PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 12-4089
MIRNA DEL CARMEN GOMEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Deborah K. Chasanow, Chief District Judge.
(8:11-cr-00015-DKC-1)
Argued: May 15, 2012
Decided: August 10, 2012
Before NIEMEYER, MOTZ, and FLOYD, Circuit Judges.
Vacated and remanded by published opinion. Judge Floyd
wrote the majority opinion, in which Judge Motz joined.
Judge Niemeyer wrote a dissenting opinion.
COUNSEL
ARGUED: Joanna Beth Silver, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Baltimore, Maryland, for Appellant.
Paul Nitze, OFFICE OF THE UNITED STATES ATTOR-
NEY, Greenbelt, Maryland, for Appellee. ON BRIEF: James
2 UNITED STATES v. GOMEZ
Wyda, Federal Public Defender, Baltimore, Maryland, for
Appellant. Rod J. Rosenstein, United States Attorney, Balti-
more, Maryland, for Appellee.
OPINION
FLOYD, Circuit Judge:
Mirna Del Carmen Gomez, a citizen of El Salvador,
pleaded guilty to a charge of unlawful reentry of a deported
alien after an aggravated felony conviction, in violation of 8
U.S.C. §§ 1326(a) and 1326(b)(2). Although she agreed with
the statement of facts submitted by the government in support
of her guilty plea, Gomez objected to the government’s asser-
tion that her prior conviction for child abuse under Maryland
law amounted to a crime of violence for purposes of the
U.S.S.G. § 2L1.2(b)(1)(A)(ii) sentencing enhancement.
According to Gomez, because the relevant portion of the stat-
ute did not contain a division between forceful and nonforce-
ful conduct, the district court could not use the modified
categorical approach to determine that her prior child abuse
conviction was a crime of violence.
Despite this objection, in calculating the relevant Sentenc-
ing Guidelines range, the district court employed the modified
categorical approach to determine that Gomez’s child abuse
conviction constituted a crime of violence. For this reason, the
district court added sixteen levels to Gomez’s base offense
level. Thereafter, the district court calculated her Guidelines
range to be forty-one to fifty-one months, but made a down-
ward variance and sentenced her to twenty-four months’
imprisonment. This appeal followed. Because we find that the
district court’s application of the modified categorical
approach to the indivisible provision at issue was in error, we
vacate Gomez’s sentence and remand for resentencing.
UNITED STATES v. GOMEZ 3
I.
On August 20, 1999, Gomez pleaded guilty in Maryland
state court to one count of child abuse, in violation of Mary-
land Code 1957, Article 27, § 35C. At the state plea hearing,
she admitted that, to punish her son, she had burned the bot-
toms of his feet with a candle. The state court sentenced her
to eighteen months’ imprisonment.
In January 2001, Gomez was deported from the United
States. Sometime around December 2010, however, she reen-
tered the United States without having sought or obtained per-
mission to reenter. Gomez was arrested on December 16,
2010. Approximately five months later, she pleaded guilty to
a charge of unlawful reentry of a deported alien after an
aggravated felony conviction, in violation of 8 U.S.C.
§§ 1326(a) and 1326(b)(2). She noted at the time, however,
that her prior conviction for child abuse under Maryland law
was not a crime of violence for purposes of U.S.S.G.
§ 2L1.2(b)(1)(A)(ii), which allowed for a sixteen-level
increase in her offense level if she has been convicted of a
"crime of violence."
In written memoranda and at the sentencing hearing held
on February 1, 2012, the parties set forth their arguments on
this issue. The government maintained that "the Maryland
child abuse statute under which [Gomez] was convicted has
as an element the use, attempted use, or threatened use of
physical force against the person of another." It further con-
tended that the child abuse statute under which Gomez was
convicted "actually requires physical injury rather than just
the use of force that is capable of causing physical injury and
therefore categorically satisfies the Supreme Court’s defini-
tion of physical force." Alternatively, the government sug-
gested that the district court should employ the modified
categorical approach. And under this approach, the govern-
ment noted, "a review of the charging document and tran-
script of the plea colloquy makes clear that [Gomez’s]
4 UNITED STATES v. GOMEZ
conviction for child abuse was a conviction for a crime of vio-
lence pursuant to [§ 2L1.2]." As the government pointed out,
"[t]he statement of facts offered during the plea colloquy
states that upon her arrest [Gomez] admitted that [she] took
a candle and burned the bottoms of her minor son’s feet as
punishment."
In contrast, Gomez argued that her child abuse conviction
was not a crime of violence. "And . . . if it’s not a crime of
violence, it’s not an aggravated felony under the facts of this
case." Moreover, according to Gomez, the district court could
look no further than the elements of the Maryland child abuse
statute in deciding whether her prior conviction could be
found to be a crime of violence. Consequently, Gomez
avowed, because the statute at issue "does not have an ele-
ment of ‘violent force’ . . . [it] does not constitute a ‘crime of
violence’ under [§ 2L1.2]."
At the hearing’s conclusion, the district court determined it
appropriate to employ the modified categorical approach to
decide whether Gomez’s prior child abuse conviction was a
crime of violence. It observed that the Maryland child abuse
statute "is broad enough to encompass crimes of violence
under some circumstances. And that, therefore, we can look
at the permitted universe of documents to determine what
kind of child abuse conviction this was."
The district court then noted that the statement of facts to
which Gomez admitted at the state plea hearing indicated that
hers was a forceful child abuse conviction. Therefore, the dis-
trict court concluded that "it was a crime of violence and is
appropriately assigned [an] enhancement of 16 levels." The
resultant Guidelines range for Gomez was forty-one to fifty-
one months’ imprisonment.
The district court proceeded to determine Gomez’s sen-
tence. It observed that "[t]he [G]uidelines are advisory and the
Court needs to look at all the facts and circumstances of a par-
UNITED STATES v. GOMEZ 5
ticular case." It then sentenced Gomez to twenty-four months’
imprisonment, stating that the sentence "is sufficient to punish
Ms. Gomez and to teach her enough of a lesson that she will
think more than once before being tempted to return to the
United States." Gomez subsequently filed this timely appeal.
II.
Gomez argues that the district court erred in employing the
modified categorical approach to determine that her prior con-
viction for child abuse under Maryland law constituted a
crime of violence. In so doing, according to Gomez, the dis-
trict court improperly examined the particular acts that she
committed to decide if those acts amounted to a crime of vio-
lence. The government asserts, however, that "the district
court properly used the modified categorical approach to
determine which portion of the child abuse statute was vio-
lated in [her] prior case."
Whether the district court erred in characterizing a defen-
dant’s crime as a "crime of violence" for sentence enhance-
ment purposes is a question of law, which we review de novo.
United States v. Diaz-Ibarra, 522 F.3d 343, 347 (4th Cir.
2008). "We rely on precedents evaluating whether an offense
constitutes a ‘crime of violence’ under the Guidelines inter-
changeably with precedents evaluating whether an offense
constitutes a ‘violent felony’ under the 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)).
A.
As stated earlier, U.S.S.G. § 2L1.2(b)(1)(A)(ii) provides for
a sixteen-level increase in the offense level if the defendant
has been convicted of a "crime of violence."
6 UNITED STATES v. GOMEZ
"Crime of violence" means any of the following
offenses under federal, state, or local law: Murder,
manslaughter, kidnapping, aggravated assault, forc-
ible 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, incom-
petent, or coerced), statutory rape, sexual abuse of a
minor, robbery, arson, extortion, extortionate exten-
sion 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).
"In determining 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." Begay v. United States, 553 U.S. 137,
141 (2008). When making this determination, "courts gener-
ally employ a categorical approach, under which consider-
ation is given only to the essential elements of the offense and
the fact of conviction." United States v. Baxter, 642 F.3d 475,
476 (4th Cir. 2011).
We have found it appropriate to vary this approach only
"where different types of behavior satisfy an element of the
offense and the proscribed behaviors constitute at least two
separate crimes for ACCA purposes." United States v. Rivers,
595 F.3d 558, 562-63 (4th Cir. 2010). "Thus, only when a
statute prohibits different types of behavior such that it can be
construed to enumerate separate crimes can a court modify
the categorical approach to determine ACCA eligibility." Id.
at 563.
Under the modified categorical approach, we "‘look only to
the fact of conviction and the statutory definition of the prior
UNITED STATES v. GOMEZ 7
offense,’" and we generally do not consider the "particular
facts disclosed by the record of conviction." Shepard v.
United States, 544 U.S. 13, 17 (2005) (quoting Taylor v.
United States, 495 U.S. 575, 602 (1990)). In making this
determination, the district court may examine a limited uni-
verse of documents relevant to the underlying conviction. Id.
at 26. This examination, however, is for the sole purpose of
determining which part of the statute the defendant violated.
"[B]y so construing the statute, one avoids the practical diffi-
culty of trying to ascertain at sentencing, perhaps from a
paper record mentioning only a guilty plea, whether the pres-
ent defendant’s prior crime, as committed on a particular
occasion, did or did not involve violent behavior." Chambers
v. United States, 555 U.S. 122, 125 (2009).
Supreme Court precedent disallows a district court from
determining whether the specific conduct of the defendant
constituted a purposeful, violent, and aggressive act. See
Shepard, 544 U.S. at 25 (discussing the problems inherent in
judicial fact-finding, especially after Apprendi v. New Jersey,
530 U.S. 466 (2000), and noting that looking further into the
facts surrounding a prior conviction likely would violate the
standard set forth in Apprendi). Thus, district courts may not
decide on a case-by-case basis whether a defendant’s particu-
lar conduct in committing a prior violation of a general statute
amounts to the type of violence allowing for the enhance-
ments set forth in the ACCA and the Guidelines. United
States v. Woods, 576 F.3d 400, 405-06 (7th Cir. 2009). The
modified categorical approach therefore applies to only "a
narrow range of cases"—those involving statutes encapsulat-
ing separate proscriptions, at least one of which constitutes a
crime of violence. Taylor, 495 U.S. at 602.
To the extent that there was any confusion on the issue, the
Supreme Court clarified the proper use of the modified cate-
gorical approach in Johnson v. United States, 130 S. Ct. 1265
(2010). There, the Supreme Court stated, in relevant part:
8 UNITED STATES v. GOMEZ
When the law under which the defendant has been
convicted contains statutory phrases that cover sev-
eral different generic crimes, some of which require
violent force and some of which do not, the "‘modi-
fied categorical approach’" . . . permits a court to
determine which statutory phrase was the basis for
the conviction by consulting the trial
record—including charging documents, plea agree-
ments, transcripts of plea colloquies, findings of fact
and conclusions of law from a bench trial, and jury
instructions and verdict forms.
Id. at 1273 (citation omitted). But these documents may be
consulted only for the purpose of "determining which statu-
tory 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).
Although not with a single voice, we have had occasion to
address the proper use of the modified categorical approach
since Johnson. In his concurrence in United States v. Vann,
660 F.3d 771 (4th Cir. 2011) (en banc), Judge King, joined by
Judges Motz, Gregory, and Davis, wrote the following: "Use
of the modified categorical approach is only appropriate when
the statute of conviction encompasses multiple distinct cate-
gories of behavior, and at least one of those categories consti-
tutes an ACCA violent felony." Id. at 778 (King, J.,
concurring). Moreover, Judge Keenan, joined by Chief Judge
Traxler and Judges Agee, Wynn, and Diaz, stated that "[t]he
issue [of] whether we may apply the modified categorical
approach under the ACCA depends on an examination of the
different criminal elements of a statute and on the stated
behaviors that these elements proscribe, not on any particular
conduct that may be encompassed by a given statutory pro-
scription." Id. at 801 (Keenan, J., concurring). These state-
ments, which commanded a majority of the judges of this
Court, suggest that district courts may apply the modified cat-
egorical approach to a statute only if it contains divisible cate-
UNITED STATES v. GOMEZ 9
gories of proscribed conduct, at least one of which
constitutes—by its elements—a violent felony.
The majority of our sister circuits that have considered the
question likewise have held that the modified categorical
approach applies only to those statutory offenses in which the
statute itself is divisible. See, e.g., United States v. Miranda-
Ortegon, 670 F.3d 661, 663 (5th Cir. 2012) (footnote omitted)
("We may take a modified categorical approach, permitting
consultation of the allegations in the charging instrument, if
the statute of conviction has disjunctive elements. But we may
look beyond the elements and the fact of conviction only for
the limited purpose of ascertaining which of the disjunctive
elements the charged conduct implicated."); United States v.
Baker, 665 F.3d 51, 55 (2d Cir. 2012) (per curiam) (stating
that the statute of the prior conviction must be divisible such
that it defines the violent felony in a separate subsection or
component of a disjunctive list); United States v. Koufos, 666
F.3d 1243, 1251 (10th Cir. 2011) ("[The modified categorical]
approach does not involve a subjective inquiry into the facts
of the case; instead, we seek to determine ‘which part of the
statute was charged against the defendant and, thus, which
portion of the statute to examine on its face.’" (quoting United
States v. Sanchez–Garcia, 501 F.3d 1208, 1211 (10th Cir.
2007))); United States v. Mahone, 662 F.3d 651, 654 (3d Cir.
2011) ("When the enumerating statute invites inquiry or the
statute of conviction is phrased in the disjunctive, the sentenc-
ing court applies a modified approach, rather than the formal
categorical approach."); United States v. Williams, 627 F.3d
324, 327-28 (8th Cir. 2010) (stating that when the statute of
conviction encompasses some conduct that qualifies as a
crime of violence and some that does not, it is appropriate for
the district court to use the modified categorical approach
wherein it consults Shepard-approved documents to deter-
mine the portion of the statute that was the basis for the prior
conviction); Woods, 576 F.3d at 404-05 (emphasizing that the
appropriate way to apply the modified categorical approach is
to look, not to the conduct of the defendant, but to which part
10 UNITED STATES v. GOMEZ
of a divisible statute the defendant violated). But see United
States v. Aguila-Montes de Oca, 655 F.3d 915, 932-35 (9th
Cir. 2011) (en banc) (stating that the Fourth Circuit, in Rivers,
"limited the modified categorical approach to the divisible
statute situation" but rejecting that rule for the Ninth Circuit).
When examining a prior conviction to determine if it is a
crime of violence, the Supreme Court has counseled that the
district court must look not at the manner in which the defen-
dant in fact committed the crime, but at the statutory violation
charged. Begay, 553 U.S. at 141. Thus, if the statute is divisi-
ble, with some categories constituting a crime of violence and
some not constituting a crime of violence, then it is appropri-
ate for the district court to employ the modified categorical
approach and to examine Shepard-approved documents to
ascertain whether the defendant violated a crime-of-violence
category of the statute. But if the district court were to apply
the modified categorical approach to an indivisible statute, it
would be required to look at the manner in which the defen-
dant committed the crime (i.e., the specific factual circum-
stances of the crime) in direct contravention of Supreme
Court dictates.
In our view, the Supreme Court made clear in Johnson that
the modified categorical approach necessarily applies only to
those statutory offenses in which the statute itself is divisible.
It did so by stating that the district court can make factual
inquiries only when "the law under which the defendant has
been convicted contains statutory phrases that cover several
different generic crimes, some of which require violent force
and some of which do not." Johnson, 130 S. Ct. at 1273. That
is, the Supreme Court explicated that in employing the modi-
fied categorical approach the district court may look to the
trial record only to "determine which statutory phrase was the
basis for the conviction." Id. Any cases which have held to the
contrary were necessarily overruled by Johnson.
Consequently, conforming to Supreme Court precedent,
and joining the majority of our sister circuits to consider the
UNITED STATES v. GOMEZ 11
issue, we hold that the modified categorical approach applies
only to those statutory offenses in which the statute itself is
divisible. To hold otherwise would be to sanction the district
court conducting a mini-trial to resolve whether the actions of
the defendant amounted to a crime of violence. See United
States v. Spence, 661 F.3d 194, 198 (4th Cir. 2011) ("By
[properly] applying the categorical and modified categorical
approaches, sentencing courts avoid conducting ‘mini-trials’
for each prior offense, which would constitute an inconsistent
and unreliable method on which to base enhanced sentences.
Moreover, use of such mini-trials to determine the nature of
an underlying crime potentially would violate a defendant’s
Sixth Amendment rights." (citation omitted)). Of course, what
one district court might find as violent behavior on the part of
the defendant, another district court might not so find. Thus,
sometimes the particular crime would be considered a crime
of violence and sometimes it would not. Moreover, it would
permit district courts to make this determination based on
often vague or uncertain paper records, not intended to serve
as such fact-finding tools. This is barred by Supreme Court
precedent.
B.
As noted above, in 1999, Gomez pleaded guilty to one
count of child abuse, in violation of Maryland Code 1957,
Article 27, § 35C, at which time she admitted that, to punish
her son, she had burned the bottoms of his feet with a candle.
Section 35C defines the term "abuse" as follows:
(i) The sustaining of physical injury by a child as a
result of cruel or inhumane treatment or as a result
of a malicious act by any parent or other person who
has permanent or temporary care or custody or
responsibility for supervision of a child, or by any
household or family member, under circumstances
12 UNITED STATES v. GOMEZ
that indicate that the child’s health or welfare is
harmed or threatened thereby; or
(ii) Sexual abuse of a child, whether physical injuries
are sustained or not.
Maryland Code 1957, Article 27, § 35C. There is no dispute
between the parties that Gomez’s conduct constituted abuse as
defined in subsection (i).
Here, we begin—as we must—by examining § 35C(i). In
doing so, we recognize that it does not require the use of
physical force. Pursuant to § 35C(i), a defendant may be
found guilty of physical child abuse by committing an affir-
mative act or by neglecting to act, neither of which necessar-
ily requires the use of physical force against a child. See State
v. Fabritz, 348 A.2d 275, 280 (Md. 1975). Further, § 35C(i)
contains no divisions—either facially or judicially deter-
mined—regarding the use or absence of physical force. More-
over, there are no separate categories in § 35C(i) delineating
between affirmative and nonaffirmative acts.
This is not to say that the statute itself is indivisible. It is
divisible. Section 35(c) can be divided into two categories:
physical abuse and sexual abuse. Moreover, physical abuse
can be divided further into subcategories: cruel or inhumane
treatment, and malicious acts. But, notably, it is not divisible
into forceful or nonforceful acts.
The statute is, however, expansive. For instance, the Mary-
land Court of Appeals observed the following:
When examining the breadth of conduct that fell
under the umbrella of child sexual abuse in Section
35C and also falls within the current iteration of the
child abuse statute, we consistently have observed
that the Legislature intended for the statute to cover
a wide range of conduct.
UNITED STATES v. GOMEZ 13
Crispino v. State, 7 A.3d 1092, 1099 (Md. 2010).
Similarly, thirty-five years before Crispino, Maryland’s
highest court stated the following:
In making it an offense for a person having custody
of a minor child to ‘cause’ the child to suffer ‘a
physical injury,’ the Legislature did not require that
the injury result from a physical assault upon the
child or from any physical force initially applied by
the accused individual; it provided instead, in a more
encompassing manner, that the offense was commit-
ted if physical injury to the child resulted either from
a course of conduct constituting ‘cruel or inhumane
treatment’ or by ‘malicious act or acts.’
Fabritz, 348 A.2d at 280. The court later explained that the
philosophical underpinning of the statute is that "[c]hild abuse
and the underlying crimes involve separate societal evils."
Fisher v. State, 786 A.2d 706, 721 (Md. 2001) (quoting a let-
ter from an Assistant Attorney General, with approval). "The
underlying crime is one of violence against a member of soci-
ety. Child abuse is a breach of custodial or familial trust. The
two crimes should be punished separately and the person who
violates both laws should be exposed to a greater possible
penalty." Id. In other words, the gravamen of child abuse
under § 35C is "the breach of custodial or familial trust[,]"
and not the particular manner in which the child was abused
(i.e., with or without force).
Under Supreme Court precedent, for the modified categori-
cal approach to apply to the facts of this case, we are required
to separate forceful and nonforceful acts in § 35C(i). But, as
already noted, that is impossible to do here in that every part
of § 35C(i) can be accomplished with or without the use of
physical force. That is, it is a violation of § 35C(i) when one
with custodial or familial care of a child causes—with or
without physical force—that child to sustain physical injury
14 UNITED STATES v. GOMEZ
by means of "cruel or inhumane treatment or as a result of a
malicious act." § 35C(i).
In determining that Gomez’s prior conviction constituted a
crime of violence, the district court looked at the manner in
which she committed child abuse to determine whether it was
a crime of violence. But, as detailed above, this violates the
Supreme Court’s mandate that the district court is to look only
to the crime of conviction, and not at the defendant’s conduct
in committing the crime, to decide whether the defendant
committed a crime of violence. Stated differently, the district
court should have examined the trial record to determine
whether Gomez committed a statutory violation constituting
a crime of violence. Instead, it examined the trial record to
decide if Gomez acted violently in abusing her son.
C.
Except for common law based crimes in which the offenses
have been judicially defined, there are no post-Johnson
Fourth Circuit cases examining an indivisible statute wherein
we have approved use of the modified categorical approach to
determine if a prior conviction was a crime of violence for
enhancement purposes.
Nevertheless, according to the government, "[g]iven the
relationship between assault and battery and physical child
abuse under Maryland law, the applicability of the modified
categorical approach to prior convictions for physical child
abuse is reinforced by this Court’s precedent concerning the
modified categorical approach and Maryland assault and bat-
tery convictions." Thereafter, it points to the citation in John-
son of one of our cases, United States v. Simms, 441 F.3d 313
(4th Cir. 2006), in support of its position that the Supreme
Court approved of our use of the modified categorical
approach as applied to Simms’s prior battery conviction under
Maryland law. See Johnson, 130 S. Ct. at 1273.
UNITED STATES v. GOMEZ 15
We need not decide whether the Supreme Court meant to
signal its approval, as we are unconvinced that Maryland’s
assault and battery law has any bearing on our analysis as to
the appropriateness of the use of the modified categorical
approach in this case. Suffice it to say that the crime of assault
and battery is based in common law and, as such, its elements
are judicially determined. See United States v. Alston, 611
F.3d 219, 222 (4th Cir. 2010) (stating that the common-law
crime of assault in Maryland includes "the crimes of assault,
battery, and assault and battery, which retain their judicially
determined meanings." (quoting Md. Code Ann., Crim. Law
§ 3–201(b)) (internal quotation marks omitted)); United States
v. Kirksey, 138 F.3d 120, 125 (4th Cir. 1998) ("Because
Maryland recognizes common law crimes, no statute defines
their elements. But the Maryland case law fully articulates
them."). Here, however, we are concerned with the divisions
within a statute, not a common law crime.
D.
In sum, as the Fifth Circuit held in Andino-Ortega,
"[a]lthough the actual conduct described involved the use of
physical force, that is irrelevant for the purposes of this case.
The inquiry is whether the use of physical force is an element
under the statute of conviction, not whether the defendant’s
actual conduct involved the use of physical force." 608 F.3d
at 310 n.1. Hence, because there is no divisible use-of-force
element under § 35C(i), the district court’s employment of the
modified categorical approach to determine that it was a
crime of violence was improper.
III.
In the alternative, the government maintains that, even if
the district court erred in its determination of Gomez’s Guide-
lines range, the error was harmless because the district court’s
imposition of the enhancement did not affect Gomez’s ulti-
mate sentence. The government contends that "[b]ecause the
16 UNITED STATES v. GOMEZ
court arrived at the 24-month sentence purely through refer-
ence to the section 3553(a) factors (especially deterrence), a
remand to recalculate the advisory [G]uidelines range would
be a pointless exercise." We are unconvinced.
For us to find harmless error, we must be certain that "(1)
. . . the district court would have reached the same result even
if it had decided the [G]uidelines issue the other way, and (2)
a determination that the sentence would be reasonable even if
the [G]uidelines issue had been decided in the defendant’s
favor." United States v. Savillon-Matute, 636 F.3d 119, 123
(4th Cir. 2011) (quoting United States v. Keene, 470 F.3d
1347, 1349 (11th Cir. 2006)) (internal quotation marks omit-
ted)).
Although the district court did a commendable job in con-
sidering the 18 U.S.C. 3553(a) factors in determining the sen-
tence 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.
With the enhancement, the Guidelines range was forty-one
to sixty-one months’ imprisonment. But, without the enhance-
ment, Gomez’s Guidelines range would have been eight to
fourteen months’ imprisonment. Although the district court
imposed a substantial downward variance in arriving at
Gomez’s sentence of twenty-four months’ imprisonment, we
can find nothing in the record to suggest that the district court
would have varied upwards to arrive at a twenty-four month
sentence. Thus, we are unable to declare the error harmless.
IV.
For the foregoing reasons, we vacate Gomez’s sentence and
remand for resentencing.
VACATED AND REMANDED
UNITED STATES v. GOMEZ 17
NIEMEYER, Circuit Judge, dissenting:
After pleading guilty in May 2011 to unlawful reentry into
the United States, in violation of 8 U.S.C. §§ 1326(a) and
1326(b)(2), Mirna Gomez was sentenced to 24 months’
imprisonment—a sentence that was enhanced by reason of her
1999 conviction for child abuse under Maryland Code, Art.
27, § 35C. In view of the fact that Gomez, when pleading
guilty in 1999 to child abuse, admitted to abusing her son by
burning the bottoms of his feet with a candle to punish him,
the district court, using the modified categorical approach,
concluded that the 1999 conviction qualified as a crime of
violence, authorizing the sentencing enhancement for unlaw-
ful reentry under U.S.S.G. § 2L1.2(b)(1)(A)(ii) (providing for
the enhancement of sentences for unlawfully reentering the
United States after having been convicted for a felony that is
"a crime of violence").
The majority, surprisingly, is unwilling to allow the use of
the modified categorical approach to recognize Gomez’s
admission of violent conduct in pleading guilty to the 1999
charge, taking the position that because the Maryland statute
punishing child abuse is ambiguous and nondivisible—
allowing a conviction based on conduct that is either violent
or nonviolent (such as child neglect)—the district court erred
in employing the modified categorical approach to find the
conviction to be a predicate conviction for a sentencing
enhancement under U.S.S.G. § 2L1.2(b). The majority holds
that as a condition of employing the modified categorical
approach, the statute under consideration must itself be
divided into "categories" with some "constituting a crime of
violence and some not constituting a crime of violence." Ante,
at 10. It rejects the cases that employ the modified categorical
approach to a statute not so divided on its face but so divided
by governing judicial interpretation, such as an assault statute.
The majority takes this position even though it agrees that if
it were to apply the modified categorical approach, we could
consider such an admission and the admission would support
18 UNITED STATES v. GOMEZ
the finding that Gomez’s prior conviction was a "crime of
violence."
Unfortunately, the majority’s opinion adopts an entirely
new rule that (1) is not mandated by any Supreme Court deci-
sion; (2) is indeed inconsistent with a long line of Fourth Cir-
cuit cases, including cases cited approvingly by the Supreme
Court; (3) is both impractical and illogical; and (4) aggravates
a split among the circuits.1
I dissent with no insubstantial amount of perplexity on why
we need to adopt this novel approach when it serves no practi-
cal end and undermines the principles underlying the Supreme
Court’s creation of the categorical and modified categorical
approaches in the first instance. In determining what convic-
tions qualify as a sentencing enhancement, courts are autho-
rized to use the modified categorical approach pragmatically
whenever the approach yields an answer, in circumstances
made ambivalent by an overbroad statute, to whether the prior
conviction qualifies as a predicate conviction, so long as the
use of the approach avoids "subsequent evidentiary inquiries
in the factual basis for the earlier conviction" and "collateral
trials." Shepard v. United States, 544 U.S. 13, 20, 23 (2005).
The majority appears to misconceive the task and the role that
the modified categorical approach is allowed to serve in car-
rying out the task. It assumes that applying the modified cate-
1
In United States v. Woods, 576 F.3d 400 (7th Cir. 2009), the Seventh
Circuit adopted a per se rule limiting the modified categorical approach to
facially divisible statutes. The Fifth, and Eighth Circuits have similar poli-
cies. See, e.g., United States v. Gonzalez-Terrazas, 529 F.3d 293, 297-98
(5th Cir. 2008); United States v. Boaz, 558 F.3d 800, 807-08 (8th Cir.
2009). The Ninth Circuit, which had previously adopted the same rule as
Woods, reversed course in United States v. Aguila-Montes de Oca, 655
F.3d 915 (9th Cir. 2011) (en banc). It now applies the modified categorical
approach to both divisible and indivisible statutes. The Sixth and Tenth
Circuits follow a similar approach. See, e.g., United States v. Ventura-
Perez, 666 F.3d 670 (10th Cir. 2012); United States v. Armstead, 467 F.3d
943 (6th Cir. 2006). The remaining circuits do not appear to have conclu-
sively resolved the issue either way.
UNITED STATES v. GOMEZ 19
gorical approach to statutes that are not divided within
themselves would impermissibly lead to the conduct of "mini-
trial[s] to resolve whether the action of the defendant
amounted to a crime of violence," ante, at 11, completely
overlooking the fact that application of the modified categori-
cal approach by definition and certainly in this case does not
require a mini-trial. Moreover, little thought is given to the
fact that the majority’s holding effectively overrules well nigh
a dozen Fourth Circuit decisions and aggravates a senseless
circuit split.
I
Gomez, a citizen of El Salvador, pleaded guilty on May 31,
2011, to a single count charging her for unlawful entry as a
deported alien after having committed an aggravated felony,
in violation of 8 U.S.C. §§ 1326(a) and 1326(b)(2). During
sentencing, the government urged that Gomez’s sentence be
enhanced pursuant to U.S.S.G. § 2L1.2(b) because Gomez
had a prior conviction for a "crime of violence." Specifically,
it noted that in 1999, Gomez pleaded guilty in state court to
a violation of Maryland’s child abuse statute, then codified as
Maryland Code. Art. 27, § 35C,2 and that, during the plea col-
loquy, admitted to burning the bottoms of her eight-year-old
son’s feet with a candle, to punish the child. The government
argued that this conviction for child abuse qualified as a pred-
icate crime of violence under either the categorical or modi-
fied categorical approach articulated in Taylor v. United
States, 495 U.S. 575 (1990).
Gomez objected to the enhancement. She contended that a
conviction under Maryland’s child abuse statute was not cate-
gorically a crime of violence because the statute did not
require as an element the use of physical force. She also con-
tended that the breadth of the conduct covered by the statute,
2
Article 27, § 35C, is now codified at Maryland Code, Criminal Law,
§ 3-601.
20 UNITED STATES v. GOMEZ
without specifically proscribing violent and nonviolent con-
duct, made the modified categorical approach inappropriate to
use in her case because the crime could have been committed
by the nonviolent conduct of neglect.
At the sentencing hearing, the district court agreed with
Gomez that a violation of the Maryland child abuse statute
was not categorically a crime of violence. But it also con-
cluded, relying on Fourth Circuit precedents, that the modified
categorical approach was applicable because "the fact of
conviction and the definition under Maryland law were
unduly vague or ambiguous. Where there is a broadly defined
offense under Maryland law, thus precluding a determination
of whether a conviction constituted a violent felony, then the
modified categorical approach can be used." The court
explained:
We are dealing with a statute that I find does not cat-
egorically include the use of force, but that it broadly
encompasses some act by a defendant to cause phys-
ical injury and that that like battery and second-
degree assault might be forced, but it could be some-
thing less direct. And that, therefore, it is broad
enough to encompass crimes of violence under some
circumstances. And that, therefore, we can look at
the permitted universe of documents to determine
what kind of child abuse conviction this was.
And here, I believe it is conceded in the Statement
of Facts in the plea transcript to indicate that this was
a forceful child abuse conviction. And that, there-
fore, it was a crime of violence and is appropriately
assigned an enhancement of 16 levels [under
U.S.S.G. § 2L1.2(b)(1)(A)(ii)].
Applying the 16-level enhancement based on Gomez’s
child abuse conviction, the district court found Gomez’s Sen-
tencing Guidelines range to be 41 to 51 months’ imprison-
UNITED STATES v. GOMEZ 21
ment. After hearing additional arguments from the parties and
considering the statutory factors of 18 U.S.C. § 3553(a), the
court imposed a variance sentence of 24 months’ imprison-
ment.
Gomez filed this appeal, challenging only the district
court’s consideration of her 1999 child abuse conviction to
enhance her sentence.
II
The question before us is whether, in considering a prior
Maryland conviction for child abuse to enhance a sentence
under 8 U.S.C. § 1326(b)(2) and U.S.S.G. § 2L1.2(b), we may
employ the modified categorical approach recognized in Tay-
lor.
When the nature and purpose of the modified categorical
approach are considered, the approach is properly recognized
as a pragmatic rule that enables the court to determine
whether a prior conviction qualifies as a predicate offense,
according to the wishes of Congress, without engaging in
undue factfinding that would effectively retry the facts of the
prior conviction. As a pragmatic rule, it allows an array of
ways to examine prior convictions to determine whether they
qualify, imposing limitations only to protect the prior convic-
tion from subsequent factfinding and retrials.
In Taylor, the Supreme Court considered whether a convic-
tion under Missouri’s burglary statutes qualified as a predicate
"burglary" conviction under the Armed Career Criminal Act
("ACCA"), 18 U.S.C. § 924(e)(2), to enhance a sentence for
a violation of 18 U.S.C. § 922(g)(1) (prohibiting a felon from
possessing a firearm). To resolve that question, the Court
determined first that Congress intended "burglary" and all
other predicate offenses in ACCA to be defined uniformly for
use in all federal sentencing. When accomplishing this pur-
pose, the Court considers each statutorily listed predicate
22 UNITED STATES v. GOMEZ
offense "generically, that is to say . . . 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."
Begay v. United States, 553 U.S. 137, 141 (2008). As the term
"burglary" was used in § 924(e)(2), therefore, the Taylor
Court concluded that the statute referred to a "generic" crime,
which, it determined from consensus, was the "unlawful or
unprivileged entry into, or remaining in a building or struc-
ture, with the intent to commit a crime." Taylor, 495 U.S. at
599.
The Court then faced the question of how to determine
whether the defendant’s Missouri convictions amounted to
generic burglary as used in § 924(e)(2), particularly when
Missouri defined burglary "more broadly" than generic bur-
glary, punishing unlawful entries not only into buildings and
structures but also into boats, automobiles, and railroad cars.
Recognizing that the categorical approach, which the Court
noted was necessary to avoid a reconsideration of facts and
effectively a retrial of the prior case, the Court concluded that
a Missouri conviction could nonetheless qualify as a generic
offense if it could determine that the jury in the Missouri con-
viction "was actually required to find all the elements of
generic burglary." 495 U.S. at 602. The Court explained:
For example, in a State whose burglary statutes
including entry of an automobile as well as a build-
ing, if the indictment or information in jury instruc-
tions show that the defendant was charged only with
the burglary of a building, and the jury necessarily
had defined an entry of a building to convict, then
the government should be allowed to use the convic-
tion for enhancement.
Id. The Court thus held that when determining whether a prior
conviction under a statute broader than generic burglary qual-
ifies as an enhancing conviction under federal law:
UNITED STATES v. GOMEZ 23
an offense constitutes "burglary" for purposes of
§ 924(e) sentence enhancement if either its statutory
definition substantially corresponds to "generic" bur-
glary, or the charging paper and jury instructions
actually required the jury to find all the elements of
generic burglary in order to convict the defendant.
Id.
The principles of Taylor have always been understood to be
a "pragmatic" approach "to identify generic convictions"
under state law even when state laws are broader than the
generic convictions. Shepard, 544 U.S. at 20. The determina-
tion of qualifying convictions has simply focused on the
avoidance of "subsequent evidentiary enquiries into the fac-
tual basis for the earlier conviction," id. at 20, i.e., the "avoid-
ance of collateral trials," id. at 23. The Shepard Court thus
reiterated the Taylor rule:
We hold that enquiry under the ACCA to determine
whether a plea of guilty to burglary defined by a
nongeneric statute necessarily admitted elements of
the generic offense is limited to 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.
Id. at 26.
Because state statutes are frequently broader than the
generic crime listed in the enhancing statute, such as was the
case in Taylor, courts may conduct various analyses of the
state laws to determine whether a conviction under them was
for a nongeneric crime or a listed generic crime. The easiest
analysis occurs when the state statute itself differentiates non-
generic crimes from generic crimes in separately marked sec-
24 UNITED STATES v. GOMEZ
tions of the statute. Thus, when the Shepard-approved
documents reveal that a defendant was convicted of the
generic crime listed in the enhancement statute, because his
state conviction was under a specifically identified section of
the statute that qualified as a generic crime, then the convic-
tion can readily be used to enhance the federal sentence. See,
e.g., United States v. Chambers, 555 U.S. 122 (2009); John-
son v. United States, 130 S. Ct. 1265, 1273 (2010).
And almost as easy are circumstances where the state stat-
ute defines different crimes in a series of words or phrases,
some of which would qualify as predicate offenses and some
of which would not. Again, if the Shepard-approved docu-
ments reveal that a defendant was necessarily convicted of a
qualifying generic crime—the generic uniform crime in the
enhancing statute—then again the conviction could be used to
enhance the sentence. See, e.g., Taylor, 495 U.S. at 599-600.
Finally, there are state statutes defining offenses generally
that are broader than the generic crimes listed in the enhanc-
ing statute but that do not include words or phrases articulat-
ing the variations of conduct that would violate the statute,
such as some statutes criminalizing assault and battery,
escape, or child abuse. In these cases where the state statutes
do not spell out the different behaviors that amount to convic-
tion, the state’s courts usually have. Thus, courts have con-
strued a battery to include a violent beating, as well as an
unwanted touching; or escape to include the violent escape
from custody, as well as the simple failing to report; and child
abuse to include violent physical force against a child, as well
as simply child neglect. In this way, the state’s courts have
construed the statutes to include both conduct that qualifies as
violent so as to qualify as a predicate offense and conduct that
is nonviolent that does not qualify as a predicate offense. But
again, when the Shepard-approved documents enable a court
to determine that a defendant was convicted of a generic qual-
ifying offense—i.e., a crime of violence—the conviction has
been used as a predicate offense to enhance a sentence. See,
UNITED STATES v. GOMEZ 25
e.g., United States v. Harcum, 587 F.3d 219 (4th Cir. 2009)
(assault and battery); United States v. Bethea, 603 F.3d 254
(4th Cir. 2010) (escape).
In sum, the Supreme Court has recognized that the modi-
fied categorical approach may be used whenever (1) the state
statute under which the defendant was convicted is "broader"
than the qualifying generic offense; and (2) when "a jury was
actually required to find all the elements of a generic
[offense]," Taylor, 495 U.S. at 602, or "a plea of guilty to [an
offense] defined by a nongeneric statute necessarily admitted
elements of the generic offense," Shepard, 544 U.S. at 26.
When those conditions exist, courts are authorized to look at
the Shepard-approved documents to determine whether the
prior conviction necessarily was one that qualified as a con-
viction for the generic offense of the enhancing statute. See
also United States v. Diaz-Ibarra, 522 F.3d 343, 348 (4th Cir.
2008) (holding that the modified categorical approach may be
used whenever the state statute is "categorically overbroad").
III
These Taylor/Shepard principles are readily applicable
here. The federal enhancing statute in this case defines as a
generic qualifying offense one that constitutes a "crime of
violence" such that it "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(b)(1)(A)(ii) & cmt. n.1(B)(iii).
And the Maryland statute for child abuse, under which Gomez
was convicted, can be violated with both conduct that quali-
fies as a predicate conviction and conduct that does not so
qualify.
In the prior version of the child abuse statute, Maryland
defined child abuse in a manner that would categorically qual-
ify as a violent felony. The statute punished any person "who
maliciously beats, strikes or otherwise mistreats [a] minor
child." See Acts of 1963, Ch. 43. By a 1973 amendment, how-
26 UNITED STATES v. GOMEZ
ever, the Maryland legislature broadened the statute to include
not only the "malicious beating or striking" of a minor child
but also child neglect, such as the failure to seek necessary
medical care for a child or other forms of neglect that result
in physical injury to the child. See Md. Code, Art. 27, § 35C;3
State v. Fabritz, 348 A.2d 275, 280 (Md. 1975); Pope v. State,
396 A.2d 1054, 1060-62 (Md. 1979).
Because the Maryland statute under which Gomez was con-
victed is broader than the generic crime qualifying as a predi-
cate offense (requiring the use of physical force), we may
consult Shepard-approved documents to determine whether
Gomez was necessarily convicted for the generic predicate
offense of using physical force against the person of another.
In this case, when Gomez pleaded guilty to child abuse, she
agreed that the operative facts for her conviction were that she
burned her eight-year old child’s feet with a candle, to punish
the child, allowing the district court and us to conclude that
Gomez necessarily was convicted for a crime of violence
when she pled guilty under the Maryland child abuse statute
with those admitted facts. See Shepard, 544 U.S. at 26
(approving use of the "colloquy between judge and defendant
in which the factual basis for the plea was confirmed by the
defendant"). We can therefore be sure that Gomez’s 1999
conviction "had an element of the use . . . of physical force"
because she admitted to using violent physical force against
her son. And because burning her son was the only form of
3
The 1973 amendment to the offense of child abuse defined "abuse," in
relevant part, as:
The sustaining of physical injury by a child as a result of cruel
or inhumane treatment or as a result of a malicious act by any
parent of other person who has permanent or temporary care or
custody or responsibility for supervision of a child, or by any
household or family member, under circumstances that the
child’s health or welfare is harmed or threatened thereby.
Md. Code, Art. 27, § 35C(i).
UNITED STATES v. GOMEZ 27
abuse alleged in her case, we can also be sure that Gomez
"necessarily admitted" to the use of violent physical force
and, moreover, that the trial judge was "actually required to
find" that fact in order to accept the guilty plea.
The Ninth Circuit has applied the modified categorical
approach to virtually the same circumstances to determine
that a child abuse conviction was a predicate violent offense
for sentencing enhancement. See United States v. Lopez-
Patino, 391 F.3d 1034 (per curiam) (9th Cir. 2004). In Lopez-
Patino, the court considered whether the defendant’s prior
Arizona child-abuse conviction was a crime of violence under
the illegal reentry Guidelines (as are applicable here). The
court recognized that a violation of the Arizona law, which
criminalized "caus[ing] a child or vulnerable adult to suffer
physical injury or abuse," was not categorically a crime of
violence "because a person could ‘cause a child’ physical
injury without the use of force," 391 F.3d at 1037. Nonethe-
less, it then used the modified categorical approach and held
that the sentencing enhancement was appropriate because the
indictment there made it clear that the defendant had been
convicted as a result of a violent act. Id. at 1038; see also
United States v. Tucker, 641 F.3d 1110, 1124-25 (9th Cir.
2011) (holding that defendant’s prior Nevada conviction for
"willfully caus[ing] a child . . . to suffer unjustifiable physical
pain or mental suffering as a result of abuse or neglect" was
a crime of violence under U.S.S.G. § 4B1.2 because charging
documents showed basis for conviction as defendant’s "voli-
tional, violent conduct").
The Sixth Circuit likewise has used the modified categori-
cal approach to determine that a Tennessee child abuse con-
viction was a predicate violent offense. See United States v.
Armstead, 467 F.3d 943, 947–48 (6th Cir. 2006). In Arms-
tead, the court held that the modified categorical approach
could be applied because the statutory definition "embrace[d]
both violent and non-violent crimes or [was] otherwise
ambiguous," and therefore the statute "did not necessarily
28 UNITED STATES v. GOMEZ
require the use, attempted use, or threatened use of physical
force" (quotation marks omitted).
We should likewise apply the modified categorical
approach here to conclude that Gomez’s prior conviction for
child abuse "had an element of the use . . . of physical force."
IV
Although the preceding discussion makes clear that the
modified categorical approach can easily be applied in
Gomez’s case, the majority rejects that analysis. According to
the majority, the modified categorical approach may be used
"for the sole purpose of determining which part of the statute
the defendant violated." Ante, at 7 (emphasis added). This
understanding of the modified categorical approach can be
easily applied when a statute of conviction contains defined
subsections, since the statutory text either will or will not con-
tain the same elements as the generic offense. But with
respect to so-called indivisible statutes, the majority insists
that any judicial evaluation of the defendant’s conduct is
impermissible, regardless of how apparent it is from the Shep-
ard documents that the defendant actually committed the
predicate acts for the enhancement.
I believe the majority’s conclusion rests on an overly cab-
ined interpretation of Taylor and Shepard that undermines the
entire purpose for using the modified categorical approach.
Those cases make clear that courts contemplating sentencing
enhancements can conduct a limited examination of the
defendant’s conduct as it relates to his crime of conviction, so
long as factfinding and retrials are not involved. Statutory
divisibility is simply irrelevant to the endeavor. As Chief
Judge Easterbrook, writing for the dissent in United States v.
Woods, 576 F.3d 400 (7th Cir. 2009), explained:
What Taylor excludes is calling something "bur-
glary" because that is what the defendant did, even
UNITED STATES v. GOMEZ 29
if he was convicted of something else (such as
unlawful entry of a residence, after a plea bargain
that excluded the "with intent to commit a felony
therein" element). And Shepard blocks using any-
thing other than the charging papers and plea collo-
quy to establish what the defendant was convicted
of. Neither opinion makes "divisibility" indispens-
able to classification.
Id. at 413 (Easterbrook, C.J., dissenting).
Nor is the majority’s divisibility rule compelled by the
Supreme Court’s more recent sentencing enhancement cases.
To be sure, the Court has considered state statutes that have
statutorily divided offenses into separate sections and, in con-
nection with determining which section applies, has used the
modified categorical approach. As the Court explained in
Nijhawan:
The categorical method is not always easy to apply.
That is because sometimes a separately numbered
subsection of a criminal statute will refer to several
different crimes, each described separately. And it
can happen that some of these crimes involve vio-
lence while others do not. A single Massachusetts
statute section entitled "Breaking and Entering at
Night," for example, criminalizes breaking into a
"building, ship, vessel or vehicle." Mass. Gen. Laws,
Ch. 266, § 16 (West 2006). In such an instance, we
have said a court must determine whether an offend-
er’s prior conviction was for the violent, rather than
for the nonviolent, break-ins that this single five-
word phrase describes (e.g., breaking into a building
rather than into a vessel), by examining "the indict-
ment or information in jury instructions," Taylor,
[495 U.S.] at 602, or, if a guilty plea is at issue, by
examining the plea agreement, plea colloquy or
"some comparable judicial record" of the factual
30 UNITED STATES v. GOMEZ
basis for the plea. Shepard v. United States, 544 U.S.
13, 26 (2005).
129 S. Ct. at 2299.
Because the Supreme Court has addressed such cases,
where the state statute had subsections, the majority con-
cludes that the Court therefore implied that the modified cate-
gorical approach can be used only when the state statutes
explicitly divide conduct into separate crimes. Ante, at 7-8.
The conclusion obviously does not follow. In Johnson, the
case the majority claims resolved any confusion on this issue,
the Court did consider a statute that was subdivided by sec-
tions. But nonetheless, it never suggested that the divisibility
aspect was in any way important. Indeed, in response to the
dissent’s fear that the modified categorical approach might be
at stake, it noted that the government can well use the modi-
fied categorical approach in cases where the state statutes
were not divisible, such as Maryland’s battery statute. The
Johnson Court stated:
[The dissent’s view] exaggerates the practical effect
of our decision. When the law under which the
defendant has been convicted contains statutory
phrases that cover several different generic crimes,
some of which require violent force and some of
which do not, the "modified categorical approach"
that we have approved, permits a court to determine
which statutory phrase was the basis for the convic-
tion by consulting the trial record—including charg-
ing documents, plea agreements, transcripts of plea
colloquies, findings of fact and conclusions of law
from a bench trial, and jury instructions and verdict
forms. Indeed, the government has in the past
obtained convictions under the Armed Career Crimi-
nal Act in precisely this manner. See, e.g., United
States v. Simms, 441 F.3d 313, 316-17 (4th Cir.
UNITED STATES v. GOMEZ 31
2000) [considering Maryland’s battery statute which
is not divided].
130 S. Ct. at 2173 (emphasis added).
None of the Supreme Court cases cited by the majority
used the words "divisible," "indivisible," or their analogues.
In fact, the Supreme Court has never discussed divisibility in
any of its sentencing enhancement cases, despite opportunities
to do so. In Taylor, for example, the Supreme Court noted that
at the time of Taylor’s first conviction, Missouri had seven
different burglary statutes, some with explicit subdivisions
and some without. 495 U.S. at 578-79 & n.1. The Court did
not indicate that this distinction between the statutes made
any difference to its analysis. And although the dissenting
opinion in the Third Circuit opinion in Nijhawan raised divisi-
bility as an issue, see Nijhawan v. Atty. Gen., 523 F.3d 387,
404-05 & n.18 (Stapleton, J., dissenting), the Supreme Court
affirmed the majority opinion without addressing that argu-
ment.
V
Not only has the Supreme Court never required divisibility,
our court has explicitly held many times that even where stat-
utes do not divide themselves, they nonetheless may be con-
sidered under the modified categorical approach. The
majority’s new rule effectively overrules this long line of
Fourth Circuit cases.
In United States v. Kirksey, 138 F.3d 120 (4th Cir. 1998),
we considered an enhancement based on a conviction under
Maryland’s assault and battery statute, which punishes con-
duct that is both violent and nonviolent. We observed that
"because Maryland recognizes common law crimes" and "no
statute defines their elements," id. at 125, we could look to
Maryland case law to determine the elements of an assault
and battery offense. We found that Maryland’s crime of bat-
32 UNITED STATES v. GOMEZ
tery "embraces a wide range of conduct, including ‘kissing
without consent, touching or tapping, jostling, and throwing
water upon another.’" Id. (quoting Epps v. State, 632 A.2d 20,
23 (Md. App. 1993)). Because, however, at least some of the
conduct criminalized by the Maryland statute could be based
on the use of physical force, we applied the modified categor-
ical approach to determine whether Kirksey’s prior conviction
qualified as a predicate conviction for the federal enhance-
ment. Id. at 126.
Kirksey’s use of the modified categorical approach when
evaluating a defendant’s prior Maryland assault convictions
has been applied consistently thereafter. See, e.g., United
States v. Donnell, 661 F.3d 890 (4th Cir. 2011); United States
v. Taylor, 659 F.3d 339 (4th Cir. 2011); United States v. Als-
ton, 611 F.3d 219, 222-23 (4th Cir. 2010); United States v.
Harcum, 587 F.3d 219 (4th Cir. 2009); United States v.
Simms, 441 F.3d 313, 316 (4th Cir. 2006); United States v.
Coleman, 158 F.3d 199 (4th Cir. 1998) (en banc); see also
United States v. Spence, 661 F.3d 194 (4th Cir. 2011) (apply-
ing the modified categorical approach to South Carolina’s
common law crime of assault and battery of a high and aggra-
vated nature); United States v. White, 606 F.3d 144 (4th Cir.
2010) (applying the analysis of Harcum to Virginia’s assault
and battery statute).
The majority contends that although Kirksey and its prog-
eny addressed an "indivisible" statute, those cases are distin-
guishable because the elements of Maryland’s second-degree
assault offense are defined by common law, not by statute.
But the line between common law and statutory crimes is one
the majority simply conjures from thin air. Neither the
Supreme Court nor this court has previously recognized such
a distinction when applying the modified categorical
approach. See Harcum, 587 F.3d at 223 ("[W]hen the fact of
conviction and the statutory definition of the offense are
unduly vague or ambiguous, a sentencing court is entitled to
turn to and apply the alternative ‘modified categorical’
UNITED STATES v. GOMEZ 33
approach") (emphasis added). For example, in United States
v. Bethea, 603 F.3d 254 (4th Cir. 2010), we applied the modi-
fied categorical approach to South Carolina’s escape statute,
which makes it a crime "for a person, lawfully confined in
prison or upon the public works of a county or while in the
custody of a superintendent, guard, or officer, to escape." S.C.
Code Ann. § 24-I3-410(A). Given the breadth of the statutory
language, we observed that "it is unclear whether South Caro-
lina’s escape statute proscribes one or more generic forms of
conduct." 603 F.3d at 257. Nevertheless, "[b]ecause it is clear
that the term ‘to escape’ broadly encompasses at least two
generic classes of conduct under South Carolina law," we
held that the district court had been correct to use the modi-
fied categorical approach in determining whether the defen-
dant had committed a violent felony. Id. at 258.
Even circuits that have recognized the potential applicabil-
ity of a divisibility requirement have not given effect to the
distinction the majority invokes. Our sister courts have
instead recognized that when a "state crime is defined by spe-
cific 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) (emphasis
added) (quoting United States v. Melton, 344 F.3d 1021, 1026
(9th Cir. 2003)); see also id. ("While Walker correctly notes
that [two of the Second Circuit’s modified categorical
approach cases], by their terms, apply to statutory offenses,
neither opinion suggests that the analysis is different with
respect to common law crimes, nor is there any reason in prin-
ciple that it should be"). Given the "functional equivalency"
of common law and statutory crimes, it makes no sense to
authorize a sentencing court to interpret convictions under the
former but not under the latter.
Tellingly, Gomez’s briefs did not advocate the common
law/statutory crime distinction the majority relies on today.
Instead, she contends that to the extent Kirksey and its prog-
34 UNITED STATES v. GOMEZ
eny expanded the reach of the modified categorical approach,
those decisions have been abrogated by the more recent opin-
ions in United States v. Vann, 660 F.3d 771 (4th Cir 2011) (en
banc) and United States v. Rivers, 595 F.3d 558 (4th Cir.
2010). Neither of these cases supports the majority’s position
on closer inspection.
Relying on United States v. Chambers, 129 S. Ct. 687
(2009), the panel in Rivers stated that the modified categorical
approach is applicable "only when a statute prohibits different
types of behavior such that it can be construed to enumerate
separate crimes." Rivers, 595 F.3d at 563; see also id. at 564
("[T]he modified categorical approach most naturally applies
to statutes which proscribe different types of behavior consti-
tuting separate crimes"). The court therefore held that, for
purposes of ACCA, the modified categorical approach could
not be applied to South Carolina’s blue light statute, which
criminalized both intentional and unintentional violations of
the statute. The majority argues this holding confirms the
impropriety of applying the modified categorical approach to
indivisible statutes. But even indivisible statutes can be "con-
strued to enumerate separate crimes," as Kirksey shows.
Moreover, although the South Carolina blue light law is not
expressly divisible, it differs from other indivisible statutes in
that it imposes strict liability. A jury would never be required
to conclude that a defendant had acted intentionally (i.e.,
acted in the purposeful, violent manner required to fall within
ACCA’s residual clause) in order to convict under that statute.
The holding in Rivers is therefore consistent with the method-
ology of Taylor as it was applied by the court below.
And while the various opinions in Vann addressed many
issues, its implications for the present appeal are at best
ambiguous. The statute at issue in that case contained two
clear subdivisions, making it unnecessary for the court to
decide how the modified categorical approach might apply to
indivisible statutes. Moreover, although Judges King and
Davis did conclude that the modified categorical approach
UNITED STATES v. GOMEZ 35
could not be applied in Vann’s case, they rested this conclu-
sion on the North Carolina courts’ prior holdings that the stat-
ute covered only a single category of behavior. See Vann, 660
F.3d at 782 (King, J., concurring); id. at 794 (Davis, J., con-
curring). Only Judge Wilkinson’s opinion appears to have
contemplated the question presented in this case, and the
understanding of the modified categorical approach he advo-
cated is contrary to the rule the majority now adopts. See id.
at 806 & n.4 (Wilkinson, J., concurring) ("[T]he modified cat-
egorical approach . . . applies in instances . . . where the statu-
tory definition of the crime is broader than the generic
definition").
In sum, we have consistently applied the modified categori-
cal approach irrespective of a statute’s facial divisibility. The
majority’s new rule thus flies in the face of these well-
established precedents.
VI
Gomez pleaded guilty to reentering the United States after
having been removed following her conviction for the com-
mission of an aggravated felony, in violation of 8 U.S.C.
§§ 1326(a) and 1326(b)(2). The simple crime of reentering
after removal is punishable by a maximum of two years’
imprisonment. 8 U.S.C. § 1326(a). But the crime of reentering
after removal for the commission of an aggravated felony is
punishable by a maximum of 20 years’ imprisonment. Id.
§ 1326(b)(2). An enhancement for a prior conviction was
obviously important to Congress.
It is not disputed that Gomez committed the later crime,
punishable up to 20 years’ imprisonment, as she pleaded
guilty to it. Yet, the majority opinion now undermines the pol-
icy inherent in the statute by creating a new rule that pre-
cludes us from considering her prior child abuse conviction.
Creating such a new rule has no judicial purpose or policy
purpose. In adopting the approach, the Supreme Court’s con-
36 UNITED STATES v. GOMEZ
cern was only to restrict the kind of prior information that
could be used so as to preserve the Sixth Amendment right of
jury trial and the possibility of a court infringing on the fact-
finding process without a jury. But until today’s decision, no
court has suggested that the jury trial right is compromised by
the use of Shepard-approved documents under the modified
categorical approach. Indeed, imposing a limited document
class for use in the modified categorical approach was itself
a restriction that the dissent in Johnson criticized as too
restrictive. There is no statutory purpose that is served by
making the modified categorical approach yet more restric-
tive.
If the majority’s position is taken to its logical extreme, it
becomes difficult to understand why the modified categorical
approach should apply even to divisible statutes. If a state
statute criminalized burglary involving "a house or boat," a
sentencing judge could never be entirely sure that the jury
found the structure the defendant entered was a house; pre-
sumably the jury could convict the defendant without divining
the structure’s true nature. Of course, the judge could dispel
any uncertainty on this point by examining the Shepard docu-
ments. But if such an inquiry is appropriate, then in practical
terms the difference between divisible and indivisible statutes
is inconsequential. With the new rule, the majority now
imposes more limitations that now frustrate Congress’ pur-
pose in providing for sentencing enhancements for those who
previously committed crimes of violence.
Contrary to the majority’s assertions to the contrary, see
ante, at 10-11, applying the modified categorical approach
regardless of divisibility also promotes the goal of sentencing
uniformity. In Taylor, the Court reasoned that using a categor-
ical approach was necessary to "protect[ ] offenders from the
unfairness of having enhancement depend upon the label
employed by the State of conviction." 495 U.S. at 589, 592.
The Court expressed concern that if the meaning of "bur-
glary" "depend[ed] on the definition adopted by the State of
UNITED STATES v. GOMEZ 37
conviction," then "a person convicted of unlawful possession
of a firearm would, or would not, receive a sentence enhance-
ment based on exactly the same conduct, depending on
whether the State of his prior conviction happened to call that
conduct ‘burglary.’" Id. at 590-91. Precisely this sort of sen-
tencing disparity will be produced by the majority’s holding.
A defendant convicted of child abuse in Maryland will be cat-
egorically ineligible for the sentencing enhancement under
§ 2L1.2(b), while a defendant who was convicted of child
abuse for exactly the same acts in nearby Washington, D.C.,
or West Virginia, where child "abuse" and child "neglect" are
defined disjunctively, could be subject to that enhancement.
Cf. W. Va. Code Ann. § 49-1-3 ("‘Child abuse and neglect’
or ‘child abuse or neglect’ means physical injury, mental or
emotional injury, sexual abuse, sexual exploitation, sale or
attempted sale or negligent treatment or maltreatment of a
child by a parent, guardian or custodian"); D.C. Code Ann.
§ 16-2301 (defining child abuse as "infliction of physical or
mental injury upon a child"; "sexual abuse or exploitation of
a child; or "negligent treatment or maltreatment of a child").
The majority ensures that this court’s sentencing enhancement
jurisprudence will henceforth turn on the vagaries of state leg-
islative drafting practices. See United States v. Woods, 576
F.3d 400, 413 (Easterbrook, C.J., dissenting) ("States did not
write their statutes with Begay in mind").
I submit that so long as we conscientiously guard against
the infringement of the defendant’s Sixth Amendment rights
with respect to the prior conviction, we should err, when con-
sidering prior convictions, on the side of evaluating all of the
available Shepard-approved evidence in order to carry out
Congress’ intent as represented in the enhancement statutes.
Our new rule, I believe, simply has this backwards.