                                    PUBLISHED

                     UNITED STATES COURT OF APPEALS
                         FOR THE FOURTH CIRCUIT


                                     No. 18-6070


UNITED STATES OF AMERICA,

                   Plaintiff – Appellee,
      v.

JAMES ERIC JONES,

                   Defendant – Appellant.


Appeal from the United States District Court for the District of South Carolina, at
Florence. Terry L. Wooten, Chief District Judge. (4:06-cr-01238-TLW-1; 4:16-cv-
01447-TLW)


Argued: December 13, 2018                                Decided: February 4, 2019


Before NIEMEYER, KING, and WYNN, Circuit Judges.


Vacated and remanded by published opinion. Judge King wrote the opinion, in which
Judge Niemeyer and Judge Wynn joined.


ARGUED:        Kimberly Harvey Albro, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Columbia, South Carolina, for Appellant. Robert Frank Daley, Jr.,
OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for
Appellee. ON BRIEF: Casey P. Riddle, Assistant Federal Public Defender, William F.
Nettles, IV, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Florence, South Carolina, for Appellant. Beth Drake, United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina,
for Appellee.
KING, Circuit Judge:

      James Eric Jones appeals from a decision in the District of South Carolina denying

his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence, which was

imposed more than ten years ago in 2008. By his motion, Jones sought to be resentenced

based on the contention that — in light of recent Supreme Court decisions — he no

longer qualifies for the fifteen-year mandatory minimum sentence required by the Armed

Career Criminal Act (the “ACCA”). According to Jones, he does not have the three

predicate convictions that are required to be properly designated as an “armed career

criminal.” More specifically, he maintains that his South Carolina felony conviction for

assaulting, beating, or wounding a law enforcement officer while resisting arrest

(hereinafter, the “ABWO offense”) is not a “violent felony” predicate conviction under

the ACCA. As explained below, we agree with Jones that the ABWO offense is not an

ACCA “violent felony,” and we thus vacate and remand.



                                           I.

                                          A.

      On April 10, 2007, a jury in South Carolina found Jones guilty of the federal

offense of possessing a firearm as a convicted felon, in violation of 18 U.S.C.

§ 922(g)(1).   Leading to his sentencing hearing, the probation officer prepared a

presentence report (the “PSR”) that recommended to the district court that Jones be

designated as an “armed career criminal” under the ACCA. The ACCA mandates that a

defendant who contravenes § 922(g)(1) is subject to a minimum sentence of fifteen years

                                           2
— as opposed to the otherwise applicable ten-year maximum for that offense — if the

defendant has three prior “violent felony” or “serious drug offense” convictions. See 18

U.S.C. § 924(a)(2), (e)(1). 1 Although the PSR did not identify the specific offenses on

which it relied for the ACCA enhancement, it identified several prior convictions of

Jones for South Carolina offenses, including those for attempted burglary, second-degree

burglary, and strong arm robbery. In addition, the PSR relied on an ABWO offense,

which violates South Carolina Code section 16-9-320(B) (hereinafter, the “ABWO

statute”), plus two convictions for assault and battery of a high and aggravated nature

(“ABHAN”).

      At the sentencing hearing conducted on March 20, 2008, the district court ruled —

consistent with the PSR — that Jones was an armed career criminal because he had at

least three prior “violent felony” convictions. Pursuant to the ACCA, a “violent felony”

is any crime punishable by a term of imprisonment exceeding 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 [the
      “enumerated crimes clause”], or otherwise involves conduct that presents a
      serious potential risk of physical injury to another [the “residual clause”].




      1
        Section 924(a)(2) of Title 18 provides that a defendant convicted of violating
§ 922(g)(1) shall be imprisoned not more than ten years. If the defendant has three
ACCA predicate convictions, however, § 924(e)(1) of Title 18 requires that he be
imprisoned not less than fifteen years. A defendant who satisfies the criteria for an
ACCA mandatory minimum enhancement is an “armed career criminal.”


                                           3
See 18 U.S.C. § 924(e)(2)(B). The ACCA thus contains three distinct clauses (i.e., the

force clause, the enumerated crimes clause, and the residual clause) that define a “violent

felony.”

       Relying on the ACCA’s force and enumerated crimes clauses, the district court

determined that Jones’s prior convictions for attempted burglary, second-degree burglary,

and strong arm robbery were ACCA “violent felon[ies],” and were thus ACCA predicate

offenses. Although the Government argued that Jones’s other convictions — the ABWO

offense and the ABHAN offenses — also constituted ACCA predicates, the court did not

address that proposition. Because of his armed career criminal designation, Jones was

subject to a mandatory minimum sentence of fifteen years. The court sentenced him to

456 months in prison. 2

       Jones appealed his conviction and sentence to this Court, and his counsel filed

what we call an “Anders brief,” advising us that he could not identify any reversible

error, but questioning whether the sentencing court had correctly designated Jones to be

an armed career criminal. 3 Relying on Jones’s convictions for second-degree burglary,


       2
         At the sentencing hearing for Jones on March 20, 2008, the district court
pronounced a 520-month sentence. Five days later, however, the court sua sponte
reconvened and imposed a sentence of 456 months. Absent his armed career criminal
designation, Jones’s maximum potential punishment would have been 120 months.
       3
        An “Anders brief” takes its name from the Supreme Court’s decision in Anders v.
California, 386 U.S. 738 (1967). Pursuant thereto, a lawyer who concludes that an
appeal on behalf of his criminal defendant client would be “wholly frivolous” should
advise the appellate court as such and request permission to withdraw from
representation, but not before filing “a brief referring to anything in the record that might
arguably support the appeal.” See id. at 744.


                                             4
strong arm robbery, and the ABHAN offenses, we ruled that Jones had been correctly

classified as an armed career criminal and affirmed. See United States v. Jones, 312 F.

App’x 559, 560 (4th Cir. 2009). Jones unsuccessfully petitioned for certiorari in the

Supreme Court of the United States. See Jones v. United States, 557 U.S. 927 (2009).

He thereafter also sought collateral relief by way of a 28 U.S.C. § 2255 motion, which the

district court denied. In 2011, we affirmed the court’s denial of § 2255 relief. See United

States v. Jones, 419 F. App’x 365, 365 (4th Cir. 2011).

                                            B.

       Five years later, in April 2016, Jones moved us for authorization to file a

successive motion under 28 U.S.C. § 2255, predicated on the Supreme Court’s 2015

decision in Johnson v. United States, 135 S. Ct. 2551 (2015) (hereinafter, “Johnson II”). 4

See 28 U.S.C. §§ 2244(b)(3); 2255(h) (specifying procedures and standards for filing

successive § 2255 motions).          The Johnson II decision had invalidated as

unconstitutionally vague the residual clause of the ACCA’s “violent felony” definition, as

codified in § 924(e)(2)(B)(ii). That decision, however, left intact the ACCA’s other two

clauses defining a “violent felony,” i.e., the force clause and enumerated crimes clause.

See 135 S. Ct. at 2563. Soon thereafter, in Welch v. United States, the Court ruled that

Johnson II applies retroactively to cases on collateral review. See 136 S. Ct. 1257, 1268


       4
         We identify the Supreme Court’s 2015 Johnson v. United States decision as
“Johnson II.” We do so because the Court had rendered an earlier decision in 2010 also
called Johnson v. United States, 559 U.S. 133 (2010) (hereinafter, “Johnson I”), where it
likewise addressed the ACCA.


                                            5
(2016). As a result of the Court’s rulings in Johnson II and Welch, we authorized Jones

to file a successive § 2255 motion in the district court.

       By way of his § 2255 motion, Jones contended that he no longer qualified for an

ACCA-enhanced sentence and that he was entitled to be resentenced to no more than ten

years. The Government disagreed, however, and moved for summary judgment. It

asserted — even after Johnson II — that Jones yet had at least three predicate “violent

felony” convictions. In particular, the Government argued that Jones had been twice

convicted of strong arm robbery in South Carolina and once convicted of the ABWO

offense. Significantly, the Government no longer argued that Jones’s convictions for

attempted burglary, second-degree burglary, and the ABHAN offenses were ACCA

predicate convictions, apparently because of intervening decisions from the Supreme

Court and this Court interpreting the ACCA’s definition of a “violent felony.”

       On January 11, 2018, the district court granted summary judgment to the

Government and denied Jones’s § 2255 motion. See United States v. Jones, No. 4:06-cr-

01238 (D.S.C. Jan. 11, 2018), ECF No. 204. In so ruling, the court relied on our 2016

decision in United States v. Doctor, where we concluded — notwithstanding Johnson II

— that South Carolina’s strong arm robbery offense is a “violent felony” under the

ACCA’s force clause. See 842 F.3d 306, 312 (4th Cir. 2016). The summary judgment

decision thus ruled that Jones still had at least two ACCA predicate convictions. The

court then also concluded that other convictions earlier used to declare Jones an armed

career criminal — attempted burglary, second-degree burglary, and the ABHAN offenses

— no longer qualify as ACCA predicate offenses. Consequently, the court recognized

                                              6
that Jones’s armed career criminal designation depended solely on whether his ABWO

offense constitutes an ACCA “violent felony.” The court then ruled that the ABWO

offense is a “violent felony” under the force clause of the ACCA, that Jones had thus

been properly sentenced as an armed career criminal, and that he was not entitled to

§ 2255 relief.

       The district court nevertheless saw fit to issue Jones a certificate of appealability.

See 28 U.S.C. § 2253(c) (providing that a court of appeals can only review the final order

in a § 2255 proceeding if a circuit justice or judge issues a certificate of appealability

based on “a substantial showing of the denial of a constitutional right”). Jones has timely

appealed from the denial of his § 2255 motion, and we possess jurisdiction pursuant to 28

U.S.C. §§ 1291 (providing for appellate review of final decision of district court);

2253(a), (c) (providing for appellate review of final order in § 2255 proceeding after

issuance of certificate of appealability); and 2255(d) (providing for appellate review of

order entered on § 2255 motion). 5



                                             II.

       We review de novo a district court’s legal conclusions concerning a denial of

§ 2255 relief. See United States v. Carthorne, 878 F.3d 458, 464 (4th Cir. 2017). Our


       5
         If Jones prevails in this appeal — as the parties agree — he will have served
more than the ten-year maximum permissible sentence for his firearm offense. After oral
argument in early December 2018, we therefore granted his release on bond pending
resolution of the appeal.


                                             7
plenary review of such a denial encompasses the question of whether a prior conviction

qualifies as a “violent felony” under the ACCA. See United States v. Smith, 882 F.3d

460, 462 (4th Cir. 2018). A prisoner is entitled to § 2255 relief if he can “show that his

sentence is unlawful.” See United States v. Hodge, 902 F.3d 420, 426 (4th Cir. 2018);

see also 28 U.S.C. § 2255(b) (recognizing that movant is entitled to § 2255 relief if his

sentence “was not authorized by law”). As pertinent here, “[a] sentence is unlawful

within the meaning of § 2255 when it was enhanced under the ACCA based on three

ACCA predicate convictions and one or more of those predicates [becomes] invalid.”

See Hodge, 902 F.3d at 426. Put succinctly, an ACCA-enhanced sentence is illegal if a

retroactive change in the applicable law leaves the enhancement unsupported by the

necessary three predicate convictions. See United States v. Newbold, 791 F.3d 455, 460

(4th Cir. 2015) (explaining that “there are serious, constitutional, separation-of-powers

concerns that attach to sentences above the statutory maximum penalty authorized by

Congress” (internal quotation marks omitted)).



                                           III.

      On appeal, Jones contends that the district court erred in ruling that the ABWO

offense is a “violent felony” under the ACCA’s force clause. Jones maintains that the

ABWO offense is not a “violent felony” under the applicable categorical approach

because it does not have, as an element, the use, attempted use, or threatened use of

physical force. More specifically, Jones argues that the Supreme Court has ruled that the

ACCA’s force clause applies only to those felony offenses that categorically involve

                                            8
violent physical force, see Johnson I, 559 U.S. 133, 140 (2010), and that the ABWO

offense can be committed without the use, attempted use, or threatened use of such

force. 6

           The Government agrees with Jones that the categorical approach applies in these

proceedings. It nevertheless argues, however, that the district court did not err in ruling

that the ABWO offense is a “violent felony.” The Government contends that the ABWO

offense fits squarely within the ACCA’s force clause because, in order to commit that

offense, a person must use or threaten to use violent physical force against another.

Consequently, our resolution of this appeal turns on whether a conviction for the ABWO

offense requires the use, attempted use, or threatened use of violent physical force. 7

Before resolving that question, however, we will first explain how the categorical

approach applies to the ABWO offense.

                                              A.

           We begin our analysis with the parties’ agreement that the categorical approach

applies to our assessment of the ABWO statute. As a general proposition, we are obliged

to use the categorical approach when deciding whether a state offense constitutes a


           6
         Jones also contends on appeal that our decision in United States v. Doctor, 842
F.3d 306 (4th Cir. 2016), was erroneously decided. That is, he asserts that the offense of
strong arm robbery in South Carolina does not qualify as a “violent felony,” and that
Doctor is wrong. As he acknowledges, however, “one panel of this Court is not entitled
to overrule another panel.” See United States v. Said, 798 F.3d 182, 193 (4th Cir. 2015).
           7
         Neither party contends on appeal that the enumerated crimes clause is pertinent
to our analysis of whether the ABWO offense is a “violent felony.”


                                              9
“violent felony.” See United States v. Townsend, 886 F.3d 441, 444 (4th Cir. 2018). We

will not apply the categorical approach, however, when the relevant state statute is

“divisible,” that is, if the statute lists “elements in the alternative and thereby define[s]

multiple crimes.”      See United States v. Dozier, 848 F.3d 180, 183 (4th Cir. 2017)

(alteration and internal quotation marks omitted); see also Descamps v. United States,

570 U.S. 254, 258 (2013) (explaining that categorical approach must be used unless

statute at issue is divisible).

       The ABWO statute provides, in pertinent part, that it is a felony punishable by ten

years in prison for any person

       to knowingly and wilfully assault, beat, or wound a law enforcement officer
       engaged in serving, executing, or attempting to serve or execute a legal writ
       or process or to assault, beat, or wound an officer when the person is
       resisting an arrest being made by one whom the person knows or
       reasonably should know is a law enforcement officer, whether under
       process or not.

See S.C. Code Ann. § 16-9-320(B).          Put succinctly, we agree that the categorical

approach applies to the ABWO offense and that the ABWO statute is indivisible.

Although that statute identifies three types of offending physical actions (that is,

assaulting, beating, or wounding), those actions are simply different ways of satisfying a

single element of the ABWO offense. See Mathis v. United States, 136 S. Ct. 2243,

2256-57 (2016) (explaining difference between elements of offense and means of

commission).      In other words, the ABWO statute contains a single physical action

element and that element can be satisfied by proof of any one of the three specified

means of commission.


                                             10
       At least two other sound reasons support our determination concerning the

applicability of the categorical approach. First, there is no authority from the South

Carolina courts requiring that a jury agree on the way the defendant’s physical action

contravened the statute. See Mathis, 136 S. Ct. at 2256 (observing that, where jury need

not make unanimous finding as to any item contained in statutory list, the listed items are

each single means of committing offense). To the contrary, the only South Carolina

appellate decision we have identified that discusses jury instructions for the ABWO

offense recounts that the trial court had instructed the jury that it only had to find that the

defendant had assaulted, beaten, or wounded the police officer. See State v. Williams,

624 S.E.2d 443, 446 (S.C. Ct. App. 2005). Second, the ABWO statute does not provide

for any alternative punishments that depend on whether the defendant had either

assaulted, beaten, or wounded the officer. See Mathis, 136 S. Ct. at 2256 (explaining that

court can look to whether “statutory alternatives carry different punishments”). We are

therefore satisfied to apply the categorical approach to the ABWO offense. 8


       8
          Even if those two features of the ABWO offense — a single physical action
element and the same punishment for each physical action — failed to satisfy the inquiry
of whether the categorical approach applies to the ABWO statute, we could reach that
conclusion for yet another sound reason. Specifically, taking a “peek” at the state court
indictment for the ABWO offense in Jones’s prosecution, it tracks the statutory language
and charges him with assaulting, beating, or wounding an officer. See Mathis, 136 S. Ct.
at 2257 (recognizing that, where case law or other sources do not “clearly answer”
whether a statute is divisible, a court can look to certain pertinent state court documents
— such as an indictment — to determine whether to apply the categorical approach). As
the Supreme Court has explained, when a charging document “reiterat[es] all the terms of
[the state] law,” that is “an indication . . . that each alternative is only a possible means of
commission.” See id.


                                              11
                                             B.

                                             1.

       With application of the categorical approach being resolved, we turn to how that

approach applies in this appeal.     We have recognized that the categorical approach

“focuses on the elements, rather than the facts, of the prior offense.” See United States v.

Shell, 789 F.3d 335, 338 (4th Cir. 2015) (alteration and internal quotation marks omitted).

When we use the categorical approach to resolve whether a state offense qualifies as a

“violent felony” under the ACCA’s force clause, “we examine whether [that offense] has

as an element the use, attempted use, or threatened use of physical force against the

person of another.” See United States v. Burns-Johnson, 864 F.3d 313, 316 (4th Cir.

2017); see also 18 U.S.C. § 924(e)(2)(B)(i) (defining “violent felony” in ACCA’s force

clause as offense that “has as an element the use, attempted use, or threatened use of

physical force against the person of another”). In making that analysis, we utilize the

Supreme Court’s understanding of the phrase “physical force,” as used in the ACCA,

which the Court interprets as “violent force — that is, force capable of causing physical

pain or injury to another person.” See Johnson I, 559 U.S. at 140.

       To decide whether a particular state offense includes the use, attempted use, or

threatened use of violent physical force, we are entitled to turn to the relevant state court

decisions to discern “the minimum conduct required to sustain a conviction for [that

offense].” See Doctor, 842 F.3d at 308 (internal quotation marks omitted); see also

United States v. Middleton, 883 F.3d 485, 488 (4th Cir. 2018) (explaining that the

categorical approach “requires courts to review the most innocent conduct that the law

                                             12
criminalizes” (internal quotation marks omitted)). Such minimum conduct includes any

conduct that there is a “realistic probability” the state would punish under its criminal

statute. See Doctor, 842 F.3d at 308. If there is a realistic probability that the state would

apply the statute to conduct that does not involve the use, attempted use, or threatened

use of violent physical force against another, then the offense is not categorically a

“violent felony” under the ACCA’s force clause, and it is thus not an ACCA predicate

under that clause. See Middleton, 883 F.3d at 488 (“If the offense sweeps more broadly

than the ACCA’s definition of a violent felony, the offense does not qualify as an ACCA

predicate.” (internal quotation marks omitted)).

                                              2.

       With the foregoing principles in mind, we will examine the minimum conduct to

which South Carolina might reasonably apply the ABWO statute. Of the three physical

actions specified in the ABWO statute, an “assault” would be the least likely to involve

violent physical force. We will thus focus our minimum conduct analysis on the meaning

of an “assault” under South Carolina law.

       The Supreme Court of South Carolina has defined an “assault” in various but

similar ways. 9 For example, an assault is an “attempted battery or an unlawful attempt or

offer to commit a violent injury upon another person, coupled with the present ability to

       9
         Because the ABWO statute does not define an “assault,” we must look to
decisions of the South Carolina appellate courts describing that term. See United States
v. Carthorne, 726 F.3d 503, 512 (4th Cir. 2013) (analyzing Virginia common law
definition of assault where Virginia statute criminalizing assault against officer failed to
define assault).


                                             13
complete the attempt or offer by a battery.” See State v. Sutton, 532 S.E.2d 283, 285-86

(S.C. 2000) (internal quotation marks omitted); see also State v. Sanders, 75 S.E. 702,

703 (S.C. 1912) (describing assault as attempt or offer to commit battery). 10 In other

decisions, the state supreme court has described an assault as “intentionally creat[ing] a

reasonable apprehension of bodily harm” in another person by words and conduct. See,

e.g., In re McGee, 299 S.E.2d 334, 334 (S.C. 1983). Along with those descriptions, the

court has identified certain actions that might constitute an assault, including raising a fist

“within striking distance [of another], pointing a gun [at another] within the distance it

will carry, [or] spitting in [another’s] face.” See Sanders, 75 S.E. at 703 (quoting State v.

Davis, 19 S.C.L. (1 Hill) 46 (1833)).

       In addition to recognizing and describing an assault as a stand-alone common law

offense, the Supreme Court of South Carolina has construed the term “assault” in the

context of common law assault and battery. In one situation, the court explained that an

assault and battery is “any touching of the person of an individual in a rude or angry

manner, without justification.” See State v Mims, 335 S.E.2d 237, 237 (S.C. 1985). The

court therein recognized that an assault differs from an assault and battery only “in that

there is no touching of the victim.” See id. 11 Under Mims, an assault occurs when a


       10
         In State v. Jackson, a decision preceding State v. Sutton and State v. Sanders, the
Supreme Court of South Carolina defined an “assault,” similarly to those decisions, as
“an offer or attempt to do violence to the person of another, in a rude, angry, or resentful
manner.” See 10 S.E. 769, 771 (S.C. 1890).
       11
         Consistent with the state supreme court’s Mims decision, the Court of Appeals
of South Carolina has recognized that “[a]ssault differs from assault and battery in that
(Continued)
                                              14
person attempts to touch another “in a rude or angry manner, without justification.” See

id.; see also Sutton, 532 S.E.2d at 285-86 (recognizing attempted battery type of assault).

In Mims, however, the court also explained that it had previously defined an “assault” as

an attempt or offer to commit a violent injury, not just a rude or angry touching. See 335

S.E.2d at 237.

                                            3.

                                            a.

       Notwithstanding the existence of some tension between the definitions of an

“assault” provided by the South Carolina courts, we are satisfied that an assault under

South Carolina law can be committed without the use, attempted use, or threatened use of

violent physical force. More specifically, pursuant to both Sutton and Mims, a person can

perpetrate an assault by attempting to touch another in a rude or angry manner. See State

v. LaCoste, 553 S.E.2d 464, 471 (S.C. Ct. App. 2001) (discussing Mims’s definition of

assault and battery in describing assault). Our determination today is consistent with the

South Carolina high court’s recognition that spitting at another’s face — which can be

accomplished in a rude or angry manner but without violent physical force — constitutes

an assault. See Sanders, 75 S.E. at 703.

       With the breadth of South Carolina’s assault principles so understood, we must

resolve whether there is a realistic probability that the state would in fact apply the



there is no touching of the victim in an assault.” See, e.g., State v. Murphy, 471 S.E.2d
739, 741 (S.C. Ct. App. 1996); In re Doe, 458 S.E.2d 556, 560 (S.C. Ct. App. 1995).


                                            15
ABWO offense to an assault involving only an attempt to touch an officer in a rude or

angry manner while resisting arrest, such as spitting at the officer.      Because South

Carolina courts have actually applied the ABWO statute in such a situation, we are

convinced that the realistic probability test has been satisfied. Specifically, in State v.

Burton, a jury convicted the defendant of violating the ABWO statute by spitting blood

on an officer’s boot.    See 562 S.E.2d 668, 670 (S.C. Ct. App. 2002).           After the

intermediate court of appeals vacated the defendant’s conviction because of a Fourth

Amendment violation, see id. at 674, the state supreme court reinstated Burton’s

conviction, see State v. Burton, 589 S.E.2d 6, 9 (S.C. 2003). Although neither court

directly addressed the issue of whether the defendant had been properly charged and

convicted under the ABWO statute, we are satisfied that Burton’s conviction by jury for

the ABWO offense, plus the Supreme Court of South Carolina’s reinstatement of that

conviction, satisfies the reasonable probability inquiry. Because South Carolina applies

the ABWO statute to conduct that does not involve the use, attempted use, or threatened

use of violent physical force against another, the ABWO offense is not categorically a

“violent felony” under the ACCA’s force clause. 12

       Our conclusion is informed by, and faithful to, our 2013 decision concerning the

South Carolina ABHAN offense in United States v. Hemingway, 734 F.3d 323 (4th Cir.


       12
         In support of its position on appeal, the Government points to several South
Carolina decisions wherein defendants were convicted under the ABWO statute for
conduct that undoubtedly involves violent physical force. Its minimal conduct
discussion, however, does not confront the Burton case.


                                            16
2013). We concluded therein that ABHAN, and its lesser included offense of South

Carolina common law assault of a high and aggravated nature (“AHAN”), are not

“violent felon[ies]” under the ACCA’s force clause. See id. at 335, 338 n.14. Regarding

the ABHAN offense, we ruled that it is not a “violent felony” because it “can be

committed even if no real force was used against the victim.” See id. at 335 (internal

quotation marks omitted). With respect to AHAN, we explained that the offense has the

same elements as ABHAN except for a “completed act of violence.” See id. at 338 n.14.

Because AHAN is a lesser included offense of ABHAN, we concluded that our ruling on

the ABHAN offense led “inescapably to the conclusion that AHAN is also not

categorically an ACCA violent felony.” See id.

       Hemingway thus provides strong support for our determination today that an

assault under South Carolina law can be committed without the use, attempted use, or

threatened use of violent physical force. 13 Indeed, it would be logically inconsistent with

Hemingway for us to now decide that an assault in South Carolina necessarily requires

the use, attempted use, or threatened use of such violent physical force, when we have

already ruled that a South Carolina assault and battery does not. We are therefore

satisfied that the ABWO offense is not an ACCA “violent felony” and that the district

court erred in ruling otherwise.


       13
          Our conclusion today that an assault in South Carolina can be committed
without employing violent physical force is also consistent with our recent unpublished
decision in United States v. Dinkins, 714 F. App’x 240 (4th Cir. 2017). There, we
explained that, under South Carolina law, “neither assault nor battery involve the type of
violent, physical injury required by the ACCA force clause.” See id. at 242.


                                            17
                                             b.

       The Government resists our ruling today for several reasons, but none are

convincing. It contends, for example, that an “assault” within the ABWO statute has an

“elevated” meaning because it is included in a list with “beat” and “wound.” See Br. of

Appellee 15. The Government fails, however, to identify any South Carolina precedent

supporting that proposition.    And if the South Carolina legislature intended for an

“assault” to carry a unique meaning within the context of the ABWO statute, it knew how

to specify that meaning. See S.C. Code Ann. § 16-3-600 (prohibiting several different

forms of assault and battery and defining their elements). 14

       The Government emphasizes that its position on appeal is supported by a 2009

opinion letter of the South Carolina Attorney General. The Attorney General therein

offers his views on actions that contravene the ABWO statute, and he contrasts

subsection (B) thereof with subsection (A), which concerns a misdemeanor resisting

       14
          The Government also argues that our decision to assign “assault” its ordinary
meaning under South Carolina law leads to an absurd result. More specifically, it asserts
that, under our reading of the ABWO statute, a person who attempts and fails to touch an
officer in a rude or angry manner will have contravened the statute; in contrast, a person
who succeeds in his attempt to touch the officer in a rude or angry manner will not have
violated the statute, unless that touch constitutes a beating or wounds the officer. The
Government’s position, however, overlooks the proposition that a battery has been
defined as a completed assault. See United States v. Hampton, 628 F.3d 654, 660 (4th
Cir. 2010); State v. Chase, No. 2011-UP-210, 2011 WL 11734321, at *8 (S.C. Ct. App.
May 11, 2011). Accordingly, in the Government’s hypothetical, both persons could be
charged under the ABWO statute because they both committed an assault. Additionally,
the Government overlooks that, in the Burton case, the defendant was convicted of
violating the ABWO statute even though he completed his attempt to touch the officer in
a rude or angry manner, that is, by spitting blood on the officer. See 589 S.E.2d at 8; 562
S.E.2d at 670.


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arrest offense and does not use the phrase “assault, beat, or wound.” See Letter from

Att’y Gen. to Investigator/General Counsel to Pickens Cty. Sheriff’s Office (Jan. 22,

2009), available at 2009 WL 276750.

       Although the Attorney General’s opinion arguably supports the Government’s

contention that the ABWO statute satisfies the force clause, it is only one view as to how

the statute should be applied. Under South Carolina law, the Attorney General’s opinions

are not binding on the courts. See State v. Ramsey, 762 S.E.2d 15, 18 (S.C. 2014); S.C.

Pub. Interest Found. v. Greenville Cty., 737 S.E.2d 502, 505 n.3 (S.C. Ct. App. 2013).

Insofar as the Attorney General’s view could constitute persuasive authority, the letter

failed to consider the Burton decision and several of the other decisions discussed

heretofore. Cf. United States v. Lawson, 677 F.3d 629, 654 (4th Cir. 2012) (concluding

that the Attorney General’s opinion was persuasive “[i]n the absence of any South

Carolina law to the contrary”). Put simply, we are not convinced that the Attorney

General’s letter requires us to reach another result.

       Finally, the Government relies on the Supreme Court’s recent decision in

Stokeling v. United States, No. 17-5554 (U.S. Jan. 15, 2019).            There, the Court

considered the question of whether the Florida offense of robbery, as codified in section

812.13(1) of the Florida Statutes, constitutes a “violent felony” under the ACCA’s force

clause. See Stokeling, slip op. at 2-3. Section 812.13(1) defines “robbery” as “the taking

of money or other property . . . from the person or custody of another . . . when in the

course of the taking there is the use of force.” As the Stokeling Court explained, under

Florida law, force that overcomes the victim’s resistance is sufficient to support a robbery

                                             19
conviction. Id. at 2. Relying on “the history of [the] ACCA” and the Johnson I decision,

the Court concluded that the Florida offense of robbery — despite requiring only enough

force to overcome the victim’s resistance — is a “violent felony” under the ACCA’s

force clause. Id. at 3.

       The Stokeling Court first explained that a prior version of the ACCA specified

“robbery” as a predicate offense and defined “robbery” as “the taking of the property of

another from the person . . . by force or violence.” See Stokeling, slip op. at 3-4. The

Court observed that this statutory definition of robbery “mirrored” the common law

definition, and that — at common law — a person committed robbery by seizing property

from another using sufficient force to overcome the victim’s resistance.        Id. at 4.

Although the ACCA was later amended to its current version and presently contains no

reference to “robbery,” the Court determined that, “[b]y retaining the term ‘force’ in the

[current] version of the ACCA[,] . . . Congress made clear that the ‘force’ required for

common-law robbery would be sufficient to justify an enhanced sentence under the new

[force] clause.” Id. at 6. Moreover, the Court reasoned that Congress’s amendment of

the ACCA to its present form was intended to expand the number of “violent felony”

predicate offenses, and that it thus would have been odd for that expansion to leave

robbery offenses behind. Id.

       In addition, the Stokeling Court relied on Johnson I’s definition of “physical

force” to support its decision. See Stokeling, slip op. at 8-12. The Court concluded that

“the force necessary to overcome a victim’s physical resistance is inherently ‘violent’ in

the sense contemplated by Johnson [I].” Id. at 9 (quoting Johnson I, 559 U.S. at 139).

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That is, “robbery that must overpower a victim’s will . . . necessarily involves a physical

confrontation and struggle.” Id.

       We are not persuaded that Stokeling supports the Government’s position in this

appeal. The ABWO offense and similar assault crimes do not share the same statutory

history or textual connection to the ACCA as robbery offenses. Additionally, Stokeling

reaffirmed Johnson I’s definition of physical force, and nothing therein supports the

proposition that an offense that can be committed by an attempt to touch another in a rude

or angry manner, such as spitting at another, categorically involves the use, attempted

use, or threatened use of violent physical force.       See Stokeling, slip op. at 9-10

(reaffirming that force necessary to commit common law battery does not qualify as

“physical force” within meaning of ACCA’s force clause). Consequently, Stokeling does

not support an affirmance of the district court.



                                             IV.

       Pursuant to the foregoing, we vacate the judgment and remand for such other and

further proceedings as may be appropriate.

                                                           VACATED AND REMANDED




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