October 31, 2013 4th Circuit published opinion

United States v Hemingway

The district court ruled that South Carolina’s assault and battery of a high and aggravated nature (ABHAN) is categorically a violent felony for purposes of the Armed Career Criminal Act and sentenced Hemmingway to 15 years imprisonment. The government abandoned that reasoning on appeal and the panel appointed amicus counsel to defend the district court’s reasoning on appeal. The panel reversed and remanded for resentencing. It held that the categorical approach applies to common law crimes as the rationales the United States Supreme Court has given for applying it to statutory crimes-Congers intended sentencing courts to look only to the fact of conviction, Sixth Amendment problems with a case by case approach and the inherent inequities in a modified approach looking at plea colloquy and other documents-applied in the common law context as well. The panel noted that South Carolina case law demonstrated that the crime of ABHAN is not divisible as there are no alternate elements to violate merely alternate means of committing the crime. The panel rejected amicus arguments holding that 4th Circuit precedent relied upon did not actually decide the issue of whether ABHAN is a violent felony and in any event predated recent United states Supreme Court authority which leads to a different outcome and ABHAN can be committed without actual bodily injury and without creating the substantial risk of physical injury required under the residual clause of the Armed Career Criminal Act.

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