November 26, 2013 4th Circuit published opinion

United States v Montes-Flores

Montes-Flores pled guilty to illegal reentry. The district court ruled that his conviction for assault and battery of a high and aggravated manner (ABHAN) was a crime of violence under the sentencing guidelines and sentenced him to 46 months imprisonment which was the bottom of his range. The panel, 2-1, reversed and remanded for resentencing. The majority held that ABHAN is not divisible because it had two elements which can be violated in many ways not separate elements some of which require violence. Applying a recent case involving the issue of ABHAN under the Armed Career Criminal Act, the majority held that the categorical approach therefore applied and ABHAN is not categorically a crime of violence because it can be committed without violent physical force. The majority held the error was not harmless as there was no indication the sentencing court would have varied upward to reach 46 months imprisonment. The dissent argued that the sentencing error was harmless as the district court had the opportunity to reduce the sentence and refused and the rationale for the sentence was deterrence. The dissent also argued that sentencing courts should announce alternative sentences when the guideline range is disputed in order to minimize the expenditure of judicial resources through resentencing.

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