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Published
Published
Published
No. 12-4760
Appeal from the United States District Court for the District of
South Carolina, at Charleston.
Richard M. Gergel, District
Judge. (2:11-cr-02292-RMG-1)
Argued:
Decided:
Fabian
Montes-Flores
(Appellant)
removed.
court
erred
In
this
appeal,
by
employing
Appellant
the
argues
modified
the
categorical
States
Sentencing
2L1.2(b)(1)(A)(ii)
(2012).
courts
of
application
the
Guideline
Because
modified
we
See
(U.S.S.G.)
find
categorical
the
district
approach
to
initiated
Appellant
was
traffic
passenger.
stop
The
on
officers
vehicle
noticed
in
an
which
open
sticking
out
2
from
underneath
towel
on
Appellants seat.
rounds
of
.357
ammunition
in
Appellants
pocket.
June
17,
2010,
an
Immigration
and
Customs
court.
The
South
Carolina
ABHAN
indictment
to
which
District
On
November
of
South
8,
2011,
Carolina
federal
returned
grand
jury
two-count
in
the
indictment
of
firearm
and
ammunition,
in
violation
of
18
On June 7, 2012,
charge.
During
the
plea
proceeding,
Appellant
B.
Before sentencing, the United States Probation Office
completed a Presentence Investigation Report (PSR).
The PSR
PSR
classified
as
2L1.2(b)(1)(A)(ii).
acceptance
offense
of
level
After
at
21.
with
category
calculated
the
The
violence
PSR
set
--
U.S.S.G.
reduction
Appellants
level,
applicable
III
under
three-level
offense
Appellants
at
of
a
responsibility,
combination
--
crime
total
considered
criminal
provided
for
for
an
in
history
advisory
before
and
during
his
sentencing
hearing,
Appellant argued that his prior conviction for ABHAN should not
be considered a crime of violence under the illegal reentry
Guideline.
F.3d
194,
(4th
Cir.
2012),
Appellant
urged
the
district
and
J.A. 43-44.
non-violent
ways,
both
with
and
without
force.
The
Government,
however,
asserted
that
ABHAN
is
crime
of
Relying on
involving
ABHAN
convictions
in
order
for
the
District
Id. at 51.
J.A. 61.
for
Appellants
ABHAN
conviction, 4
the
district
court
violence
concluding,
under
the
the
modified
district
categorical
court
stated
approach.
Appellants
In
so
ABHAN
Id. at 76.
under
the
illegal
reentry
Guideline
was
appropriate. 5
See
U.S.S.G. 2L1.2(b)(1)(A)(ii).
After considering the Sentencing Guidelines, as well
as the factors set forth in 18 U.S.C. 3553(a), the district
court
bottom
imposed
of
the
sentence
advisory
of
46
Guidelines
months
range.
imprisonment,
In
at
the
explaining
its
And you
Id. at 91.
The district
Id. at 95.
2L1.2(b)(1)(C)
(aggravated felony) or U.S.S.G. 2L1.2(b)(1)(D) (felony).
and
jurisdiction
Appellant
timely
pursuant
to
noted
28
this
U.S.C.
appeal.
1291
We
and
18
have
U.S.C.
3742(a).
II.
Whether the district court erred in characterizing a
defendants
crime
as
crime
of
violence
for
sentence
2008).
constitutes
interchangeably
crime
with
of
violence
precedents
under
evaluating
the
whether
Guidelines
an
offense
United States v.
King, 673 F.3d 274, 279 n.3 (4th Cir. 2012) (quoting United
States v. Jarmon, 596 F.3d 228, 231 n.* (4th Cir. 2010)). 6
III.
The applicable Sentencing Guideline for a conviction
pursuant to 8 U.S.C. 1326 is U.S.S.G. 2L1.2.
This illegal
characteristics
of
particular
that
applies
in
defendants
offense.
where
the
defendant
was
Id. 2L1.2(b)(1)(A)(ii).
[C]ommentary
to
the
Sentencing
Guidelines
is
authoritative and binding, unless it violates the Constitution
or a federal statute, or is inconsistent with, or a plainly
erroneous reading of, the Guideline itself. United States v.
Peterson, 629 F.3d 432, 435 (4th Cir. 2011) (quoting Stinson v.
United States, 508 U.S. 36, 38 (1993)).
potentially
approach
and
applicable
the
--
modified
known
as
categorical
the
categorical
approach.
United
States v. Harcum, 587 F.3d 219, 222 (4th Cir. 2009) (explaining
the two potential approaches in the context of ACCA predicate
offenses).
J.A. 76.
A.
Categorical Approach
enhancement
under
the
Sentencing
Guidelines,
we
(quoting
(1990)).
the
Taylor
v.
United
States,
495
U.S.
575,
602
prior
offense
conviction.
Id.
rather
than
(emphasis
in
the
conduct
original);
underlying
United
States
the
v.
Torres-Miguel, 701 F.3d 165, 167 (4th Cir. 2012); see also Begay
v.
United
States,
553
U.S.
137,
10
141
(2008)
(In
determining
is
not
support
to
determine
conviction
whether
for
the
crime
defendants
of
violence,
conduct
but
to
Cabrera-Umaznor, 728
However, this
categories
constitutes
--
of
by
proscribed
its
conduct,
elements
--
at
least
violent
one
of
felony.
United States v. Gomez, 690 F.3d 194, 199 (4th Cir. 2012).
In
cases
involving
statutes
that
set
out
elements
in
the
General
statute
divisible
is
divisibility,
for
however,
purposes
of
is
not
applying
enough;
the
modified
in original).
In
sentencing
employing
court
is
the
modified
permitted
to
categorical
examine
approach,
finite
class
a
of
the
terms
of
plea
agreement
or
transcript
of
the
plea
was
confirmed
by
the
defendant,
States,
544
U.S.
13,
26
(2005).
In
or
to
some
Shepard v.
reviewing
those
documents
is
for
the
sole
purpose
of
the
Supreme
approach
Court
serves
has
reiterated,
limited
the
function:
modified
It
helps
which
conviction.
element
played
part
in
the
defendants
Accordingly,
the
modified
categorical
approach
is
statute,
and
then,
only
to
determine
which
Descamps,
133
S.
Ct.
at
2285,
2293;
see
also
13
C.
Assault and Battery of a High and Aggravated Nature
With this framework in mind, we must determine what
approach a sentencing court must employ when deciding if a prior
ABHAN
conviction
Sentencing
was
for
Guidelines.
crime
Resolution
of
of
violence
this
issue
under
the
turns
on
recently
addressed
both
of
these
issues
in
See United
Id. at *3.
under
the
violent felonies.
ACCA
Id.
because
they
do
not
constitute
ACCA
14
Id. at *4. 8
employed
the
categorical
approach
in
The district
reaching
this
conclusion. 9
On
categorically
appeal,
an
Hemingway
ACCA
violent
argued
felony
that
and,
ABHAN
contrary
is
not
to
the
was
inapplicable
to
this
determination.
Hemingway,
As an initial
to
the
question
of
whether
common
law
Id. at *6.
offense
We then
15
Id. at *10.
Although
Hemingway
involved
the
determination
of
its
determining
analysis
whether
of
ABHAN
Descamps
is
is
crime
equally
of
applicable
violence
in
in
the
of
violence
enhancement
under
the
illegal
reentry
Guideline).
1.
Common Law Crimes
We reiterate that, by its terms, the Descamps holding,
which
dealt
with
an
indivisible
California
burglary
statute,
See Hemingway,
v.
Gomez,
690
F.3d
194,
16
202
(Here,
however,
United
we
are
In
Hemingway,
however,
we
answered
the
question
that
nothing
in
the
Supreme
In so holding, we
Courts
decision
in
equal
force
to
common
law
offense.
Id.
at
*6.
sentence
enhancements
for
crimes
of
violence,
Hemingways
is
elements,
defined
rather
by
than
specific
by
and
specific
identifiable
common
law
statute,
common
law
the
treated
common
law
crimes
and
statutory
We too
crimes
as
2.
Divisibility
Having
applies
to
common
concluded
law
that
offenses
the
for
divisibility
purposes
of
analysis
enhancements
when
it
is
comprised
of
multiple,
A statute is
alternative
Stated
not divisible.
Until it was codified in 2010, ABHAN was a common law
crime in South Carolina defined as the unlawful act of violent
10
18
v.
Green,
724
S.E.2d
664,
674
(S.C.
included
such
(internal
2012)
offenses
as
stranger
on
the
street
Qualifying
circumstances
of
aggravation
include,
but
are
not
limited to:
the use of a deadly weapon, the intent to commit a
felony, infliction of serious bodily injury, great
disparity in the ages or physical conditions of the
parties, a difference in gender, the purposeful
infliction of shame and disgrace, taking indecent
liberties
or
familiarities
with
a
female,
and
resistance to lawful authority.
State v. Fennell, 531 S.E.2d 512, 516-17 (S.C. 2000) (collecting
cases).
South
Carolina
courts
have
specifically
referred
to
See
State v. Easler, 489 S.E.2d 617, 624 (S.C. 1997) (applying the
double
jeopardy
analysis
pursuant
to
Blockburger
v.
United
States, 284 U.S. 299 (1932), and explaining that [a]s to the
element of ABHAN which is not contained in felony DUI, ABHAN
requires
11
proof
of
circumstances
of
aggravation,
something
19
which
is
not
required
for
felony
DUI);
Knox
v.
State,
530
ABHAN
not
included
Primus,
564
S.E.2d
grounds
by
Gentry,
in
103,
second
581
610
degree
(S.C.
S.E.2d
lynching);
2002),
at
State
overruled
501
on
v.
other
(Circumstances
of
circumstances
identify
of
aggravation
simply
the
specific
Hemingway,
Id.
explaining
that
proof
of
circumstances
of
identify
various
we
observed
in
aggravating
circumstances
that
can
Hemingway,
this
enumeration
by
the
South
sustain
potential
an
ABHAN
offense
conviction;
elements
in
the
it
is
not
alternative,
list
so
as
of
to
is
comprised
of
two
indivisible
elements:
(1)
an
reason,
employing
the
modified
categorical
approach
For
to
the
modified
categorical
approach
is
of
illegal
reentry
12
Guideline
The relevant
defines
crime
of
21
n.1(B)(iii)
States,
the
(emphasis
Supreme
Court
supplied).
In
explained,
U.S.S.G. 2L1.2
Johnson
the
phrase
v.
United
physical
State v. Green,
committed
with
even
when
involved,
ABHAN
violent
or
or
can
without
be
force
--
and
committed
in
force
is
nonviolent
13
IV.
In the alternative, the Government argues, even if the
district
court
Guidelines
incorrectly
range
by
calculated
erroneously
Appellants
applying
the
Sentencing
16-level
of
the
enhancement
did
not
affect
his
ultimate
sentence.
have
imposed
the
same
sentence
absent
the
16-level
enhancement.
As we have observed, because a correct calculation of
the advisory Guidelines range is the crucial starting point
for sentencing, an error at that step infects all that follows
was not a violent felony under the ACCAs force clause, which
is substantively identical to the illegal reentry Guidelines
force clause. See Hemingway, 2013 WL 5833283, at *8.
23
F.3d 193, 201 (4th Cir. 2010) (quoting United States v. DiazIbarra,
522
procedural
review.
F.3d
errors
343,
at
347
(4th
sentencing
Cir.
are
2008)).
subject
Nevertheless,
to
harmlessness
See United States v. Lynn, 592 F.3d 572, 576 (4th Cir.
2010).
In order for us to conclude that a sentencing error
was harmless, we must make two separate determinations.
First,
we must know[] that the district court would have reached the
same result even if it had decided the [G]uidelines issue the
other way.
Once we
are certain that the result at sentencing would have been the
same,
we
must
next
determin[e]
that
the
sentence
would
be
however,
to
conclude
an
error
at
sentencing
was
the
reviewing
court
with
knowledge
that
the
district
court
would have reached the same result even if it had decided the
[G]uidelines
issue
the
other
way.
Id.
at
123
(emphasis
For us to possess
an
assessment
sentencing.
of
those
factors
is
required
at
every
Appellants
a
number
primarily on deterrence.
of
sentencing
the
hearing,
3553(a)
the
district
factors,
focusing
For
also
expressed
its
concern
about
J.A. 90.
trying
to
get
The
his
Id. at 91.
Id. at 95.
3553(a)
impose,
the
factors
record
in
does
determining
not
the
support
sentence
the
it
would
conclusion
that
Appellant would have received the same sentence if the court had
not applied the 16-level enhancement.
With the 16-level enhancement, Appellants Sentencing
Guidelines range was 46 to 57 months imprisonment.
without
range
the
would
crime
have
of
been
violence
either
18
enhancement,
to
24
months
his
However,
Guidelines
(applying
the
14
26
factors
was
in
the
context
of
the
erroneous
Guidelines
Savillon-Matute
readily distinguishable.
may
be
instructive,
it
is
then
imposed
sentence
of
36
months,
well
above
the
been
different.
See
id.
at
122
(summarizing
United States v.
Diosdado-Star, 630 F.3d 359, 365 (4th Cir. 2011) (quoting Gall
v. United States, 552 U.S. 38, 46 (2007)).
Because the district court did not vary in this case,
it also did not offer any justification for an above-Guidelines
sentence.
The
standard
for
harmlessness
--
knowledge
of
an
In
to
the
foregoing,
we
vacate
Appellants
28
the
governments
argument
that
the
purported
argument
not
addressed
in
Montes-Flores
brief),
the
52(a)
of
the
Federal
Rules
of
Criminal
Procedure
determine
from
the
record
that
the
asserted
error
is
applied
harmless
error
analysis
to
asserted
procedural
(4th
Cir.
2012),
cert.
denied,
133
S.Ct.
2403
(2013)
ascertain
whether
such
an
error
is
harmless
under
sentence
and
(2)
whether
that
sentence
would
be
of
Montes-Flores
sentence.
The
most
favorable
an
initial
matter,
agree
with
the
majoritys
Majority
Op.,
at
25.
My
disagreement
with
the
majority
30
that
the
judge
has
found
that
the
case
before
him
is
be
difficult
district
court
because
is
it
is
content
logical
to
sentence
to
assume
within
that
if
whatever
the
46-57
sentence
of
month
less
than
range,
46
see
J.A.
months,
76,
perhaps
arguing
a
that
sentence
of
a
36
46
district
sentence.
months.
court
There
Rejecting
denied
is
the
Montes-Flores
motion
certainly
no
31
and
reason
arguments,
imposed
to
the
believe
the
46-month
that
the
that
nothing
less
than
46-month
sentence
was
appropriate. 1
The district courts intention in this regard is evidenced
by its comments during the sentencing colloquy. These comments
reflect the district courts serious concern for public safety
and
deterrence,
downward
would
not
advisory
and
variance
have
when
request,
imposed
guidelines
range.
combined
indicate
lower
For
with
the
denial
that
the
district
sentence
example,
even
the
with
of
the
court
lower
district
court
32
to
understand
that
if
he
should
calculate
my
view,
this
record
leads
most
reasonably
to
one
was
necessary
to
meet
the
standards
set
forth
in
18
33
Matute. 2 See also United States v. Shrader, 675 F.3d 300, 314
(4th Cir.), cert. denied, 133 S.Ct. 757 (2012) (finding harmless
error without addressing the disputed enhancement because an
upward variance or departure . . . would produce exactly the
same
result
and
because
the
transcript
makes
clear
that
the
particular
error
is
harmless
has
an
irreducible
an
alternate
sentence,
consideration
of
whether
Although we are not bound by the outcome of SavillonMatute, which was a harmless error affirmance, the similarities
between that case and this one are remarkable. Both cases
involve illegal reentry defendants, the disparities between the
asserted guideline ranges and the imposed sentences are
comparable, and both district courts fashioned the sentences
largely on the need to deter future illegal reentry.
34
fully
respect,
proceeding
that
will
will
lead
add
to
to
the
remand
time
for
and
resentencing,
expense
that
the
to
encourage
district
courts
to
consider
announcing
35
alternate
sentence,
if
reasonable,
alleviates
the
uncertainty
the
additional
remand would
require.
time
As
we
and
expense
explained
that
in
resentencing
Hargrove,
where
we
reiterate
that
do
not
believe
that
an
alternate
district
courts
careful
consideration
of
the
3553(a)
36
(on
the
alternate
sentence)
resentencing.
37
rather
than
remand
for