**PUBLISHED**
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

**No. 12**  **- 4362** 

UNITED STATES OF AMERICA, Plaintiff

– Appellee,

v. LEROY DEON HEMINGWAY, Defendant

– Appellant.

------------------------------ EVELINA JAN NORWINSKI , Court

- Assigned Amicus Counsel.

Appeal f rom the United States District C ourt for the District of South Carolina , at Florence
. R. Bryan Harwell , District Judge. ( 4:11

- cr - 00771

- RBH

- 1 )
Argued : September 1 7 , 201 3 Decided: October 31, 2013

Before KING, SHEDD, and THACKER, Circuit Judges

.

Vacated and r emanded by published opinion. Judge King wrote the opinion , in which Judge Shedd and J udge T hacker joined

.

**ARGUED:** William Fletcher Nettles, IV, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Florence, South Carolina, for Appellant. Thomas Ernest Booth, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. Justin Sanjeeve Antonipillai, ARNOLD & PORTER, LLP, Washington, D.C., for Court

- Assigned2 Amicus Counsel. **ON BRIEF:** William N. Nettles, United State s Attorney, Columbia, South Carolina, A. Bradley Parham, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Florence, South Carolina; Lanny A. Breuer, Assistant Attorney General, John D. Buretta, Deputy Assistant Attorney General, Crim inal Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. Laura K. D'Allaird, ARNOLD & PORTER, LLP, Washington, D.C., for Court

- Assigned Amicus Counsel
.3 KING, Circuit Judge: In November 2011, Leroy Deon Hemingway pleaded guilty in the District of South Carolina to being a felon in possession of a firearm and ammunition , in violation of 18 U.S.C. § 922(g)(1). The district court sentenced Hemingway to fifteen years in prison, ruling that he was subject to the mandatory fifteen

- year minimum required by the Armed Career Criminal Act ( the “ACCA”) ,
see 18 U.S.C. § 924(e)
. On appeal, Hemingway maintain s that the court erred in relying on his 2002 South Carolina conviction for the common law crime of assault and battery of a high and aggravated nature (“ABHAN”) to impose the mandatory minimum
sentence . More s pecifically, Hemingway contends that ABHAN is not categorically a predicate “ violent felony ” under the ACCA, and that the court erred in ruling otherwise . The government
agrees with Hemingway that ABHAN is not categorically an ACCA violent felony, but contends that use of the modified categori cal approach is appropriate and that, utilizing such an approach, Hemingway’s ABHAN offense const itutes an ACCA violent felony. As explained below, we agree with Hemingway and the government that ABHAN is not categorically a violent felony . W e further conclude , contrary to the government’s position, that the modified categorical approach has no role to play in this
matter . S ee Descamps v. United States , 133 S. Ct. 2276 (2013). Accordingly, we vacate the judgment and remand for resentencing.4 I.
A.
Pursuant to the ACCA, a defendant convicted of violating 18 U.S.C. § 922(g) (1) , and who has three previous convictions “for

a violent felony or a serious drug offense , ” is subject to a mandatory fifteen

- year minimum sentence. See 18 U.S.C. § 924(e) (1)
. T he ACCA defines a “violent felony” as “a ny crime punishable by imprisonment for a term exceeding o ne year ” that : (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious pot ential risk of physical injury to another
. Id. § 924(e)(2)(B). Subsection (e)(2) (B) (i) is commonly referred to as the “ force clause
. ” As t he Supreme Court has recognized, the force clause applies only to those crimes that involve “ violent force

— that is, force ca p able of causing physical pain or injury to another person.” See Johnson v. United States , 559 U.S. 133, 140 (2010). Subsection (e)(2) (B) (ii) identifies enumerated offenses

— burglary, arson, extortion, and offenses involving the use of explo sives

— and then contains an “otherwise involves ” clause . Th at clause is

more commonly referred to as the “residual clause. ” See Chambers v. United States , 555 U.S. 122, 124 (2009).5 T he residual clause of subsection (e)(2)(B) (ii) is the only aspect of the ACCA at issue in this appeal . The government and Hemingway quite properly agree that ABHAN

— the South Carolina
common law crime at issue

— neither satisfies the force clause nor constitutes an enumerated offense. 1 Accordingly, an ABHAN offense c an be a n ACCA violent felony only if , consistent with the residual clause, it “otherwise involve s conduct that presents a serious potential risk of physical injury to another.”
B . 1. As we have recognized , “ [i] n assess ing whether an offense constitutes an ACCA predica te offense, two types of analys es are potentially applicable

— known as the ‘categorical’ approach and the ‘modified categorical’ approach.” United States v. Harcum , 587 F.3d 219, 222 (4th Cir. 2009). The se a pproaches stem from the Supreme Court’s decision in Taylor v. United States , 495 U.S. 575 (1990), “which established the rule for determining when a defendant ’ s prior c onviction counts as one of ACCA’ s enumerated predicate offenses.” See Descamps v. United States ,

1 At the time of Hemingway’s ABHAN conv iction , ABHAN was a South Carolina common law crime . In 2010, South Carolina codified ABHAN as a felony offense
. See S.C. Code Ann. § 16

- 3

- 600(B)(1)
.6 133 S. Ct. 2276, 2283 (2013) . In Taylor , the Court adopted a

more “formal” elements

- focused categorical approach that authorized sentencing courts to “ ‘ look only to the statutory definitions’

— i.e., the elements

— of a defendant’ s prio r offenses, and not ‘to the particular facts underlying those convictions.’” Descamps , 133 S. Ct. at 2283 (quoting Taylor , 495 U.S. at 600 )
. The Taylor Court also recognized a “narrow range of cases” whe re a sentencing court could u tilize the “modified c ategorical approach , ” that is, “look beyond the statutory elements to ‘the charging paper and jury instructions’” pertaining to the underlying pr evious conviction.
See id. at 2283

- 84 (quoting Taylor , 495 U.S
. at 602). The Taylor Court contemplated that the modified categorical approach would be used only when the definition of the offense of conviction “comprises multiple, alternative versions of the crime

. ” I d. at 2284 . As explained in Descamps , “ Taylor permitted sentencing cou rts, as a tool for implementing the categorical approach, to examine a limited class of documents to determine which of a statute’s alternative elements formed the basis of the defendant’s prior conviction.” Id. 2

2 In Shepard v. United States , the Supreme Court fu rther clarified the role and scope of the modified categorical approach. See 544 U.S. 13 (2005). The Shepard decision made clear that the “enquiry under the ACCA .

. . is limited to the terms of the charging document, the terms of a plea agreement or (Continued)7 The central tenet of Taylor remains vali d and applicable:
A s a general proposition, to determine whether a previous conviction is a violent felony, a sentencing court “ employ [s] the categorical approach ” and, in using that approach, “ ‘ look [s] only to the fact of conviction and the statutory def inition of the prior offense, and do [es] not generally consider the particular facts disclosed by the record of conviction. ’ ” Sykes v. United States , 131 S. Ct. 2267, 2272 (2011) (quoting James v. United States , 550 U.S. 192, 202 (2007) ) . It bears repeating that “ [t] he categorical approach focuses on the elements of the prior offense rather than the conduct underlying the conviction.” United States v. Cabrera

- Umanzor , 728 F.3d 347, 350 (4th Cir. 2013)

.

tra nscript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.” Id. at 26
. Accordingly, pursuant to Shepard and its progeny, a sentencing court can , in limited circumstances, “scrutinize a restricted set of materials” to determine “which statutory phrase was the basis for the conviction.” See Descamps , 133 S. Ct. at 2284; see also United States v. Carthorne , 726 F.3d 503, 511 (4th Cir. 2013 )
. As we have recently emphasized , a sentencing court’s examination of Shepard documents, i.e., the “limited universe of documents relevant to the underlying conviction,” may be used “for the sole purpose of determining which part of the statute the defendant violated.” United States v. Gomez , 690 F.3d 194, 198 (4th Cir. 2012)

.8 2. In June of this year, the Sup reme Court rendered its Descamps decision, which constitute s a vastly important explication of the guiding legal principles concerning proper utiliz ation of the categorical approach and the modified categorical approach. As the Court strongly reiterated, “the modified approach serves a limited function” and applies only in
a “ ‘ narrow range of cases. ’ ” See Descamps , 133 S. Ct. at 2283 (quoting Taylor , 495 U.S. at 602)
. The Descamps C ourt then assessed whether a California burglary conviction was for an ACCA enumerated offense , emphasizing the limited role of the modified categorical approach , i.e. , simply to “help [] effectuate the categorical analysis when a divisible statute, listing potential offense elements in the alternative, renders opaque which el ement played a part in the defendant ’ s conviction.” Id. (e mphasis added). Focusing on California ’s burglary statute , the Court determined that the modified categorical approach had “no role to play” because the statute was not divisible. Id. at 2285. T he Court further concluded that Descamps’s burglary offense was not categorically a n ACCA violent felony

. Id. at 2293. Notably , the Descamps decision underscored the validity of the divisibility analysis that our Court had already employed
. See United States v. Go mez , 690 F.3d 194 (4th Cir. 2012)

. In9 Gomez , J udge Floyd carefully explained that the categorical approach

— rather than the modified categorical approach

— was appropriate for deciding whether a Maryland child abuse conviction was for a “crime of violence” under the Sentencing Guidelines. See id. at 203. Applying the divisibility analysis , Gomez recognized that “district courts may apply the modified categorical approach to a statute only if it contains divisible categories of proscribed conduct, at least one of which constitutes

— by its elements

— a violent felony.” Id. at 199.
B ecause Gomez and Descamp s each involved statut ory

— rather
than common law

— offenses, in tha t context those decisions are distinguishable from the situation we face t oday
. Indeed, Descamps explicitly “reserve[d] the question whether, in determining a crime’s elements, a sentenc ing court should take account not only of the relevant statute’s text, but of judicial rulings interpreting it.” 133 S. Ct. at 2291. T he Court thus left open the issue of whether the divisibility analysis also appl ies to common law offenses
. Likewise, Gomez did not address the issue of whether the divisibility analysis applies to a common law crime , because that appeal was concerned only with “the divisions within a statute, not a common law crime.” 690 F.3d at 202.10 I I . Having identified certain of the applicable legal principles , we turn to Hemingway’s contention on appeal

— that his South Carolina ABHAN conviction is not for an ACCA violent felony. T he relevant facts underlying his fifteen

- year sentence are not dispute d
. On June 28, 2011, a grand jury returned a n indictment charging Hemingway with illegal possessi on of a firearm (a 9mm Glock pistol) plus ammunition , having previously been convicted of a felony , in violation of 18 U.S.C. § 9 22(g)(1) (Count One), and possessing with intent to distribute cocaine base (or “crack”) , in contravention of 21 U.S.C. § 841 (a)(1) (Count Two). Hemingway pleaded guilty to Count One only , without a plea agreement , on November 29, 2011. 3 T he probation officer then prepared Hemingway’s presentence report ( the “PSR”) , recommending that his sentence be enhanced under the ACCA b ecause four of his previous convictions were for ACCA predicate offenses. 4 According to the PSR, the applicable Guidelines range

3 A fter Hemingway pleaded guilty to Count One , the district court, on motion of the government at the plea proceeding, dismissed Count Two without prejudice.

4 Hemingway’s ACCA predicate offenses, as identified in the PSR , were all state crimes in South Carol ina. The record shows : (1) a conviction in 1998 f or attempted strong arm robbery; (2) convictions in 2001 for possession with intent to distribute crack and possession with intent to distribute crack within (Continued)11 was 180 to 188 months ( reflecting the ACCA ’s statutor y minimum of fifteen years , i.e. , 180 months )
. On January 11, 2012, Hemingway interposed his objections to the PSR , assert ing 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 ”)

— are not predicate offenses under ACCA because they do not constitute ACCA violent felonies.
More s pecifically, Hemingway maintained that neither ABHAN nor
AHAN are violent felonies u nder the categorical approach because the y c an each be commit ted negligently and without violent injury. Hemingway further contended that his ABHAN and AHAN offenses c annot constitute ACCA violent felonies under the modified categorical approach because the relevant South Carolina indictments were inadequate to the job of employing that approach. Strikingly , Hemingway was not charged in the South Carolina indictments with either ABHAN or AHAN. Rather, on September 25, 2001, a two

- count indictment was returned in Horry County charging Hemingway with l ynching in th e second d egree and

close proximity of a school (counted together a s a single ACCA predicate offense) ; (3) the 2002 ABHAN conviction ; and (4) a conviction in 2002 for assault of a high and aggravated nature (“AHAN”) . Hemingway does not dispute that attempted strong arm robbery and possession with intent to distribute are ACCA predicate offenses.12 r ioting. According to the state court ’s sentencing sheet concerning that indictment , Hemingway pleaded guilty to the AHAN offense on June 11, 2002 . O n April 29, 2002, a single

- count indictment was r eturned in Horry County, charging He mingway with assault with intent to k ill. T he state court ’s sentencing sheet regarding that indictment indicates that Hemingway pleaded guilty to the ABHAN offense , and that the plea proceedings were also concluded on June 11, 2002
. The PSR rejected Hemingway’s contention that his ABHAN conviction could not be for an ACCA predicate offense under the categorical approach. R elying on two unpublished opinions, United States v. Wiley , 449 F. App’x 269 (4th Cir. Oct. 12, 2011) , and United States v. Moult rie , 445 F. App’x 630 (4th Cir. Sept. 6, 2011), plus our published decision in United States v. Wright , 594 F.3d 259 (4th Cir. 2010) , the PSR maintained that
ABHAN is categorically a n ACCA violent felony

. During the April 26, 2012 sentencing hearing, t he government a rgued that Hemingway’s ABHAN conviction was for an ACCA violent felony under both the categorical approach and the modified categorical approach. At the conclusion of the sentencing hearing , the district
court ruled that Hemingway’s ABHAN offense i s an ACCA violent13 felon y . 5 In so doing , t he court first observed that the modified categorical approach was inapplicable to Hemingway’s ABHAN conviction because he “did not plead as indicted” and thus the indictment could not be used to ascertain the nature of his ABHAN offense . J.A. 43. 6 The court then turned to the categorical approach. After surveying the applicable South Carolina l egal principles , the court agreed with the parties that ABHAN i s not categorically a violent felony under the
A CCA’s force clause , recognizing that the “ South Carolina courts have interpreted ABHAN to include both forceful and nonforceful conduct.” Id. at 48. T he court then determined , however, that
ABHAN is nevertheless a violent felony under the residual clause. Id. at 50
. As a result, the court adopted the PSR and sentenced Hemingway to fifteen years ( 1 8 0 months ) in prison

. Hemingway filed a timely notice of appeal , and w e possess jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C.
§ 1291. Beca use the government has altered its position on

5 N either the probation officer nor the sentencing court addressed Hemingway’s objection to use of the AHAN conviction. Because Hemingway d oes not dispute the proposition that two of his other previous convictions

— for attempted strong arm robbery and possession with intent to distribute

— were for ACCA predicate offenses, the court’s ruling that ABHAN is a n ACCA violent felony was sufficient to trigger the fifteen

- year minimum sentence.

6 Our c itations herein to “ J.A. __” refer to the contents of the Joint Appendix filed by the parties in this appeal.14 appeal and now concedes that ABHAN is not categorically a n ACCA violent felony, we assigned amicus counsel ( the “ Amicus ”) to brief and argue the legal position ad o pted by the sentencing
court

— that ABHAN is categorically a n ACCA violent felony. 7

II I . The i ssue we must resolve in this appeal is whether ABHAN constitutes a “violent felony” under the ACCA

. Whether a prior offense is an ACCA violent felony is a question of law that we review de no vo. See United States v. White , 571 F.3d 365, 367 (4th Cir. 2009). Contrary to its position at sentencing, t he government agrees with Hemingway on appeal that the district court erred in utilizing the categorical approach to rule that his ABHAN conviction wa s for an ACCA violent felony. The government maintains, however, that the court essentially committed harmless error in that the ABHAN conviction should be analyzed under the modified categorical approach, and that the record show s tha t Hemingway’s ABHA N conviction was for an ACCA violent felony. For his part , Hemingway agrees with the government that an ABHAN offense is not categorically an ACCA

7 The Amicus lawyers

— particularly Mr. Antonipillai, who argued the legal position adopted by the district court

— have a bly discharged their duties, and the Cour t commends their efforts.15 violent felony , but contends that, pursuant to Descamps v. United States , 133 S. Ct. 2273 (2013), and its progeny, the modified categorical approach has no role to play in these proceedings . Hemingway thus seeks appellate relief by way of a judgment vacating his sentence and remanding for resentencing. Finally, the Amicus argues that the dist rict court got the
sentenc e right from a legal standpoint

— maintaining that Descamps has no application here , that the categorical approach applies, that ABHAN is categorically an ACCA violent felony, and that Hemingway’s fifteen

- year sentence should be affirmed.
A. The first step of our review relates to whether the district court properly applied the categorical approach or, as the government now maintains , whether the court should have analyzed Hemingway’s ABHAN conviction under the modified categorical approach

. As explained below, Descamps and its progeny control our disposition on this p oint

. In the post

Descamps world, “the modified categorical approach is applicable only ‘when a defendant was convicted of violating a divisible statute,’ and then, only ‘to determine which statutory phrase was the basis for the conviction.” United States v. Carthorne , 726 F.3d 503, 511 (4th Cir. 2013) (quoting Descamps , 133 S. Ct. at 2285); see United State s v. Cabrera

- Umanzor , 728 F.3d 347, 350 (4th Cir. 2013) . Meanwhile, a criminal offense is16 “divisible” only “when a statute lists multiple, alternative elements, and so effecti vely creates ‘several different

. . . crimes.’” Descamps , 133 S. Ct. at 2285 (q uoting Nijhawan v. Holder , 557 U.S. 29, 41 (2009)). 1. Although none of our sister circuits have applied Descamps ’s divisibility analysis to a common law offense in an ACCA setting , we agree with Hemingway and the government that such an application is entirely appropriate

. There is simply no material distinction that can be made between common law and statutory offense s in this context . As a practical matter, state criminal statutes , for the most part, codif y existing common law crimes

. See United St ates v. Walker , 595 F.3d 441, 444 (2d Cir. 2010) (“Indeed, criminal statutes often incorporate elements of common law offenses, and in these circumstances, we have looked to the common law to determine whether the prior conviction was a qualifying predicat e offense.”). In multiple instances, state criminal statutes define offense s by reference to the common law , leaving reviewing courts to fill in the essential elements. See, e.g. , Carthorne , 726 F.3d at 512 (explaining that “[t]he terms ‘assault’ and ‘ba ttery’ are not defined in this statute but are defined by common law in Virginia”); United States v. Alston , 611 F.3d 219, 222 (4th Cir. 2010) (observing that, under the Maryland C ode, “[a]ssault is17 defined to mean the crimes of assault, battery, and assau lt and battery, which retain their judicially determined meanings” (internal quotation marks omitted)).
Our Court has consistently deferred to the state courts in identify ing the elements of state common law offense s . See , e.g. , United States v. Kirksey , 138 F.3d 120, 125 (4th Cir. 1998) ( recognizing that , “ [b] ecause Maryland recognizes common law crimes, no statute defines their elements. But the Maryland case law fully articulates them ”). Furthermore, it is well

settled that a common law offense can be a predicate offense under the ACCA and the Guidelines

. Se e, e.g. , United States v. Jenkins , 631 F.3d 680 (4th Cir. 2011) (employing categorical approach and holding that Maryland common law offense of resisting arrest is “crime of violence” for purpose s of Guidelines ); United States v. Coleman , 158 F.3d 199, 204 (4th Cir. 1998) (en banc) (applying modified categorical approach and holding that “a Maryland conviction for common

- law assault is not per se a ‘violent felony’”). Th e foregoing principle is

a lso consistent with the views of our sister circuits. See Walker , 595 F.3d at 444 ( observing that , although Taylor and Second Circuit precedent do not, “by their terms, apply to statutory offenses, neither

. . . suggests that the analysis is different wit h respect to common law crimes, nor is there any reason in principle that it should be” ) ; United States v.18 Melton , 344 F.3d 1021, 1026 (9th Cir. 2003) (“Where, as here, the state crime is defined by specific and identifiable common law elements, rather than by a specific statute, the common law definition of a crime serves as a functional equivalent of a statutory definition.”).
A lthough the Descamps C ourt left th e issue unresolved , nothing in its decision suggests that a divisibility analysis does not apply with equal force to a common law offense. In explaining the base s for its decision, t he Court carefully

re viewed the “three grounds for establishi ng [its] elements

centric, formal categorical approach” in Taylor and emphasized the continuing persuasiveness of each

. See Descamps , 133 S. Ct.
at 2287

- 89 (citing Taylor v. United States , 495 U.S. 575, 600

- 02 (1990))
. The Descamps Court first assessed t he statutory text and history of the ACCA, explaining that its statutory term “previous convictions” plainly suggests that “ ‘ Congress intended the sentencing court to look only to the fact that the defendant had been convicted of crimes falling within cert ain categories, and not to the facts underlying the prior convictions. ’ ” Id. at 2287 (quoting Taylor , 495 U.S. at 599). The Court also emphasized the “categorical approach’s Sixth Amendment underpinnings , ” given that , “[u]nder ACCA, the court’s finding of a predicate offense indisputably increases the maximum penalty.” Id. at 2288. As the Court reasoned, such a finding19 “would (at the least) raise serious Sixth Amendment concerns if it went beyond merely identifying a prior conviction.” Id. Finally, the Court cautioned against the “difficulties and inequities” inherent in the modified categorical approach, particularly where the underlying conviction result s from a guilty plea. Id. The initial reasons articulated in Descamps for use of the divisibility analysis

— first, the text and history of the ACCA , and , second, Sixth Amendment concerns

— forcefully support the proposition that the same analysis must be applied to common law crimes. Put simply, nothing in the ACCA suggests that Congress intended for the courts to consider only the fact of conviction for a statutory offense, but to 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 , Descamps ’s third reason for use of the divisibility analysis

— the difficultie s and inequities that would arise from looking beyond the fact of conviction

— may well be of greater concern in the context of common law crimes

. T o be sure , common law offenses are often not as clearly defined as their statutory counterparts , and thus m ay be more susceptible to disparate
treatment from the sentencing courts.20 In these circumstances, we are satisfied to conclude that the Descamps divisibility analysis is applicable to the question of whether a common law offense c onstitute s an ACCA predi cate crime

. Adopting the language of the Supreme Court, the modified categorical approach has “no role to play” where the previous crime was an indivisible common law offense. See Descamps , 131 S. Ct. at 2285. 2
. In evaluating a state court conviction for ACCA predicate offense purposes , a federal court i s “bound by the [state supreme court’s] interpretation of state law, including its determination of the elements of” the potential predicate offense. Johnson v. United States , 559 U.S. 133, 1 38 (2010)
. In that respect, t he Supreme Court of South Carolina has ruled that “[t]he elements of ABHAN are

. . . [1] the unlawful act of violent injury to another, accompanied by [2] circumstances of aggravation.” State v. Easler , 489 S.E.2d 617, 624 (S.C. 1997).
T hat c ourt has explained the aggravation element of ABHAN in the following terms :
T he circumstances of aggravation include: use of a deadly weapon, infliction of serious bodily injury, intent to commit a felony, disparity in age, physical condition or sex, indecent liberties, purposeful infliction of shame, resistance of lawful authority, and others.21 Id. at 624 n.17 ; see Dempsey v. State , 610 S.E.2d 812, 815 (S.C. 2005) ( identifying same circumstances of aggravation). It is c lear from the South Carolina decisions that th e judiciary’s list of circumstances of aggravation is non

exhaustive

. Although t he South Carolina courts have provided several examples of “circumstances of aggravation , ” they have

never “list[ed] potential offense elements in the alternative , ”
so as to warrant our application of the modified categorical approach. See Descamps , 133 S. Ct. at 2283. 8 I mportantly , the Descamps Court explicitly rejected the idea that there is no “real distinction between divisible and indivisible statutes , ” because an indivisible statute “creates an implied list of every means of commission that otherwise fits the definition of a given crime.” Id. at 2289 (internal quotation marks omitted). As the Court observed, a court could always create an implied list, “[b]ut the thing about hypothetical lists is that they are, well, hypothetical.” Id
. at 22 90. By way of example, t he

8 We are un able to adopt the government’s suggestion that the courts of South Carolina have , through “custom and practice , ” turned the non - exhaustive list of circumstances of aggravation into an exhaustive one. Notably, the government offers no evidence that any South Carolina court has limited the second element of ABHAN to the aggravating circumstances provided in the often

- utilized list. Furthermore, the South Carolina legislature, when it codified ABHAN, fai led to define ABHAN by reference to any aggravating circumstances or elements. See S.C. Code Ann. § 16

- 3

- 600(B)(1) ; see also supra note 1
.22 Court explain ed that “[a]s long as the statute itself requires only an indeterminate ‘weapon,’ that is all the indictment must (or is likely to) allege .

. . [a]nd most important, that is all the jury must find to convict the defendant.” Id. The “ circumstances of aggrav ation” consistently identified by the South Carolina c ourts are nei t her elements n or subelements of ABHAN. Instead, they simply identify specific
ways the second element of ABHAN can be satisfied. As our good Chief Judge recently observed, “ alternative m eans ” of committing an offense, “ rather than elements, ” are “simply irrelevant to our inquiry” under the ACCA. See Cabrera

- Umanzor , 728 F.3d at 353 . Because ABHAN, as defined by the courts of South Carolina, “‘does not concern any list of alternative ele ments,’ the modified categorical approach ‘has no role to play.’” See United States v. Royal ,
___ F.3d ___, No. 10

- 5296, 2013 WL 5433630 , at *7 (4th Cir. Oct. 1, 2013 ) (quoting Descamps , 133 S. Ct. at 2285). Consistent with the foregoing , the question of whether an ABHAN conviction is for an ACCA violent felony must be determined , as the district court rule d , solely by application of the categorical approach. 9

9 Our decision today t hat ABHAN must

— for ACCA purposes

— be analyzed under the categorical approach is not undercut by earlier unpublished decisions suggesting that it might be appropriate to assess whether an ABHAN offense is a violent felony (or crime of violence) under the modified categorical (Continued)23 B . Having concluded that the categorical approach is the appropriate method of analysis , we must decide whether the sentencing court erred in ruling that ABHAN is categorically a n
ACCA violent felony

. 10 The government

— reversing the position that it espoused at sentencing

— has now conceded that ABHAN is
not categorically a n ACCA violent felony , and Hemingway agrees with the government on this point. The Amicus contends , however, that Hemingway’s ACCA sentence should be affirmed as

approach. See, e.g. , United States v. Wells , 484 F. App’x 756, 757 (4th Cir. June 22, 2012) (vacating decision that ABHAN is categorically a Guidelines crime of violence ); United States v. Hamilton , 480 F. App’x 217, 219 (4th Cir. May 10, 2012) ( vacating decision that ABHAN is categorically an ACCA violent felony ); United States v. Johnson , 475 F. App’x 494, 496 (4th Cir. Apr. 12, 2012) ( vacating decision that ABHAN is categorically a crime of violence ); United States v. Ward , 439 F . App’x 258, 259 (4th Cir. July 18, 2011) (affirming application of modified categorical approach and “[a]ssuming without deciding that ABHAN is not a crime of violence per se”). These unpublished decisions are simply not controlling precedent and, more i mportantly, they predate Descamps . Our decision in United States v. Spence , 661 F.3d 194 (4th Cir. 2011) , similarly does not undercut our ruling today. In Spence , we applied the modified categorical approach and determined that an ABHAN conviction qua lified as a predicate offense under 18 U.S.C. § 2252A(b)(2)

— the “sexual abuse enhancement.” Spence thus relates to a distinct sentencing provision and also predates Descamps . 10 Because the categorical approach applies in this case, we need not resolve whether , as the government asserts, the indictment that resulted in Hemingway’s ABHAN conviction could support use of the modified categorical analysis.24 imposed under the categorical approach . According to the Amicus, we are boun d by our precedent of United States v. Wright , 594 F.3d 259 (4th Cir. 2010) , to rule that ABHAN is categorically a violent felony

. In addition to relying on Wright , the Amicus maintains , consistent with the position adopted by the sentencing court , that A BHAN is categorically an ACCA violent felony under Supreme Court precedent. We analyze these issues

— whether Wright is controlling precedent and, if not, whether ABHAN is nevertheless categorically an ACCA violent felony

— in turn

. 1
. We begin with Wright , where t he central issue was whether Wright’s three juvenile convictions were ACCA predicate offenses , not whether ABHAN was categorically an ACCA violent felony. It was undisputed that Wright had an adult ABHAN conviction , but Wright did not prese nt any appellate issue relating to the use of that ABHAN conviction as an ACCA predicate offense

. Our opinion briefly discussed the ABHAN conviction, referencing only the force clause and stating , without elaboration, that “Wright’s adult conviction for [ ABHAN] plainly counts as one of the required three predicate violent felony convictions.” Wright , 594 F.3d at 263. Notwithstanding the Amicus’s characterization of Wright as controlling precedent, that decision does not dictate the25 outcome of this appe al. Put simply, t he issue before us here

— whether ABHAN is categorically an ACCA violent felony

— was not contested in Wright

. Moreover , Wright solely (and merely summarily) addressed whether an ABHAN offense was a violent felony under the force clause
. A n ACCA a nalysis under the force
clause

— whether an offense “has as an element the use, attempted use, or threatened use of physical force , ” see § 924(e)(2)(B) (i) , — is distinct from the residual clause anal ysis that we employ today. In any event , Wrig ht predates Johnson

— the Supreme Court’s most recent force clause decision

— which explained that a crime only satisfies the force clause when it requires “ violent force

— that is, force capable of causing physical pain or injury to another person.” See Johnson , 559 U.S. at 140. As the government properly concede s , Johnson precludes reliance on the force clause to count ABHAN as an ACCA predicate offense because ABHAN can be committed “even if no real force was used against the victim.” S ee State v.
Pr imus , 564 S.E.2d 103, 106 n.4 (S.C. 2002). In these circumstances, we are not compelled by Wright to deem ABHAN to be an ACCA violent felony

. 11

11 The district court did not rely on Wright , although the court did discuss United States v. Wiley , 449 F. App’x 269 (4th Cir. Oct. 12, 2011) , and United States v. Moultrie , 445 F. App’x 630 (4th Cir. Sept. 6, 2011) , unpublished decisions that invo k e (Continued)26 2.

a . Looking beyond Wright , we assess whether ABHAN is yet categorically an ACCA violent felony. I f we were deciding whether a previous crime qualifies as a n ACCA violent felony by virtue of being an enumerated offense, we would be called upon
to “compare the elements of the statute for ming the basis of the defendant’ s conviction with the elements of the ‘generic’ crime

— i.e., the offense as commonly understood.” Descamps , 133 S.
Ct. at 2281. As the Supreme Court explained, “[i]f the relevant statute has the same elements as the ‘generic’ ACCA crime, then the prior conviction can serve as an ACCA predicate.” Id. at 2283. Here, where we assess whether a previous c rime qualifies as

a n ACCA violent felony under the residual clause, a different analysis applies, because there is often no single “generic” crime to whic h the underlying crime can be compared. See United
States v. Torres

- Miguel , 701 F.3d 165, 170 (4th Cir. 2012) ( explaining that “ [t] o require a defendant to demonstrate that

Wright for the proposition that ABHAN is a violent felony. See J.A. 44

- 47. Nevertheless , the court reco gnized, as we do herein, that ABHAN does not satisfy the force clause because “South Carolina courts have interpreted ABHAN to include both forceful and nonforceful conduct as defined by the Supreme Court in

. . . Johnson .” Id
. at 48.27 his prior state offense does not fall within this residual category by proving tha t it is not a ‘generic’ ‘other offense’ is to require the impossible, for there is no generic ‘other offense
. ’”)
. In certain circumstances, however, a generic crime comparison is an essential aspect of a residual clause analysis.
T he Supreme Court’s 2007 decision in James v. United States establishes that point

. See 550 U.S. 192 (2007) . There, in assessing whether James’s attempted burglary conviction was an ACCA violent felony under the residual clause, the Court identified the relevant inquiry as “whether the risk posed by the [ crime ] is comparable to that posed by its closest analog among the enumerated offenses.” Id. at 203 (emphasis added).
Because an attempted burglary offense c ould be readily compared to one of the enumerated offenses (i.e. , burglary ) , the appropriate inquiry wa s guided by comparing James’s attempted burglary offense to the “generic” definition of burglary
. S ee id. at 207. The circumstances were different in Begay v. United States , where the Supreme Court assessed whether a New Mexico driving under the influence offense (a “DUI”) qualified as a n ACCA violent felony. See 553 U.S. 137 (2008). There, the Court distinguished a DUI from ACCA’s enumerated offenses because “the listed crimes all typically involve purposeful, vi olent, and aggressive conduct

. ” Id. at 144

- 45. In contrast, the Court28 explained, a DUI is “most nearly comparable to crimes that impose strict liability, criminalizing conduct in respect to which the offender need not have had any criminal intent at all. ” Id. at 145 (internal punctuation omitted)

. Cognizant that the enumerated offenses “illustrate the kinds of crim es that fall within the statute’ s scope” and “[t]heir presence indicates that the statute covers only similar crimes , rather than every crime that presents a serious potential ris k of physical injury to another, ” i d. at 141, the Court ruled that a
DUI i s not categorically a n ACCA violent felony, i d. at 147. Three years after Begay , in 2011 in Sykes , the Court explained that “[i] n general, le vels of risk divide crimes that qualify from those that do not ,” and Begay ’s “purposeful, violent, and aggressive” inquiry “has no precise textual link to the residual clause

. ” 131 S. Ct. at 2275. The Court also clarified that “[i]n many cases the purpos eful, violent, and aggressive inquiry will be redundant with the inquiry into risk, for crimes that fall within the former formulation and those that present serious potential risks of physical injury to others tend to be one and the same.” Id. b. In th is appeal , the relevant residual clause inquiry , applying the categorical approach, is whether an ABHAN offense presents the same “serious potential risk of physical injury” as29 the ACCA’s enumerated offenses

— “burglary, arson, or extortion, [or offenses that] involve[] use of explosives.” Begay , 553 U.S. at 144. 12 The Supreme Court has explained that the enumerated offenses limit t he residual clause “to crimes that are roughly similar, in kind as well as in de gree of risk posed, to the examples themselves.” Id. at 142.
An ABHAN offense can , as the South Carolina courts have shown , involve a variety of aggravating circumstances. Given the spectrum of such circumstances

— from “purposeful infliction
of shame” t o the use of a deadly weapon

— it is clear that there are varying degrees of “potential risk of physical injury” presented, depending on the circumstances of the particular offense . We are, however, tasked with assessing the predicate offense “ ‘ genericall y, that is to say, we examine it in terms of how the law defines [it] and not in terms of how an individual

12 Although the government concedes that ABHAN is not an ACCA enumerated crime, it suggests that we should, in deciding whether ABHAN is an ACCA violent felony, look to the Guidelines, which contains a more extensive list of enumerated offenses. See, e.g. , USSG § 2L1.2 cmt. n.1(b)(iii); id. § 4 B 1.2 cmt. n.1. E ven if we were to import additional enumerated offenses into the ACCA, however, the “closest analog” to ABHAN would be “aggravated assault,” and the government has conceded that ABHAN is not categorica lly a generic aggravated assault. See Br. of Appellee 14.30 offender might have committed it on a particular occasion. ’ ” Jenkins , 631 F.3d at 684 (quoting Begay , 553 U.S. at 141). 13

Because t he first elemen t of an ABHAN offense

— a violent injury

— can be satisfied even though “no actual bodily harm was done , ” State v. DeBerry , 157 S.E.2d 637, 640 (S.C. 1967), 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

13 In Jenkins , we examined whether the Maryland common law crime of resisting arrest qualified as a “crime of violence” for purposes of Guidelines section 4B1.1. Our decisions on whether a pr evio us conviction constitutes a “crime of violence” under the Guidelines are relied upon interchangeably with precedents evaluating whether a previous conviction constitutes a “violent felony” under the ACCA, “because the two terms have been defined in a manne r that is substantively identical .” United States v. Go mez , 690 F.3d 194 , 197 (4th Cir. 2012) (internal quotation marks omitted) (emphasis added); see United States v. King , 673 F.3d 274, 279 (4th Cir. 2012).
Our reliance on Guidelines decisions is necessarily limited, however, to those situations involving “substantively identical” residual clauses. Although decisions interpreting enumerated offenses or force clauses may provide useful guidance, particularly with respect to the question of whether and how to apply the categorical or modified categorical approach, these decisions are unlikely to be pertinent to the ultimate issue of whether an offense constitutes an ACCA violent felon y under the residual clause. See, e.g. , United States v. Rede

- Mend ez , 680 F.3d 552, 555 n.2 (6th Cir. 2012) (observing that “[c]ases analyzing the residual clauses” are “not pertinent” to analysis of offense s under force clause of Guidelines section 4B1.2).31 fails to present a degree of risk si milar to that posed by the
ACCA’s enumerated offenses
. Taken together, these e lements demonstrate that a n ABHAN offense , in the generic sense, does
not pose the degree of risk required to come within the residual clause . Accordingly, we are satisfied tha t ABHAN is not categorically a n ACCA violent felony. 14

c . Finally, t he Amicus argues that, applying the Supreme Court’s decisions in Begay and Sykes , we should rule that ABHAN is categorically a n ACCA violent felony because “an ABHAN conviction may be sustained based on reckless conduct,” and thus “meets the purposeful, violent, and aggressive test under Begay .” Br. of Amicus 14. Although Hemingway agrees that ABHAN’s requisite mental state of recklessness is a relevant factor , he maintains that proof of recklessness does not satisfy the purposeful, violent, and aggressive test established in Begay .

14 Because ABHAN is not categorically an ACCA violent felony, we need not separately analyze Hemingway’s conviction for AHAN, which is “a lesser included offense of ABHAN, without the completed act of violence,” State v. Murphy , 471 S.E.2d 739, 741 (S.C. Ct. App. 1996) . Our determination that ABHAN is not categorically an ACCA violent felony leads inescapably to the conclusion that AHAN is also not categorically an ACCA violent felony.32 We need not address the question of whether ABHAN satisfies this inquiry under Begay , however, because the focus on ABHAN’s requisite mental state, like that taken by the defendant in Sykes , simply “overreads the opinions of [the Supreme] Court.” Sykes , 131 S. Ct. at 2275. The appropriate “ analysis should focus on the level of risk associated with the previous offense of c onviction, notwithstanding the ‘ purposeful, violent, and aggressive ’ conduct stressed by the Begay Court in the context of a strict liability offense.” United States v. Vann , 660 F.3d 771, 780 (4th Cir. 2011) (King, J., concurring in the judgment)

. In short, Sykes makes it clear t hat Begay did not substitute the

“ purp oseful, violent, and aggressive ” inquiry for the analysis of risk that is already identified in the residual clause

. Because an ABHAN offense does not pose an equivalent “serious pote ntial risk of physical injury” as the enumerated offenses, we need not undertake a redundant inquiry into the requisite mental state for an ABHAN offense
. 15

15 As the parties emphasize in their various submissions , the question of whether A BHAN is categorically an ACCA violent felony has rec eived some inconsistent answers in our Court. In several of our unpublished post

- Begay decisions, our Court considered ABHAN to be a categorically “ violent felony ” for purposes of the ACCA, as well as a “crime of violence” for purposes of the Guidelines. See, e.g. , Wiley , 449 F. App’x at 270; M oultrie , 445 F. App’x at 631; United States v. Brunson , 292 F. App’x 259, 262 (4th Cir. Sept

. 11, 2008). These decisions, of course, are not binding and were rendered prior to both Sykes and Descamps .33 C
. In sum, we rule today that ABHAN is not categorically a n ACCA violent felony and that the modified categorical approach has no role to play in the decision of whether a common law
ABHAN offense is a n ACCA violent felony

. As a result, we are compelled to vacate Hemingway’s sentence and remand for resentencing.

I V. Pursuant to the foregoing , we vacate Hemingway’s sentence and remand for resentencing and for such other and further proceedings as may be appropriate

. VACATED AND REMANDED