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 from the United States District Court for the District of

South Carolina, at Florence. R. Bryan Harwell, District Judge. 

(4:11-cr-00771-RBH-1)

Argued: September 17, 2013 Decided: October 31, 2013

Before KING, SHEDD, and THACKER, Circuit Judges.

Vacated and remanded by published opinion. Judge King wrote the 

opinion, in which Judge Shedd and Judge Thacker 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-Assigned 
2

Amicus Counsel. ON BRIEF: William N. Nettles, United States 

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, 

Criminal 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 maintains 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 specifically, 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 

categorical approach is appropriate and that, utilizing such an 

approach, Hemingway’s ABHAN offense constitutes an ACCA violent 

felony. As explained below, we agree with Hemingway and the 

government that ABHAN is not categorically a violent felony. We 

further conclude, contrary to the government’s position, that

the modified categorical approach has no role to play in this 

matter. See 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). The ACCA defines a “violent felony” as “any crime 

punishable by imprisonment for a term exceeding one 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 potential 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 the Supreme Court has 

recognized, the force clause applies only to those crimes that 

involve “violent force — that is, force capable 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 explosives — and 

then contains an “otherwise involves” clause. That clause is 

more commonly referred to as the “residual clause.” See

Chambers v. United States, 555 U.S. 122, 124 (2009). 
5

The 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 can be an ACCA violent felony only if, consistent with 

the residual clause, it “otherwise involves conduct that 

presents a serious potential risk of physical injury to 

another.” 

B.

1.

As we have recognized, “[i]n assessing whether an offense 

constitutes an ACCA predicate offense, two types of analyses 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). These approaches 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 conviction counts as one of ACCA’s 

enumerated predicate offenses.” See Descamps v. United States, 

 1 At the time of Hemingway’s ABHAN conviction, 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 prior 

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” where a sentencing court could utilize the

“modified categorical approach,” that is, “look beyond the 

statutory elements to ‘the charging paper and jury 

instructions’” pertaining to the underlying previous 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.” Id. at 2284. As explained in Descamps, “Taylor

permitted sentencing courts, 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 further 

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 valid and applicable: 

As 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 definition 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). 

 

transcript 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 Supreme Court rendered its 

Descamps decision, which constitutes a vastly important 

explication of the guiding legal principles concerning proper 

utilization 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 Court 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 element played a part in the defendant’s 

conviction.” Id. (emphasis 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. The Court further concluded 

that Descamps’s burglary offense was not categorically an 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. Gomez, 690 F.3d 194 (4th Cir. 2012). In 
9

Gomez, Judge 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. 

Because Gomez and Descamps each involved statutory — rather 

than common law — offenses, in that context those decisions are 

distinguishable from the situation we face today. Indeed, 

Descamps explicitly “reserve[d] the question whether, in 

determining a crime’s elements, a sentencing court should take 

account not only of the relevant statute’s text, but of judicial 

rulings interpreting it.” 133 S. Ct. at 2291. The Court thus 

left open the issue of whether the divisibility analysis also 

applies 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

II.

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. The relevant facts underlying his fifteen-year sentence 

are not disputed.

On June 28, 2011, a grand jury returned an indictment 

charging Hemingway with illegal possession of a firearm (a 9mm 

Glock pistol) plus ammunition, having previously been convicted 

of a felony, in violation of 18 U.S.C. § 922(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

 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.4 According to the PSR, the applicable Guidelines range 

 3 After 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 Carolina. The record shows: 

(1) a conviction in 1998 for 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 statutory minimum 

of fifteen years, i.e., 180 months).

On January 11, 2012, Hemingway interposed his objections 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”) — are not predicate offenses 

under ACCA because they do not constitute ACCA violent felonies. 

More specifically, Hemingway maintained that neither ABHAN nor 

AHAN are violent felonies under the categorical approach because 

they can each be committed negligently and without violent 

injury. Hemingway further contended that his ABHAN and AHAN 

offenses cannot 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 lynching in the second degree and 

 

close proximity of a school (counted together as 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

rioting. According to the state court’s sentencing sheet

concerning that indictment, Hemingway pleaded guilty to the AHAN 

offense on June 11, 2002. On April 29, 2002, a single-count 

indictment was returned in Horry County, charging Hemingway with 

assault with intent to kill. The 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. Relying on two unpublished opinions,

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), plus our published decision in United States v. 

Wright, 594 F.3d 259 (4th Cir. 2010), the PSR maintained that 

ABHAN is categorically an ACCA violent felony. During the April 

26, 2012 sentencing hearing, the government argued 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 is an ACCA violent 
13

felony.5 In so doing, the 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 legal principles, the court agreed with the parties 

that ABHAN is not categorically a violent felony under the 

ACCA’s force clause, recognizing that the “South Carolina courts 

have interpreted ABHAN to include both forceful and nonforceful 

conduct.” Id. at 48. The 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 (180 months) in prison.

Hemingway filed a timely notice of appeal, and we possess 

jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. 

§ 1291. Because the government has altered its position on 

 5 Neither the probation officer nor the sentencing court 

addressed Hemingway’s objection to use of the AHAN conviction. 

Because Hemingway does 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 an ACCA

violent felony was sufficient to trigger the fifteen-year 

minimum sentence. 

6 Our citations 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 an ACCA

violent felony, we assigned amicus counsel (the “Amicus”) to 

brief and argue the legal position adopted by the sentencing 

court — that ABHAN is categorically an ACCA violent felony.7

III.

The issue 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 novo. See United States v. White, 571 F.3d 365, 367 

(4th Cir. 2009). Contrary to its position at sentencing, the 

government agrees with Hemingway on appeal that the district 

court erred in utilizing the categorical approach to rule that 

his ABHAN conviction was 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 shows that Hemingway’s ABHAN 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 

ably discharged their duties, and the Court 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 district court got the 

sentence 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 point. In the postDescamps 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 States v. Cabrera-Umanzor, 728 F.3d 347, 

350 (4th Cir. 2013). Meanwhile, a criminal offense is 
16

“divisible” only “when a statute lists multiple, alternative 

elements, and so effectively creates ‘several 

different . . . crimes.’” Descamps, 133 S. Ct. at 2285 (quoting 

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 offenses in this context. As a practical matter, 

state criminal statutes, for the most part, codify existing 

common law crimes. See United States 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 predicate offense.”). In multiple 

instances, state criminal statutes define offenses 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 ‘battery’ 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 Code, “[a]ssault is 
17

defined to mean the crimes of assault, battery, and assault and 

battery, which retain their judicially determined meanings” 

(internal quotation marks omitted)). 

Our Court has consistently deferred to the state courts in

identifying the elements of state common law offenses. 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 wellsettled that a common law offense can be a predicate offense 

under the ACCA and the Guidelines. See, 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 purposes 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’”). The foregoing principle is 

also 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 with 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.”). 

Although the Descamps Court left the 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 bases for its decision, the Court carefully 

reviewed the “three grounds for establishing [its] elementscentric, 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 the 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 certain 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 finding 
19

“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 results 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 difficulties 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. To be sure, common law 

offenses are often not as clearly defined as their statutory

counterparts, and thus may 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 constitutes an ACCA predicate

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 is “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, 138 (2010). 

In that respect, the 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). 

That court has explained the aggravation element of ABHAN in the 

following terms: 

The 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 clear from the South Carolina decisions that the

judiciary’s list of circumstances of aggravation is nonexhaustive. Although the 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 Importantly, 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 2290. By way of example, the 

 8 We are unable 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, failed 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 explained 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 aggravation” consistently identified 

by the South Carolina courts are neither elements nor 

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 means” 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 elements,’ 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 ruled, solely by 

application of the categorical approach.9

 

 9 Our decision today that 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 an 

ACCA violent felony.10 The government — reversing the position 

that it espoused at sentencing — has now conceded that ABHAN is 

not categorically an 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 importantly, 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 qualified 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 bound 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 ABHAN 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 the 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 present 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 the 
25

outcome of this appeal. Put simply, the 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. An ACCA analysis 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 

analysis that we employ today. In any event, Wright 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 concedes, 

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.” See State v. 

Primus, 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 invoke 

(Continued)
26

2.

a.

Looking beyond Wright, we assess whether ABHAN is yet 

categorically an ACCA violent felony. If we were deciding 

whether a previous crime qualifies as an ACCA violent felony by 

virtue of being an enumerated offense, we would be called upon 

to “compare the elements of the statute forming 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 crime qualifies as 

an ACCA violent felony under the residual clause, a different

analysis applies, because there is often no single “generic” 

crime to which 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 recognized, 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 that 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. 

The 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 could be readily compared 

to one of the enumerated offenses (i.e., burglary), the 

appropriate inquiry was guided by comparing James’s attempted 

burglary offense to the “generic” definition of burglary. See

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 an 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, violent, and 

aggressive conduct.” Id. at 144-45. In contrast, the Court 
28

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 crimes 

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 risk of 

physical injury to another,” id. at 141, the Court ruled that a 

DUI is not categorically an ACCA violent felony, id. at 147. 

Three years after Begay, in 2011 in Sykes, the Court 

explained that “[i]n general, levels 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 purposeful, 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 this appeal, the relevant residual clause inquiry, 

applying the categorical approach, is whether an ABHAN offense 

presents the same “serious potential risk of physical injury” as 
29

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 the residual clause “to crimes that 

are roughly similar, in kind as well as in degree 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” to 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 “‘generically, 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. § 4B1.2 cmt. n.1. 

Even 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 categorically 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 the first element 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 previous 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 manner that is substantively identical.” United States v. 

Gomez, 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 

felony under the residual clause. See, e.g., United States v. 

Rede-Mendez, 680 F.3d 552, 555 n.2 (6th Cir. 2012) (observing 

that “[c]ases analyzing the residual clauses” are “not 

pertinent” to analysis of offenses under force clause of 

Guidelines section 4B1.2).
31

fails to present a degree of risk similar to that posed by the 

ACCA’s enumerated offenses. Taken together, these elements 

demonstrate that an ABHAN offense, in the generic sense, does 

not pose the degree of risk required to come within the residual 

clause. Accordingly, we are satisfied that ABHAN is not 

categorically an ACCA violent felony.14 

c.

Finally, the Amicus argues that, applying the Supreme 

Court’s decisions in Begay and Sykes, we should rule that ABHAN

is categorically an 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 conviction, 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 that Begay did not substitute the 

“purposeful, 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 

potential 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 ABHAN is categorically an ACCA violent 

felony has received 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; Moultrie, 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 an 

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 an ACCA violent felony. As a result, we are 

compelled to vacate Hemingway’s sentence and remand for 

resentencing.

IV.

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