United States v. Hemingway

Decision Date31 October 2013
Docket NumberNo. 12–4362.,12–4362.
Citation734 F.3d 323
PartiesUNITED STATES of America, Plaintiff–Appellee, v. Leroy Deon HEMINGWAY, Defendant–Appellant. Evelina Jan Norwinski, Court–Assigned Amicus Counsel.
CourtU.S. Court of Appeals — Fourth Circuit

OPINION TEXT STARTS HERE

ARGUED:William Fletcher Nettles, IV, Office of the Federal Public Defender, Florence, South Carolina, for Appellant. Thomas Ernest Booth, United States Department of Justice, Washington, D.C., for Appellee. Justin Sanjeeve Antonipillai, Arnold & Porter, LLP, Washington, D.C., for Court–Assigned Amicus Counsel. ON BRIEF:William N. Nettles, United States Attorney, Columbia, South Carolina, A. Bradley Parham, Assistant United States Attorney, Office of the United States Attorney, Florence, South Carolina; Lanny A. Breuer, Assistant Attorney General, John D. Buretta, Deputy Assistant Attorney General, Criminal Division, United States Department of Justice, washington, D.C., for Appellee. Laura K. D'Allaird, Arnold & Porter, LLP, Washington, D.C., for Court–Assigned Amicus Counsel.

Before KING, SHEDD, and THACKER, Circuit Judges.

Vacated and remanded by published opinion. Judge KING wrote the opinion, in which Judge SHEDD and Judge THACKER joined.

KING, Circuit Judge:

In November 2011, Leroy Deon Hemingway pleaded guilty in the District of South Carolina to being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1). The district court sentenced Hemingway to fifteen years in prison, ruling that he was subject to the mandatory fifteen-year minimum required by the Armed Career Criminal Act (the “ACCA”), see18 U.S.C. § 924(e). On appeal, Hemingway maintains that the court erred in relying on his 2002 South Carolina conviction for the common law crime of assault and battery of a high and aggravated nature (“ABHAN”) to impose the mandatory minimum sentence. More specifically, Hemingway contends that ABHAN is not categorically a predicate “violent felony” under the ACCA, and that the court erred in ruling otherwise. The government agrees with Hemingway that ABHAN is not categorically an ACCA violent felony, but contends that use of the modified categorical approach is appropriate and that, utilizing such an approach, Hemingway's ABHAN offense constitutes an ACCA violent felony. As explained below, we agree with Hemingway and the government that ABHAN is not categorically a violent felony. We further conclude, contrary to the government's position, that the modified categorical approach has no role to play in this matter. See Descamps v. United States, ––– U.S. ––––, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). Accordingly, we vacate the judgment and remand for resentencing.

I.
A.

Pursuant to the ACCA, a defendant convicted of violating 18 U.S.C. § 922(g)(1), and who has three previous convictions “for a violent felony or a serious drug offense,” is subject to a mandatory fifteen-year minimum sentence. See18 U.S.C. § 924(e)(1). The ACCA defines a “violent felony” as “any crime punishable by imprisonment for a term exceeding one year” that:

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

Id. § 924(e)(2)(B). Subsection (e)(2)(B)(i) is commonly referred to as the “force clause.” As the Supreme Court has recognized, the force clause applies only to those crimes that involve violent force—that is, force capable of causing physical pain or injury to another person.” See Johnson v. United States, 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010). Subsection (e)(2)(B)(ii) identifies enumerated offenses—burglary, arson, extortion, and offenses involving the use of explosives—and then contains an “otherwise involves” clause. That clause is more commonly referred to as the “residual clause.” See Chambers v. United States, 555 U.S. 122, 124, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009).

The residual clause of subsection (e)(2)(B)(ii) is the only aspect of the ACCA at issue in this appeal. The government and Hemingway quite properly agree that ABHAN—the South Carolina common law crime at issue—neither satisfies the force clause nor constitutes an enumerated offense.1 Accordingly, an ABHAN offense can be an ACCA violent felony only if, consistent with the residual clause, it “otherwise involves conduct that presents a serious potential risk of physical injury to another.”

B.
1.

As we have recognized, [i]n assessing whether an offense constitutes an ACCA predicate offense, two types of analyses are potentially applicable—known as the ‘categorical’ approach and the ‘modified categorical’ approach.” United States v. Harcum, 587 F.3d 219, 222 (4th Cir.2009). These approaches stem from the Supreme Court's decision in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), “which established the rule for determining when a defendant's prior conviction counts as one of ACCA's enumerated predicate offenses.” See Descamps v. United States, ––– U.S. ––––, 133 S.Ct. 2276, 2283, 186 L.Ed.2d 438 (2013). In Taylor, the Court adopted a more “formal” elements-focused categorical approach that authorized sentencing courts to ‘look only to the statutory definitions'—i.e., the elements—of a defendant's prior offenses, and not ‘to the particular facts underlying those convictions.’ Descamps, 133 S.Ct. at 2283 (quoting Taylor, 495 U.S. at 600, 110 S.Ct. 2143). The Taylor Court also recognized a “narrow range of cases where a sentencing court could utilize the “modified categorical approach,” that is, “look beyond the statutory elements to ‘the chargingpaper and jury instructions' pertaining to the underlying previous conviction. See id. at 2283–84 (quoting Taylor, 495 U.S. at 602, 110 S.Ct. 2143). The Taylor Court contemplated that the modified categorical approach would be used only when the definition of the offense of conviction “comprises multiple, alternative versions of the crime.” Id. at 2284. As explained in Descamps, Taylor permitted sentencing courts, as a tool for implementing the categorical approach, to examine a limited class of documents to determine which of a statute's alternative elements formed the basis of the defendant's prior conviction.” Id.2

The central tenet of Taylor remains valid and applicable: As a general proposition, to determine whether a previous conviction is a violent felony, a sentencing court “employ[s] the categorical approach” and, in using that approach, ‘look[s] only to the fact of conviction and the statutory definition of the prior offense, and do[es] not generally consider the particular facts disclosed by the record of conviction.’ Sykes v. United States, ––– U.S. ––––, 131 S.Ct. 2267, 2272, 180 L.Ed.2d 60 (2011) (quoting James v. United States, 550 U.S. 192, 202, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007)). It bears repeating that [t]he categorical approach focuses on the elements of the prior offense rather than the conduct underlying the conviction.” United States v. Cabrera–Umanzor, 728 F.3d 347, 350 (4th Cir.2013).

2.

In June of this year, the Supreme Court rendered its Descamps decision, which constitutes a vastly important explication of the guiding legal principles concerning proper utilization of the categorical approach and the modified categorical approach. As the Court strongly reiterated, “the modified approach serves a limited function” and applies only in a ‘narrow range of cases.’ See Descamps, 133 S.Ct. at 2283 (quoting Taylor, 495 U.S. at 602, 110 S.Ct. 2143). The Descamps Court then assessed whether a California burglary conviction was for an ACCA enumerated offense, emphasizing the limited role of the modified categorical approach, i.e., simply to “help[ ] effectuate the categorical analysis when a divisible statute, listing potential offense elements in the alternative, renders opaque which element played a part in the defendant's conviction.” Id. (emphasis added). Focusing on California's burglary statute, the Court determined that the modified categorical approach had “no role to play” because the statute was not divisible. Id. at 2285. The Court further concluded that Descamps's burglary offense was not categorically an ACCA violent felony. Id. at 2293.

Notably, the Descamps decision underscored the validity of the divisibility analysis that our Court had already employed. See United States v. Gomez, 690 F.3d 194 (4th Cir.2012). In Gomez, Judge Floyd carefully explained that the categorical approach—rather than the modified categorical approach—was appropriate for deciding whether a Maryland child abuse conviction was for a “crime of violence” under the Sentencing Guidelines. See id. at 203. Applying the divisibility analysis, Gomez recognized that district courts may apply the modified categorical approach to a statute only if it contains divisible categories of proscribed conduct, at least one of which constitutes—by its elements—a violent felony.” Id. at 199.

Because Gomez and Descamps each involved statutory—rather than common law—offenses, in that context those decisions are distinguishable from the situation we face today. Indeed, Descamps explicitly “reserve[d] the question whether, in determining a crime's elements, a sentencing court should take account not only of the relevant statute's text, but of judicial rulings interpreting it.” 133 S.Ct. at 2291. The Court thus left open the issue of whether the divisibility analysis also applies to common law offenses. Likewise, Gomez did not address the issue of whether the divisibility analysis applies to a common law crime, because that appeal was concerned only with “the divisions within a statute, not a common law crime.” 690 F.3d at 202.

II.

Having identified certain of the applicable legal principles, we turn to Hemingway's contention on appeal—that his South...

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