,
and
thus
may
be
more
susceptible
to
disparate
S. Ct. at 2285.
2.
In evaluating a state court conviction for ACCA predicate
offense
purposes,
supreme
courts]
determination
offense.
of
federal
court
interpretation
the
elements
of
of
is
bound
state
the
law,
by
the
[state
including
potential
its
predicate
20
Id. at 624 n.17; see Dempsey v. State, 610 S.E.2d 812, 815 (S.C.
2005) (identifying same circumstances of aggravation).
It
is
clear
from
judiciarys
list
of
exhaustive.
the
South
Carolina
circumstances
of
decisions
aggravation
that
is
the
non-
Importantly, the
of
commission
given crime.
that
otherwise
fits
the
definition
of
Id. at 2290.
21
Id.
the
South
Carolina
subelements of ABHAN.
courts
are
neither
elements
nor
As our good
does
not
modified
United
concern
categorical
States
v.
any
list
approach
Royal,
___
of
has
F.3d
alternative
no
___,
role
No.
to
elements,
the
play.
See
10-5296,
2013
WL
determined,
as
the
district
court
ruled,
solely
by
B.
Having
appropriate
concluded
method
of
that
the
analysis,
categorical
we
must
approach
decide
is
the
whether
the
the
government
on
this
point.
The
Amicus
contends,
23
imposed
under
Amicus,
we
the
are
categorical
bound
by
our
approach.
precedent
According
of
United
to
the
States
v.
Wright, 594 F.3d 259 (4th Cir. 2010), to rule that ABHAN is
categorically
Wright,
the
violent
Amicus
felony.
maintains,
In
addition
consistent
to
with
relying
the
on
position
We analyze
three
juvenile
convictions
were
ACCA
predicate
It
conviction,
relating
predicate
to
was
but
undisputed
Wright
the
use
offense.
conviction,
did
of
Our
referencing
that
not
that
had
an
adult
ABHAN
present
any
appellate
issue
ABHAN
opinion
only
Wright
the
conviction
briefly
force
as
discussed
clause
and
an
the
ACCA
ABHAN
stating,
precedent,
that
decision
24
does
not
dictate
the
in
summarily)
Wright.
Moreover,
addressed
whether
an
attempted
whether
use,
an
or
924(e)(2)(B)(i),
offense
is
ABHAN
solely
offense
(and
was
merely
violent
threatened
Wright
use
distinct
as
of
an
element
physical
from
the
the
force,
residual
use,
see
clause
physical
pain
or
injury
to
another
person.
See
564
S.E.2d
103,
106
n.4
(S.C.
2002).
See State v.
In
these
11
2.
a.
Looking
categorically
beyond
an
Wright,
ACCA
we
violent
assess
felony.
whether
If
we
ABHAN
were
is
yet
deciding
Descamps, 133 S.
statute has the same elements as the generic ACCA crime, then
the prior conviction can serve as an ACCA predicate.
Id. at
2283.
Here, where we assess whether a previous crime qualifies as
an ACCA violent felony under the residual clause, a different
analysis applies, because there is often no single generic
crime to which the underlying crime can be compared.
States
v.
Torres-Miguel,
701
F.3d
165,
170
(4th
See United
Cir.
2012)
26
his
prior
state
offense
does
not
fall
within
this
residual
Supreme
Courts
2007
decision
in
James
v.
United
States
There, in
violent
felony
under
the
residual
clause,
the
Court
one
of
the
enumerated
offenses
(i.e.,
burglary),
the
See
id. at 207.
The circumstances were different in Begay v. United States,
where the Supreme Court assessed whether a New Mexico driving
under
the
influence
violent felony.
offense
(a
DUI)
qualified
as
an
ACCA
crimes
all
typically
aggressive conduct.
involve
Id. at 144-45.
27
purposeful,
violent,
and
explained,
impose
strict
DUI
is
most
liability,
nearly
comparable
criminalizing
conduct
to
crimes
in
that
respect
to
which the offender need not have had any criminal intent at
all.
Cognizant
fall
within
the
statutes
scope
and
[t]heir
presence
every
crime
that
presents
serious
potential
risk
of
years
after
Begay,
in
2011
in
Sykes,
the
Court
from
those
that
do
not,
and
Begays
purposeful,
present
serious
potential
risks
of
physical
injury
to
Id.
b.
In
this
appeal,
the
relevant
residual
clause
inquiry,
at
144. 12
The
Supreme
Court
has
explained
Begay, 553
that
the
Id. at 142.
Given
varying
presented,
offense.
degrees
of
potential
depending
on
the
risk
of
circumstances
physical
of
the
injury
particular
12
29
a violent
of
aggravation,
can
be
satisfied
simply
by
30
enumerated
offenses.
Taken
together,
these
elements
Accordingly,
we
are
satisfied
that
ABHAN
is
not
the
Amicus
argues
that,
applying
the
Supreme
categorically
an
ACCA
violent
felony
because
an
ABHAN
the
purposeful,
Br.
of
Amicus
violent,
14.
and
aggressive
test
under
Hemingway
agrees
that
Although
purposeful,
violent,
and
aggressive
test
established
in
Begay.
14
31
mental
state,
like
that
taken
by
the
defendant
in
conviction,
notwithstanding
the
purposeful,
violent,
and
771, 780 (4th Cir. 2011) (King, J., concurring in the judgment).
In short, Sykes makes it clear that Begay did not substitute the
purposeful, violent, and aggressive inquiry for the analysis
of
risk
that
is
already
identified
in
the
residual
clause.
32
C.
In sum, we rule today that ABHAN is not categorically an
ACCA violent felony and that the modified categorical approach
has no role to play in the decision of whether a common law
ABHAN offense is an ACCA violent felony.
compelled
to
vacate
Hemingways
As a result, we are
sentence
and
remand
for
resentencing.
IV.
Pursuant to the foregoing, we vacate Hemingways sentence
and
remand
for
resentencing
and
for
such
other
and
further
33