Decided: August 10, 2012
The Fourth Circuit Court of Appeals vacated and remanded Mirna Del Carmen Gomez’s sentence because the district court erred in calculating her sentence under the modified categorical approach.
Gomez pleaded guilty to unlawful reentry of a deported alien after a felony conviction. The district court used her prior child abuse conviction as a crime of violence under the guidelines and added sixteen levels to her sentence. The appellate court, joining other circuits reasoning, determined that the modified categorical approach may only be used for statutory offenses in which the statute itself is divisible. A statute is divisible when some levels of the statute constitute crimes of violence and others do not. Supreme Court precedent does not allow a district court to determine whether the specific conduct of the defendant constituted a purposeful, violent, and aggressive act. If the modified categorical approach was used on statutes that are indivisible, this would require a district court to look into the actions of the defendant and resolve whether they amounted to a crime of violence. The Maryland statute for child abuse which Gomez previously pleaded guilty to is divisible by two categories: physical and sexual abuse. Further, the physical abuse is divided into other categories. However, the statute is not divided into forceful and non-forceful acts which is the critical requirement for the modified categorical approach.
Judge Niemeyer wrote separately in dissent stating that the majority has adopted a new approach not mandated by, and indeed undermines, Supreme Court precedent, conflicts with Fourth Circuit precedent, and aggravates a split in the circuits.