United States v. Montes-Flores, No. 12-4760
Decided: November 26, 2013
The Fourth Circuit vacated appellant, Fabian Montes-Flores’, 46-month sentence, finding that the district court erroneously applied the modified categorical approach to determine that appellant’s prior conviction for assault and battery of a high and aggravated nature (“ABHAN”) was a “crime of violence” for purposes of a sentencing enhancement. The Fourth Circuit held that the district court should have applied the categorical approach as opposed to the modified categorical approach to the ABHAN conviction because it was an indivisible common law crime.
Appellant was arrested during a 2010 traffic stop when officers noticed alcohol and a loaded revolver in the appellant’s vehicle. Subsequent to his arrest, an Immigration and Customs Enforcement agent determined that appellant was previously deported following a 2006 ABHAN conviction in South Carolina state court. The district court determined that, beyond a sentence for illegal reentry, appellant was also subject to a sentencing enhancement for his prior ABHAN conviction. Appellant appealed his conviction, arguing that his prior ABHAN conviction did not constitute a “crime of violence” that triggered to the sentencing enhancement.
A “crime of violence” is defined by the sentencing guidelines to include, inter alia, “any…offense under federal, state, or local law that has an element the use, attempted use, or threatened use of physical force against the person of another.” There are two approaches to determine whether a prior conviction constitutes a crime of violence: the categorical approach and the modified categorical approach. Under the categorical approach, the trial judge is instructed to look “only to the fact of conviction and the statutory definition of the prior offense” to determine whether the prior conviction was a “crime of violence.” The defendant’s actual conduct is immaterial. Conversely, under the modified categorical approach, the trial judge looks beyond the elements of the crime to the defendant’s actual conduct. However, the Fourth Circuit explained that the modified approach is only to be used if the prior conviction rests on a statute that “contains divisible categories of proscribed conduct, at least one of which constitutes—by its elements—a violent felony.” The district court applied the modified categorical approach to Appellant’s ABHAN conviction.
The Fourth Circuit held that the district court should have applied the categorical approach to Appellant’s prior ABHAN conviction because the crime sets forth only two elements under South Carolina law: (1) an unlawful act of violent injury to another, and (2) injury to another accompanied by circumstances of aggravation. Although the “circumstances of aggravation” may be satisfied in a number of ways, the court found that it was a single divisible element of a crime. Thus, ABHAN was not the type of divisible crime subject to the modified categorical approach Following the categorical approach, the court found that ABHAN can be committed “with or without force—and even when force is involved, ABHAN can be committed in a violent or nonviolent manner.” Therefore, the Fourth Circuit held that an ABHAN conviction in South Carolina was not categorically a crime of violence. Because ABHAN was not a crime of violence, the Fourth Circuit found that the district court erred in applying the sentencing enhancement and vacated Appellant’s sentence and remanded his case to the district court for resentencing.
The Fourth Circuit was similarly not persuaded by the government’s assertion that any error in sentencing was harmless. Error in sentencing is harmless only where the court knows that the district court would have reached the same result without erroneously determining the guideline range and that the sentence was reasonable under the appropriate guideline range. The Fourth Circuit was uncertain whether the district court would have reached the same sentence under the appropriate guideline range. The sentencing guidelines departed downward by 22 months without the crime of violence included. Furthermore, the district court’s original sentence fell within the guidelines when the crime of violence enhancement was included, but was far above the sentence under the appropriate guideline range. Therefore, the Fourth Circuit vacated Appellant’s sentence and remanded the case for resentencing.
– Wesley B. Lambert