United States v. Fabian Montes-Flores

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4760

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

FABIAN MONTES-FLORES,

Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Charleston. Richard M. Gergel, District
Judge. (2:11-cr-02292-RMG-1)

Argued: September 17, 2013 Decided: November 26, 2013

Before KING, SHEDD, and THACKER, Circuit Judges.

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

ARGUED: Kimberly Harvey Albro, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Columbia, South Carolina, for Appellant. Robert
Nicholas Bianchi, OFFICE OF THE UNITED STATES ATTORNEY,
Charleston, South Carolina, for Appellee. ON BRIEF: Ann Briks
Walsh, Assistant Federal Public Defender, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Charleston, South Carolina, for Appellant.
William N. Nettles, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Columbia, South Carolina, for Appellee.
THACKER, Circuit Judge:

Appellant Fabian Montes-Flores (“Appellant”)

challenges his sentence of 46 months imprisonment, imposed as a

result of his conviction pursuant to a violation of 8 U.S.C.

§ 1326 for illegal reentry into the United States after being

previously removed. In this appeal, Appellant argues the

district court erred by employing the modified categorical

approach to determine that his prior conviction for assault and

battery of a high and aggravated nature (“ABHAN”) under South

Carolina law was a “crime of violence” for purposes of the 16-

level enhancement authorized by the Sentencing Guidelines. See

United States Sentencing Guideline (“U.S.S.G.”)

§ 2L1.2(b)(1)(A)(ii) (2012). Because we find the district

court’s application of the modified categorical approach to

ABHAN -- an indivisible common law crime -- was in error, we

vacate Appellant’s sentence and remand for resentencing.

I.

A.

On June 12, 2010, Charleston, South Carolina police

officers initiated a traffic stop on a vehicle in which

Appellant was a passenger. The officers noticed an open

container of alcohol and asked the driver and Appellant to exit

the vehicle. As Appellant was exiting the vehicle, an officer

observed a handgun sticking out from underneath a towel on

2
Appellant’s seat. The handgun was a revolver, and it was loaded

with six rounds of .357 ammunition. Police officers found three

additional rounds of .357 ammunition in Appellant’s pocket.

Appellant was charged with unlawful carrying of a firearm in

violation of South Carolina law.

On June 17, 2010, an Immigration and Customs

Enforcement (“ICE”) agent received Appellant’s fingerprints from

the Charleston County Detention Center. An ICE Special Agent

then determined Appellant had previously been deported in May

2008, following a 2006 conviction for ABHAN in South Carolina

state court. The South Carolina ABHAN indictment to which

Appellant pled guilty alleged:

That [Appellant] did in Charleston County on or about
March 27, 2006 commit an assault and battery upon [the
victim], constituting an unlawful act of violent
injury to [the victim], to wit: [Appellant] assaulted
the victim causing physical injury threatening her
safety, accompanied by circumstances of aggravation
including, but not limited to: use of his hands. This
is in violation of the Common Law of the State of
South Carolina.

J.A. 48. 1

On November 8, 2011, a federal grand jury in the

District of South Carolina returned a two-count indictment

charging Appellant with illegal reentry after a prior removal

1
Citations herein to “J.A. ____” refer to the contents of
the Joint Appendix filed by the parties in this appeal.

3
for a conviction of an aggravated felony, in violation of 8

U.S.C. §§ 1326(a) and (b)(2), 2 and with being an illegal alien in

possession of a firearm and ammunition, in violation of 18

U.S.C. §§ 922(g)(5)(A), 924(a)(2), and 924(e). On June 7, 2012,

Appellant entered a guilty plea to the illegal reentry charge,

and the Government agreed to dismiss the remaining firearm and

ammunition charge. During the plea proceeding, Appellant

reserved the right to argue at sentencing that he was guilty of

illegal reentry after a felony conviction, as opposed to illegal

reentry after an aggravated felony conviction. 3

2
As we have observed, “the substantive crime of illegal
reentry is defined in subsection (a), and not subsection
(b)(2).” United States v. Matamoros-Modesta, 523 F.3d 260, 262
n.4 (4th Cir. 2008). “[S]ubection (b)(2) ‘is a penalty
provision, which simply authorizes a court to increase the
sentence for a recidivist. It does not define a separate
crime.’” Id. (quoting Almendarez-Torres v. United States, 523
U.S. 224, 226 (1998)).
3
Whether a prior conviction is considered a “felony” or an
“aggravated felony” affects both the statutory maximum and
Sentencing Guidelines calculation. The statutory maximum for
illegal reentry after a felony is ten years, see 8 U.S.C.
§ 1326(b)(1), while the statutory maximum for illegal reentry
after an aggravated felony is 20 years, id. § 1326 (b)(2). As
for the Sentencing Guidelines, a prior conviction for a felony
increases the offense-level calculation by four levels, see
U.S.S.G. § 2L1.2(b)(1)(D), while a prior conviction for an
aggravated felony increases the offense-level calculation by
eight levels, id. § 2L1.2(b)(1)(C). In addition, a prior
conviction for a “crime of violence” increases the offense-level
calculation by 16 levels. Id. § 2L1.2(b)(1)(A)(ii). The
district court will apply the greatest of the potential
enhancements.

4
 B.

Before sentencing, the United States Probation Office

completed a Presentence Investigation Report (“PSR”). The PSR

calculated Appellant’s base offense level under U.S.S.G. § 2L1.2

(the “illegal reentry Guideline”) as eight, but it added a 16-

level enhancement for Appellant’s prior ABHAN conviction, which

the PSR classified as a “crime of violence” under U.S.S.G.

§ 2L1.2(b)(1)(A)(ii). After a three-level reduction for

acceptance of responsibility, the PSR set Appellant’s total

offense level at 21. The offense level, considered in

combination with Appellant’s applicable criminal history

category -- calculated at III -- provided for an advisory

Guidelines range of 46 to 57 months.

Both before and during his sentencing hearing,

Appellant argued that his prior conviction for ABHAN should not

be considered a “crime of violence” under the illegal reentry

Guideline. Citing our decision in United States v. Gomez, 690

F.3d 194, 200 (4th Cir. 2012), Appellant urged the district

court to employ the categorical approach in considering whether

ABHAN is a crime of violence because “the South Carolina crime

of ABHAN is a single, broad crime which may be committed in both

violent and non-violent ways, both with and without force.”

J.A. 43-44. In the alternative, Appellant argued ABHAN is not a

crime of violence even under the modified categorical approach.

5
The Government, however, asserted that ABHAN is a crime of

violence under the modified categorical approach. Relying on

several of our unpublished decisions, the Government maintained

that employing the modified categorical approach was appropriate

because “[t]he 4th Circuit has recently remanded a number of

cases involving ABHAN convictions in order for the District

Court to apply a modified categorical approach.” Id. at 51.

At the sentencing hearing held on September 18, 2012,

the district court applied the modified categorical approach,

noting that doing so seemed “to be consistent with the case

law.” J.A. 61. After reviewing the indictment and sentencing

sheet for Appellant’s ABHAN conviction, 4 the district court

concluded Appellant’s prior ABHAN conviction constituted a crime

of violence under the modified categorical approach. In so

concluding, the district court stated Appellant’s ABHAN

conviction was “an offense in which the use, attempted use[,] or

threatened use of physical force was involved.” Id. at 76.

Accordingly, the district court held that a 16-level enhancement

4
Appellant’s ABHAN sentencing sheet is a form document used
by South Carolina courts. It simply reflects Appellant’s plea
of guilty on June 29, 2006, for his ABHAN charge. See J.A. 47.

6
under the illegal reentry Guideline was appropriate. 5 See

U.S.S.G. § 2L1.2(b)(1)(A)(ii).

After considering the Sentencing Guidelines, as well

as the factors set forth in 18 U.S.C. § 3553(a), the district

court imposed a sentence of 46 months imprisonment, at the

bottom of the advisory Guidelines range. In explaining its

sentence, the district court noted, “there is something to be

said that defendant continues to be engaged in conduct that is

potentially very dangerous to people and violating the law.”

J.A. 90. The court continued, “I think Mr. Montes-Flores is

telling us he is a potential danger to the public. And you

know, I have a concern about trying to get his attention not to

try to return across the border.” Id. at 91. The district

court concluded by explaining that it sought to deter Appellant

by imposing a sentence “that would cause him to be disinclined

to again violate the borders of the United States.” Id. at 95.

5
Although at times it referred to ABHAN as an “aggravated
felony,” see J.A. 90, 95, the district court did not decide
whether Appellant’s ABHAN conviction constituted a “felony” or
an “aggravated felony” for purposes of enhancement under the
illegal reentry Guideline. At the commencement of the
sentencing hearing, the district court explained, “as a
practical matter, the maximum sentence here is largely
irrelevant” and “the important issue here which we need to hash
out is whether [ABHAN] in South Carolina is a crime of
violence.” Id. at 60-61. Therefore, because the district court
concluded ABHAN is a crime of violence, it did not address any
alternative enhancements under U.S.S.G. § 2L1.2(b)(1)(C)
(aggravated felony) or U.S.S.G. § 2L1.2(b)(1)(D) (felony).

7
The district court entered its judgment order on September 19,

2012, and Appellant timely noted this appeal. We have

jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C.

§ 3742(a).

II.

“Whether the district court erred in characterizing a

defendant’s crime as a ‘crime of violence’ for sentence

enhancement purposes is a question of law, which we review de

novo.” United States v. Gomez, 690 F.3d 194, 197 (4th Cir.

2008). “We rely on precedents evaluating whether an offense

constitutes a ‘crime of violence’ under the Guidelines

interchangeably with precedents evaluating whether an offense

constitutes a ‘violent felony’ under the [Armed Career Criminal

Act (“ACCA”)], because the two terms have been defined in a

manner that is ‘substantively identical.’” United States v.

King, 673 F.3d 274, 279 n.3 (4th Cir. 2012) (quoting United

States v. Jarmon, 596 F.3d 228, 231 n.* (4th Cir. 2010)). 6

6
A “violent felony” under the ACCA is defined as any crime
punishable by a prison term in excess of one year that: “(i) has
as an element the use, attempted use, or threatened use of
physical force against the person of another” (the “force
clause”); 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” (the
“residual clause”). 18 U.S.C. § 924(e)(2)(B).

8
 III.

The applicable Sentencing Guideline for a conviction

pursuant to 8 U.S.C. § 1326 is U.S.S.G. § 2L1.2. This illegal

reentry Guideline designates a base offense level of eight and

provides for various offense level enhancements depending on the

specific characteristics of a particular defendant’s offense.

See U.S.S.G. §§ 2L1.2(a), (b). At issue here is the 16-level

enhancement that applies in cases where the defendant was

removed from the United States after “a conviction for a felony

that is . . . a crime of violence.” Id. § 2L1.2(b)(1)(A)(ii).

“Crime of violence” is defined in the Application Notes as any

of the following crimes under federal, state, or local law:

[M]urder, manslaughter, kidnapping, aggravated
assault, forcible sex offenses (including where
consent to the conduct is not given or is not legally
valid, such as where consent to the conduct is
involuntary, incompetent, or coerced), statutory rape,
sexual abuse of a minor, robbery, arson, extortion,
extortionate extension of credit, burglary of a
dwelling, or any other offense under federal, state,
or local law that has as an element the use, attempted
use, or threatened use of physical force against the
person of another.

Id. § 2L1.2 cmt. n.1(B)(iii) (emphasis supplied). 7

7
“[C]ommentary to the Sentencing Guidelines is
authoritative and binding, ‘unless it violates the Constitution
or a federal statute, or is inconsistent with, or a plainly
erroneous reading of,’ the Guideline itself.” United States v.
Peterson, 629 F.3d 432, 435 (4th Cir. 2011) (quoting Stinson v.
United States, 508 U.S. 36, 38 (1993)).

9
 In assessing whether an offense constitutes a crime of

violence under the Sentencing Guidelines, “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) (explaining

the two potential approaches in the context of ACCA predicate

offenses). Here, using the modified categorical approach, the

district court concluded Appellant’s ABHAN conviction met the

definition of a “crime of violence” because it was “an offense

in which the use, attempted use[,] or threatened use of physical

force was involved.” J.A. 76.

A.

Categorical Approach

In determining whether a prior conviction triggers a

sentence enhancement under the Sentencing Guidelines, “we

approach the issue categorically, looking ‘only to the fact of

conviction and the statutory definition of the prior offense.’”

United States v. Cabrera-Umanzor, 728 F.3d 347, 350 (4th Cir.

2013) (quoting Taylor v. United States, 495 U.S. 575, 602

(1990)). This categorical approach “focuses on the elements of

the prior offense rather than the conduct underlying the

conviction.” Id. (emphasis in original); United States v.

Torres-Miguel, 701 F.3d 165, 167 (4th Cir. 2012); see also Begay

v. United States, 553 U.S. 137, 141 (2008) (“In determining

10
whether [a] crime is a violent felony, we consider the offense

generically, that is to say, we examine it in terms of how the

law defines the offense and not in terms of how an individual

offender might have committed it on a particular occasion.”).

As we have recently explained, “[t]he point of the categorical

inquiry is not to determine whether the defendant’s conduct

could support a conviction for a crime of violence, but to

determine whether the defendant was in fact convicted of a crime

that qualifies as a crime of violence.” Cabrera-Umaznor, 728

F.3d at 350 (emphasis in original) (citing Descamps v. United

States, 133 S. Ct. 2276, 2288 (2013)).

B.

Modified Categorical Approach

In a “narrow range of cases,” we may apply a modified

categorical approach. Taylor, 495 U.S. at 602. However, this

approach is permitted only if the prior state conviction rests

on a divisible statute -- that is, a statute that “contains

divisible categories of proscribed conduct, at least one of

which constitutes -- by its elements -- a violent felony.”

United States v. Gomez, 690 F.3d 194, 199 (4th Cir. 2012). In

other words, we stray from use of the categorical approach only

in cases involving “statutes that set out elements in the

alternative and thus create multiple versions of the crime.”

Cabrera-Umanzor, 728 F.3d at 350 (citing Descamps, 133 S. Ct. at

11
2284; Gomez, 690 F.3d at 199); see United States v. Hemingway,

--- F.3d ----, No. 12-4362, 2013 WL 5833283, at *2 (4th Cir.

Oct. 31, 2013) (explaining that the Supreme 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”) (internal quotation marks

omitted). “General divisibility, however, is not enough; a

statute is divisible for purposes of applying the modified

categorical approach only if at least one of the categories into

which the statute may be divided constitutes, by its elements, a

crime of violence.” Cabrera-Umanzor, 728 F.3d at 352 (emphasis

in original).

In employing the modified categorical approach, a

sentencing court is permitted to examine a finite class of

extra-statutory materials “to determine which statutory phrase

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

559 U.S. 133, 144 (2010). However, this examination is strictly

limited to the following documents: “the terms of the charging

document, the terms of a plea agreement or 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.” Shepard v.

United States, 544 U.S. 13, 26 (2005). In reviewing those

documents, the district court’s sole purpose is to “determin[e]

12
which statutory phrase (contained within a statutory provision

that covers several different generic crimes) covered a prior

conviction.” Nijhawan v. Holder, 557 U.S. 29, 41 (2009); see

also Gomez, 690 F.3d at 198 (explaining that the examination of

Shepard-approved documents “is for the sole purpose of

determining which part of the statute the defendant violated”).

As the Supreme Court has reiterated, “the modified

categorical approach serves a limited function: It helps

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.” Descamps, 133 S. Ct. at 2283.

Accordingly, the modified categorical approach is

applicable only “when a defendant was convicted of violating a

divisible statute,” and then, “only to determine which

alternative element . . . formed the basis of the defendant’s

conviction.” Descamps, 133 S. Ct. at 2285, 2293; see also

Gomez, 690 F.3d at 200 (“Thus, if the statute is divisible, with

some categories constituting a crime of violence and some not

constituting a crime of violence, then it is appropriate for the

district court to employ the modified categorical approach . . .

to ascertain whether the defendant violated a crime-of-violence

category of the statute.”).

13
 C.

Assault and Battery of a High and Aggravated Nature

With this framework in mind, we must determine what

approach a sentencing court must employ when deciding if a prior

ABHAN conviction was for a crime of violence under the

Sentencing Guidelines. Resolution of this issue turns on

whether the Descamps divisibility analysis applies to common law

crimes and, if so, whether ABHAN is divisible.

We recently addressed both of these issues in a

related context -- namely, whether ABHAN constitutes a predicate

“violent felony” under the ACCA’s residual clause. See United

States v. Hemingway, --- F.3d ----, No. 12-4362, 2013 WL 5833283

(4th Cir. Oct. 31, 2013). In November 2011, Hemingway pled

guilty to illegal possession of a firearm and ammunition after

having previously been convicted of a felony, in violation of 18

U.S.C. § 922(g)(1). Id. at *3. Before sentencing, Hemingway

objected to his PSR’s recommendation to enhance his sentence

under the ACCA, arguing “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 the ACCA because they do not constitute ACCA

violent felonies.” Id. The district court disagreed, however,

and ruled Hemingway’s ABHAN offense was for a violent felony

14
under the ACCA’s residual clause. Id. at *4. 8 The district

court employed the categorical approach in reaching this

conclusion. 9

On appeal, Hemingway argued that ABHAN is not

categorically an ACCA violent felony and, contrary to the

Government’s position on appeal, that the modified categorical

approach was inapplicable to this determination. Hemingway,

2013 WL 5833283, at *4. Relying on the Supreme Court’s recent

decision in Descamps, we agreed. Id. at *5, 11. As an initial

matter, we squarely held, “the Descamps divisibility analysis is

applicable to the question of whether a common law offense

constitutes an ACCA predicate crime.” Id. at *6. We then

reviewed the common law offense of ABHAN, as defined by the

South Carolina courts, and determined that because it consists

8
As Hemingway explains, the district court’s “ruling that
ABHAN is an ACCA violent felony was sufficient to trigger the
fifteen-year minimum sentence” because Hemingway did not dispute
that two of his other previous crimes were for ACCA predicate
offenses. 2013 WL 5833283, at *4 n.5; see 18 U.S.C. § 924(e)(1)
(providing that three previous predicate offenses trigger the
ACCA’s fifteen-year mandatory minimum sentence). Therefore, the
district court did not address Hemingway’s objection to the use
of the AHAN conviction as an ACCA predicate offense. See
Hemingway, 2013 WL 5833283, at *4 n.5.
9
The district court applied the categorical approach after
“observ[ing] that the modified categorical approach was
inapplicable to Hemingway’s ABHAN indictment because he did not
plead as indicted and thus the indictment could not be used to
ascertain the nature of his ABHAN offense.” Hemingway, 2013 WL
5833283, at *4 (internal quotations marks omitted).

15
of two indivisible elements, “the modified categorical approach

has no role to play.” Id. at *7 (internal quotation marks

omitted). Having decided the categorical approach is the proper

method of analysis, we assessed whether ABHAN qualifies as an

ACCA violent felony under the residual clause and held that it

does not. Id. at *10.

Although Hemingway involved the determination of

whether ABHAN was a “violent felony” under the ACCA’s residual

clause, its analysis of Descamps is equally applicable in

determining whether ABHAN is a “crime of violence” in the

Sentencing Guidelines context. See Cabrera-Umaznor, 728 F.3d at

350, 352 (applying the Descamps divisibility analysis to the

“crime of violence” enhancement under the illegal reentry

Guideline).

1.

Common Law Crimes

We reiterate that, by its terms, the Descamps holding,

which dealt with an indivisible California burglary statute,

does not expressly apply to common law crimes. See Hemingway,

2013 WL 5833283, at *3 (explaining that Descamps “left open the

issue of whether the divisibility analysis applies to a common

law crime”). Similarly, in Gomez, we did not decide whether the

divisibility analysis applies in the common law context. United

States v. Gomez, 690 F.3d 194, 202 (“Here, however, we are

16
concerned with the divisions within a statute, not a common law

crime.”). In Hemingway, however, we answered the question

directly, holding the “divisibility analysis is applicable to

the question of whether a common law offense constitutes an ACCA

predicate crime.” 2013 WL 5833283, at *6. In so holding, we

explained that nothing in the Supreme Court’s decision in

Descamps “suggests that a divisibility analysis does not apply

with equal force to a common law offense.” Id. at *6.

Therefore, because the divisibility analysis applies generally

to sentence enhancements for crimes of violence, Hemingway’s

conclusion that divisibility applies to common law offenses in

the ACCA context is equally applicable here.

We agree with our sister circuits that, when a “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.” United States v. Walker, 595 F.3d 441,

444 (2d Cir. 2010) (internal quotation marks omitted). We too

have treated common law crimes and statutory crimes as

functionally equivalent for sentence enhancement purposes, and

Hemingway is clear that “the modified categorical approach has

‘no role to play’ where the previous crime was an indivisible

common law offense.” Hemingway, 2013 WL 5833283, at *6 (quoting

Descamps, 131 S. Ct. 2285).

17
 2.

Divisibility

Having concluded that the divisibility analysis

applies to common law offenses for purposes of enhancements

under the Sentencing Guidelines, we must next decide whether

South Carolina’s common law crime of ABHAN is divisible such

that the modified categorical approach applies. 10 A statute is

“divisible” when it is comprised of “multiple, alternative

versions of the crime.” Descamps, 133 S. Ct. at 2284. Stated

differently, statutes are divisible if they “set out elements in

the alternative and thus create multiple versions of the crime.”

Cabrera-Umanzor, 728 F.3d at 350. Under this standard, ABHAN is

not divisible.

Until it was codified in 2010, ABHAN was a common law

crime in South Carolina defined as “the unlawful act of violent

10
At Appellant’s sentencing, the district court’s decision
to apply the modified categorical approach was based on several
of our unpublished decisions in which we remanded cases for
resentencing with instructions to employ the modified
categorical approach “[w]ithout expressing an opinion on whether
the offense of ABHAN under South Carolina’s common law
categorically constitutes a crime of violence.” See, e.g.,
United States v. Johnson, 475 F. App’x 494, 496 (4th Cir. 2012)
(per curiam); United States v. Wells, 484 F. App’x 756, 758 (4th
Cir. 2012) (per curiam); United States v. Hamilton, 480 F. App’x
217, 219 (4th Cir. 2012) (per curiam). Those unpublished
decisions do not bind our court. And, more importantly, each of
those cases were decided before Descamps made it clear that the
modified categorical approach can only be applied to a divisible
crime. See Descamps, 133 S. Ct. at 2282.

18
injury to another accompanied by circumstances of aggravation.”

State v. Green, 724 S.E.2d 664, 674 (S.C. 2012) (internal

quotation marks omitted). 11 The “violent injury” element does

not require actual bodily harm to another. Indeed, common law

ABHAN included such offenses as “a stranger on the street

embrac[ing] a young lady, or a large man improperly fondl[ing] a

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

Qualifying circumstances of aggravation include, but are not

limited to:

the use of a deadly weapon, the intent to commit a
felony, infliction of serious bodily injury, great
disparity in the ages or physical conditions of the
parties, a difference in gender, the purposeful
infliction of shame and disgrace, taking indecent
liberties or familiarities with a female, and
resistance to lawful authority.

State v. Fennell, 531 S.E.2d 512, 516-17 (S.C. 2000) (collecting

cases).

South Carolina courts have specifically referred to

the “circumstances of aggravation” as a separate element. See

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

double jeopardy analysis pursuant to Blockburger v. United

States, 284 U.S. 299 (1932), and explaining that “[a]s to the

element of ABHAN which is not contained in felony DUI, ABHAN

requires proof of ‘circumstances of aggravation,’ something

11
ABHAN is now codified at S.C. Code Ann. § 16-3-600.

19
which is not required for felony DUI”); Knox v. State, 530

S.E.2d 887, 889 (S.C. 2000), overruled on other grounds by State

v. Gentry, 610 S.E.2d 494, 502 (S.C. 2005) (determining whether

ABHAN is a lesser included offense of second degree lynching and

explaining that “‘[c]ircumstances of aggravation’ is an element

of ABHAN not included in second degree lynching”); State v.

Primus, 564 S.E.2d 103, 581 (S.C. 2002), overruled on other

grounds by Gentry, 610 S.E.2d at 501 (“‘Circumstances of

aggravation’ is an element of ABHAN.”). To be sure, the myriad

“circumstances of aggravation” “simply identify the specific

ways the second element of ABHAN can be satisfied.” Hemingway,

2013 WL 5833283, at *7. They are not themselves elements or

sub-elements of ABHAN. Id.

After explaining that proof of “circumstances of

aggravation” is required for an ABHAN conviction, South Carolina

courts identify various aggravating circumstances that can

satisfy this element. See, e.g., Fennell, 531 S.E.2d at 516-17.

As we observed in Hemingway, this enumeration by the South

Carolina courts is merely a non-exhaustive list of examples that

will sustain an ABHAN conviction; it is not a list of

“‘potential offense elements in the alternative,’ so as to

warrant our application of the modified categorical approach.”

Hemingway, 2013 WL 5833283, at *7 (quoting Descamps, 133 S. Ct.

at 2283).

20
 Consistent with our analysis in Hemingway, it is clear

that ABHAN is comprised of two indivisible elements: (1) an

unlawful act of violent injury to another; and (2) circumstances

of aggravation. See Hemingway, 2013 WL 5833283, at *7. For

that reason, employing the modified categorical approach to

determine whether Appellant’s ABHAN conviction was for a “crime

of violence” was improper in this case.

D.

Application of the Categorical Approach to ABHAN

Because the modified categorical approach is

inapplicable to ABHAN, we must apply the categorical approach,

which looks only to the fact of conviction and the definition of

the prior offense to determine whether the conduct criminalized,

“including the most innocent conduct, qualifies as a ‘crime of

violence.’” See Torres-Miguel, 701 F.3d at 167. 12 The relevant

portion of the illegal reentry Guideline defines “crime of

12
We note that in Hemingway, we applied the categorical
approach and held that ABHAN is not categorically a “violent
felony” under the ACCA’s residual clause. Unlike the ACCA, the
illegal reentry Guideline does not contain a residual clause.
Therefore, Hemingway’s holding does not directly control whether
ABHAN is categorically a crime of violence under the illegal
reentry Guideline. See United States v. Rede-Mendez, 680 F.3d
552, 555 n.2 (6th Cir. 2012) (explaining that only cases
analyzing the “use, attempted use, or threatened use of physical
force” definition of crime of violence or violent felony are
probative to an interpretation of the illegal reentry Guideline,
while cases analyzing the residual clause are not pertinent).

21
violence” as an “offense under federal, state, or local law that

has as an element the use, attempted use, or threatened use of

physical force against the person of another.” U.S.S.G. § 2L1.2

cmt. n.1(B)(iii) (emphasis supplied). In Johnson v. United

States, the Supreme Court explained, “the phrase ‘physical

force’ means violent force -- that is, force capable of causing

physical pain or injury to another person.” 559 U.S. 133, 140

(2010) (emphasis in original). As explained in the divisibility

analysis above, although ABHAN is defined as “the unlawful act

of violent injury to another accompanied by circumstances of

aggravation,” Green, 724 S.E.2d at 674, a conviction for ABHAN

does not require actual bodily harm to another, see DeBerry, 157

S.E.2d at 640. See also State v. Patterson, 522 S.E.2d 845, 853

(S.C. Ct. App. 1999) (“[B]odily harm is not even a prerequisite

to an ABHAN conviction.”). Likewise, force against the victim

is not required to sustain an ABHAN conviction. State v. Green,

491 S.E.2d 263, 265 (S.C. Ct. App. 1997). Because ABHAN can be

committed with or without force -- and even when force is

involved, ABHAN can be committed in a violent or nonviolent

manner -- a conviction for ABHAN is not categorically for a

crime of violence. 13 Accordingly, Appellant’s sentence must be

vacated and this case remanded for resentencing.

13
Indeed, in Hemingway, the Government conceded that ABHAN
(Continued)
22
 IV.

In the alternative, the Government argues, even if the

district court incorrectly calculated Appellant’s Sentencing

Guidelines range by erroneously applying the 16-level

enhancement, any error was harmless because the district court’s

imposition of the enhancement did not affect his ultimate

sentence. The Government argues that “[t]here can be little

doubt that Appellant would have received the same sentence,”

Appellee’s Br. 17, because the district court’s analysis “shows

that it’s [sic] determination of Appellant’s sentence was based

on a thorough and careful analysis of the” 18 U.S.C. § 3553(a)

factors, id. at 16. Although we agree that the district court

considered the various factors in § 3553(a) -- a step that is

required at every sentencing, see United States v. Johnson, 445

F.3d 339, 345 (4th Cir. 2006) -- we are not persuaded that it

would have imposed the same sentence absent the 16-level

enhancement.

As we have observed, “because a correct calculation of

the advisory Guidelines range is the crucial ‘starting point’

for sentencing, an error at that step ‘infects all that follows

was not a “violent felony” under the ACCA’s force clause, which
is substantively identical to the illegal reentry Guideline’s
force clause. See Hemingway, 2013 WL 5833283, at *8.

23
at the sentencing proceeding, including the ultimate sentence

chosen by the district court.’” United States v. Lewis, 606

F.3d 193, 201 (4th Cir. 2010) (quoting United States v. Diaz-

Ibarra, 522 F.3d 343, 347 (4th Cir. 2008)). Nevertheless,

procedural errors at sentencing are subject to harmlessness

review. See United States v. Lynn, 592 F.3d 572, 576 (4th Cir.

2010).

In order for us to conclude that a sentencing error

was harmless, we must make two separate determinations. First,

we must “know[] that the district court would have reached the

same result even if it had decided the [G]uidelines issue the

other way.” United States v. Savillon-Matute, 636 F.3d 119, 123

(4th Cir. 2011) (internal quotation marks omitted)). Once we

are “certain” that the result at sentencing would have been the

same, we must next “determin[e] that the sentence would be

reasonable even if the [G]uidelines issue had been decided in

the defendant’s favor.” United States v. Gomez, 690 F.3d 194,

203 (4th Cir. 2012) (alteration in original) (internal quotation

marks omitted).

Of course, there is no requirement that a district

court “specifically state that it would give the same sentence

absent the [enhancement].” Savillon-Matute, 636 F.3d at 124.

Again, however, to conclude that an error at sentencing was

harmless, the record from the sentencing hearing must provide

24
the reviewing court with “knowledge that the district court

would have reached the same result even if it had decided the

[G]uidelines issue the other way.” Id. at 123 (emphasis

supplied) (internal quotation marks omitted). For us to possess

the required “knowledge,” something more than a review by the

district court of the § 3553(a) factors is needed, particularly

since an assessment of those factors is required at every

sentencing. See Gomez, 690 F.3d at 203 (“Although the district

court did a commendable job in considering the 18 U.S.C. 3553(a)

factors in determining the sentence that it would impose, we are

unable to state with any certainty that it would have imposed

the same sentence had the sixteen-level enhancement not been in

play.”).

During Appellant’s sentencing hearing, the district

court discussed a number of the § 3553(a) factors, focusing

primarily on deterrence. See 18 U.S.C. § 3553(a)(2)(B). For

instance, the court noted, “there is something to be said that

defendant continues to be engaged in conduct that is potentially

very dangerous to people and violating the law.” J.A. 90. The

court also expressed its “concern about trying to get his

attention not to try to return across the border.” Id. at 91.

The court then explained that it sought to deter Appellant by

imposing a sentence “that would cause him to be disinclined to

again violate the borders of the United States.” Id. at 95.

25
Although the record is clear that the court carefully considered

the § 3553(a) factors in determining the sentence it would

impose, the record does not support the conclusion that

Appellant would have received the same sentence if the court had

not applied the 16-level enhancement.

With the 16-level enhancement, Appellant’s Sentencing

Guidelines range was 46 to 57 months imprisonment. However,

without the “crime of violence” enhancement, his Guidelines

range would have been either 18 to 24 months (applying the

“aggravated felony” enhancement) 14 or 10 to 16 months (applying

the “felony” enhancement). 15 The district court’s sentence of 46

months was thus at the bottom of what it incorrectly considered

to be the Guidelines range. Its discussion of the § 3553(a)

14
If the district court had characterized Appellant’s prior
ABHAN conviction as an “aggravated felony,” he would have been
subject to an eight-level increase from his base offense level
of eight. See U.S.S.G. § 2L1.2 (b)(1)(C). Presuming a three-
level reduction for acceptance of responsibility, see id.
§§ 3E1.1(a), (b), Appellant’s total offense level would be 13.
This offense level, considered in combination with his criminal
history category of III, would have provided for an advisory
Guidelines range of 18 to 24 months.
15
If the district court had characterized Appellant’s prior
ABHAN conviction as a “felony,” he would have been subject to a
four-level increase from his base offense level of eight. See
U.S.S.G. § 2L1.2 (b)(1)(D). Presuming a two-level reduction for
acceptance of responsibility, see id. § 3E1.1(a), Appellant’s
total offense level would be ten. This offense level,
considered in combination with his criminal history category of
III, would have provided for an advisory Guidelines range of 10
to 16 months.

26
factors was in the context of the erroneous Guidelines

calculation, and there is nothing in the record to suggest the

court would have varied upward from a Guidelines range of 10 to

16 months or 18 to 24 months to arrive at a 46 month sentence.

Although Savillon-Matute may be instructive, it is

readily distinguishable. There, the district court adopted the

PSR, including the advisory Guidelines range of 12 to 18 months,

and then imposed a sentence of 36 months, well above the

advisory Guidelines range. Savillon-Matute, 636 F.3d at 121,

122. Thus, the district court’s imposition of a substantially

above-Guidelines sentence, coupled with an explicit explanation

for the upward variance, readily supported an inference that the

court would have imposed the same sentence had the Guidelines

calculation been different. See id. at 122 (summarizing

court’s justification under the § 3553(a) factors for its upward

variance). Where, as here, the district court imposes a within-

Guidelines sentence, we cannot assume (much less know) that the

court, faced with a much lower advisory range, would have varied

upward by at least 22 months. Although we review a sentence for

abuse of discretion -- whether within or outside the Guidelines

range -- the Supreme Court has directed that “when applying a

departure provision or varying from the Guidelines range, the

district court must give ‘serious consideration to the extent’

of the departure or variance, and ‘must adequately explain the

27
chosen sentence to allow for meaningful appellate review and to

promote the perception of fair sentencing.’” United States v.

Diosdado-Star, 630 F.3d 359, 365 (4th Cir. 2011) (quoting Gall

v. United States, 552 U.S. 38, 46 (2007)).

Because the district court did not vary in this case,

it also did not offer any justification for an above-Guidelines

sentence. The standard for harmlessness -- knowledge of an

identical outcome -- is a high bar, and in this situation we are

not so omniscient as to possess the requisite knowledge. In

such circumstances, we cannot conclude that the district court’s

error was harmless.

V.

Pursuant to the foregoing, we vacate Appellant’s

sentence and remand for resentencing.

VACATED AND REMANDED

28
SHEDD, Circuit Judge, dissenting:

Rejecting the government’s argument that the purported

sentencing guideline error raised by Montes-Flores is harmless

(an argument not addressed in Montes-Flores’ brief), the

majority deems it necessary to vacate the sentence and remand

this case to the district court for resentencing. I dissent.

I

Rule 52(a) of the Federal Rules of Criminal Procedure

mandates that we must disregard harmless errors. Consistent with

this rule, in United States v. Savillon-Matute, 636 F.3d 119

(4th Cir. 2011), we held that it is unnecessary to vacate a

sentence based on an asserted guidelines calculation error if we

can determine from the record that the asserted error is

harmless. Savillon-Matute is just one of many cases in which we

have applied harmless error analysis to asserted procedural

sentencing errors. See United States v. Hargrove, 701 F.3d 156,

162 (4th Cir. 2012), cert. denied, 133 S.Ct. 2403 (2013)

(finding harmless sentencing error and citing cases).

To ascertain whether such an error is harmless under

Savillon-Matute, we assume that the district court had decided

the disputed guidelines issue favorably for the defendant and

then determine: (1) whether the court would have imposed the

same sentence and (2) whether that sentence would be

substantively reasonable. Savillon-Matute, 636 F.3d at 123. For

29
purposes of this harmlessness review, the district court does

not have to state expressly that it would have imposed the same

sentence regardless of the asserted guidelines error. Id. at

124.

Applying this standard, I believe that the record supports

affirmance of Montes-Flores’ sentence. The most favorable

guidelines calculation for Montes-Flores would have been a range

of 10-16 months, but the district court calculated the range to

be 46-57 months and sentenced him to 46 months. Even accepting

the 10-16 month range, I am satisfied that the district court

would have sentenced Montes-Flores to 46 months and that the

sentence would be reasonable.

As an initial matter, I agree with the majority’s

observation that “the record is clear that the court carefully

considered the § 3553(a) factors in determining the sentence it

would impose.” See Majority Op., at 26. Likewise, I agree in

principle with the majority’s point that “something more than a

review by the district court of the § 3553(a) factors is needed”

before we can find that the district court would have imposed

the same sentence regardless of the asserted guidelines error.

See Majority Op., at 25. My disagreement with the majority

arises from my view that this case, in fact, has “something

more.”

30
 This is not a “run-of-the-mill” case in which the district

court simply calculated an advisory guidelines range and then

announced its intention to sentence the defendant within, or at

the low end of, that range. See Rita v. United States, 551 U.S.

338, 357 (2007) (“Circumstances may well make clear that the

judge rests his decision upon the Commission’s own reasoning

that the Guidelines sentence is a proper sentence (in terms of §

3553(a) and other congressional mandates) in the typical case,

and that the judge has found that the case before him is

typical.”). Finding harmlessness in that type of case may prove

to be difficult because it is logical to assume that if a

district court is content to sentence within whatever the

guidelines range happens to be, then a lower range would lead to

a sentence within that lower range.

Here, Montes-Flores moved for a downward variance from the

advisory 46-57 month range, see J.A. 76, arguing that “a

sentence of less than 46 months, perhaps a sentence of 36

months” would be sufficient, see J.A. 92. Given the advisory

nature of the sentencing guidelines and the broad discretion the

district court possessed to vary downward, the district court

was squarely presented with the opportunity to impose a sentence

below 46 months. Rejecting Montes-Flores’ arguments, the

district court denied the motion and imposed the 46-month

sentence. There is certainly no reason to believe that the

31
district court misunderstood the significance of the downward

variance motion. It is thus apparent that the district court

believed that nothing less than a 46-month sentence was

appropriate. 1

The district court’s intention in this regard is evidenced

by its comments during the sentencing colloquy. These comments

reflect the district court’s serious concern for public safety

and deterrence, and when combined with the denial of the

downward variance request, indicate that the district court

would not have imposed a lower sentence even with a lower

advisory guidelines range. For example, the district court

referenced Montes-Flores’ extensive criminal history, which it

labeled “quite remarkable” and “disturbing,” J.A. 95, and noted

that Montes-Flores “continues to be engaged in conduct that is

potentially very dangerous to people and violating the law,”

J.A. 90. Continuing, the district court stated:

1
The majority states that “there is nothing in the record
to suggest the court would have varied upward” from a lower
guideline range to a 46-month sentence. Majority Op., at 27. Of
course, the pertinent question is whether the district court
would have imposed the same sentence had the guideline range
been lower, and an upward variance would be necessary to achieve
that result. If, as I have pointed out, the district court
believed that a sentence below 46 months was inappropriate, then
it is logical to conclude that the district court would have
varied upward from a lower guideline range to impose that
sentence.

32
 I have a concern about trying to get his attention not
to try to return across the border. . . . [W]hat I’ve
heard here is that he . . . has a network of people
who respect him and like him, and that makes me worry
he is going to be incentivized to come back across the
border again. And I’m trying to have a sentence to
deter, that’s one of the factors here. That’s why I
wanted you to walk through these factors. I’m worried
about deterrence. I’m trying to say – for him to
resolve, it isn’t worth what I could face. That’s what
I’m dealing with here.

J.A. 91; see also J.A. 92 (“I need to have a sentence to deter

him from coming back across again.”). Finally, summarizing the

basis for the 46-month sentence, the district court explained

that it “sought to provide an adequate deterrence” and wanted

Montes-Flores to understand that “if he should calculate

returning to the United States, that he would have a sentence

that he has just finished serving that would cause him to be

disinclined to again violate the borders of the United States.”

J.A. 95. The district court also explained that it wanted “to

promote respect for the law, which I think is crying out here,”

J.A. 95, and it stated that “the sentence protects the public

from further crimes of the defendant,” J.A. 96.

In my view, this record leads most reasonably to one

conclusion: the district court believed that a sentence of 46

months was necessary to meet the standards set forth in 18

U.S.C. § 3553(a). That sentence is substantively reasonable, and

we should therefore affirm it under the reasoning of Savillon-

33
Matute. 2 See also United States v. Shrader, 675 F.3d 300, 314

(4th Cir.), cert. denied, 133 S.Ct. 757 (2012) (finding harmless

error without addressing the disputed enhancement “because an

upward variance or departure . . . would produce exactly the

same result and because the transcript makes clear that the

sentence herein, irrespective of any . . . enhancement, plainly

effectuated the trial court’s sentencing intent.”).

II

In closing, I note that “harmless error analysis involves

some level of indeterminancy,” Sherman v. Smith, 89 F.3d 1134,

1140 (4th Cir. 1996) (en banc), and “[t]he standard for judging

whether a particular error is harmless has an irreducible

element of subjectivity,” United States v. Casoni, 950 F.2d 893,

917 (3d Cir. 1991). Where, as here, the district court does not

announce an alternate sentence, consideration of whether a

sentencing error is harmless is almost always clouded with a bit

of uncertainty as to what the district court would have done

2
Although we are not bound by the outcome of Savillon-
Matute, which was a harmless error affirmance, the similarities
between that case and this one are remarkable. Both cases
involve illegal reentry defendants, the disparities between the
asserted guideline ranges and the imposed sentences are
comparable, and both district courts fashioned the sentences
largely on the need to deter future illegal reentry.

34
with a different guideline range. 3 For this reason, I certainly

cannot say that the majority’s rejection of harmless error is

unreasonable. Subjectively, my friends in the majority simply

view the record differently than I do, and their decision, which

I fully respect, will lead to a remand for resentencing, a

proceeding that will add to the time and expense that the

district court and the parties have already invested in this

case.

I make this observation not to criticize today’s decision,

but to encourage district courts to consider announcing

alternate sentences in cases such as this, where the guidelines

calculation is disputed. 4 District courts that announce alternate

sentences in such circumstances provide a valuable service to

the parties and the judicial system because an expressly stated

3
Nonetheless, Savillon-Matute makes it clear that we may
find a sentence to be harmless based on the sentencing record
without the district court’s express statement of an alternate
sentence.

4
Since at least 1990, we have implicitly approved of
alternate guidelines sentencing, see United States v. Blackwood,
913 F.2d 139 (4th Cir. 1990) (affirming based on alternate
sentence), and in 2004, we actually recommended that district
courts impose alternate sentences in a specific circumstance,
see United States v. Hammoud, 378 F.3d 426 (4th Cir. 2004) (en
banc order). Notably, alternate sentencing does not relieve the
district court of its obligation “to consider the guidelines in
a meaningful manner when sentencing a defendant.” Hargrove, 701
F.3d at 163.

35
alternate sentence, if reasonable, alleviates the uncertainty

inherent in the harmless error analysis and thereby tends to

obviate the additional time and expense that a resentencing

remand would require. As we explained in Hargrove, where we

applied harmless error analysis to affirm an alternate sentence,

it makes “no sense to set aside [a] reasonable sentence and send

the case back to the district court since it has already told us

that it would impose exactly the same sentence, a sentence we

would be compelled to affirm.” 701 F.3d at 162 (citation omitted

and punctuation altered); see also United States v. Revels, 455

F.3d 448, 452 (4th Cir. 2006) (“Because any error was harmless,

a remand for resentencing is not necessary. Such a remand would,

in any event, be little more than an empty formality, for the

sentence the district court would impose on remand is a foregone

conclusion.”).

I reiterate that I do not believe that an alternate

sentence is necessary to establish harmless error in this case.

However, although I do not presume to speak for the majority, a

reasonable inference arises from the majority’s recognition of

the district court’s careful consideration of the § 3553(a)

factors: had the district court expressly announced an alternate

sentence in conjunction with its consideration of the § 3553(a)

factors, the likely result of this appeal would be an affirmance

36
(on the alternate sentence) rather than a remand for

resentencing.

37