United States v. Leroy Hemingway

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4362

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

LEROY DEON HEMINGWAY,

Defendant – Appellant.

------------------------------

EVELINA JAN NORWINSKI,

Court-Assigned Amicus Counsel.

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: September 17, 2013 Decided: October 31, 2013

Before KING, SHEDD, and THACKER, Circuit Judges.

Vacated and remanded by published opinion. Judge King wrote the
opinion, in which Judge Shedd and Judge Thacker joined.

ARGUED: William Fletcher Nettles, IV, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Florence, South Carolina, for Appellant.
Thomas Ernest Booth, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellee. Justin Sanjeeve Antonipillai,
ARNOLD & PORTER, LLP, Washington, D.C., for Court-Assigned
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.

2
KING, Circuit Judge:

In November 2011, Leroy Deon Hemingway pleaded guilty in

the District of South Carolina to being a felon in possession of

a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1).

The district court sentenced Hemingway to fifteen years in

prison, ruling that he was subject to the mandatory fifteen-year

minimum required by the Armed Career Criminal Act (the “ACCA”),

see 18 U.S.C. § 924(e). On appeal, Hemingway maintains that the

court erred in relying on his 2002 South Carolina conviction for

the common law crime of assault and battery of a high and

aggravated nature (“ABHAN”) to impose the mandatory minimum

sentence. More specifically, Hemingway contends that ABHAN is

not categorically a predicate “violent felony” under the ACCA,

and that the court erred in ruling otherwise. The government

agrees with Hemingway that ABHAN is not categorically an ACCA

violent felony, but contends that use of the modified

categorical approach is appropriate and that, utilizing such an

approach, Hemingway’s ABHAN offense constitutes an ACCA violent

felony. As explained below, we agree with Hemingway and the

government that ABHAN is not categorically a violent felony. We

further conclude, contrary to the government’s position, that

the modified categorical approach has no role to play in this

matter. See Descamps v. United States, 133 S. Ct. 2276 (2013).

Accordingly, we vacate the judgment and remand for resentencing.

3
 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 minimum sentence. See 18 U.S.C.

§ 924(e)(1). The ACCA defines a “violent felony” as “any crime

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.

Id. § 924(e)(2)(B). Subsection (e)(2)(B)(i) is commonly

referred to as the “force clause.” As the Supreme Court has

recognized, the force clause applies only to those crimes that

involve “violent force — that is, force capable of causing

physical pain or injury to another person.” See Johnson v.

United States, 559 U.S. 133, 140 (2010). Subsection

(e)(2)(B)(ii) identifies enumerated offenses — burglary, arson,

extortion, and offenses involving the use of explosives — and

then contains an “otherwise involves” clause. That clause is

more commonly referred to as the “residual clause.” See

Chambers v. United States, 555 U.S. 122, 124 (2009).

4
 The residual clause of subsection (e)(2)(B)(ii) is the only

aspect of the ACCA at issue in this appeal. The government and

Hemingway quite properly agree that ABHAN — the South Carolina

common law crime at issue — neither satisfies the force clause

nor constitutes an enumerated offense. 1 Accordingly, an ABHAN

offense can be an ACCA violent felony only if, consistent with

the residual clause, it “otherwise involves conduct that

presents a serious potential risk of physical 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.” United States v. Harcum,

587 F.3d 219, 222 (4th Cir. 2009). These approaches stem from

the Supreme Court’s decision in Taylor v. United States, 495

U.S. 575 (1990), “which established the rule for determining

when a defendant’s prior conviction counts as one of ACCA’s

enumerated predicate offenses.” See Descamps v. United States,

1
At the time of Hemingway’s ABHAN conviction, ABHAN was a
South Carolina common law crime. In 2010, South Carolina
codified ABHAN as a felony offense. See S.C. Code Ann. § 16-3-
600(B)(1).

5
133 S. Ct. 2276, 2283 (2013). In Taylor, the Court adopted a

more “formal” elements-focused categorical approach that

authorized sentencing courts to “‘look only to the statutory

definitions’ — i.e., the elements — of a defendant’s prior

offenses, and not ‘to the particular facts underlying those

convictions.’” Descamps, 133 S. Ct. at 2283 (quoting Taylor,

495 U.S. at 600). The Taylor Court also recognized a “narrow

range of cases” where a sentencing court could utilize the

“modified categorical approach,” that is, “look beyond the

statutory elements to ‘the charging paper and jury

instructions’” pertaining to the underlying previous conviction.

See id. at 2283-84 (quoting Taylor, 495 U.S. at 602). The

Taylor Court contemplated that the modified categorical approach

would be used only when the definition of the offense of

conviction “comprises multiple, alternative versions of the

crime.” Id. at 2284. As explained in Descamps, “Taylor

permitted sentencing courts, as a tool for implementing the

categorical approach, to examine a limited class of documents to

determine which of a statute’s alternative elements formed the

basis of the defendant’s prior conviction.” Id. 2

2
In Shepard v. United States, the Supreme Court further
clarified the role and scope of the modified categorical
approach. See 544 U.S. 13 (2005). The Shepard decision made
clear that the “enquiry under the ACCA . . . is limited to the
terms of the charging document, the terms of a plea agreement or
(Continued)
6
 The central tenet of Taylor remains valid and applicable:

As a general proposition, to determine whether a previous

conviction is a violent felony, a sentencing court “employ[s]

the categorical approach” and, in using that approach, “‘look[s]

only to the fact of conviction and the statutory definition of

the prior offense, and do[es] not generally consider the

particular facts disclosed by the record of conviction.’” Sykes

v. United States, 131 S. Ct. 2267, 2272 (2011) (quoting James v.

United States, 550 U.S. 192, 202 (2007)). It bears repeating

that “[t]he categorical approach focuses on the elements of the

prior offense rather than the conduct underlying the

conviction.” United States v. Cabrera-Umanzor, 728 F.3d 347,

350 (4th Cir. 2013).

transcript of colloquy between judge and defendant in which the
factual basis for the plea was confirmed by the defendant, or to
some comparable judicial record of this information.” Id. at
26. Accordingly, pursuant to Shepard and its progeny, a
sentencing court can, in limited circumstances, “scrutinize a
restricted set of materials” to determine “which statutory
phrase was the basis for the conviction.” See Descamps, 133 S.
Ct. at 2284; see also United States v. Carthorne, 726 F.3d 503,
511 (4th Cir. 2013). As we have recently emphasized, a
sentencing court’s examination of Shepard documents, i.e., the
“limited universe of documents relevant to the underlying
conviction,” may be used “for the sole purpose of determining
which part of the statute the defendant violated.” United
States v. Gomez, 690 F.3d 194, 198 (4th Cir. 2012).

7
 2.

In June of this year, the Supreme Court rendered its

Descamps decision, which constitutes a vastly important

explication of the guiding legal principles concerning proper

utilization of the categorical approach and the modified

categorical approach. As the Court strongly reiterated, “the

modified approach serves a limited function” and applies only in

a “‘narrow range of cases.’” See Descamps, 133 S. Ct. at 2283

(quoting Taylor, 495 U.S. at 602). The Descamps Court then

assessed whether a California burglary conviction was for an

ACCA enumerated offense, emphasizing the limited role of the

modified categorical approach, i.e., simply to “help[]

effectuate the categorical analysis when a divisible statute,

listing potential offense elements in the alternative, renders

opaque which element played a part in the defendant’s

conviction.” Id. (emphasis added). Focusing on California’s

burglary statute, the Court determined that the modified

categorical approach had “no role to play” because the statute

was not divisible. Id. at 2285. The Court further concluded

that Descamps’s burglary offense was not categorically an ACCA

violent felony. Id. at 2293.

Notably, the Descamps decision underscored the validity of

the divisibility analysis that our Court had already employed.

See United States v. Gomez, 690 F.3d 194 (4th Cir. 2012). In

8
Gomez, Judge Floyd carefully explained that the categorical

approach — rather than the modified categorical approach — was

appropriate for deciding whether a Maryland child abuse

conviction was for a “crime of violence” under the Sentencing

Guidelines. See id. at 203. Applying the divisibility

analysis, Gomez recognized that “district courts may apply the

modified categorical approach to a statute only if it contains

divisible categories of proscribed conduct, at least one of

which constitutes — by its elements — a violent felony.” Id.

at 199.

Because Gomez and Descamps each involved statutory — rather

than common law — offenses, in that context those decisions are

distinguishable from the situation we face today. Indeed,

Descamps explicitly “reserve[d] the question whether, in

determining a crime’s elements, a sentencing court should take

account not only of the relevant statute’s text, but of judicial

rulings interpreting it.” 133 S. Ct. at 2291. The Court thus

left open the issue of whether the divisibility analysis also

applies to common law offenses. Likewise, Gomez did not address

the issue of whether the divisibility analysis applies to a

common law crime, because that appeal was concerned only with

“the divisions within a statute, not a common law crime.” 690

F.3d at 202.

9
 II.

Having identified certain of the applicable legal

principles, we turn to Hemingway’s contention on appeal — that

his South Carolina ABHAN conviction is not for an ACCA violent

felony. The relevant facts underlying his fifteen-year sentence

are not disputed.

On June 28, 2011, a grand jury returned an indictment

charging Hemingway with illegal possession of a firearm (a 9mm

Glock pistol) plus ammunition, having previously been convicted

of a felony, in violation of 18 U.S.C. § 922(g)(1) (Count One),

and possessing with intent to distribute cocaine base (or

“crack”), in contravention of 21 U.S.C. § 841(a)(1) (Count Two).

Hemingway pleaded guilty to Count One only, without a plea

agreement, on November 29, 2011. 3 The probation officer then

prepared Hemingway’s presentence report (the “PSR”),

recommending that his sentence be enhanced under the ACCA

because four of his previous convictions were for ACCA predicate

offenses. 4 According to the PSR, the applicable Guidelines range

3
After Hemingway pleaded guilty to Count One, the district
court, on motion of the government at the plea proceeding,
dismissed Count Two without prejudice.
4
Hemingway’s ACCA predicate offenses, as identified in the
PSR, were all state crimes in South Carolina. The record shows:
(1) a conviction in 1998 for attempted strong arm robbery; (2)
convictions in 2001 for possession with intent to distribute
crack and possession with intent to distribute crack within
(Continued)
10
was 180 to 188 months (reflecting the ACCA’s statutory minimum

of fifteen years, i.e., 180 months).

On January 11, 2012, Hemingway interposed his objections to

the PSR, asserting that two of the four crimes identified in the

PSR — ABHAN and its lesser included offense of assault of a high

and aggravated nature (“AHAN”) — are not predicate offenses

under ACCA because they do not constitute ACCA violent felonies.

More specifically, Hemingway maintained that neither ABHAN nor

AHAN are violent felonies under the categorical approach because

they can each be committed negligently and without violent

injury. Hemingway further contended that his ABHAN and AHAN

offenses cannot constitute ACCA violent felonies under the

modified categorical approach because the relevant South

Carolina indictments were inadequate to the job of employing

that approach.

Strikingly, Hemingway was not charged in the South Carolina

indictments with either ABHAN or AHAN. Rather, on September 25,

2001, a two-count indictment was returned in Horry County

charging Hemingway with lynching in the second degree and

close proximity of a school (counted together as a single ACCA
predicate offense); (3) the 2002 ABHAN conviction; and (4) a
conviction in 2002 for assault of a high and aggravated nature
(“AHAN”). Hemingway does not dispute that attempted strong arm
robbery and possession with intent to distribute are ACCA
predicate offenses.

11
rioting. According to the state court’s sentencing sheet

concerning that indictment, Hemingway pleaded guilty to the AHAN

offense on June 11, 2002. On April 29, 2002, a single-count

indictment was returned in Horry County, charging Hemingway with

assault with intent to kill. The state court’s sentencing sheet

regarding that indictment indicates that Hemingway pleaded

guilty to the ABHAN offense, and that the plea proceedings were

also concluded on June 11, 2002.

The PSR rejected Hemingway’s contention that his ABHAN

conviction could not be for an ACCA predicate offense under the

categorical approach. Relying on two unpublished opinions,

United States v. Wiley, 449 F. App’x 269 (4th Cir. Oct. 12,

2011), and United States v. Moultrie, 445 F. App’x 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. During the April

26, 2012 sentencing hearing, the government argued that

Hemingway’s ABHAN conviction was for an ACCA violent felony

under both the categorical approach and the modified categorical

approach.

At the conclusion of the sentencing hearing, the district

court ruled that Hemingway’s ABHAN offense is an ACCA violent

12
felony. 5 In so doing, the court first observed that the modified

categorical approach was inapplicable to Hemingway’s ABHAN

conviction because he “did not plead as indicted” and thus the

indictment could not be used to ascertain the nature of his

ABHAN offense. J.A. 43. 6 The court then turned to the

categorical approach. After surveying the applicable South

Carolina legal principles, the court agreed with the parties

that ABHAN is not categorically a violent felony under the

ACCA’s force clause, recognizing that the “South Carolina courts

have interpreted ABHAN to include both forceful and nonforceful

conduct.” Id. at 48. The court then determined, however, that

ABHAN is nevertheless a violent felony under the residual

clause. Id. at 50. As a result, the court adopted the PSR and

sentenced Hemingway to fifteen years (180 months) in prison.

Hemingway filed a timely notice of appeal, and we possess

jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C.

§ 1291. Because the government has altered its position on

5
Neither the probation officer nor the sentencing court
addressed Hemingway’s objection to use of the AHAN conviction.
Because Hemingway does not dispute the proposition that two of
his other previous convictions — for attempted strong arm
robbery and possession with intent to distribute — were for ACCA
predicate offenses, the court’s ruling that ABHAN is an ACCA
violent felony was sufficient to trigger the fifteen-year
minimum sentence.
6
Our citations herein to “J.A. __” refer to the contents of
the Joint Appendix filed by the parties in this appeal.

13
appeal and now concedes that ABHAN is not categorically an ACCA

violent felony, we assigned amicus counsel (the “Amicus”) to

brief and argue the legal position adopted by the sentencing

court — that ABHAN is categorically an ACCA violent felony. 7

III.

The issue we must resolve in this appeal is whether ABHAN

constitutes a “violent felony” under the ACCA. Whether a prior

offense is an ACCA violent felony is a question of law that we

review de novo. See United States v. White, 571 F.3d 365, 367

(4th Cir. 2009). Contrary to its position at sentencing, the

government agrees with Hemingway on appeal that the district

court erred in utilizing the categorical approach to rule that

his ABHAN conviction was for an ACCA violent felony. The

government maintains, however, that the court essentially

committed harmless error in that the ABHAN conviction should be

analyzed under the modified categorical approach, and that the

record shows that Hemingway’s ABHAN conviction was for an ACCA

violent felony. For his part, Hemingway agrees with the

government that an ABHAN offense is not categorically an ACCA

7
The Amicus lawyers — particularly Mr. Antonipillai, who
argued the legal position adopted by the district court — have
ably discharged their duties, and the Court commends their
efforts.

14
violent felony, but contends that, pursuant to Descamps v.

United States, 133 S. Ct. 2273 (2013), and its progeny, the

modified categorical approach has no role to play in these

proceedings. Hemingway thus seeks appellate relief by way of a

judgment vacating his sentence and remanding for resentencing.

Finally, the Amicus argues that the district court got the

sentence right from a legal standpoint — maintaining that

Descamps has no application here, that the categorical approach

applies, that ABHAN is categorically an ACCA violent felony, and

that Hemingway’s fifteen-year sentence should be affirmed.

A.

The first step of our review relates to whether the

district court properly applied the categorical approach or, as

the government now maintains, whether the court should have

analyzed Hemingway’s ABHAN conviction under the modified

categorical approach. As explained below, Descamps and its

progeny control our disposition on this point. In the post-

Descamps world, “the modified categorical approach is applicable

only ‘when a defendant was convicted of violating a divisible

statute,’ and then, only ‘to determine which statutory phrase

was the basis for the conviction.” United States v. Carthorne,

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, a criminal offense is

15
“divisible” only “when a statute lists multiple, alternative

elements, and so effectively creates ‘several

different . . . crimes.’” Descamps, 133 S. Ct. at 2285 (quoting

Nijhawan v. Holder, 557 U.S. 29, 41 (2009)).

1.

Although none of our sister circuits have applied

Descamps’s divisibility analysis to a common law offense in an

ACCA setting, we agree with Hemingway and the government that

such an application is entirely appropriate. There is simply no

material distinction that can be made between common law and

statutory offenses in this context. As a practical matter,

state criminal statutes, for the most part, codify existing

common law crimes. See United States v. Walker, 595 F.3d 441,

444 (2d Cir. 2010) (“Indeed, criminal statutes often incorporate

elements of common law offenses, and in these circumstances, we

have looked to the common law to determine whether the prior

conviction was a qualifying predicate offense.”). In multiple

instances, state criminal statutes define offenses by reference

to the common law, leaving reviewing courts to fill in the

essential elements. See, e.g., Carthorne, 726 F.3d at 512

(explaining that “[t]he terms ‘assault’ and ‘battery’ are not

defined 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
defined to mean the crimes of assault, battery, and assault and

battery, which retain their judicially determined meanings”

(internal quotation marks omitted)).

Our Court has consistently deferred to the state courts in

identifying the elements of state common law offenses. 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. But the Maryland

case law fully articulates them”). Furthermore, it is well-

settled that a common law offense can be a predicate offense

under the ACCA and the Guidelines. See, e.g., United States v.

Jenkins, 631 F.3d 680 (4th Cir. 2011) (employing categorical

approach and holding that Maryland common law offense of

resisting arrest is “crime of violence” for purposes of

Guidelines); United States v. Coleman, 158 F.3d 199, 204 (4th

Cir. 1998) (en banc) (applying modified categorical approach and

holding that “a Maryland conviction for common-law assault is

not per se a ‘violent felony’”). The foregoing principle is

also consistent with the views of our sister circuits. See

Walker, 595 F.3d at 444 (observing that, although Taylor and

Second Circuit precedent do not, “by their terms, apply to

statutory offenses, neither . . . suggests that the analysis is

different with respect to common law crimes, nor is there any

reason in principle that it should be”); United States v.

17
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,

nothing in its decision suggests that a divisibility analysis

does not apply with equal force to a common law offense. In

explaining the bases for its decision, the Court carefully

reviewed the “three grounds for establishing [its] elements-

centric, formal categorical approach” in Taylor and emphasized

the continuing persuasiveness of each. See Descamps, 133 S. Ct.

at 2287-89 (citing Taylor v. United States, 495 U.S. 575, 600-02

(1990)). The Descamps Court first assessed the statutory text

and history of the ACCA, explaining that its statutory term

“previous convictions” plainly suggests that “‘Congress intended

the sentencing court to look only to the fact that the defendant

had been convicted of crimes falling within certain categories,

and not to the facts underlying the prior convictions.’” Id. at

2287 (quoting Taylor, 495 U.S. at 599). The Court also

emphasized the “categorical approach’s Sixth Amendment

underpinnings,” given that, “[u]nder ACCA, the court’s finding

of a predicate offense indisputably increases the maximum

penalty.” Id. at 2288. As the Court reasoned, such a finding

18
“would (at the least) raise serious Sixth Amendment concerns if

it went beyond merely identifying a prior conviction.” Id.

Finally, the Court cautioned against the “difficulties and

inequities” inherent in the modified categorical approach,

particularly where the underlying conviction results from a

guilty plea. Id.

The initial reasons articulated in Descamps for use of the

divisibility analysis — first, the text and history of the ACCA,

and, second, Sixth Amendment concerns — forcefully support the

proposition that the same analysis must be applied to common law

crimes. Put simply, nothing in the ACCA suggests that Congress

intended for the courts to consider only the fact of conviction

for a statutory offense, but to examine the facts underlying a

conviction for a common law crime. In addition, designating a

common law crime as an ACCA predicate offense presents the

identical Sixth Amendment concerns as those arising when the

previous conviction was a statutory offense. Finally,

Descamps’s third reason for use of the divisibility analysis —

the difficulties and inequities that would arise from looking

beyond the fact of conviction — may well be of greater concern

in the context of common law crimes. To be sure, common law

offenses are often not as clearly defined as their statutory

counterparts, and thus may be more susceptible to disparate

treatment from the sentencing courts.

19
 In these circumstances, we are satisfied to conclude that

the Descamps divisibility analysis is applicable to the question

of whether a common law offense constitutes an ACCA predicate

crime. Adopting the language of the Supreme Court, the modified

categorical approach has “no role to play” where the previous

crime was an indivisible common law offense. See Descamps, 131

S. Ct. at 2285.

2.

In evaluating a state court conviction for ACCA predicate

offense purposes, a federal court is “bound by the [state

supreme court’s] interpretation of state law, including its

determination of the elements of” the potential predicate

offense. Johnson v. United States, 559 U.S. 133, 138 (2010).

In that respect, the Supreme Court of South Carolina has ruled

that “[t]he elements of ABHAN are . . . [1] the unlawful act of

violent injury to another, accompanied by [2] circumstances of

aggravation.” State v. Easler, 489 S.E.2d 617, 624 (S.C. 1997).

That court has explained the aggravation element of ABHAN in the

following terms:

The circumstances of aggravation include: use of a
deadly weapon, infliction of serious bodily injury,
intent to commit a felony, disparity in age, physical
condition or sex, indecent liberties, purposeful
infliction of shame, resistance of lawful authority,
and others.

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 the South Carolina decisions that the

judiciary’s list of circumstances of aggravation is non-

exhaustive. Although the South Carolina courts have provided

several examples of “circumstances of aggravation,” they have

never “list[ed] potential offense elements in the alternative,”

so as to warrant our application of the modified categorical

approach. See Descamps, 133 S. Ct. at 2283. 8 Importantly, the

Descamps Court explicitly rejected the idea that there is no

“real distinction between divisible and indivisible statutes,”

because an indivisible statute “creates an implied list of every

means of commission that otherwise fits the definition of a

given crime.” Id. at 2289 (internal quotation marks omitted).

As the Court observed, a court could always create an implied

list, “[b]ut the thing about hypothetical lists is that they

are, well, hypothetical.” Id. at 2290. By way of example, the

8
We are unable to adopt the government’s suggestion that
the courts of South Carolina have, through “custom and
practice,” turned the non-exhaustive list of circumstances of
aggravation into an exhaustive one. Notably, the government
offers no evidence that any South Carolina court has limited the
second element of ABHAN to the aggravating circumstances
provided in the often-utilized list. Furthermore, the South
Carolina legislature, when it codified ABHAN, failed to define
ABHAN by reference to any aggravating circumstances or elements.
See S.C. Code Ann. § 16-3-600(B)(1); see also supra note 1.

21
Court explained that “[a]s long as the statute itself requires

only an indeterminate ‘weapon,’ that is all the indictment must

(or is likely to) allege . . . [a]nd most important, that is all

the jury must find to convict the defendant.” Id.

The “circumstances of aggravation” consistently identified

by the South Carolina courts are neither elements nor

subelements of ABHAN. Instead, they simply identify specific

ways the second element of ABHAN can be satisfied. As our good

Chief Judge recently observed, “alternative means” of committing

an offense, “rather than elements,” are “simply irrelevant to

our inquiry” under the ACCA. See Cabrera-Umanzor, 728 F.3d at

353. Because ABHAN, as defined by the courts of South Carolina,

“‘does not concern any list of alternative elements,’ the

modified categorical approach ‘has no role to play.’” See

United States v. Royal, ___ F.3d ___, No. 10-5296, 2013 WL

5433630, at *7 (4th Cir. Oct. 1, 2013) (quoting Descamps, 133 S.

Ct. at 2285). Consistent with the foregoing, the question of

whether an ABHAN conviction is for an ACCA violent felony must

be determined, as the district court ruled, solely by

application of the categorical approach. 9

9
Our decision today that ABHAN must — for ACCA purposes —
be analyzed under the categorical approach is not undercut by
earlier unpublished decisions suggesting that it might be
appropriate to assess whether an ABHAN offense is a violent
felony (or crime of violence) under the modified categorical
(Continued)
22
 B.

Having concluded that the categorical approach is the

appropriate method of analysis, we must decide whether the

sentencing court erred in ruling that ABHAN is categorically an

ACCA violent felony. 10 The government — reversing the position

that it espoused at sentencing — has now conceded that ABHAN is

not categorically an ACCA violent felony, and Hemingway agrees

with the government on this point. The Amicus contends,

however, that Hemingway’s ACCA sentence should be affirmed as

approach. See, e.g., United States v. Wells, 484 F. App’x 756,
757 (4th Cir. June 22, 2012) (vacating decision that ABHAN is
categorically a Guidelines crime of violence); United States v.
Hamilton, 480 F. App’x 217, 219 (4th Cir. May 10, 2012)
(vacating decision that ABHAN is categorically an ACCA violent
felony); United States v. Johnson, 475 F. App’x 494, 496 (4th
Cir. Apr. 12, 2012) (vacating decision that ABHAN is
categorically a crime of violence); United States v. Ward, 439
F. App’x 258, 259 (4th Cir. July 18, 2011) (affirming
application of modified categorical approach and “[a]ssuming
without deciding that ABHAN is not a crime of violence per se”).
These unpublished decisions are simply not controlling precedent
and, more importantly, they predate Descamps.

Our decision in United States v. Spence, 661 F.3d 194 (4th
Cir. 2011), similarly does not undercut our ruling today. In
Spence, we applied the modified categorical approach and
determined that an ABHAN conviction qualified as a predicate
offense under 18 U.S.C. § 2252A(b)(2) — the “sexual abuse
enhancement.” Spence thus relates to a distinct sentencing
provision and also predates Descamps.
10
Because the categorical approach applies in this case, we
need not resolve whether, as the government asserts, the
indictment that resulted in Hemingway’s ABHAN conviction could
support use of the modified categorical analysis.

23
imposed under the categorical approach. According to the

Amicus, we are bound by our precedent of United States v.

Wright, 594 F.3d 259 (4th Cir. 2010), to rule that ABHAN is

categorically a violent felony. In addition to relying on

Wright, the Amicus maintains, consistent with the position

adopted by the sentencing court, that ABHAN is categorically an

ACCA violent felony under Supreme Court precedent. We analyze

these issues — whether Wright is controlling precedent and, if

not, whether ABHAN is nevertheless categorically an ACCA violent

felony — in turn.

1.

We begin with Wright, where the central issue was whether

Wright’s three juvenile convictions were ACCA predicate

offenses, not whether ABHAN was categorically an ACCA violent

felony. It was undisputed that Wright had an adult ABHAN

conviction, but Wright did not present any appellate issue

relating to the use of that ABHAN conviction as an ACCA

predicate offense. Our opinion briefly discussed the ABHAN

conviction, referencing only the force clause and stating,

without elaboration, that “Wright’s adult conviction for [ABHAN]

plainly counts as one of the required three predicate violent

felony convictions.” Wright, 594 F.3d at 263.

Notwithstanding the Amicus’s characterization of Wright as

controlling precedent, that decision does not dictate the

24
outcome of this appeal. Put simply, the issue before us here —

whether ABHAN is categorically an ACCA violent felony — was not

contested in Wright. Moreover, Wright solely (and merely

summarily) addressed whether an ABHAN offense was a violent

felony under the force clause. An ACCA analysis under the force

clause — whether an offense “has as an element the use,

attempted use, or threatened use of physical force,” see

§ 924(e)(2)(B)(i), — is distinct from the residual clause

analysis that we employ today. In any event, Wright predates

Johnson — the Supreme Court’s most recent force clause decision

— which explained that a crime only satisfies the force clause

when it requires “violent force — that is, force capable of

causing physical pain or injury to another person.” See

Johnson, 559 U.S. at 140. As the government properly concedes,

Johnson precludes reliance on the force clause to count ABHAN as

an ACCA predicate offense because ABHAN can be committed “even

if no real force was used against the victim.” See State v.

Primus, 564 S.E.2d 103, 106 n.4 (S.C. 2002). In these

circumstances, we are not compelled by Wright to deem ABHAN to

be an ACCA violent felony. 11

11
The district court did not rely on Wright, although the
court did discuss United States v. Wiley, 449 F. App’x 269 (4th
Cir. Oct. 12, 2011), and United States v. Moultrie, 445 F. App’x
630 (4th Cir. Sept. 6, 2011), unpublished decisions that invoke
(Continued)
25
 2.

a.

Looking beyond Wright, we assess whether ABHAN is yet

categorically an ACCA violent felony. If we were deciding

whether a previous crime qualifies as an ACCA violent felony by

virtue of being an enumerated offense, we would be called upon

to “compare the elements of the statute forming the basis of the

defendant’s conviction with the elements of the ‘generic’ crime

— i.e., the offense as commonly understood.” Descamps, 133 S.

Ct. at 2281. As the Supreme Court explained, “[i]f the relevant

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. See United

States v. Torres-Miguel, 701 F.3d 165, 170 (4th Cir. 2012)

(explaining that “[t]o require a defendant to demonstrate that

Wright for the proposition that ABHAN is a violent felony. See
J.A. 44-47. Nevertheless, the court recognized, as we do
herein, that ABHAN does not satisfy the force clause because
“South Carolina courts have interpreted ABHAN to include both
forceful and nonforceful conduct as defined by the Supreme Court
in . . . Johnson.” Id. at 48.

26
his prior state offense does not fall within this residual

category by proving that it is not a ‘generic’ ‘other offense’

is to require the impossible, for there is no generic ‘other

offense.’”). In certain circumstances, however, a generic crime

comparison is an essential aspect of a residual clause analysis.

The Supreme Court’s 2007 decision in James v. United States

establishes that point. See 550 U.S. 192 (2007). There, in

assessing whether James’s attempted burglary conviction was an

ACCA violent felony under the residual clause, the Court

identified the relevant inquiry as “whether the risk posed by

the [crime] is comparable to that posed by its closest analog

among the enumerated offenses.” Id. at 203 (emphasis added).

Because an attempted burglary offense could be readily compared

to one of the enumerated offenses (i.e., burglary), the

appropriate inquiry was guided by comparing James’s attempted

burglary offense to the “generic” definition of burglary. 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 offense (a “DUI”) qualified as an ACCA

violent felony. See 553 U.S. 137 (2008). There, the Court

distinguished a DUI from ACCA’s enumerated offenses because “the

listed crimes all typically involve purposeful, violent, and

aggressive conduct.” Id. at 144-45. In contrast, the Court

27
explained, a DUI is “most nearly comparable to crimes that

impose strict liability, criminalizing conduct in respect to

which the offender need not have had any criminal intent at

all.” Id. at 145 (internal punctuation omitted). Cognizant

that the enumerated offenses “illustrate the kinds of crimes

that fall within the statute’s scope” and “[t]heir presence

indicates that the statute covers only similar crimes, rather

than every crime that presents a serious potential risk of

physical injury to another,” id. at 141, the Court ruled that a

DUI is not categorically an ACCA violent felony, id. at 147.

Three years after Begay, in 2011 in Sykes, the Court

explained that “[i]n general, levels of risk divide crimes that

qualify from those that do not,” and Begay’s “purposeful,

violent, and aggressive” inquiry “has no precise textual link to

the residual clause.” 131 S. Ct. at 2275. The Court also

clarified that “[i]n many cases the purposeful, violent, and

aggressive inquiry will be redundant with the inquiry into risk,

for crimes that fall within the former formulation and those

that present serious potential risks of physical injury to

others tend to be one and the same.” Id.

b.

In this appeal, the relevant residual clause inquiry,

applying the categorical approach, is whether an ABHAN offense

presents the same “serious potential risk of physical injury” as

28
the ACCA’s enumerated offenses — “burglary, arson, or extortion,

[or offenses that] involve[] use of explosives.” Begay, 553

U.S. at 144. 12 The Supreme Court has explained that the

enumerated offenses limit the residual clause “to crimes that

are roughly similar, in kind as well as in degree of risk posed,

to the examples themselves.” Id. at 142.

An ABHAN offense can, as the South Carolina courts have

shown, involve a variety of aggravating circumstances. Given

the spectrum of such circumstances — from “purposeful infliction

of shame” to the use of a deadly weapon — it is clear that there

are varying degrees of “potential risk of physical injury”

presented, depending on the circumstances of the particular

offense. We are, however, tasked with assessing the predicate

offense “‘generically, that is to say, we examine it in terms of

how the law defines [it] and not in terms of how an individual

12
Although the government concedes that ABHAN is not an
ACCA enumerated crime, it suggests that we should, in deciding
whether ABHAN is an ACCA violent felony, look to the Guidelines,
which contains a more extensive list of enumerated offenses.
See, e.g., USSG § 2L1.2 cmt. n.1(b)(iii); id. § 4B1.2 cmt. n.1.
Even if we were to import additional enumerated offenses into
the ACCA, however, the “closest analog” to ABHAN would be
“aggravated assault,” and the government has conceded that ABHAN
is not categorically a generic aggravated assault. See Br. of
Appellee 14.

29
offender might have committed it on a particular occasion.’”

Jenkins, 631 F.3d at 684 (quoting Begay, 553 U.S. at 141). 13

Because the first element of an ABHAN offense — a violent

injury — can be satisfied even though “no actual bodily harm was

done,” State v. DeBerry, 157 S.E.2d 637, 640 (S.C. 1967), this

element does not suggest that an ABHAN offense presents the same

“serious potential risk of physical injury” as one of the ACCA’s

enumerated offenses. The second ABHAN element, the presence of

circumstances of aggravation, can be satisfied simply by

showing, for example, a disparity in age, and such a showing

13
In Jenkins, we examined whether the Maryland common law
crime of resisting arrest qualified as a “crime of violence” for
purposes of Guidelines section 4B1.1. Our decisions on whether
a previous conviction constitutes a “crime of violence” under
the Guidelines are relied upon interchangeably with precedents
evaluating whether a previous conviction constitutes a “violent
felony” under the ACCA, “because the two terms have been defined
in a manner that is substantively identical.” United States v.
Gomez, 690 F.3d 194, 197 (4th Cir. 2012) (internal quotation
marks omitted) (emphasis added); see United States v. King, 673
F.3d 274, 279 (4th Cir. 2012).

Our reliance on Guidelines decisions is necessarily
limited, however, to those situations involving “substantively
identical” residual clauses. Although decisions interpreting
enumerated offenses or force clauses may provide useful
guidance, particularly with respect to the question of whether
and how to apply the categorical or modified categorical
approach, these decisions are unlikely to be pertinent to the
ultimate issue of whether an offense constitutes an ACCA violent
felony under the residual clause. See, e.g., United States v.
Rede-Mendez, 680 F.3d 552, 555 n.2 (6th Cir. 2012) (observing
that “[c]ases analyzing the residual clauses” are “not
pertinent” to analysis of offenses under force clause of
Guidelines section 4B1.2).

30
fails to present a degree of risk similar to that posed by the

ACCA’s enumerated offenses. Taken together, these elements

demonstrate that an ABHAN offense, in the generic sense, does

not pose the degree of risk required to come within the residual

clause. Accordingly, we are satisfied that ABHAN is not

categorically an ACCA violent felony. 14

c.

Finally, the Amicus argues that, applying the Supreme

Court’s decisions in Begay and Sykes, we should rule that ABHAN

is categorically an ACCA violent felony because “an ABHAN

conviction may be sustained based on reckless conduct,” and thus

“meets the purposeful, violent, and aggressive test under

Begay.” Br. of Amicus 14. Although Hemingway agrees that

ABHAN’s requisite mental state of recklessness is a relevant

factor, he maintains that proof of recklessness does not satisfy

the purposeful, violent, and aggressive test established in

Begay.

14
Because ABHAN is not categorically an ACCA violent
felony, we need not separately analyze Hemingway’s conviction
for AHAN, which is “a lesser included offense of ABHAN, without
the completed act of violence,” State v. Murphy, 471 S.E.2d 739,
741 (S.C. Ct. App. 1996). Our determination that ABHAN is not
categorically an ACCA violent felony leads inescapably to the
conclusion that AHAN is also not categorically an ACCA violent
felony.

31
 We need not address the question of whether ABHAN satisfies

this inquiry under Begay, however, because the focus on ABHAN’s

requisite mental state, like that taken by the defendant in

Sykes, simply “overreads the opinions of [the Supreme] Court.”

Sykes, 131 S. Ct. at 2275. The appropriate “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.” United States v. Vann, 660 F.3d

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.

Because an ABHAN offense does not pose an equivalent “serious

potential risk of physical injury” as the enumerated offenses,

we need not undertake a redundant inquiry into the requisite

mental state for an ABHAN offense. 15

15
As the parties emphasize in their various submissions,
the question of whether ABHAN is categorically an ACCA violent
felony has received some inconsistent answers in our Court. In
several of our unpublished post-Begay decisions, our Court
considered ABHAN to be a categorically “violent felony” for
purposes of the ACCA, as well as a “crime of violence” for
purposes of the Guidelines. See, e.g., Wiley, 449 F. App’x at
270; Moultrie, 445 F. App’x at 631; United States v. Brunson,
292 F. App’x 259, 262 (4th Cir. Sept. 11, 2008). These
decisions, of course, are not binding and were rendered prior to
both Sykes and Descamps.

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. As a result, we are

compelled to vacate Hemingway’s sentence and remand for

resentencing.

IV.

Pursuant to the foregoing, we vacate Hemingway’s sentence

and remand for resentencing and for such other and further

proceedings as may be appropriate.

VACATED AND REMANDED

33