                                PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 12-4362


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

LEROY DEON HEMINGWAY,

                Defendant – Appellant.

------------------------------

EVELINA JAN NORWINSKI,

                Court-Assigned Amicus Counsel.



Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:11-cr-00771-RBH-1)


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


Before KING, SHEDD, and THACKER, Circuit Judges.


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


ARGUED: William Fletcher Nettles, IV, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Florence, South Carolina, for Appellant.
Thomas Ernest Booth, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellee.  Justin Sanjeeve Antonipillai,
ARNOLD & PORTER, LLP, Washington, D.C., for Court-Assigned
Amicus Counsel.    ON BRIEF: William N. Nettles, United States
Attorney, Columbia, South Carolina, A. Bradley Parham, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Florence, South Carolina; Lanny A. Breuer, Assistant Attorney
General, John D. Buretta, Deputy Assistant Attorney General,
Criminal   Division,  UNITED   STATES    DEPARTMENT   OF   JUSTICE,
Washington, D.C., for Appellee.    Laura K. D'Allaird, ARNOLD &
PORTER, LLP,    Washington,  D.C.,    for   Court-Assigned   Amicus
Counsel.




                                2
KING, Circuit Judge:

      In November 2011, Leroy Deon Hemingway pleaded guilty in

the District of South Carolina to being a felon in possession of

a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1).

The   district   court    sentenced    Hemingway      to   fifteen       years   in

prison, ruling that he was subject to the mandatory fifteen-year

minimum required by the Armed Career Criminal Act (the “ACCA”),

see 18 U.S.C. § 924(e).        On appeal, Hemingway maintains that the

court erred in relying on his 2002 South Carolina conviction for

the   common   law    crime   of   assault    and   battery     of   a   high    and

aggravated     nature   (“ABHAN”)    to    impose    the   mandatory      minimum

sentence.      More specifically, Hemingway contends that ABHAN is

not categorically a predicate “violent felony” under the ACCA,

and that the court erred in ruling otherwise.                   The government

agrees with Hemingway that ABHAN is not categorically an ACCA

violent     felony,     but   contends       that   use    of    the     modified

categorical approach is appropriate and that, utilizing such an

approach, Hemingway’s ABHAN offense constitutes an ACCA violent

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

government that ABHAN is not categorically a violent felony.                     We

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

the modified categorical approach has no role to play in this

matter.     See Descamps v. United States, 133 S. Ct. 2276 (2013).

Accordingly, we vacate the judgment and remand for resentencing.

                                       3
                                      I.

                                      A.

       Pursuant to the ACCA, a defendant convicted of violating 18

U.S.C. § 922(g)(1), and who has three previous convictions “for

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

mandatory    fifteen-year       minimum        sentence.         See        18     U.S.C.

§ 924(e)(1).      The ACCA defines a “violent felony” as “any crime

punishable by imprisonment for a term exceeding one year” that:

          (i) has as an element the use, attempted use, or
       threatened use of physical force against the person of
       another; or

          (ii) is burglary, arson, or extortion, involves use
       of explosives, or otherwise involves conduct that
       presents a serious potential risk of physical injury
       to another.

Id.    § 924(e)(2)(B).         Subsection           (e)(2)(B)(i)       is        commonly

referred to as the “force clause.”                    As the Supreme Court has

recognized, the force clause applies only to those crimes that

involve   “violent    force    — that         is,    force   capable    of       causing

physical pain or injury to another person.”                         See Johnson v.

United    States,     559     U.S.   133,           140   (2010).           Subsection

(e)(2)(B)(ii) identifies enumerated offenses — burglary, arson,

extortion, and offenses involving the use of explosives — and

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

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

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


                                          4
       The residual clause of subsection (e)(2)(B)(ii) is the only

aspect of the ACCA at issue in this appeal.                    The government and

Hemingway quite properly agree that ABHAN — the South Carolina

common law crime at issue — neither satisfies the force clause

nor constitutes an enumerated offense. 1                    Accordingly, an ABHAN

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

the    residual     clause,     it    “otherwise        involves     conduct       that

presents    a     serious     potential       risk     of    physical     injury     to

another.”

                                        B.

                                        1.

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

constitutes an ACCA predicate offense, two types of analyses are

potentially applicable — known as the ‘categorical’ approach and

the ‘modified categorical’ approach.”                  United States v. Harcum,

587 F.3d 219, 222 (4th Cir. 2009).                   These approaches stem from

the Supreme Court’s decision in Taylor v. United States, 495

U.S. 575 (1990), “which established the rule for determining

when   a   defendant’s      prior    conviction       counts   as   one   of   ACCA’s

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


       1
       At the time of Hemingway’s ABHAN conviction, ABHAN was a
South Carolina common law crime.      In 2010, South Carolina
codified ABHAN as a felony offense. See S.C. Code Ann. § 16-3-
600(B)(1).



                                          5
133 S. Ct. 2276, 2283 (2013).                        In Taylor, the Court adopted a

more       “formal”      elements-focused                 categorical          approach         that

authorized sentencing courts to “‘look only to the statutory

definitions’          — i.e.,       the    elements        — of     a    defendant’s            prior

offenses,       and    not   ‘to     the    particular         facts         underlying         those

convictions.’”           Descamps, 133 S. Ct. at 2283 (quoting Taylor,

495 U.S. at 600).               The Taylor Court also recognized a “narrow

range      of   cases”      where    a    sentencing         court       could      utilize       the

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

statutory        elements          to      ‘the        charging          paper       and         jury

instructions’” pertaining to the underlying previous conviction.

See id. at 2283-84 (quoting Taylor, 495 U.S. at 602).                                             The

Taylor Court contemplated that the modified categorical approach

would      be   used     only    when      the       definition         of    the   offense       of

conviction       “comprises         multiple,         alternative            versions      of    the

crime.”         Id.    at    2284.         As    explained         in    Descamps,         “Taylor

permitted       sentencing       courts,        as    a    tool    for       implementing        the

categorical approach, to examine a limited class of documents to

determine which of a statute’s alternative elements formed the

basis of the defendant’s prior conviction.”                          Id. 2


       2
       In Shepard v. United States, the                           Supreme Court further
clarified the role and scope of the                                 modified categorical
approach.   See 544 U.S. 13 (2005).   The                          Shepard decision made
clear that the “enquiry under the ACCA .                          . . is limited to the
terms of the charging document, the terms                         of a plea agreement or
(Continued)
                                                 6
      The central tenet of Taylor remains valid and applicable:

As    a    general    proposition,    to       determine    whether   a   previous

conviction is a violent felony, a sentencing court “employ[s]

the categorical approach” and, in using that approach, “‘look[s]

only to the fact of conviction and the statutory definition of

the       prior   offense,   and   do[es]        not    generally   consider    the

particular facts disclosed by the record of conviction.’”                      Sykes

v. United States, 131 S. Ct. 2267, 2272 (2011) (quoting James v.

United States, 550 U.S. 192, 202 (2007)).                    It bears repeating

that “[t]he categorical approach focuses on the elements of the

prior       offense     rather     than        the     conduct   underlying     the

conviction.”          United States v. Cabrera-Umanzor, 728 F.3d 347,

350 (4th Cir. 2013).




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



                                           7
                                           2.

     In    June    of    this    year,    the       Supreme       Court    rendered   its

Descamps     decision,        which      constitutes          a     vastly       important

explication of the guiding legal principles concerning proper

utilization       of    the     categorical         approach       and     the   modified

categorical approach.            As the Court strongly reiterated, “the

modified approach serves a limited function” and applies only in

a “‘narrow range of cases.’”              See Descamps, 133 S. Ct. at 2283

(quoting Taylor, 495 U.S. at 602).                      The Descamps Court then

assessed whether a California burglary conviction was for an

ACCA enumerated offense, emphasizing the limited role of the

modified     categorical         approach,          i.e.,      simply       to    “help[]

effectuate the categorical analysis when a divisible statute,

listing potential offense elements in the alternative, renders

opaque     which       element    played        a    part     in     the     defendant’s

conviction.”       Id. (emphasis added).               Focusing on California’s

burglary    statute,       the    Court        determined         that     the   modified

categorical approach had “no role to play” because the statute

was not divisible.            Id. at 2285.          The Court further concluded

that Descamps’s burglary offense was not categorically an ACCA

violent felony.         Id. at 2293.

     Notably, the Descamps decision underscored the validity of

the divisibility analysis that our Court had already employed.

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

                                           8
Gomez,    Judge     Floyd       carefully     explained      that    the    categorical

approach — rather than the modified categorical approach — was

appropriate        for    deciding         whether     a    Maryland       child    abuse

conviction was for a “crime of violence” under the Sentencing

Guidelines.         See     id.      at    203.       Applying      the    divisibility

analysis, Gomez recognized that “district courts may apply the

modified categorical approach to a statute only if it contains

divisible     categories        of     proscribed     conduct,      at    least    one    of

which constitutes — by its elements — a violent felony.”                                 Id.

at 199.

      Because Gomez and Descamps each involved statutory — rather

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

distinguishable          from    the      situation    we   face    today.         Indeed,

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

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

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

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

left open the issue of whether the divisibility analysis also

applies to common law offenses.                   Likewise, Gomez did not address

the   issue   of    whether       the     divisibility      analysis      applies    to    a

common law crime, because that appeal was concerned only with

“the divisions within a statute, not a common law crime.”                                690

F.3d at 202.



                                              9
                                           II.

      Having      identified      certain          of       the    applicable        legal

principles, we turn to Hemingway’s contention on appeal — that

his South Carolina ABHAN conviction is not for an ACCA violent

felony.     The relevant facts underlying his fifteen-year sentence

are not disputed.

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

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

Glock pistol) plus ammunition, having previously been convicted

of a felony, in violation of 18 U.S.C. § 922(g)(1) (Count One),

and   possessing     with    intent        to    distribute       cocaine     base     (or

“crack”), in contravention of 21 U.S.C. § 841(a)(1) (Count Two).

Hemingway     pleaded    guilty       to   Count      One    only,     without   a    plea

agreement, on November 29, 2011. 3                    The probation officer then

prepared       Hemingway’s        presentence            report        (the      “PSR”),

recommending      that   his     sentence        be     enhanced     under     the    ACCA

because four of his previous convictions were for ACCA predicate

offenses. 4    According to the PSR, the applicable Guidelines range


      3
       After Hemingway pleaded guilty to Count One, the district
court, on motion of the government at the plea proceeding,
dismissed Count Two without prejudice.
      4
       Hemingway’s ACCA predicate offenses, as identified in the
PSR, were all state crimes in South Carolina. The record shows:
(1) a conviction in 1998 for attempted strong arm robbery; (2)
convictions in 2001 for possession with intent to distribute
crack and possession with intent to distribute crack within
(Continued)
                                           10
was 180 to 188 months (reflecting the ACCA’s statutory minimum

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

       On January 11, 2012, Hemingway interposed his objections to

the PSR, asserting that two of the four crimes identified in the

PSR — ABHAN and its lesser included offense of assault of a high

and    aggravated      nature   (“AHAN”)      —    are   not     predicate        offenses

under ACCA because they do not constitute ACCA violent felonies.

More specifically, Hemingway maintained that neither ABHAN nor

AHAN are violent felonies under the categorical approach because

they    can   each     be   committed    negligently           and    without     violent

injury.       Hemingway further contended that his ABHAN and AHAN

offenses      cannot    constitute      ACCA      violent      felonies      under    the

modified      categorical       approach       because      the       relevant       South

Carolina indictments were inadequate to the job of employing

that approach.

       Strikingly, Hemingway was not charged in the South Carolina

indictments with either ABHAN or AHAN.                   Rather, on September 25,

2001,    a    two-count     indictment     was     returned          in   Horry    County

charging      Hemingway     with   lynching       in     the    second      degree     and



close proximity of a school (counted together as a single ACCA
predicate offense); (3) the 2002 ABHAN conviction; and (4) a
conviction in 2002 for assault of a high and aggravated nature
(“AHAN”). Hemingway does not dispute that attempted strong arm
robbery and possession with intent to distribute are ACCA
predicate offenses.



                                         11
rioting.       According       to    the    state      court’s     sentencing      sheet

concerning that indictment, Hemingway pleaded guilty to the AHAN

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

indictment was returned in Horry County, charging Hemingway with

assault with intent to kill.               The state court’s sentencing sheet

regarding     that     indictment      indicates         that    Hemingway       pleaded

guilty to the ABHAN offense, and that the plea proceedings were

also concluded on June 11, 2002.

      The    PSR    rejected    Hemingway’s           contention      that   his   ABHAN

conviction could not be for an ACCA predicate offense under the

categorical        approach.        Relying      on    two    unpublished    opinions,

United States v. Wiley, 449 F. App’x 269 (4th Cir. Oct. 12,

2011), and United States v. Moultrie, 445 F. App’x 630 (4th Cir.

Sept. 6, 2011), plus our published decision in United States v.

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

ABHAN is categorically an ACCA violent felony.                        During the April

26,   2012     sentencing       hearing,         the    government       argued      that

Hemingway’s    ABHAN     conviction        was    for    an    ACCA    violent     felony

under both the categorical approach and the modified categorical

approach.

      At the conclusion of the sentencing hearing, the district

court ruled that Hemingway’s ABHAN offense is an ACCA violent




                                           12
felony. 5         In so doing, the court first observed that the modified

categorical           approach      was      inapplicable         to     Hemingway’s        ABHAN

conviction because he “did not plead as indicted” and thus the

indictment could not be used to ascertain the nature of his

ABHAN        offense.        J.A.    43. 6      The       court    then        turned      to   the

categorical          approach.        After     surveying          the    applicable        South

Carolina legal principles, the court agreed with the parties

that        ABHAN    is   not   categorically         a    violent       felony       under     the

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

have interpreted ABHAN to include both forceful and nonforceful

conduct.”           Id. at 48.      The court then determined, however, that

ABHAN        is     nevertheless     a    violent         felony       under    the     residual

clause.           Id. at 50.     As a result, the court adopted the PSR and

sentenced Hemingway to fifteen years (180 months) in prison.

        Hemingway filed a timely notice of appeal, and we possess

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

§ 1291.            Because   the    government       has       altered    its     position       on

        5
       Neither the probation officer nor the sentencing court
addressed Hemingway’s objection to use of the AHAN conviction.
Because Hemingway does not dispute the proposition that two of
his other previous convictions — for attempted strong arm
robbery and possession with intent to distribute — were for ACCA
predicate offenses, the court’s ruling that ABHAN is an ACCA
violent felony was sufficient to trigger the fifteen-year
minimum sentence.
        6
       Our citations herein to “J.A. __” refer to the contents of
the Joint Appendix filed by the parties in this appeal.



                                                13
appeal and now concedes that ABHAN is not categorically an ACCA

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

brief and argue the legal position adopted by the sentencing

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



                                     III.

      The issue we must resolve in this appeal is whether ABHAN

constitutes a “violent felony” under the ACCA.                Whether a prior

offense is an ACCA violent felony is a question of law that we

review de novo.     See United States v. White, 571 F.3d 365, 367

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

government agrees with Hemingway on appeal that the district

court erred in utilizing the categorical approach to rule that

his   ABHAN   conviction    was    for    an   ACCA    violent   felony.      The

government    maintains,     however,         that    the   court     essentially

committed harmless error in that the ABHAN conviction should be

analyzed under the modified categorical approach, and that the

record shows that Hemingway’s ABHAN conviction was for an ACCA

violent   felony.     For    his    part,      Hemingway     agrees    with   the

government that an ABHAN offense is not categorically an ACCA


      7
       The Amicus lawyers — particularly Mr. Antonipillai, who
argued the legal position adopted by the district court — have
ably discharged their duties, and the Court commends their
efforts.



                                         14
violent     felony,    but    contends       that,       pursuant       to    Descamps      v.

United States, 133 S. Ct. 2273 (2013), and its progeny, the

modified     categorical      approach       has    no    role     to    play      in   these

proceedings.       Hemingway thus seeks appellate relief by way of a

judgment vacating his sentence and remanding for resentencing.

Finally,     the   Amicus     argues       that    the    district       court     got    the

sentence     right    from    a    legal     standpoint        —    maintaining           that

Descamps has no application here, that the categorical approach

applies, that ABHAN is categorically an ACCA violent felony, and

that Hemingway’s fifteen-year sentence should be affirmed.

                                            A.

      The    first    step    of     our     review      relates        to    whether      the

district court properly applied the categorical approach or, as

the   government      now    maintains,       whether        the   court      should      have

analyzed     Hemingway’s          ABHAN     conviction         under         the   modified

categorical    approach.           As     explained      below,     Descamps        and    its

progeny control our disposition on this point.                               In the post-

Descamps world, “the modified categorical approach is applicable

only ‘when a defendant was convicted of violating a divisible

statute,’ and then, only ‘to determine which statutory phrase

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

726 F.3d 503, 511 (4th Cir. 2013) (quoting Descamps, 133 S. Ct.

at 2285); see United States v. Cabrera-Umanzor, 728 F.3d 347,

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

                                            15
“divisible”       only   “when     a     statute     lists       multiple,        alternative

elements,          and        so          effectively             creates               ‘several

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

Nijhawan v. Holder, 557 U.S. 29, 41 (2009)).

                                               1.

      Although        none    of       our     sister       circuits            have    applied

Descamps’s divisibility analysis to a common law offense in an

ACCA setting, we agree with Hemingway and the government that

such an application is entirely appropriate.                          There is simply no

material distinction that can be made between common law and

statutory     offenses       in   this     context.         As    a    practical        matter,

state      criminal   statutes,        for     the   most    part,         codify       existing

common law crimes.           See United States v. Walker, 595 F.3d 441,

444 (2d Cir. 2010) (“Indeed, criminal statutes often incorporate

elements of common law offenses, and in these circumstances, we

have looked to the common law to determine whether the prior

conviction was a qualifying predicate offense.”).                                 In multiple

instances, state criminal statutes define offenses by reference

to   the    common    law,    leaving        reviewing      courts         to    fill    in    the

essential      elements.          See,    e.g.,      Carthorne,        726       F.3d    at    512

(explaining that “[t]he terms ‘assault’ and ‘battery’ are not

defined      in   this   statute         but   are    defined         by    common       law   in

Virginia”); United States v. Alston, 611 F.3d 219, 222 (4th Cir.

2010) (observing that, under the Maryland Code, “[a]ssault is

                                               16
defined to mean the crimes of assault, battery, and assault and

battery,      which    retain     their      judicially      determined       meanings”

(internal quotation marks omitted)).

     Our Court has consistently deferred to the state courts in

identifying the elements of state common law offenses.                                See,

e.g., United States v. Kirksey, 138 F.3d 120, 125 (4th Cir.

1998) (recognizing that, “[b]ecause Maryland recognizes common

law crimes, no statute defines their elements.                      But the Maryland

case law fully articulates them”).                     Furthermore, it is well-

settled that a common law offense can be a predicate offense

under the ACCA and the Guidelines.                   See, e.g., United States v.

Jenkins, 631 F.3d 680 (4th Cir. 2011) (employing categorical

approach      and     holding    that       Maryland      common    law     offense    of

resisting      arrest     is     “crime      of     violence”      for    purposes      of

Guidelines); United States v. Coleman, 158 F.3d 199, 204 (4th

Cir. 1998) (en banc) (applying modified categorical approach and

holding that “a Maryland conviction for common-law assault is

not per se a ‘violent felony’”).                     The foregoing principle is

also consistent with the views of our sister circuits.                                 See

Walker, 595 F.3d at 444 (observing that, although Taylor and

Second   Circuit       precedent       do    not,   “by    their    terms,    apply     to

statutory offenses, neither . . . suggests that the analysis is

different with respect to common law crimes, nor is there any

reason   in    principle        that    it    should      be”);    United    States     v.

                                             17
Melton, 344 F.3d 1021, 1026 (9th Cir. 2003) (“Where, as here,

the state crime is defined by specific and identifiable common

law elements, rather than by a specific statute, the common law

definition of a crime serves as a functional equivalent of a

statutory definition.”).

       Although       the    Descamps       Court     left    the    issue       unresolved,

nothing in its decision suggests that a divisibility analysis

does not apply with equal force to a common law offense.                                     In

explaining       the      bases    for    its    decision,        the     Court       carefully

reviewed      the     “three      grounds    for     establishing         [its]       elements-

centric, formal categorical approach” in Taylor and emphasized

the continuing persuasiveness of each.                       See Descamps, 133 S. Ct.

at 2287-89 (citing Taylor v. United States, 495 U.S. 575, 600-02

(1990)).       The Descamps Court first assessed the statutory text

and    history      of    the   ACCA,     explaining       that     its    statutory       term

“previous convictions” plainly suggests that “‘Congress intended

the sentencing court to look only to the fact that the defendant

had been convicted of crimes falling within certain categories,

and not to the facts underlying the prior convictions.’”                                Id. at

2287       (quoting      Taylor,    495     U.S.      at   599).          The    Court     also

emphasized          the     “categorical             approach’s         Sixth         Amendment

underpinnings,” given that, “[u]nder ACCA, the court’s finding

of     a    predicate       offense      indisputably         increases         the     maximum

penalty.”       Id. at 2288.          As the Court reasoned, such a finding

                                                18
“would (at the least) raise serious Sixth Amendment concerns if

it   went    beyond       merely    identifying             a    prior   conviction.”      Id.

Finally,      the    Court       cautioned             against     the   “difficulties     and

inequities”         inherent       in     the          modified     categorical      approach,

particularly        where    the        underlying          conviction     results     from   a

guilty plea.        Id.

      The initial reasons articulated in Descamps for use of the

divisibility analysis — first, the text and history of the ACCA,

and, second, Sixth Amendment concerns — forcefully support the

proposition that the same analysis must be applied to common law

crimes.      Put simply, nothing in the ACCA suggests that Congress

intended for the courts to consider only the fact of conviction

for a statutory offense, but to examine the facts underlying a

conviction for a common law crime.                             In addition, designating a

common      law   crime     as     an    ACCA          predicate    offense     presents   the

identical Sixth Amendment concerns as those arising when the

previous      conviction           was        a        statutory     offense.        Finally,

Descamps’s third reason for use of the divisibility analysis —

the difficulties and inequities that would arise from looking

beyond the fact of conviction — may well be of greater concern

in the context of common law crimes.                               To be sure, common law

offenses are often not as clearly defined as their statutory

counterparts,        and    thus        may       be    more    susceptible     to   disparate

treatment from the sentencing courts.

                                                   19
     In these circumstances, we are satisfied to conclude that

the Descamps divisibility analysis is applicable to the question

of whether a common law offense constitutes an ACCA predicate

crime.     Adopting the language of the Supreme Court, the modified

categorical approach has “no role to play” where the previous

crime was an indivisible common law offense.                See Descamps, 131

S. Ct. at 2285.

                                       2.

     In evaluating a state court conviction for ACCA predicate

offense    purposes,    a    federal   court      is   “bound    by   the   [state

supreme    court’s]    interpretation       of    state   law,   including    its

determination     of   the    elements      of”    the    potential    predicate

offense.     Johnson v. United States, 559 U.S. 133, 138 (2010).

In that respect, the Supreme Court of South Carolina has ruled

that “[t]he elements of ABHAN are . . . [1] the unlawful act of

violent injury to another, accompanied by [2] circumstances of

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

That court has explained the aggravation element of ABHAN in the

following terms:

     The circumstances of aggravation include:   use of a
     deadly weapon, infliction of serious bodily injury,
     intent to commit a felony, disparity in age, physical
     condition or sex, indecent liberties, purposeful
     infliction of shame, resistance of lawful authority,
     and others.




                                       20
Id. at 624 n.17; see Dempsey v. State, 610 S.E.2d 812, 815 (S.C.

2005) (identifying same circumstances of aggravation).

     It    is   clear   from   the   South   Carolina     decisions   that    the

judiciary’s      list   of     circumstances    of      aggravation   is     non-

exhaustive.       Although the South Carolina courts have provided

several examples of “circumstances of aggravation,” they have

never “list[ed] potential offense elements in the alternative,”

so as to warrant our application of the modified categorical

approach.       See Descamps, 133 S. Ct. at 2283. 8           Importantly, the

Descamps Court explicitly rejected the idea that there is no

“real distinction between divisible and indivisible statutes,”

because an indivisible statute “creates an implied list of every

means    of   commission     that   otherwise   fits    the   definition   of   a

given crime.”       Id. at 2289 (internal quotation marks omitted).

As the Court observed, a court could always create an implied

list, “[b]ut the thing about hypothetical lists is that they

are, well, hypothetical.”           Id. at 2290.       By way of example, the


     8
       We are unable to adopt the government’s suggestion that
the courts of South Carolina have, through “custom and
practice,” turned the non-exhaustive list of circumstances of
aggravation into an exhaustive one.      Notably, the government
offers no evidence that any South Carolina court has limited the
second element of ABHAN to the aggravating circumstances
provided in the often-utilized list.      Furthermore, the South
Carolina legislature, when it codified ABHAN, failed to define
ABHAN by reference to any aggravating circumstances or elements.
See S.C. Code Ann. § 16-3-600(B)(1); see also supra note 1.



                                       21
Court explained that “[a]s long as the statute itself requires

only an indeterminate ‘weapon,’ that is all the indictment must

(or is likely to) allege . . . [a]nd most important, that is all

the jury must find to convict the defendant.”                      Id.

       The “circumstances of aggravation” consistently identified

by     the     South        Carolina    courts       are    neither       elements     nor

subelements of ABHAN.              Instead, they simply identify specific

ways the second element of ABHAN can be satisfied.                          As our good

Chief Judge recently observed, “alternative means” of committing

an offense, “rather than elements,” are “simply irrelevant to

our inquiry” under the ACCA.                  See Cabrera-Umanzor, 728 F.3d at

353.       Because ABHAN, as defined by the courts of South Carolina,

“‘does       not   concern       any   list    of    alternative         elements,’    the

modified       categorical       approach     ‘has    no    role    to    play.’”      See

United       States    v.    Royal,    ___    F.3d   ___,    No.    10-5296,    2013    WL

5433630, at *7 (4th Cir. Oct. 1, 2013) (quoting Descamps, 133 S.

Ct. at 2285).           Consistent with the foregoing, the question of

whether an ABHAN conviction is for an ACCA violent felony must

be     determined,          as   the    district       court       ruled,    solely     by

application of the categorical approach. 9


       9
       Our decision today that ABHAN must — for ACCA purposes —
be analyzed under the categorical approach is not undercut by
earlier unpublished decisions suggesting that it might be
appropriate to assess whether an ABHAN offense is a violent
felony (or crime of violence) under the modified categorical
(Continued)
                                              22
                                           B.

       Having    concluded     that    the      categorical   approach    is   the

appropriate      method   of    analysis,       we   must   decide   whether   the

sentencing court erred in ruling that ABHAN is categorically an

ACCA violent felony. 10         The government — reversing the position

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

not categorically an ACCA violent felony, and Hemingway agrees

with    the     government     on   this    point.      The   Amicus     contends,

however, that Hemingway’s ACCA sentence should be affirmed as



approach. See, e.g., United States v. Wells, 484 F. App’x 756,
757 (4th Cir. June 22, 2012) (vacating decision that ABHAN is
categorically a Guidelines crime of violence); United States v.
Hamilton, 480 F. App’x 217, 219 (4th Cir. May 10, 2012)
(vacating decision that ABHAN is categorically an ACCA violent
felony); United States v. Johnson, 475 F. App’x 494, 496 (4th
Cir.   Apr.  12,   2012)  (vacating   decision  that  ABHAN   is
categorically a crime of violence); United States v. Ward, 439
F. App’x 258, 259 (4th Cir. July 18, 2011) (affirming
application of modified categorical approach and “[a]ssuming
without deciding that ABHAN is not a crime of violence per se”).
These unpublished decisions are simply not controlling precedent
and, more importantly, they predate Descamps.

     Our decision in United States v. Spence, 661 F.3d 194 (4th
Cir. 2011), similarly does not undercut our ruling today.    In
Spence, we applied the modified categorical approach and
determined that an ABHAN conviction qualified as a predicate
offense under 18 U.S.C. § 2252A(b)(2) — the “sexual abuse
enhancement.”    Spence thus relates to a distinct sentencing
provision and also predates Descamps.
       10
       Because the categorical approach applies in this case, we
need not resolve whether, as the government asserts, the
indictment that resulted in Hemingway’s ABHAN conviction could
support use of the modified categorical analysis.



                                           23
imposed    under       the    categorical             approach.          According        to     the

Amicus,    we    are     bound      by     our    precedent       of     United         States    v.

Wright, 594 F.3d 259 (4th Cir. 2010), to rule that ABHAN is

categorically      a     violent          felony.        In   addition        to    relying       on

Wright,    the     Amicus      maintains,             consistent       with     the      position

adopted by the sentencing court, that ABHAN is categorically an

ACCA violent felony under Supreme Court precedent.                                  We analyze

these issues — whether Wright is controlling precedent and, if

not, whether ABHAN is nevertheless categorically an ACCA violent

felony — in turn.

                                                 1.

     We begin with Wright, where the central issue was whether

Wright’s    three        juvenile              convictions        were     ACCA         predicate

offenses, not whether ABHAN was categorically an ACCA violent

felony.     It    was     undisputed            that     Wright    had     an      adult       ABHAN

conviction,      but     Wright          did    not     present    any     appellate           issue

relating    to     the       use    of     that       ABHAN   conviction           as    an     ACCA

predicate   offense.               Our    opinion       briefly    discussed            the    ABHAN

conviction,      referencing             only     the    force     clause       and      stating,

without elaboration, that “Wright’s adult conviction for [ABHAN]

plainly counts as one of the required three predicate violent

felony convictions.”           Wright, 594 F.3d at 263.

     Notwithstanding the Amicus’s characterization of Wright as

controlling      precedent,              that    decision     does       not       dictate       the

                                                 24
outcome of this appeal.             Put simply, the issue before us here —

whether ABHAN is categorically an ACCA violent felony — was not

contested     in   Wright.             Moreover,       Wright       solely      (and    merely

summarily)    addressed          whether    an      ABHAN        offense    was    a    violent

felony under the force clause.                  An ACCA analysis under the force

clause    —   whether       an    offense        “has       as    an     element   the    use,

attempted     use,     or   threatened           use    of       physical       force,”    see

§ 924(e)(2)(B)(i),          —     is    distinct        from       the     residual      clause

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

Johnson — the Supreme Court’s most recent force clause decision

— which explained that a crime only satisfies the force clause

when it requires “violent force — that is, force capable of

causing     physical    pain       or     injury       to    another        person.”       See

Johnson, 559 U.S. at 140.                As the government properly concedes,

Johnson precludes reliance on the force clause to count ABHAN as

an ACCA predicate offense because ABHAN can be committed “even

if no real force was used against the victim.”                                  See State v.

Primus,     564    S.E.2d       103,     106     n.4    (S.C.          2002).      In     these

circumstances, we are not compelled by Wright to deem ABHAN to

be an ACCA violent felony. 11



     11
        The district court did not rely on Wright, although the
court did discuss United States v. Wiley, 449 F. App’x 269 (4th
Cir. Oct. 12, 2011), and United States v. Moultrie, 445 F. App’x
630 (4th Cir. Sept. 6, 2011), unpublished decisions that invoke
(Continued)
                                               25
                                       2.

                                       a.

     Looking    beyond   Wright,     we     assess    whether     ABHAN    is   yet

categorically    an   ACCA   violent      felony.      If    we   were    deciding

whether a previous crime qualifies as an ACCA violent felony by

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

to “compare the elements of the statute forming the basis of the

defendant’s conviction with the elements of the ‘generic’ crime

— i.e., the offense as commonly understood.”                  Descamps, 133 S.

Ct. at 2281.    As the Supreme Court explained, “[i]f the relevant

statute has the same elements as the ‘generic’ ACCA crime, then

the prior conviction can serve as an ACCA predicate.”                      Id. at

2283.

     Here, where we assess whether a previous crime qualifies as

an ACCA violent felony under the residual clause, a different

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

crime to which the underlying crime can be compared.                 See United

States   v.   Torres-Miguel,   701     F.3d    165,    170   (4th   Cir.    2012)

(explaining that “[t]o require a defendant to demonstrate that



Wright for the proposition that ABHAN is a violent felony. See
J.A. 44-47.     Nevertheless, the court recognized, as we do
herein, that ABHAN does not satisfy the force clause because
“South Carolina courts have interpreted ABHAN to include both
forceful and nonforceful conduct as defined by the Supreme Court
in . . . Johnson.” Id. at 48.



                                       26
his    prior       state    offense    does    not   fall     within       this    residual

category by proving that it is not a ‘generic’ ‘other offense’

is to require the impossible, for there is no generic ‘other

offense.’”).          In certain circumstances, however, a generic crime

comparison is an essential aspect of a residual clause analysis.

The    Supreme      Court’s     2007   decision      in     James    v.    United    States

establishes that point.                See 550 U.S. 192 (2007).                   There, in

assessing whether James’s attempted burglary conviction was an

ACCA     violent       felony    under    the      residual     clause,        the      Court

identified the relevant inquiry as “whether the risk posed by

the [crime] is comparable to that posed by its closest analog

among the enumerated offenses.”                    Id. at 203 (emphasis added).

Because an attempted burglary offense could be readily compared

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

appropriate inquiry was guided by comparing James’s attempted

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

id. at 207.

       The circumstances were different in Begay v. United States,

where the Supreme Court assessed whether a New Mexico driving

under    the       influence    offense    (a      “DUI”)    qualified       as    an    ACCA

violent felony.              See 553 U.S. 137 (2008).                There, the Court

distinguished a DUI from ACCA’s enumerated offenses because “the

listed       crimes    all    typically   involve         purposeful,       violent,      and

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

                                              27
explained,      a    DUI   is    “most     nearly       comparable       to    crimes   that

impose      strict   liability,          criminalizing         conduct    in    respect    to

which the offender need not have had any criminal intent at

all.”       Id. at 145 (internal punctuation omitted).                            Cognizant

that the enumerated offenses “illustrate the kinds of crimes

that    fall    within     the     statute’s        scope”     and    “[t]heir     presence

indicates that the statute covers only similar crimes, rather

than    every    crime     that     presents        a   serious      potential      risk   of

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

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

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

explained that “[i]n general, levels of risk divide crimes that

qualify      from    those      that     do   not,”      and       Begay’s     “purposeful,

violent, and aggressive” inquiry “has no precise textual link to

the residual clause.”               131 S. Ct. at 2275.                  The Court also

clarified that “[i]n many cases the purposeful, violent, and

aggressive inquiry will be redundant with the inquiry into risk,

for crimes that fall within the former formulation and those

that    present      serious      potential        risks      of    physical      injury   to

others tend to be one and the same.”                    Id.

                                              b.

       In    this    appeal,       the    relevant       residual        clause    inquiry,

applying the categorical approach, is whether an ABHAN offense

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

                                              28
the ACCA’s enumerated offenses — “burglary, arson, or extortion,

[or offenses that] involve[] use of explosives.”                          Begay, 553

U.S.    at   144. 12   The    Supreme      Court    has   explained        that   the

enumerated offenses limit the residual clause “to crimes that

are roughly similar, in kind as well as in degree of risk posed,

to the examples themselves.”            Id. at 142.

       An ABHAN offense can, as the South Carolina courts have

shown, involve a variety of aggravating circumstances.                         Given

the spectrum of such circumstances — from “purposeful infliction

of shame” to the use of a deadly weapon — it is clear that there

are    varying   degrees     of   “potential       risk   of    physical     injury”

presented,     depending     on   the    circumstances         of   the   particular

offense.     We are, however, tasked with assessing the predicate

offense “‘generically, that is to say, we examine it in terms of

how the law defines [it] and not in terms of how an individual




       12
        Although the government concedes that ABHAN is not an
ACCA enumerated crime, it suggests that we should, in deciding
whether ABHAN is an ACCA violent felony, look to the Guidelines,
which contains a more extensive list of enumerated offenses.
See, e.g., USSG § 2L1.2 cmt. n.1(b)(iii); id. § 4B1.2 cmt. n.1.
Even if we were to import additional enumerated offenses into
the ACCA, however, the “closest analog” to ABHAN would be
“aggravated assault,” and the government has conceded that ABHAN
is not categorically a generic aggravated assault.    See Br. of
Appellee 14.



                                         29
offender might have committed it on a particular occasion.’”

Jenkins, 631 F.3d at 684 (quoting Begay, 553 U.S. at 141). 13

     Because the first element of an ABHAN offense —         a violent

injury — can be satisfied even though “no actual bodily harm was

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

element does not suggest that an ABHAN offense presents the same

“serious potential risk of physical injury” as one of the ACCA’s

enumerated offenses.    The second ABHAN element, the presence of

circumstances   of   aggravation,    can   be   satisfied   simply   by

showing, for example, a disparity in age, and such a showing

     13
        In Jenkins, we examined whether the Maryland common law
crime of resisting arrest qualified as a “crime of violence” for
purposes of Guidelines section 4B1.1. Our decisions on whether
a previous conviction constitutes a “crime of violence” under
the Guidelines are relied upon interchangeably with precedents
evaluating whether a previous conviction constitutes a “violent
felony” under the ACCA, “because the two terms have been defined
in a manner that is substantively identical.” United States v.
Gomez, 690 F.3d 194, 197 (4th Cir. 2012) (internal quotation
marks omitted) (emphasis added); see United States v. King, 673
F.3d 274, 279 (4th Cir. 2012).

     Our   reliance   on  Guidelines   decisions   is  necessarily
limited, however, to those situations involving “substantively
identical” residual clauses.     Although decisions interpreting
enumerated offenses or force clauses may provide useful
guidance, particularly with respect to the question of whether
and how to apply the categorical or modified categorical
approach, these decisions are unlikely to be pertinent to the
ultimate issue of whether an offense constitutes an ACCA violent
felony under the residual clause.     See, e.g., United States v.
Rede-Mendez, 680 F.3d 552, 555 n.2 (6th Cir. 2012) (observing
that   “[c]ases   analyzing  the   residual   clauses”  are   “not
pertinent” to analysis of offenses under force clause of
Guidelines section 4B1.2).



                                30
fails to present a degree of risk similar to that posed by the

ACCA’s     enumerated    offenses.            Taken    together,      these      elements

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

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

clause.       Accordingly,        we    are       satisfied    that      ABHAN    is    not

categorically an ACCA violent felony. 14

                                             c.

      Finally,     the    Amicus       argues       that,     applying     the    Supreme

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

is    categorically      an   ACCA      violent       felony     because    “an     ABHAN

conviction may be sustained based on reckless conduct,” and thus

“meets     the   purposeful,       violent,         and     aggressive     test        under

Begay.”      Br.   of    Amicus    14.        Although      Hemingway      agrees      that

ABHAN’s requisite mental state of recklessness is a relevant

factor, he maintains that proof of recklessness does not satisfy

the   purposeful,       violent,       and    aggressive       test   established        in

Begay.




      14
        Because ABHAN is not categorically an ACCA violent
felony, we need not separately analyze Hemingway’s conviction
for AHAN, which is “a lesser included offense of ABHAN, without
the completed act of violence,” State v. Murphy, 471 S.E.2d 739,
741 (S.C. Ct. App. 1996).   Our determination that ABHAN is not
categorically an ACCA violent felony leads inescapably to the
conclusion that AHAN is also not categorically an ACCA violent
felony.



                                             31
      We need not address the question of whether ABHAN satisfies

this inquiry under Begay, however, because the focus on ABHAN’s

requisite    mental     state,   like   that    taken   by    the   defendant    in

Sykes, simply “overreads the opinions of [the Supreme] Court.”

Sykes, 131 S. Ct. at 2275.              The appropriate “analysis should

focus on the level of risk associated with the previous offense

of   conviction,    notwithstanding      the     ‘purposeful,       violent,    and

aggressive’ conduct stressed by the Begay Court in the context

of a strict liability offense.”              United States v. Vann, 660 F.3d

771, 780 (4th Cir. 2011) (King, J., concurring in the judgment).

In short, Sykes makes it clear that Begay did not substitute the

“purposeful, violent, and aggressive” inquiry for the analysis

of   risk   that   is   already   identified       in   the   residual   clause.

Because an ABHAN offense does not pose an equivalent “serious

potential risk of physical injury” as the enumerated offenses,

we need not undertake a redundant inquiry into the requisite

mental state for an ABHAN offense. 15

      15
        As the parties emphasize in their various submissions,
the question of whether ABHAN is categorically an ACCA violent
felony has received some inconsistent answers in our Court. In
several of our unpublished post-Begay decisions, our Court
considered ABHAN to be a categorically “violent felony” for
purposes of the ACCA, as well as a “crime of violence” for
purposes of the Guidelines.   See, e.g., Wiley, 449 F. App’x at
270; Moultrie, 445 F. App’x at 631; United States v. Brunson,
292 F. App’x 259, 262 (4th Cir. Sept. 11, 2008).           These
decisions, of course, are not binding and were rendered prior to
both Sykes and Descamps.


                                        32
                                      C.

      In sum, we rule today that ABHAN is not categorically an

ACCA violent felony and that the modified categorical approach

has no role to play in the decision of whether a common law

ABHAN offense is an ACCA violent felony.                  As a result, we are

compelled      to     vacate   Hemingway’s    sentence       and   remand   for

resentencing.



                                      IV.

      Pursuant to the foregoing, we vacate Hemingway’s sentence

and   remand    for    resentencing   and    for   such    other   and   further

proceedings as may be appropriate.

                                                          VACATED AND REMANDED




                                      33
