                                PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 12-4760


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

FABIAN MONTES-FLORES,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Charleston.     Richard M. Gergel, District
Judge. (2:11-cr-02292-RMG-1)


Argued:   September 17, 2013                 Decided:   November 26, 2013


Before KING, SHEDD, and THACKER, Circuit Judges.


Vacated and remanded by published opinion. Judge Thacker wrote
the majority opinion, in which Judge King joined.  Judge Shedd
wrote a dissenting opinion.


ARGUED: Kimberly Harvey Albro, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Columbia, South Carolina, for Appellant.        Robert
Nicholas Bianchi, OFFICE OF THE UNITED STATES ATTORNEY,
Charleston, South Carolina, for Appellee. ON BRIEF: Ann Briks
Walsh, Assistant Federal Public Defender, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Charleston, South Carolina, for Appellant.
William N. Nettles, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Columbia, South Carolina, for Appellee.
THACKER, Circuit Judge:

            Appellant              Fabian            Montes-Flores            (“Appellant”)

challenges his sentence of 46 months imprisonment, imposed as a

result of his conviction pursuant to a violation of 8 U.S.C.

§ 1326 for illegal reentry into the United States after being

previously       removed.           In   this       appeal,       Appellant       argues       the

district     court         erred    by   employing          the       modified    categorical

approach to determine that his prior conviction for assault and

battery of a high and aggravated nature (“ABHAN”) under South

Carolina law was a “crime of violence” for purposes of the 16-

level enhancement authorized by the Sentencing Guidelines.                                     See

United          States             Sentencing              Guideline             (“U.S.S.G.”)

§ 2L1.2(b)(1)(A)(ii)           (2012).              Because      we    find      the    district

court’s    application         of    the    modified          categorical         approach     to

ABHAN -- an indivisible common law crime -- was in error, we

vacate Appellant’s sentence and remand for resentencing.

                                              I.

                                              A.

            On June 12, 2010, Charleston, South Carolina police

officers     initiated         a    traffic         stop    on     a    vehicle        in    which

Appellant       was    a    passenger.          The        officers      noticed        an   open

container of alcohol and asked the driver and Appellant to exit

the vehicle.          As Appellant was exiting the vehicle, an officer

observed    a    handgun       sticking     out       from       underneath       a    towel   on

                                                2
Appellant’s seat.            The handgun was a revolver, and it was loaded

with six rounds of .357 ammunition.                     Police officers found three

additional       rounds      of   .357    ammunition        in     Appellant’s    pocket.

Appellant was charged with unlawful carrying of a firearm in

violation of South Carolina law.

               On    June     17,      2010,       an    Immigration       and    Customs

Enforcement (“ICE”) agent received Appellant’s fingerprints from

the Charleston County Detention Center.                          An ICE Special Agent

then determined Appellant had previously been deported in May

2008, following a 2006 conviction for ABHAN in South Carolina

state       court.     The    South      Carolina       ABHAN     indictment     to    which

Appellant pled guilty alleged:

     That [Appellant] did in Charleston County on or about
     March 27, 2006 commit an assault and battery upon [the
     victim], constituting an unlawful act of violent
     injury to [the victim], to wit: [Appellant] assaulted
     the victim causing physical injury threatening her
     safety, accompanied by circumstances of aggravation
     including, but not limited to: use of his hands. This
     is in violation of the Common Law of the State of
     South Carolina.

J.A. 48. 1

               On    November     8,   2011,       a    federal    grand   jury       in   the

District       of    South    Carolina      returned        a     two-count    indictment

charging Appellant with illegal reentry after a prior removal


        1
       Citations herein to “J.A. ____” refer to the contents of
the Joint Appendix filed by the parties in this appeal.



                                               3
for a conviction of an aggravated felony, in violation of 8

U.S.C. §§ 1326(a) and (b)(2), 2 and with being an illegal alien in

possession   of   a   firearm   and   ammunition,    in   violation   of   18

U.S.C. §§ 922(g)(5)(A), 924(a)(2), and 924(e).            On June 7, 2012,

Appellant entered a guilty plea to the illegal reentry charge,

and the Government agreed to dismiss the remaining firearm and

ammunition   charge.       During     the   plea    proceeding,   Appellant

reserved the right to argue at sentencing that he was guilty of

illegal reentry after a felony conviction, as opposed to illegal

reentry after an aggravated felony conviction. 3


     2
       As we have observed, “the substantive crime of illegal
reentry is defined in subsection (a), and not subsection
(b)(2).” United States v. Matamoros-Modesta, 523 F.3d 260, 262
n.4 (4th Cir. 2008).       “[S]ubection (b)(2) ‘is a penalty
provision, which simply authorizes a court to increase the
sentence for a recidivist.      It does not define a separate
crime.’”   Id. (quoting Almendarez-Torres v. United States, 523
U.S. 224, 226 (1998)).
     3
       Whether a prior conviction is considered a “felony” or an
“aggravated felony” affects both the statutory maximum and
Sentencing Guidelines calculation.    The statutory maximum for
illegal reentry after a felony is ten years, see 8 U.S.C.
§ 1326(b)(1), while the statutory maximum for illegal reentry
after an aggravated felony is 20 years, id. § 1326 (b)(2).    As
for the Sentencing Guidelines, a prior conviction for a felony
increases the offense-level calculation by four levels, see
U.S.S.G. § 2L1.2(b)(1)(D), while a prior conviction for an
aggravated felony increases the offense-level calculation by
eight levels, id. § 2L1.2(b)(1)(C).       In addition, a prior
conviction for a “crime of violence” increases the offense-level
calculation by 16 levels.      Id. § 2L1.2(b)(1)(A)(ii).     The
district court will apply the greatest of the potential
enhancements.



                                      4
                                                 B.

               Before sentencing, the United States Probation Office

completed a Presentence Investigation Report (“PSR”).                                     The PSR

calculated Appellant’s base offense level under U.S.S.G. § 2L1.2

(the “illegal reentry Guideline”) as eight, but it added a 16-

level enhancement for Appellant’s prior ABHAN conviction, which

the    PSR   classified        as    a    “crime          of    violence”      under      U.S.S.G.

§     2L1.2(b)(1)(A)(ii).                After        a    three-level             reduction    for

acceptance         of   responsibility,           the      PSR       set    Appellant’s        total

offense      level      at     21.         The       offense         level,        considered    in

combination          with      Appellant’s            applicable            criminal       history

category       --    calculated      at     III       --       provided      for     an   advisory

Guidelines range of 46 to 57 months.

               Both     before       and     during            his     sentencing         hearing,

Appellant argued that his prior conviction for ABHAN should not

be considered a “crime of violence” under the illegal reentry

Guideline.          Citing our decision in United States v. Gomez, 690

F.3d    194,    200     (4th    Cir.      2012),      Appellant            urged    the   district

court to employ the categorical approach in considering whether

ABHAN is a crime of violence because “the South Carolina crime

of ABHAN is a single, broad crime which may be committed in both

violent      and    non-violent          ways,    both         with    and    without      force.”

J.A. 43-44.         In the alternative, Appellant argued ABHAN is not a

crime of violence even under the modified categorical approach.

                                                 5
The    Government,        however,     asserted    that   ABHAN    is    a    crime   of

violence under the modified categorical approach.                            Relying on

several of our unpublished decisions, the Government maintained

that employing the modified categorical approach was appropriate

because “[t]he 4th Circuit has recently remanded a number of

cases      involving      ABHAN    convictions     in   order    for    the    District

Court to apply a modified categorical approach.”                   Id. at 51.

                 At the sentencing hearing held on September 18, 2012,

the district court applied the modified categorical approach,

noting that doing so seemed “to be consistent with the case

law.”      J.A. 61.         After reviewing the indictment and sentencing

sheet      for    Appellant’s      ABHAN    conviction, 4    the   district       court

concluded Appellant’s prior ABHAN conviction constituted a crime

of    violence      under    the   modified      categorical    approach.        In   so

concluding,         the     district       court    stated      Appellant’s       ABHAN

conviction was “an offense in which the use, attempted use[,] or

threatened use of physical force was involved.”                          Id. at 76.

Accordingly, the district court held that a 16-level enhancement




       4
       Appellant’s ABHAN sentencing sheet is a form document used
by South Carolina courts.    It simply reflects Appellant’s plea
of guilty on June 29, 2006, for his ABHAN charge. See J.A. 47.



                                             6
under    the    illegal     reentry    Guideline    was    appropriate. 5        See

U.S.S.G. § 2L1.2(b)(1)(A)(ii).

               After considering the Sentencing Guidelines, as well

as the factors set forth in 18 U.S.C. § 3553(a), the district

court    imposed      a   sentence    of   46   months    imprisonment,     at   the

bottom   of     the   advisory   Guidelines      range.      In   explaining     its

sentence, the district court noted, “there is something to be

said that defendant continues to be engaged in conduct that is

potentially very dangerous to people and violating the law.”

J.A. 90.        The court continued, “I think Mr. Montes-Flores is

telling us he is a potential danger to the public.                        And you

know, I have a concern about trying to get his attention not to

try to return across the border.”                 Id. at 91.        The district

court concluded by explaining that it sought to deter Appellant

by imposing a sentence “that would cause him to be disinclined

to again violate the borders of the United States.”                   Id. at 95.

     5
       Although at times it referred to ABHAN as an “aggravated
felony,” see J.A. 90, 95, the district court did not decide
whether Appellant’s ABHAN conviction constituted a “felony” or
an “aggravated felony” for purposes of enhancement under the
illegal reentry Guideline.        At the commencement of the
sentencing hearing, the district court explained, “as a
practical   matter,  the   maximum  sentence   here   is   largely
irrelevant” and “the important issue here which we need to hash
out is whether [ABHAN] in South Carolina is a crime of
violence.” Id. at 60-61. Therefore, because the district court
concluded ABHAN is a crime of violence, it did not address any
alternative   enhancements   under  U.S.S.G.   §    2L1.2(b)(1)(C)
(aggravated felony) or U.S.S.G. § 2L1.2(b)(1)(D) (felony).



                                           7
The district court entered its judgment order on September 19,

2012,    and   Appellant     timely      noted      this    appeal.           We    have

jurisdiction    pursuant     to     28    U.S.C.     §     1291    and     18      U.S.C.

§ 3742(a).

                                         II.

           “Whether the district court erred in characterizing a

defendant’s    crime   as     a     ‘crime     of    violence’       for        sentence

enhancement purposes is a question of law, which we review de

novo.”    United States v. Gomez, 690 F.3d 194, 197 (4th Cir.

2008).    “We rely on precedents evaluating whether an offense

constitutes     a   ‘crime     of     violence’          under     the     Guidelines

interchangeably     with   precedents        evaluating     whether      an     offense

constitutes a ‘violent felony’ under the [Armed Career Criminal

Act (“ACCA”)], because the two terms have been defined in a

manner that is ‘substantively identical.’”                        United States v.

King, 673 F.3d 274, 279 n.3 (4th Cir. 2012) (quoting United

States v. Jarmon, 596 F.3d 228, 231 n.* (4th Cir. 2010)). 6




     6
       A “violent felony” under the ACCA is defined as any crime
punishable by a prison term in excess of one year that: “(i) has
as an element the use, attempted use, or threatened use of
physical force against the person of another” (the “force
clause”); 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” (the
“residual clause”). 18 U.S.C. § 924(e)(2)(B).



                                         8
                                     III.

           The applicable Sentencing Guideline for a conviction

pursuant to 8 U.S.C. § 1326 is U.S.S.G. § 2L1.2.                This illegal

reentry Guideline designates a base offense level of eight and

provides for various offense level enhancements depending on the

specific   characteristics     of   a   particular      defendant’s   offense.

See U.S.S.G. §§ 2L1.2(a), (b).              At issue here is the 16-level

enhancement   that   applies    in      cases   where    the   defendant   was

removed from the United States after “a conviction for a felony

that is . . . a crime of violence.”             Id. § 2L1.2(b)(1)(A)(ii).

“Crime of violence” is defined in the Application Notes as any

of the following crimes under federal, state, or local law:

     [M]urder,    manslaughter,    kidnapping,    aggravated
     assault,   forcible  sex   offenses  (including   where
     consent to the conduct is not given or is not legally
     valid, such as where consent to the conduct is
     involuntary, incompetent, or coerced), statutory rape,
     sexual abuse of a minor, robbery, arson, extortion,
     extortionate extension of credit, burglary of a
     dwelling, or any other offense under federal, state,
     or local law that has as an element the use, attempted
     use, or threatened use of physical force against the
     person of another.

Id. § 2L1.2 cmt. n.1(B)(iii) (emphasis supplied). 7


     7
         “[C]ommentary   to   the    Sentencing Guidelines   is
authoritative and binding, ‘unless it violates the Constitution
or a federal statute, or is inconsistent with, or a plainly
erroneous reading of,’ the Guideline itself.” United States v.
Peterson, 629 F.3d 432, 435 (4th Cir. 2011) (quoting Stinson v.
United States, 508 U.S. 36, 38 (1993)).



                                        9
               In assessing whether an offense constitutes a crime of

violence under the Sentencing Guidelines, “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) (explaining

the two potential approaches in the context of ACCA predicate

offenses).        Here, using the modified categorical approach, the

district court concluded Appellant’s ABHAN conviction met the

definition of a “crime of violence” because it was “an offense

in which the use, attempted use[,] or threatened use of physical

force was involved.”          J.A. 76.

                                            A.

                               Categorical Approach

               In determining whether a prior conviction triggers a

sentence        enhancement       under    the    Sentencing         Guidelines,        “we

approach the issue categorically, looking ‘only to the fact of

conviction and the statutory definition of the prior offense.’”

United States v. Cabrera-Umanzor, 728 F.3d 347, 350 (4th Cir.

2013)    (quoting     Taylor       v.   United    States,      495      U.S.   575,     602

(1990)).        This categorical approach “focuses on the elements of

the     prior    offense      rather      than   the     conduct        underlying      the

conviction.”         Id.     (emphasis     in    original);       United       States   v.

Torres-Miguel, 701 F.3d 165, 167 (4th Cir. 2012); see also Begay

v.    United    States,     553   U.S.    137,   141     (2008)    (“In     determining

                                            10
whether [a] crime is a violent felony, we consider the offense

generically, that is to say, we examine it in terms of how the

law defines the offense and not in terms of how an individual

offender might have committed it on a particular occasion.”).

As we have recently explained, “[t]he point of the categorical

inquiry   is    not    to    determine       whether     the       defendant’s      conduct

could   support    a   conviction         for     a   crime       of   violence,     but    to

determine whether the defendant was in fact convicted of a crime

that qualifies as a crime of violence.”                           Cabrera-Umaznor, 728

F.3d at 350 (emphasis in original) (citing Descamps v. United

States, 133 S. Ct. 2276, 2288 (2013)).

                                             B.

                       Modified Categorical Approach

             In a “narrow range of cases,” we may apply a modified

categorical approach.              Taylor, 495 U.S. at 602.                 However, this

approach is permitted only if the prior state conviction rests

on a divisible statute -- that is, a statute that “contains

divisible    categories          of    proscribed     conduct,         at   least    one    of

which   constitutes         --    by   its   elements        --    a   violent      felony.”

United States v. Gomez, 690 F.3d 194, 199 (4th Cir. 2012).                                  In

other words, we stray from use of the categorical approach only

in   cases     involving         “statutes    that     set    out      elements      in    the

alternative and thus create multiple versions of the crime.”

Cabrera-Umanzor, 728 F.3d at 350 (citing Descamps, 133 S. Ct. at

                                             11
2284; Gomez, 690 F.3d at 199); see United States v. Hemingway,

--- F.3d ----, No. 12-4362, 2013 WL 5833283, at *2 (4th Cir.

Oct. 31, 2013) (explaining that the Supreme 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”) (internal quotation marks

omitted).         “General      divisibility,         however,        is    not    enough;    a

statute     is    divisible      for       purposes     of     applying      the    modified

categorical approach only if at least one of the categories into

which the statute may be divided constitutes, by its elements, a

crime of violence.”            Cabrera-Umanzor, 728 F.3d at 352 (emphasis

in original).

             In     employing     the        modified      categorical        approach,      a

sentencing       court   is     permitted       to    examine     a    finite      class     of

extra-statutory materials “to determine which statutory phrase

was the basis for the conviction.”                      Johnson v. United States,

559 U.S. 133, 144 (2010).              However, this examination is strictly

limited to the following documents: “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 judicial record of this information.”                                  Shepard v.

United    States,      544     U.S.    13,    26     (2005).      In       reviewing     those

documents, the district court’s sole purpose is to “determin[e]

                                              12
which statutory phrase (contained within a statutory provision

that covers several different generic crimes) covered a prior

conviction.”      Nijhawan v. Holder, 557 U.S. 29, 41 (2009); see

also Gomez, 690 F.3d at 198 (explaining that the examination of

Shepard-approved       documents       “is         for        the     sole      purpose      of

determining which part of the statute the defendant violated”).

            As   the   Supreme     Court       has    reiterated,            “the    modified

categorical      approach    serves       a        limited          function:       It    helps

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.”     Descamps, 133 S. Ct. at 2283.

            Accordingly,      the      modified          categorical          approach       is

applicable only “when a defendant was convicted of violating a

divisible     statute,”      and    then,           “only       to      determine         which

alternative element . . . formed the basis of the defendant’s

conviction.”       Descamps,     133    S.     Ct.       at    2285,     2293;      see    also

Gomez, 690 F.3d at 200 (“Thus, if the statute is divisible, with

some categories constituting a crime of violence and some not

constituting a crime of violence, then it is appropriate for the

district court to employ the modified categorical approach . . .

to ascertain whether the defendant violated a crime-of-violence

category of the statute.”).



                                          13
                                           C.

        Assault and Battery of a High and Aggravated Nature

             With this framework in mind, we must determine what

approach a sentencing court must employ when deciding if a prior

ABHAN   conviction        was    for   a     crime     of      violence      under    the

Sentencing    Guidelines.           Resolution       of     this     issue    turns       on

whether the Descamps divisibility analysis applies to common law

crimes and, if so, whether ABHAN is divisible.

             We   recently       addressed      both      of   these   issues        in    a

related context -- namely, whether ABHAN constitutes a predicate

“violent felony” under the ACCA’s residual clause.                           See United

States v. Hemingway, --- F.3d ----, No. 12-4362, 2013 WL 5833283

(4th Cir. Oct. 31, 2013).              In November 2011, Hemingway pled

guilty to illegal possession of a firearm and ammunition after

having previously been convicted of a felony, in violation of 18

U.S.C. § 922(g)(1).             Id. at *3.       Before sentencing, Hemingway

objected to his PSR’s recommendation to enhance his sentence

under the ACCA, arguing “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    the    ACCA    because      they      do   not   constitute      ACCA

violent felonies.”         Id.     The district court disagreed, however,

and ruled Hemingway’s ABHAN offense was for a violent felony



                                           14
under the ACCA’s residual clause.                    Id. at *4. 8         The district

court    employed         the   categorical        approach       in    reaching      this

conclusion. 9

           On        appeal,       Hemingway      argued       that     ABHAN    is    not

categorically        an     ACCA    violent      felony    and,       contrary   to    the

Government’s position on appeal, that the modified categorical

approach   was       inapplicable      to   this    determination.           Hemingway,

2013 WL 5833283, at *4.              Relying on the Supreme Court’s recent

decision in Descamps, we agreed.                  Id. at *5, 11.         As an initial

matter, we squarely held, “the Descamps divisibility analysis is

applicable      to    the    question    of      whether   a    common     law   offense

constitutes an ACCA predicate crime.”                      Id. at *6.            We then

reviewed the common law offense of ABHAN, as defined by the

South Carolina courts, and determined that because it consists

     8
       As Hemingway explains, the district court’s “ruling that
ABHAN is an ACCA violent felony was sufficient to trigger the
fifteen-year minimum sentence” because Hemingway did not dispute
that two of his other previous crimes were for ACCA predicate
offenses. 2013 WL 5833283, at *4 n.5; see 18 U.S.C. § 924(e)(1)
(providing that three previous predicate offenses trigger the
ACCA’s fifteen-year mandatory minimum sentence). Therefore, the
district court did not address Hemingway’s objection to the use
of the AHAN conviction as an ACCA predicate offense.         See
Hemingway, 2013 WL 5833283, at *4 n.5.
     9
       The district court applied the categorical approach after
“observ[ing]   that  the   modified   categorical   approach was
inapplicable to Hemingway’s ABHAN indictment because he did not
plead as indicted and thus the indictment could not be used to
ascertain the nature of his ABHAN offense.” Hemingway, 2013 WL
5833283, at *4 (internal quotations marks omitted).



                                            15
of two indivisible elements, “the modified categorical approach

has no role to play.”                  Id. at *7 (internal quotation marks

omitted).       Having decided the categorical approach is the proper

method of analysis, we assessed whether ABHAN qualifies as an

ACCA violent felony under the residual clause and held that it

does not.       Id. at *10.

               Although    Hemingway         involved      the    determination      of

whether ABHAN was a “violent felony” under the ACCA’s residual

clause,    its     analysis      of     Descamps    is     equally   applicable      in

determining      whether       ABHAN    is    a   “crime    of    violence”    in   the

Sentencing Guidelines context.                See Cabrera-Umaznor, 728 F.3d at

350, 352 (applying the Descamps divisibility analysis to the

“crime    of     violence”      enhancement        under    the    illegal    reentry

Guideline).

                                             1.

                                 Common Law Crimes

               We reiterate that, by its terms, the Descamps holding,

which    dealt    with    an    indivisible       California      burglary    statute,

does not expressly apply to common law crimes.                       See Hemingway,

2013 WL 5833283, at *3 (explaining that Descamps “left open the

issue of whether the divisibility analysis applies to a common

law crime”).       Similarly, in Gomez, we did not decide whether the

divisibility analysis applies in the common law context.                        United

States    v.    Gomez,    690    F.3d    194,     202   (“Here,    however,    we   are

                                             16
concerned with the divisions within a statute, not a common law

crime.”).        In    Hemingway,          however,       we    answered   the      question

directly, holding the “divisibility analysis is applicable to

the question of whether a common law offense constitutes an ACCA

predicate crime.”          2013 WL 5833283, at *6.                  In so holding, we

explained       that    nothing       in    the     Supreme      Court’s      decision     in

Descamps “suggests that a divisibility analysis does not apply

with    equal     force    to     a    common       law     offense.”         Id.    at   *6.

Therefore, because the divisibility analysis applies generally

to   sentence     enhancements          for    crimes      of    violence,     Hemingway’s

conclusion that divisibility applies to common law offenses in

the ACCA context is equally applicable here.

              We agree with our sister circuits that, when a “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.”             United States v. Walker, 595 F.3d 441,

444 (2d Cir. 2010) (internal quotation marks omitted).                               We too

have    treated        common     law       crimes        and   statutory      crimes      as

functionally equivalent for sentence enhancement purposes, and

Hemingway is clear that “the modified categorical approach has

‘no role to play’ where the previous crime was an indivisible

common law offense.”             Hemingway, 2013 WL 5833283, at *6 (quoting

Descamps, 131 S. Ct. 2285).

                                               17
                                       2.

                                  Divisibility

           Having       concluded    that     the      divisibility     analysis

applies   to   common    law   offenses     for    purposes   of    enhancements

under the Sentencing Guidelines, we must next decide whether

South Carolina’s common law crime of ABHAN is divisible such

that the modified categorical approach applies. 10                  A statute is

“divisible”    when     it   is   comprised       of   “multiple,    alternative

versions of the crime.”           Descamps, 133 S. Ct. at 2284.           Stated

differently, statutes are divisible if they “set out elements in

the alternative and thus create multiple versions of the crime.”

Cabrera-Umanzor, 728 F.3d at 350.           Under this standard, ABHAN is

not divisible.

           Until it was codified in 2010, ABHAN was a common law

crime in South Carolina defined as “the unlawful act of violent

     10
        At Appellant’s sentencing, the district court’s decision
to apply the modified categorical approach was based on several
of our unpublished decisions in which we remanded cases for
resentencing   with   instructions   to   employ   the    modified
categorical approach “[w]ithout expressing an opinion on whether
the offense of ABHAN under South Carolina’s common law
categorically constitutes a crime of violence.”        See, e.g.,
United States v. Johnson, 475 F. App’x 494, 496 (4th Cir. 2012)
(per curiam); United States v. Wells, 484 F. App’x 756, 758 (4th
Cir. 2012) (per curiam); United States v. Hamilton, 480 F. App’x
217, 219 (4th Cir. 2012) (per curiam).         Those unpublished
decisions do not bind our court. And, more importantly, each of
those cases were decided before Descamps made it clear that the
modified categorical approach can only be applied to a divisible
crime. See Descamps, 133 S. Ct. at 2282.



                                       18
injury to another accompanied by circumstances of aggravation.”

State     v.   Green,    724     S.E.2d    664,    674       (S.C.     2012)       (internal

quotation marks omitted). 11              The “violent injury” element does

not require actual bodily harm to another.                        Indeed, common law

ABHAN     included      such    offenses     as   “a        stranger    on     the    street

embrac[ing] a young lady, or a large man improperly fondl[ing] a

child.”        State v. DeBerry, 157 S.E.2d 637, 640 (S.C. 1967).

Qualifying      circumstances       of    aggravation         include,       but     are   not

limited to:

     the use of a deadly weapon, the intent to commit a
     felony, infliction of serious bodily injury, great
     disparity in the ages or physical conditions of the
     parties, a difference in gender, the purposeful
     infliction of shame and disgrace, taking indecent
     liberties   or  familiarities   with a female,  and
     resistance to lawful authority.

State v. Fennell, 531 S.E.2d 512, 516-17 (S.C. 2000) (collecting

cases).

               South   Carolina     courts      have    specifically         referred      to

the “circumstances of aggravation” as a separate element.                                  See

State v. Easler, 489 S.E.2d 617, 624 (S.C. 1997) (applying the

double     jeopardy      analysis     pursuant         to    Blockburger       v.     United

States, 284 U.S. 299 (1932), and explaining that “[a]s to the

element of ABHAN which is not contained in felony DUI, ABHAN

requires       proof    of     ‘circumstances      of       aggravation,’          something

     11
          ABHAN is now codified at S.C. Code Ann. § 16-3-600.



                                           19
which     is    not    required        for    felony     DUI”);         Knox   v.     State,         530

S.E.2d 887, 889 (S.C. 2000), overruled on other grounds by State

v. Gentry, 610 S.E.2d 494, 502 (S.C. 2005) (determining whether

ABHAN is a lesser included offense of second degree lynching and

explaining that “‘[c]ircumstances of aggravation’ is an element

of   ABHAN      not    included        in    second    degree       lynching”);            State      v.

Primus,      564      S.E.2d    103,     581    (S.C.       2002),      overruled          on    other

grounds        by   Gentry,      610        S.E.2d     at     501       (“‘Circumstances             of

aggravation’ is an element of ABHAN.”).                            To be sure, the myriad

“circumstances          of     aggravation”          “simply       identify      the        specific

ways the second element of ABHAN can be satisfied.”                                       Hemingway,

2013 WL 5833283, at *7.                     They are not themselves elements or

sub-elements of ABHAN.             Id.

               After     explaining           that     proof       of     “circumstances              of

aggravation” is required for an ABHAN conviction, South Carolina

courts     identify          various        aggravating        circumstances              that       can

satisfy this element.             See, e.g., Fennell, 531 S.E.2d at 516-17.

As   we    observed      in     Hemingway,        this       enumeration         by       the    South

Carolina courts is merely a non-exhaustive list of examples that

will      sustain       an     ABHAN        conviction;       it     is    not        a    list      of

“‘potential         offense      elements       in     the    alternative,’               so    as   to

warrant our application of the modified categorical approach.”

Hemingway, 2013 WL 5833283, at *7 (quoting Descamps, 133 S. Ct.

at 2283).

                                                20
             Consistent with our analysis in Hemingway, it is clear

that ABHAN       is    comprised    of   two   indivisible    elements:   (1)   an

unlawful act of violent injury to another; and (2) circumstances

of aggravation.          See Hemingway, 2013 WL 5833283, at *7.                 For

that    reason,       employing    the   modified   categorical    approach     to

determine whether Appellant’s ABHAN conviction was for a “crime

of violence” was improper in this case.

                                          D.

            Application of the Categorical Approach to ABHAN

             Because       the     modified      categorical      approach      is

inapplicable to ABHAN, we must apply the categorical approach,

which looks only to the fact of conviction and the definition of

the prior offense to determine whether the conduct criminalized,

“including the most innocent conduct, qualifies as a ‘crime of

violence.’”       See Torres-Miguel, 701 F.3d at 167. 12           The relevant

portion     of   the    illegal    reentry     Guideline     defines   “crime   of


       12
        We note that in Hemingway, we applied the categorical
approach and held that ABHAN is not categorically a “violent
felony” under the ACCA’s residual clause. Unlike the ACCA, the
illegal reentry Guideline does not contain a residual clause.
Therefore, Hemingway’s holding does not directly control whether
ABHAN is categorically a crime of violence under the illegal
reentry Guideline.   See United States v. Rede-Mendez, 680 F.3d
552, 555 n.2 (6th Cir. 2012) (explaining that only cases
analyzing the “use, attempted use, or threatened use of physical
force” definition of crime of violence or violent felony are
probative to an interpretation of the illegal reentry Guideline,
while cases analyzing the residual clause are not pertinent).



                                          21
violence” as an “offense under federal, state, or local law that

has as an element the use, attempted use, or threatened use of

physical force against the person of another.”                  U.S.S.G. § 2L1.2

cmt.    n.1(B)(iii)    (emphasis      supplied).       In     Johnson   v.   United

States,     the   Supreme     Court   explained,       “the    phrase    ‘physical

force’ means violent force -- that is, force capable of causing

physical pain or injury to another person.”                   559 U.S. 133, 140

(2010) (emphasis in original).           As explained in the divisibility

analysis above, although ABHAN is defined as “the unlawful act

of violent injury to another accompanied by circumstances of

aggravation,” Green, 724 S.E.2d at 674, a conviction for ABHAN

does not require actual bodily harm to another, see DeBerry, 157

S.E.2d at 640.       See also State v. Patterson, 522 S.E.2d 845, 853

(S.C. Ct. App. 1999) (“[B]odily harm is not even a prerequisite

to an ABHAN conviction.”).            Likewise, force against the victim

is not required to sustain an ABHAN conviction.                  State v. Green,

491 S.E.2d 263, 265 (S.C. Ct. App. 1997).                Because ABHAN can be

committed    with    or     without   force   --   and   even    when    force   is

involved,    ABHAN    can    be   committed   in   a   violent    or    nonviolent

manner -- a conviction for ABHAN is not categorically for a

crime of violence. 13         Accordingly, Appellant’s sentence must be

vacated and this case remanded for resentencing.


       13
        Indeed, in Hemingway, the Government conceded that ABHAN
(Continued)
                                        22
                                       IV.

            In the alternative, the Government argues, even if the

district     court    incorrectly    calculated            Appellant’s     Sentencing

Guidelines      range      by     erroneously         applying       the    16-level

enhancement, any error was harmless because the district court’s

imposition     of    the   enhancement         did   not    affect   his     ultimate

sentence.      The Government argues that “[t]here can be little

doubt that Appellant would have received the same sentence,”

Appellee’s Br. 17, because the district court’s analysis “shows

that it’s [sic] determination of Appellant’s sentence was based

on a thorough and careful analysis of the” 18 U.S.C. § 3553(a)

factors, id. at 16.         Although we agree that the district court

considered the various factors in § 3553(a) -- a step that is

required at every sentencing, see United States v. Johnson, 445

F.3d 339, 345 (4th Cir. 2006) -- we are not persuaded that it

would   have    imposed     the    same        sentence     absent   the    16-level

enhancement.

            As we have observed, “because a correct calculation of

the advisory Guidelines range is the crucial ‘starting point’

for sentencing, an error at that step ‘infects all that follows




was not a “violent felony” under the ACCA’s force clause, which
is substantively identical to the illegal reentry Guideline’s
force clause. See Hemingway, 2013 WL 5833283, at *8.



                                          23
at the sentencing proceeding, including the ultimate sentence

chosen by the district court.’”                 United States v. Lewis, 606

F.3d 193, 201 (4th Cir. 2010) (quoting United States v. Diaz-

Ibarra,    522    F.3d     343,    347   (4th   Cir.    2008)).          Nevertheless,

procedural       errors    at     sentencing    are    subject      to    harmlessness

review.       See United States v. Lynn, 592 F.3d 572, 576 (4th Cir.

2010).

              In order for us to conclude that a sentencing error

was harmless, we must make two separate determinations.                        First,

we must “know[] that the district court would have reached the

same result even if it had decided the [G]uidelines issue the

other way.”       United States v. Savillon-Matute, 636 F.3d 119, 123

(4th Cir. 2011) (internal quotation marks omitted)).                          Once we

are “certain” that the result at sentencing would have been the

same,    we    must   next      “determin[e]    that    the    sentence      would    be

reasonable even if the [G]uidelines issue had been decided in

the defendant’s favor.”             United States v. Gomez, 690 F.3d 194,

203 (4th Cir. 2012) (alteration in original) (internal quotation

marks omitted).

              Of course, there is no requirement that a district

court “specifically state that it would give the same sentence

absent the [enhancement].”               Savillon-Matute, 636 F.3d at 124.

Again,    however,    to     conclude    that   an     error   at    sentencing      was

harmless, the record from the sentencing hearing must provide

                                          24
the   reviewing    court    with    “knowledge      that    the   district      court

would have reached the same result even if it had decided the

[G]uidelines      issue    the   other     way.”      Id.    at   123      (emphasis

supplied) (internal quotation marks omitted).                 For us to possess

the required “knowledge,” something more than a review by the

district court of the § 3553(a) factors is needed, particularly

since   an   assessment     of     those   factors    is     required      at   every

sentencing.     See Gomez, 690 F.3d at 203 (“Although the district

court did a commendable job in considering the 18 U.S.C. 3553(a)

factors in determining the sentence that it would impose, we are

unable to state with any certainty that it would have imposed

the same sentence had the sixteen-level enhancement not been in

play.”).

             During   Appellant’s        sentencing   hearing,       the    district

court discussed       a   number    of   the   §   3553(a)    factors,     focusing

primarily on deterrence.            See 18 U.S.C. § 3553(a)(2)(B).                For

instance, the court noted, “there is something to be said that

defendant continues to be engaged in conduct that is potentially

very dangerous to people and violating the law.”                     J.A. 90.     The

court   also   expressed     its    “concern       about    trying    to    get   his

attention not to try to return across the border.”                      Id. at 91.

The court then explained that it sought to deter Appellant by

imposing a sentence “that would cause him to be disinclined to

again violate the borders of the United States.”                        Id. at 95.

                                         25
Although the record is clear that the court carefully considered

the   §    3553(a)   factors      in   determining        the   sentence    it   would

impose,      the    record    does     not      support     the   conclusion      that

Appellant would have received the same sentence if the court had

not applied the 16-level enhancement.

              With the 16-level enhancement, Appellant’s Sentencing

Guidelines range was 46 to 57 months imprisonment.                           However,

without      the   “crime    of   violence”       enhancement,       his   Guidelines

range      would   have   been    either     18   to   24   months    (applying    the

“aggravated felony” enhancement) 14 or 10 to 16 months (applying

the “felony” enhancement). 15          The district court’s sentence of 46

months was thus at the bottom of what it incorrectly considered

to be the Guidelines range.                Its discussion of the § 3553(a)

      14
       If the district court had characterized Appellant’s prior
ABHAN conviction as an “aggravated felony,” he would have been
subject to an eight-level increase from his base offense level
of eight.   See U.S.S.G. § 2L1.2 (b)(1)(C).   Presuming a three-
level reduction for acceptance of responsibility, see id.
§§ 3E1.1(a), (b), Appellant’s total offense level would be 13.
This offense level, considered in combination with his criminal
history category of III, would have provided for an advisory
Guidelines range of 18 to 24 months.
      15
       If the district court had characterized Appellant’s prior
ABHAN conviction as a “felony,” he would have been subject to a
four-level increase from his base offense level of eight.    See
U.S.S.G. § 2L1.2 (b)(1)(D). Presuming a two-level reduction for
acceptance of responsibility, see id. § 3E1.1(a), Appellant’s
total offense level would be ten.          This offense level,
considered in combination with his criminal history category of
III, would have provided for an advisory Guidelines range of 10
to 16 months.



                                           26
factors       was    in    the    context        of     the        erroneous    Guidelines

calculation, and there is nothing in the record to suggest the

court would have varied upward from a Guidelines range of 10 to

16 months or 18 to 24 months to arrive at a 46 month sentence.

              Although     Savillon-Matute             may    be    instructive,     it    is

readily distinguishable.             There, the district court adopted the

PSR, including the advisory Guidelines range of 12 to 18 months,

and    then    imposed     a     sentence   of        36     months,     well    above    the

advisory Guidelines range.              Savillon-Matute, 636 F.3d at 121,

122.    Thus, the district court’s imposition of a substantially

above-Guidelines sentence, coupled with an explicit explanation

for the upward variance, readily supported an inference that the

court would have imposed the same sentence had the Guidelines

calculation         been   different.            See       id.     at   122    (summarizing

court’s justification under the § 3553(a) factors for its upward

variance).      Where, as here, the district court imposes a within-

Guidelines sentence, we cannot assume (much less know) that the

court, faced with a much lower advisory range, would have varied

upward by at least 22 months.               Although we review a sentence for

abuse of discretion -- whether within or outside the Guidelines

range -- the Supreme Court has directed that “when applying a

departure provision or varying from the Guidelines range, the

district court must give ‘serious consideration to the extent’

of the departure or variance, and ‘must adequately explain the

                                            27
chosen sentence to allow for meaningful appellate review and to

promote the perception of fair sentencing.’”             United States v.

Diosdado-Star, 630 F.3d 359, 365 (4th Cir. 2011) (quoting Gall

v. United States, 552 U.S. 38, 46 (2007)).

            Because the district court did not vary in this case,

it also did not offer any justification for an above-Guidelines

sentence.     The   standard   for   harmlessness   --   knowledge   of   an

identical outcome -- is a high bar, and in this situation we are

not so omniscient as to possess the requisite knowledge.                  In

such circumstances, we cannot conclude that the district court’s

error was harmless.

                                     V.

            Pursuant   to   the   foregoing,   we   vacate    Appellant’s

sentence and remand for resentencing.

                                                    VACATED AND REMANDED




                                     28
SHEDD, Circuit Judge, dissenting:

       Rejecting       the     government’s        argument         that    the   purported

sentencing guideline error raised by Montes-Flores is harmless

(an    argument        not    addressed       in    Montes-Flores’           brief),      the

majority deems it necessary to vacate the sentence and remand

this case to the district court for resentencing. I dissent.

                                              I

       Rule    52(a)     of    the     Federal     Rules       of    Criminal     Procedure

mandates that we must disregard harmless errors. Consistent with

this rule, in United States v. Savillon-Matute, 636 F.3d 119

(4th Cir. 2011), we held that it is unnecessary to vacate a

sentence based on an asserted guidelines calculation error if we

can    determine       from     the    record      that    the       asserted     error    is

harmless. Savillon-Matute is just one of many cases in which we

have   applied     harmless       error       analysis     to       asserted      procedural

sentencing errors. See United States v. Hargrove, 701 F.3d 156,

162    (4th     Cir.    2012),        cert.   denied,      133       S.Ct.     2403   (2013)

(finding harmless sentencing error and citing cases).

       To     ascertain       whether    such      an   error        is    harmless    under

Savillon-Matute, we assume that the district court had decided

the disputed guidelines issue favorably for the defendant and

then determine: (1) whether the court would have imposed the

same    sentence        and     (2)      whether        that        sentence      would    be

substantively reasonable. Savillon-Matute, 636 F.3d at 123. For

                                              29
purposes of this harmlessness review, the district court does

not have to state expressly that it would have imposed the same

sentence regardless of the asserted guidelines error. Id. at

124.

       Applying this standard, I believe that the record supports

affirmance       of     Montes-Flores’         sentence.    The   most     favorable

guidelines calculation for Montes-Flores would have been a range

of 10-16 months, but the district court calculated the range to

be 46-57 months and sentenced him to 46 months. Even accepting

the 10-16 month range, I am satisfied that the district court

would have sentenced Montes-Flores to 46 months and that the

sentence would be reasonable.

       As   an    initial         matter,     I    agree   with   the    majority’s

observation that “the record is clear that the court carefully

considered the § 3553(a) factors in determining the sentence it

would impose.” See Majority Op., at 26. Likewise, I agree in

principle with the majority’s point that “something more than a

review by the district court of the § 3553(a) factors is needed”

before we can find that the district court would have imposed

the same sentence regardless of the asserted guidelines error.

See    Majority       Op.,   at    25.   My    disagreement   with   the    majority

arises from my view that this case, in fact, has “something

more.”



                                              30
       This is not a “run-of-the-mill” case in which the district

court simply calculated an advisory guidelines range and then

announced its intention to sentence the defendant within, or at

the low end of, that range. See Rita v. United States, 551 U.S.

338, 357 (2007) (“Circumstances may well make clear that the

judge rests his decision upon the Commission’s own reasoning

that the Guidelines sentence is a proper sentence (in terms of §

3553(a) and other congressional mandates) in the typical case,

and    that     the     judge     has    found      that     the    case       before    him       is

typical.”). Finding harmlessness in that type of case may prove

to    be   difficult         because    it     is       logical    to    assume    that       if    a

district        court     is    content       to     sentence       within      whatever       the

guidelines range happens to be, then a lower range would lead to

a sentence within that lower range.

       Here, Montes-Flores moved for a downward variance from the

advisory        46-57     month       range,    see       J.A.     76,       arguing    that       “a

sentence        of    less     than    46    months,       perhaps       a    sentence    of       36

months” would be sufficient, see J.A. 92. Given the advisory

nature of the sentencing guidelines and the broad discretion the

district court possessed to vary downward, the district court

was squarely presented with the opportunity to impose a sentence

below      46        months.     Rejecting          Montes-Flores’            arguments,       the

district        court     denied      the     motion       and     imposed      the     46-month

sentence.       There     is    certainly          no    reason    to    believe       that    the

                                               31
district court misunderstood the significance of the downward

variance motion. It is thus apparent that the district court

believed        that    nothing     less     than    a     46-month     sentence       was

appropriate. 1

      The district court’s intention in this regard is evidenced

by its comments during the sentencing colloquy. These comments

reflect the district court’s serious concern for public safety

and   deterrence,          and    when    combined    with      the    denial   of    the

downward        variance    request,      indicate       that   the    district      court

would     not    have   imposed      a    lower   sentence      even    with    a   lower

advisory        guidelines       range.    For    example,      the    district     court

referenced Montes-Flores’ extensive criminal history, which it

labeled “quite remarkable” and “disturbing,” J.A. 95, and noted

that Montes-Flores “continues to be engaged in conduct that is

potentially very dangerous to people and violating the law,”

J.A. 90. Continuing, the district court stated:




      1
       The majority states that “there is nothing in the record
to suggest the court would have varied upward” from a lower
guideline range to a 46-month sentence. Majority Op., at 27. Of
course, the pertinent question is whether the district court
would have imposed the same sentence had the guideline range
been lower, and an upward variance would be necessary to achieve
that result. If, as I have pointed out, the district court
believed that a sentence below 46 months was inappropriate, then
it is logical to conclude that the district court would have
varied upward from a lower guideline range to impose that
sentence.



                                            32
     I have a concern about trying to get his attention not
     to try to return across the border. . . . [W]hat I’ve
     heard here is that he . . . has a network of people
     who respect him and like him, and that makes me worry
     he is going to be incentivized to come back across the
     border again. And I’m trying to have a sentence to
     deter, that’s one of the factors here. That’s why I
     wanted you to walk through these factors. I’m worried
     about deterrence. I’m trying to say – for him to
     resolve, it isn’t worth what I could face. That’s what
     I’m dealing with here.

J.A. 91; see also J.A. 92 (“I need to have a sentence to deter

him from coming back across again.”). Finally, summarizing the

basis for the 46-month sentence, the district court explained

that it “sought to provide an adequate deterrence” and wanted

Montes-Flores     to    understand        that   “if   he     should   calculate

returning to the United States, that he would have a sentence

that he has just finished serving that would cause him to be

disinclined to again violate the borders of the United States.”

J.A. 95. The district court also explained that it wanted “to

promote respect for the law, which I think is crying out here,”

J.A. 95, and it stated that “the sentence protects the public

from further crimes of the defendant,” J.A. 96.

     In    my   view,   this     record    leads    most     reasonably     to    one

conclusion: the district court believed that a sentence of 46

months    was   necessary   to    meet    the    standards    set   forth    in    18

U.S.C. § 3553(a). That sentence is substantively reasonable, and

we should therefore affirm it under the reasoning of Savillon-




                                         33
Matute. 2 See also United States v. Shrader, 675 F.3d 300, 314

(4th Cir.), cert. denied, 133 S.Ct. 757 (2012) (finding harmless

error without addressing the disputed enhancement “because an

upward variance or departure . . . would produce exactly the

same   result       and   because    the   transcript      makes   clear    that     the

sentence herein, irrespective of any . . . enhancement, plainly

effectuated the trial court’s sentencing intent.”).

                                           II

       In closing, I note that “harmless error analysis involves

some level of indeterminancy,” Sherman v. Smith, 89 F.3d 1134,

1140 (4th Cir. 1996) (en banc), and “[t]he standard for judging

whether    a     particular     error      is   harmless    has    an    irreducible

element of subjectivity,” United States v. Casoni, 950 F.2d 893,

917 (3d Cir. 1991). Where, as here, the district court does not

announce       an   alternate       sentence,    consideration      of     whether    a

sentencing error is harmless is almost always clouded with a bit

of uncertainty as to what the district court would have done




       2
       Although we are not bound by the outcome of Savillon-
Matute, which was a harmless error affirmance, the similarities
between that case and this one are remarkable. Both cases
involve illegal reentry defendants, the disparities between the
asserted guideline ranges and the imposed sentences are
comparable, and both district courts fashioned the sentences
largely on the need to deter future illegal reentry.




                                           34
with a different guideline range. 3 For this reason, I certainly

cannot say that the majority’s rejection of harmless error is

unreasonable. Subjectively, my friends in the majority simply

view the record differently than I do, and their decision, which

I   fully    respect,    will    lead      to    a   remand    for   resentencing,     a

proceeding     that     will    add   to    the      time    and   expense    that   the

district court and the parties have already invested in this

case.

      I make this observation not to criticize today’s decision,

but     to   encourage     district         courts      to    consider       announcing

alternate sentences in cases such as this, where the guidelines

calculation is disputed. 4 District courts that announce alternate

sentences in such circumstances provide a valuable service to

the parties and the judicial system because an expressly stated



      3
       Nonetheless, Savillon-Matute makes it clear that we may
find a sentence to be harmless based on the sentencing record
without the district court’s express statement of an alternate
sentence.

      4
       Since at least 1990, we have implicitly approved of
alternate guidelines sentencing, see United States v. Blackwood,
913 F.2d 139 (4th Cir. 1990) (affirming based on alternate
sentence), and in 2004, we actually recommended that district
courts impose alternate sentences in a specific circumstance,
see United States v. Hammoud, 378 F.3d 426 (4th Cir. 2004) (en
banc order). Notably, alternate sentencing does not relieve the
district court of its obligation “to consider the guidelines in
a meaningful manner when sentencing a defendant.” Hargrove, 701
F.3d at 163.



                                            35
alternate   sentence,   if     reasonable,     alleviates       the       uncertainty

inherent in the harmless error analysis and thereby tends to

obviate   the    additional    time     and   expense    that    a    resentencing

remand would     require.     As   we   explained   in    Hargrove,            where   we

applied harmless error analysis to affirm an alternate sentence,

it makes “no sense to set aside [a] reasonable sentence and send

the case back to the district court since it has already told us

that it would impose exactly the same sentence, a sentence we

would be compelled to affirm.” 701 F.3d at 162 (citation omitted

and punctuation altered); see also United States v. Revels, 455

F.3d 448, 452 (4th Cir. 2006) (“Because any error was harmless,

a remand for resentencing is not necessary. Such a remand would,

in any event, be little more than an empty formality, for the

sentence the district court would impose on remand is a foregone

conclusion.”).

      I   reiterate   that    I    do   not    believe    that       an    alternate

sentence is necessary to establish harmless error in this case.

However, although I do not presume to speak for the majority, a

reasonable inference arises from the majority’s recognition of

the   district    court’s    careful     consideration     of    the       §    3553(a)

factors: had the district court expressly announced an alternate

sentence in conjunction with its consideration of the § 3553(a)

factors, the likely result of this appeal would be an affirmance



                                        36
(on   the   alternate   sentence)    rather   than   a   remand   for

resentencing.




                                37
