                       RECOMMENDED FOR FULL-TEXT PUBLICATION
                            Pursuant to Sixth Circuit Rule 206
                                   File Name: 10a0012p.06

               UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                 _________________


                                                X
                          Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                 -
                                                 -
                                                 -
                                                     No. 08-5839
          v.
                                                 ,
                                                  >
                                                 -
                       Defendant-Appellant. -
 ROBBY LEE MCFALLS,
                                                 -
                                                N
                  Appeal from the United States District Court
                for the Middle District of Tennessee at Nashville.
                No. 05-00079-1—Robert L. Echols, District Judge.
                                Argued: December 1, 2009
                          Decided and Filed: January 28, 2010
                 Before: GUY, ROGERS, and GRIFFIN, Circuit Judges.

                                   _________________

                                        COUNSEL
ARGUED: C. Douglas Thoresen, FEDERAL PUBLIC DEFENDER’S OFFICE, Nashville,
Tennessee, for Appellant. Jimmie Lynn Ramsaur, ASSISTANT UNITED STATES
ATTORNEY, Nashville, Tennessee, for Appellee. ON BRIEF: C. Douglas Thoresen,
Michael C. Holley, FEDERAL PUBLIC DEFENDER’S OFFICE, Nashville, Tennessee, for
Appellant. Jimmie Lynn Ramsaur, ASSISTANT UNITED STATES ATTORNEY,
Nashville, Tennessee, for Appellee.
                                   _________________

                                        OPINION
                                   _________________

        ROGERS, Circuit Judge. Robby McFalls appeals his classification as a career
offender under U.S.S.G. § 4B1.1, based on his prior convictions in South Carolina for four
counts of second degree burglary of a dwelling and one count of assault and battery of a high
and aggravated nature. McFalls argues on appeal that his four convictions for burglary,
sentenced on the same day, should be counted as a single sentence for criminal history



                                             1
No. 08-5839           United States v. McFalls                                             Page 2


purposes. He also argues that conviction under South Carolina’s second degree burglary
statute does not categorically qualify as a crime of violence because the statute includes
crimes as far as 200 feet from the home. Finally, he argues that South Carolina’s common-
law crime of assault and battery of a high and aggravated nature does not categorically
qualify as a crime of violence because the crime includes some actions taken recklessly or
negligently rather than intentionally. Each of these three arguments has merit, and together
they require a remand for further proceedings.

                                               I.

        In 1993 Robby McFalls committed a series of burglaries in South Carolina. After
a single arrest, McFalls pleaded guilty to four counts of second degree burglary and was
sentenced on November 11, 2005. Although two of the burglaries were indicted as first
degree burglary, those charges were reduced to second degree burglary. The indictments for
second degree burglary stated that they were for burglary in the second degree (dwelling)
and that McFalls “willfully and unlawfully” entered the dwellings of two separate
individuals “without consent and with the intent to commit a crime therein.”

        In 1996, McFalls pleaded guilty to an additional indictment for assault and battery
of a high and aggravated nature (ABHAN), a South Carolina common-law crime. The
indictment alleged:

        That Robby Lee McFalls did in Spartenburg [sic] County on or about July 7,
        1996 commit an assault and battery upon the victim, Christopher Self,
        constituting an unlawful act of violent injury to the person of the said victim,
        accompanied by circumstances of aggravation, to wit: By striking the victim
        about the face with an unknown object, in that the victim required medical
        treatment.

McFalls was sentenced to eight years for this offense, but the sentence was suspended and
McFalls was placed on three years’ probation.

        In 2003, McFalls committed a series of offenses, including two robberies for which
he is currently serving a 25-year sentence in state prison, and the bank robbery that is the
subject of this appeal. On June 26, 2006, McFalls pleaded guilty to the bank robbery and
to using a gun during that robbery, in violation of 18 U.S.C. § 924(c). McFalls was
sentenced on November 1, 2007, the day the 2007 version of the Sentencing Guidelines
No. 08-5839         United States v. McFalls                                          Page 3


Manual went into effect. At his sentencing hearing for the bank robbery and weapons
charge, McFalls argued that although he had a lengthy criminal history, he did not qualify
as a career offender for sentencing purposes because he did not have two qualifying
convictions for crimes of violence, as required by U.S.S.G. § 4B1.1. McFalls argued that
his South Carolina burglary convictions were not burglaries of a dwelling because of the
state’s expansive definition of “dwelling,” but the main focus of his argument before the
district court was that he had pleaded guilty to the burglaries with the understanding that
South Carolina would classify them as non-violent burglaries. The district court concluded
that McFalls’ convictions for second degree burglary were crimes of violence, based on two
cases—one from the Sixth Circuit and one from the Fourth Circuit—holding that second
degree burglary of a dwelling in South Carolina was a crime of violence. Because the
Presentence Report was prepared based on the 2005 version of the Sentencing Guidelines
Manual and McFalls had four convictions for burglary, the district court held that McFalls
qualified as a career offender and therefore had a guidelines range of 188 to 235 months for
the bank robbery, plus an additional 84-month sentence for using a weapon during that
robbery, to be served consecutively to the bank robbery charge. Without the career-offender
enhancement, the bank-robbery charge would have had a guidelines range of 77 to 96
months, in addition to the 84 months for the weapons charge. The Presentence Report also
listed the ABHAN conviction as a crime of violence for sentencing-enhancement purposes,
and McFalls did not object to that classification. The district court sentenced McFalls to 272
months’ imprisonment, the lowest possible sentence within the guidelines range because of
McFalls’ classification as a career offender. McFalls filed this timely appeal.

                                             II.

        McFalls’ four prior convictions for violating South Carolina’s second degree
burglary statute should have been counted as a single sentence under the Sentencing
Guidelines because the four convictions were sentenced on the same day and the four
offenses were not separated by an intervening arrest. According to the Sentencing
Guidelines, “[t]he court shall use the Guidelines Manual in effect on the date that the
defendant is sentenced.” U.S.S.G. § 1B1.11(a). The 2007 Sentencing Guidelines Manual
became effective November 1, 2007, the day McFalls was sentenced for the bank robbery
No. 08-5839         United States v. McFalls                                            Page 4


and the associated weapons charge. For criminal history purposes, the 2007 Guidelines
Manual states,

        If the defendant has multiple prior sentences, determine whether those
        sentences are counted separately or as a single sentence. Prior sentences
        always are counted separately if the sentences were imposed for offenses
        that were separated by an intervening arrest (i.e., the defendant is arrested
        for the first offense prior to committing the second offense). If there is no
        intervening arrest, prior sentences are counted separately unless (A) the
        sentences resulted from offenses contained in the same charging instrument;
        or (B) the sentences were imposed on the same day. Count any prior
        sentence covered by (A) or (B) as a single sentence.

U.S.S.G. § 4A1.2(a)(2) (emphasis added). Because McFalls’ four burglary convictions were
not separated by an intervening arrest and were sentenced on the same day, the Guidelines
count them as a single sentence for criminal history purposes.

        The Government does not contest that McFalls’ burglary convictions should count
as a single sentence under the 2007 Guidelines. Rather, the Government argues that because
McFalls failed to object to sentencing under the 2005 Guidelines in the district court, he must
show that it was plain error to use the 2005 Guidelines. The Government argues that no
plain error was shown because the error did not affect defendant’s substantial rights, as
required for plain error reversal under our precedents. E.g., United States v. Davis, 397 F.3d
340, 346 (6th Cir. 2005). The requirement that the error affect the defendant’s substantial
rights “usually means that the error must have affected the outcome of the district court
proceedings.” Id. (quoting United States v. Cotton, 535 U.S. 625, 632 (2002)). As the
Government sees it, the use of the 2007 Guidelines Manual would not have changed the final
determination of McFalls’ criminal history category and offense level, because McFalls
would still have one burglary conviction and one ABHAN conviction, both of which are
crimes of violence for sentencing-enhancement purposes. The argument thus turns on the
resolution of the two remaining issues on this appeal, concerning whether the burglary and
the ABHAN offenses may be counted as crimes of violence for career offender purposes.
No. 08-5839          United States v. McFalls                                            Page 5


                                             III.

         McFalls’ prior sentence for second degree burglary of a dwelling does not qualify
categorically as a crime of violence for purposes of U.S.S.G. § 4B1.1. U.S.S.G. § 4B1.2
defines “crime of violence” as follows:

         [A]ny offense under federal or state law, punishable by imprisonment for a
         term exceeding one year, that—(1) has as an element the use, attempted use,
         or threatened use of physical force against the person of another, or (2) is
         burglary of a dwelling, arson, or extortion, involves use of explosives, or
         otherwise involves conduct that presents a serious potential risk of physical
         injury to another.

Thus, the crime of violence definition can be met by satisfying one of three tests: (1) by
qualifying as a “burglary of a dwelling,” one of the specifically enumerated crimes of
violence; (2) by having as an element the use, attempted use, or threatened use of physical
force against another; (3) or by presenting a serious potential risk of physical injury to
another. See United States v. Wilson, 168 F.3d 916, 927 (6th Cir. 1999). South Carolina’s
second degree burglary statute does not meet these three tests because of its broad definition
of “dwelling,” which extends to uninhabitable structures as far as 200 yards from a dwelling
house.

                           A. Generic “Burglary of a Dwelling”

         First, the South Carolina statute’s broad definition of “dwelling” means that the
crime encompasses more conduct than the generic definition of “burglary of a dwelling,” and
thus does not qualify categorically as a “burglary of a dwelling” for sentencing-enhancement
purposes. McFalls pleaded guilty to violating S.C. Code Ann. § 16-10-312(A), which states
that a “person is guilty of burglary in the second degree if the person enters a dwelling
without consent and with intent to commit a crime therein.” For purposes of the burglary
statute, “dwelling” has two meanings. “‘Dwelling’ means its definition found in § 16-11-10
and also means the living quarters of a building which is normally used for sleeping, living,
or lodging by a person.” S.C. Code Ann. § 16-11-310(2). Section 16-11-10 contains the
more expansive definition:

         With respect to the crimes of burglary and arson and to all criminal offenses
         which are constituted or aggravated by being committed in a dwelling house,
No. 08-5839         United States v. McFalls                                            Page 6


        any house, outhouse, apartment, building, erection, shed or box in which
        there sleeps a proprietor, tenant, watchman, clerk, laborer or person who
        lodges there with a view to the protection of property shall be deemed a
        dwelling house, and of such a dwelling house or of any other dwelling house
        all houses, outhouses, buildings, sheds and erections which are within two
        hundred yards of it and are appurtenant to it or to the same establishment of
        which it is an appurtenance shall be deemed parcels.

S.C. Code Ann. § 16-11-10.      This broad definition of dwelling, including all “houses,
outhouses, buildings, sheds, and erections which are within two hundred yards” of a
dwelling house, is broader than the definition of dwelling in generic burglary statutes. The
generic definition of burglary of a dwelling cannot fairly extend to intrusions into sheds two
hundred yards from a residence. In Taylor v. United States, the Supreme Court held that in
determining whether the crimes of violence enumerated in a sentencing-enhancement include
particular state-law crimes, a sentencing court should define the enumerated crimes of
violence according to the generic sense in which they are used in the criminal codes of most
states. 495 U.S. 575, 598 (1990). In ascertaining the meaning of “burglary” for sentencing-
enhancement purposes under the Armed Career Criminal Act, the Court stated that although
“exact formulations vary, the generic, contemporary meaning of burglary contains at least
the following elements: an unlawful or unprivileged entry into, or remaining in, a building
or other structure, with intent to commit a crime,” and noted that this definition
approximated the definition found in the Model Penal Code. Id. at 598 & n.8. Section
4B1.2 of the Sentencing Guidelines differs from the Armed Career Criminal Act by listing
burglary of a dwelling, rather than burglary, as a crime of violence. The Model Penal Code
does not contain a separate entry for burglary of a dwelling, but Black’s Law Dictionary
provides a less expansive definition of dwelling house than the South Carolina statute. It
states: “Criminal Law. A building, a part of a building, a tent, a mobile home, or another
enclosed space that is used or intended for use as a human habitation. The term has referred
to connected buildings in the same curtilage, but now typically includes only the structures
connected either directly with the house or by an enclosed passageway.” Black’s Law
Dictionary (8th ed. 2004). South Carolina’s definition of dwelling, which includes any
structures—whether intended for human habitation or not—within 200 yards of a dwelling
house, is more expansive than generic burglary of a dwelling.
No. 08-5839          United States v. McFalls                                            Page 7


        The “required for human habitation” element is supported by at least two other
circuit courts, which have relied on the Black’s Law Dictionary definition of dwelling to
define the generic elements of burglary of a dwelling for sentencing-enhancement purposes.
Although each of those courts ultimately concluded that the defendant had committed
burglary of a dwelling, the courts did so only after determining that the structures were used
for purposes of habitation. In United States v. McClenton, the Third Circuit held that
burglary of a hotel room was a crime of violence, because a “hotel guest room is intended
for use as human habitation, albeit, in most circumstances, on a transient or temporary
basis.” 53 F.3d 584, 587 (3rd Cir. 1995). Similarly, the Eighth Circuit held that burglary of
structures used as “weekend fishing retreats” was a crime of violence by finding that those
retreats met the Black’s Law Definition of dwelling. United States v. Graham, 982 F.2d 315,
316 (8th Cir. 1992). In a Fifth Circuit case, the Government also endorsed the habitation
element of the generic definition of dwelling. The Government stated that a sentencing court
“must give effect to the ordinary meaning of ‘dwelling’ as a place of habitation without
limiting the types of structures that can constitute dwellings,” and argued that the “use of any
structure as a habitation makes it equivalent to a building or home within Taylor’s generic
definition of burglary.” United States v. Murillo-Lopez, 444 F.3d 337, 342 (5th Cir. 2006)
(emphasis added).

        The requirement of habitation for generic burglary of a dwelling applies regardless
of whether generic burglary of a dwelling is broader or narrower than generic burglary. The
Fifth Circuit in Murillo-Lopez read “burglary of a dwelling” as broader than burglary, in that
it extended to tents or vessels used for human habitation. 444 F.3d at 345. We have read
“burglary of a dwelling” as narrower (or at least no broader) than burglary. In United States
v. Wilson, we held that a burglary statute that included entering or remaining in a building,
house trailer, water craft, aircraft, railroad car, and other structures but specifically omitted
residential burglary did not qualify categorically as a crime of violence under U.S.S.G.
§ 4B2.1. 168 F.3d 916, 927 (6th Cir. 1999). We noted that the Sentencing Commission had
chosen to use burglary of a dwelling rather than mere burglary, had declined to adopt a
proposal to include generic burglary as a crime of violence, and had also declined to adopt
a proposal to expand burglary of a dwelling to include “‘any adjacent outbuilding considered
No. 08-5839           United States v. McFalls                                        Page 8


part of the dwelling.’” Id. at 928 (quoting 58 Fed. Reg. 67533 (proposed December 21,
1993)). Under either reading, however, there must be an intrusion on a place of habitation.

        Intrusions into uninhabitable structures two hundred yards from the place of
habitation thus do not constitute generic burglary of a dwelling. This conclusion is strongly
supported, if not flatly compelled, by the Supreme Court’s decision in James v. United
States, 550 U.S. 192 (2007). The Court held there that a Florida burglary of a dwelling
statute that included a narrowly defined curtilage area around the house fell outside the
generic definition of burglary for purposes of the Armed Career Criminal Act. The Court
stated, “We agree that the inclusion of curtilage takes Florida’s underlying offense of
burglary outside the definition of ‘generic burglary’ set forth in Taylor, which requires an
unlawful entry into, or remaining in, ‘a building or structure.’” Id. at 212 (quoting Taylor,
495 U.S. at 598) (emphasis in original). Prior to the James decision, the Florida Supreme
Court had defined curtilage narrowly, including only those areas inside “some form of an
enclosure in order for the area surrounding a residence to be considered part of the
‘curtilage’ as referred to in the burglary statute.” State v. Hamilton, 660 So.2d 1038, 1044
(Fla. 1995). And in United States v. Pluta, 144 F.3d 968, 975 (6th Cir. 1998), we held that
Florida’s burglary statute was non-generic in part because the term “structure” was defined
to include “the curtilage thereof.”

                     B. Use of Physical Force as an Element of the Crime

        Second, South Carolina second degree burglary plainly does not have as an element
the use, attempted use, or threatened use of physical force against another. The government
does not so argue.

 C. Offense Involving Conduct that Presents a Serious Potential Risk of Physical Injury

        Third, South Carolina second degree burglary does not qualify categorically as a
crime of violence by involving conduct that “presents a serious potential risk of physical
injury to another.” The crime fails to satisfy the residual clause because it does not present
the same degree of risk as generic burglary of a dwelling. An offense presents a serious
potential risk of physical injury to another for sentencing-enhancement purposes “if it is
‘similar in kind as well as in degree of risk posed,’ to the enumerated offenses.” United
No. 08-5839         United States v. McFalls                                           Page 9


States v. Mosley, 575 F.3d 603, 606 (6th Cir. 2009) (quoting United States v. Begay, 128
S.Ct. 1581, 1585 (2008)). Although the kind of risk posed by second degree burglary in
South Carolina is similar to the kind of risk posed by a generic burglary of a dwelling, the
risk differs in terms of degree. “The main risk of burglary arises not from the simple act of
wrongfully entering onto another’s property, but rather from the possibility of a face-to-face
confrontation between the burglar and a third party—whether an occupant, a police officer,
or a bystander—who comes to investigate.” James, 550 U.S. at 203. That is, the James
Court elaborated, the risk arises “from the possibility that an innocent person might appear
while the crime is in progress.” Id. Such risk is of course high in the case of intrusion into
the actual place of habitation—or an attempt at such intrusion, as in James—but obviously
much lower in the case of uninhabitable sheds up to 200 yards from a generic dwelling.
Thus, South Carolina second degree burglary of a dwelling does not, under the categorical
approach, present the same degree of risk as generic burglary of a dwelling, and the residual
clause of the Guidelines career offender definition of violent crime does not apply.

                              IV. Looking at the Indictments

        The charging documents for McFalls’ burglary convictions, moreover, do not contain
enough to make the burglary conviction a crime of violence for Guidelines career offender
purposes. Although a sentencing court “‘may generally only look to the statutory definitions
of prior offenses, and not to the particular facts underlying those convictions’ to determine
whether a sentence should be enhanced, . . . in cases where the statutory definition is
ambiguous, a court [is permitted to] ‘go beyond the mere fact of conviction’ and examine
the charging papers or jury instructions to determine whether the convicting jury necessarily
found all the requisite elements of an offense that would qualify for a federal sentencing
enhancement.” United States v. Armstead, 467 F.3d 943, 947 (6th Cir. 2006) (quoting
Taylor, 495 U.S. at 600, 602). A sentencing court in that situation may examine “the terms
of the charging document, the terms of a plea agreement or transcript of colloquy between
judge and defendant in which the factual basis for the plea was confirmed by the defendant,
or to some comparable record of judicial information.” Shepard v. United States, 544 U.S.
13, 26 (2005). The question in cases of guilty pleas is whether “the court documents
establish that the defendant ‘necessarily admitted’ the elements of a predicate offense
through his plea.” United States v. Medina-Almaguer, 559 F.3d 420, 422 (6th Cir. 2009).
No. 08-5839         United States v. McFalls                                         Page 10


        The Government argues that even if second degree burglary in South Carolina does
not categorically qualify as a crime of violence, the “South Carolina indictments, plea
agreements, and sentencing documents make clear that the defendant was charged with and
sentenced for four offenses involving the burglary of a dwelling.” This argument fails,
however, because nothing in the indictments indicates the generic use of the word dwelling,
rather than dwelling as defined by the statute for which the indictments were made.

        Here, the indictments and other documents in the record establish only that McFalls
was convicted of second degree burglary. The indictments for second degree burglary come
from pre-printed forms.      The relevant portion of one of the indictments is titled,
“BURGLARY IN THE SECOND DEGREE (DWELLING),” and states that “Robby
McFalls did in Spartanburg County on or about February 27, 1993 willfully and unlawfully
enter the dwelling of James M. Jennings without consent and with intent to commit a crime
therein.” Most of that language is boilerplate that is pre-printed on the indictment; the only
language specific to the individual case is the name, “Robby McFalls,” the county, the date,
and the name of the person whose dwelling McFalls unlawfully entered, “James M.
Jennings.” Although the indictment states that McFalls unlawfully entered a dwelling, the
word dwelling is pre-printed onto the generic indictment form for burglary in the second
degree. There is nothing in any of the indictments to indicate that they do not incorporate
South Carolina’s broad definition of dwelling, including uninhabitable buildings, sheds, and
other erections up to 200 yards from a residence.

        The Government has pointed us to no other relevant Shepard documents to show that
McFalls admitted to the elements of generic burglary of a dwelling in his guilty pleas. Thus,
remand is appropriate to allow the district court to consider whether any Shepard documents
show that McFalls pleaded guilty to burglarizing any structures that meet the generic
definition of dwelling.

                            V. Aggravated Assault Conviction

        For a different reason, South Carolina’s common-law crime of ABHAN is also not
categorically a crime of violence. This is because ABHAN applies not only to intentional
conduct, but also to reckless conduct. We have squarely held that under the Guidelines
definition of “crime of violence” contained in U.S.S.G. § 2L1.2(b)(1)(E), cmt. 1(B)(iii),
No. 08-5839           United States v. McFalls                                                 Page 11


which is materially indistinguishable from the definition that we apply today (U.S.S.G.
§ 4B1.2(a) & cmt. 1), “a crime requiring only recklessness does not qualify.” United States
v. Portela, 469 F.3d 496, 499 (6th Cir. 2006). Other circuits have reached the same
conclusion under the indistinguishable words of the Armed Career Criminal Act. See United
                                                          1
States v. Smith, 544 F.3d 781, 785 (7th Cir. 2008).

       In South Carolina law, ABHAN “is the unlawful act of violent injury to another
accompanied by circumstances of aggravation.” State v. Fennell, 531 S.E.2d 512, 517
(S.C. 2000). However, the South Carolina Supreme Court has not “identified any
particular mental state the State must prove in order for a defendant to be found guilty
of ABHAN.” Id. at 517. Consistent with this lack of a mental state requirement, South
Carolina courts have upheld ABHAN convictions in cases involving injuries resulting
from a defendant’s reckless driving. See State v. Bull, 350 S.C. 58 (S.C. Ct. App. 2002);
State v. Easler, 322 S.C. 333 (S.C. Ct. App. 1996); State v. Sussewell, 146 S.E. 697 (S.C.
1929). Because South Carolina has not defined a particular mental state for ABHAN
and South Carolina courts have upheld ABHAN convictions for conduct that was
reckless, ABHAN does not meet the requirements for a “crime of violence” under
Portela.

       The Government argues that because Comment 1 to U.S.S.G. § 4B1.2 identifies
“aggravated assault” as a crime of violence, ABHAN qualifies categorically as a crime
of violence. This argument fails because ABHAN does not involve the same elements
as generic aggravated assault. Defining aggravated assault generically is particularly
difficult because many states define assault in terms of degrees rather than with the terms
simple or aggravated, see, e.g., Ala. Code § 13A-6-20(a), and because some states still
retain the common law distinction between assault and battery. See, e.g., W. Va. Code


       1
           The Seventh Circuit reasoned:
       We must conclude that, after Begay [128 S.Ct. at 1581 (2008)], the residual clause [viz.,
       the serious-risk clause] of the ACCA should be interpreted to encompass only
       ‘purposeful’ crimes. Therefore, those crimes with a mens rea of negligence or
       recklessness do not trigger the enhanced penalties mandated by the ACCA.
       Accordingly, we agree with the Second Circuit [in United States v. Gray, 283 F. App’x
       871 (2008)] that crimes requiring only a mens rea of recklessness cannot be considered
       violent felonies under the residual clause of the ACCA.
No. 08-5839        United States v. McFalls                                       Page 12


§ 61-2-9. After surveying these laws, the Model Penal Code concluded that a person
should be guilty of aggravated assault if he “(a) attempts to cause serious bodily injury
to another, or causes such injury purposely, knowingly, or recklessly under
circumstances manifesting extreme indifference to the value of human life; or (b)
attempts to cause or purposely or knowingly causes bodily injury to another with a
deadly weapon.” Model Penal Code § 211.1(2). This definition approximates the
definition of “aggravated assault” used by several states that have consolidated the
crimes of assault and battery. See, e.g., Miss. Code Ann. § 97-3-7.

       Under the Model Penal Code definition, a person is guilty of aggravated assault
only when he acts with specific intent, or acts recklessly under circumstances
manifesting extreme indifference to the value of human life with malignant recklessness
and causes serious bodily injury. Because South Carolina courts have upheld ABHAN
convictions in cases involving merely reckless conduct, a conviction for ABHAN does
not qualify categorically as a generic aggravated assault. Moreover, circumstances of
aggravation that turn simple assault into ABHAN include some that might well not
involve a heightened mens rea, such as “infliction of serious bodily injury, great
disparity in the ages or physical conditions of the parties, [and] a difference in gender.”
Fennell, 531 S.E.2d at 517.

        The Government’s final position is that even if ABHAN does not categorically
qualify as a crime of violence, the indictment establishes that McFalls committed a crime
of violence. This argument fails on the evidence before us in the record, however,
because the indictment is silent as to McFalls’ mental state and does not otherwise
establish that McFalls’ conduct was purposeful, knowing, or intentional. The indictment
states that McFalls “committed an assault and battery on the victim . . . constituting an
unlawful injury to the person of said victim, accompanied by circumstances of
aggravation, to wit: By striking the victim about the face with an unknown object, in
that the victim required medical treatment.” This document does not clearly answer the
question of whether McFalls acted purposefully or knowingly in causing the injury, or
otherwise acted recklessly under circumstances manifesting extreme indifference to the
No. 08-5839        United States v. McFalls                                    Page 13


value of human life. Thus, the indictment does not establish that McFalls committed a
crime of violence for sentencing-enhancement purposes.

                                         VI.

       For these reasons, McFalls’ case is remanded to the district court for
resentencing, following further review of any sources permitted under Shepard v. United
States, 544 U.S. 13, 26 (2005), to determine whether McFalls’ prior convictions were
for crimes of violence under the Guidelines.
