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United States v. Hemingway, No. 12-4362

Decided: October 31, 2013

The Fourth Circuit Court of Appeals held that the defendant’s 20002 South Carolina conviction for the common law crime of assault and battery of a high and aggravated nature (“ABHAN”) is not categorically a predicate “violent felony” for sentencing purposes under the Armed Career Criminal Act (“the ACCA”). However, the Fourth Circuit further held that the modified categorical approach had no role to play in this matter.

On June 28, 2011, a grand jury returned an indictment charging Leroy Deon Hemingway (“Hemingway”) with illegal possession of a firearm, having previously been convicted of a felony. The probation officer then prepared Hemingway’s presentence report (the “PSR”), recommending that his sentence be enhanced under the ACCA because four of his previous convictions were for ACCA predicate offenses. Hemingway objected to the PSR, asserting that two of the four crimes identified in the PSR – ABHAN and its lesser included offense of assault of a high and aggravated nature (“AHAN”) – were not predicate offenses under ACCA because they do not constitute ACCA violent felonies.

The Fourth Circuit addressed whether ABHAN constitutes a “violent felony” under the ACCA.

The first step of the Fourth Circuit’s review related to whether the district court properly applied the categorical approach or whether the court should have analyzed Hemingway’s ABHAN conviction under the modified categorical approach. Under the categorical approach, courts look only to the elements of a defendant’s prior offense, and not to the particular underlying facts. Under the modified categorical approach, courts look beyond the statutory elements to the charging paper and jury instructions. After Decamps, the modified categorical approach applies only in cases where a divisible statute, listing potential offense elements in the alternative, renders opaque which element played a part in the defendant’s conviction.

In this case, the Fourth Circuit held for the first time that the divisibility analysis should also apply to common law offenses. As a practical matter, state criminal statutes, for the most part, codify existing common law crimes. Furthermore, a common law offense can be a predicate offense under the ACCA and the Guidelines. In addition, the language of the ACCA directs courts to examine “previous convictions,” meaning the fact of the convictions themselves and not to the underlying facts. Nothing in the ACCA suggests that Congress should only consider the fact of conviction for a statutory offense, but may examine the facts underlying a conviction for a common law crime. In addition, designating a common law crime as an ACCA predicate offense presents the identical Sixth Amendment concerns as those arising when the previous conviction was a statutory offense. Finally, the “difficulties and inequities” inherent in the modified categorical approach, which the Court cautioned against in Dechamps, may well be of greater concern in the context of common law crimes, which are often not as clearly defined as their statutory counterparts, and thus may be more susceptible to disparate treatment from the sentencing courts.

The Fourth Circuit then applied the divisibility analysis to determine whether Hemingway’s previous crime was a divisible common law offense and thus subject to the modified categorical approach. The Supreme Court of South Carolina has ruled that the elements of ABHAN are (1) the unlawful act of violent injury to another, accompanied by (2) circumstances of aggravation. Although (2) is a non-exhaustive list, these are simply alternative means of committing an offense, rather than elements listed in the alternative, so as to warrant the modified categorical approach. Therefore, the Fourth Circuit concluded that the district court properly applied the categorical approach.

The second step of the Fourth Circuit’s review related to whether the sentencing court erred in ruling that ABHAN is categorically an ACCA violent felony. Here, ABHAN could only qualify as an ACCA “violent felony” under the residual clause, which includes any crime that “otherwise involves conduct that presents a serious potential risk of physical injury to another.  The Supreme Court in James v. United States identified the relevant inquiry for assessing whether a previous crime qualifies as an ACCA violent felony under the residual clause. The inquiry is whether the risk posed by the crime is comparable to that posed by its closest analog among the enumerated offenses.

Here, the relevant residual clause inquiry, applying the categorical approach, was whether an ABHAN offense presents the same “serious potential risk of physical injury” as the ACCA’s enumerated offenses— “burglary, arson, or extortion, [or offenses that] involve use of explosives.” Because the first element of an ABHAN offense—a violent injury— can be satisfied even though “no actual bodily harm was done,” this element does not suggest that an ABHAN offense presents the same “serious potential risk of physical injury” as one of the ACCA’s enumerated offenses. The second ABHAN element, the presence of circumstances of aggravation, can be satisfied simply by showing, for example, a disparity in age, and such a showing fails to present a degree of risk similar to that posed by the ACCA’s enumerated offenses. These elements demonstrate that an ABHAN offense, in the generic sense, does not pose the requisite degree of risk to come within the residual clause and, therefore, ABHAN is not categorically a violent felony.

Finally, although Hemingway was reckless and ABHAN requires a mental state of recklessness, proof of recklessness does not satisfy the purposeful, violent, and aggressive test established in Bengay v. United States.

Full Opinion 

– Sarah Bishop