United States v. Montes-Flores

• Decision Date: 26 November 2013
• Docket Number: No. 12–4760.,12–4760.
• Citation: 736 F.3d 357
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Fabian MONTES–FLORES, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

736 F.3d 357

UNITED STATES of America, Plaintiff–Appellee,

v.Fabian MONTES–FLORES, Defendant–Appellant.

No. 12–4760.

United States Court of Appeals,Fourth Circuit.

Argued: Sept. 17, 2013.

Decided: Nov. 26, 2013.

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.

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.

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 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 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

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. 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 under the illegal reentry Guideline was appropriate.⁵SeeU.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. 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.2012). “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

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. SeeU.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

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...